 On January 6, 2012 - at the start of an election year - the Department of Homeland Security announced a small proposed change in the immigration law. But it is making some big waves. Under the current law, many people cannot get a green card without leaving the United States. But the current law also says that people who have been out of status for more than 1 year who then leave the United States cannot come back in for at least 10 years. Hence the conundrum. What if someone might qualify for a green card? The current law says that if they file their papers and leave the United States, they have to wait not only for their papers to be processed, but if their papers are denied, they will be stuck outside the United States for at least 10 years. Not much incentive to file. It sure would be nice if someone who might qualify could know before they left whether they would be allowed back in. That would make it much easier to be on the right side of the law. This is exactly what the proposed rule does. If it becomes law (and it HAS NOT yet!) it will allow aliens to get a "pre-approval" of their qualifying applications, so that all that's left is for them to go pick up their visa at the consulate in their home country, and they will know with much more certainty that they will be allowed back in. This is definitely good news. But as always - you have to be careful. First, THERE IS NO NEW LAW YET. Anyone who tells you that Obama made a new law and you have to file now to get your chance is lying to you. In fact, if the new law is passed, and you already have an application pending, you will not qualify for the new law! Second, the only type of application that is covered is what's known as an "I-601 hardship waiver for unlawful presence." What that means: it allows someone who has been out of status for more than 1 year to still enter the United States without having to wait for 10 years. They have to show that being forced to be outside the United States will result in extreme hardship for their spouse and/or children (who have to be US citizens or have a green card.) If you have another problem with your immigration status, this new law will probably not help you. Third, you have to be able to tell whether you have a strong case or not before you file. Because if you do not have a strong case, or if you somehow do not qualify, then when you file your waiver application and it is denied, you will probably be put into removal (deportation) proceedings. So for some people, even though they might be able to benefit from the new law, it still may be dangerous to file. Fourth, the law's definition of "hardship" remains the same. The only thing that the new law would change is the place to file the waiver application. Nothing else changes. It is not amnesty. It is not immigration reform. It's just a way to make the process of applying for a green card more fair, so that you don't have to risk being stuck outside the country for 10 years. There is a lot of buzz about this announcement. But seek the right help. The wrong help can hurt your chances. View the DHS announcement here. Download the Federal Register notice here. Add Comment Many people obtain their green cards and citizenship on the basis of marriage to a US citizen or permanent resident. One rather common issue is what to do if you want to file for a green card (two year or ten year) or for naturalization (citizenship) if your marriage is shaky. Few people have the foresight to hire an attorney to prevent problems. It's hard to appreciate - unless you see it day in and day out - exactly how draining it is to wage a long battle with USCIS, trying to convince them that your marriage was not a sham just to get a green card. I say it many times to my clients. It only matters when it matters. But when it matters, it's a very big deal. In a word: EVIDENCE. People get married for all kinds of reasons. Generally, under the immigration law, a marriage that is legally valid is not necessarily valid for immigration purposes. There must be an intent for the husband and wife to establish a life together. Of course, not every marriage works out, and there is nothing illegal about separating from your spouse, or divorcing him/her. But because of this extra requirement of showing that there was an intent to establish a life together, a foreign national may have trouble proving that the marriage was bona fide (true or real, as opposed to a "fake" or "sham" marriage). Few people can admit that they have weaknesses in their case. No one wants to think that they may have a marriage that the government will view as suspect. I cannot count the number of times a client has said, "I have done nothing wrong, and I have nothing to hide." While I usually agree - that is simply not the question. The question is, "Can I translate my marriage story into hard, cold documents to prove to a suspicious immigration officer that my marriage was a real marriage?" A lawyer's job is not so much to fill out the forms, but to make sure his particularclient's story is told to the officer. That requires evidence. How to obtain it, create it, find it, evaluate it, collect it, and present it - that is where your lawyer's skill becomes apparent. Your lawyer must take the time to amass the necessary evidence. Evidence you don't even know you have - or evidence you don't know you could get. People overlook the fact that immigration is a lengthy, multi-step process. Just because you got your two year green card does not mean you will get your 10 year green card. Just because you got your 10 year green card does not mean you will get your citizenship in 3 years. Just because you're filing for your naturalization after having your green card for 5 years does not mean USCIS will not look at your marriage. Some people make it all the way, but there are a lot of people who run afoul of a suspicious immigration officer along the way and it causes untold misery for the husband and wife. When the marriage is shaky - when there have been periods of separation, for example, or the husband and wife did not live together all the time, where there is vengefulness or bad blood between husband and wife, or things otherwise simply didn't go as planned - then special attention must be paid in constructing the case. There is no set way - each case is built differently because each story is different. The time to involve a lawyer is sooner rather than later. Most cases will fail on lack of evidence. If you don't have evidence, then the only evidence will be the evidence dug up by the government when they investigate your case. You cannot expect the government to see things as you do. Your immigration benefit is your burden of proof. If you fail, you don't get it. And worse, if USCIS thinks your marriage was a sham, they will make the allegation and it will then be your battle to defend against those charges, or face the permanent lifetime bar of INA §204(c) - which says that no other immigrant petition can ever be approved for you. This means you will never be able to apply for permanent residence, and you can even lose the green card you already have. Lastly - if you did enter into a sham marriage, do not think you will be the lucky one to just slide by. You will probably get caught, because the Department of Homeland Security has a lot more experience than you do. The system is set up so you have to check in with them every so often, so they have plenty of opportunities to sniff you out. If they smell fraud, then perhaps the following quote from an immigration officer can be of service: "I love catching people in a lie."  Last week, the Department of Homeland Security announced a new focus more on criminal aliens, and not immigration status violators who committed no crime. Almost immediately, both sides of the band camp began to speak - with one side cautiously welcoming the move as a sensible use of limited resources, and the opposing side likening it to a backdoor amnesty. Immigrants are among the most vulnerable of American society. Due to a lack of familiarity with the culture, language and procedures in the United States, they make easy targets for people whose motives are not so helpful. So how does one know whether their case will be selected? What is considered a low priority case? Who gets a work permit? The American Immigration Lawyers Association (AILA) recently issued a consumer advisory outlining what the government's announcement is and is not. Here's what you need to know: (adopted from AILA)
This comes on the heels of the new "Morton Memo" - a new set of prosecutorial discretion guidelines—taken from a June memo by ICE Director John Morton—agency wide and the created a high-level working group to review pending cases and assign low priority (and this is up to ICE - you don't get a say in whether your case will be low or high priority); and try to set guidelines so that there is more consistency in how people are placed in removal proceedings. (Yes, there is a lot of inconsistency.) There is also a directive to determine what to do in compelling cases where there has been an order of removal already. One issue I have not seen talked about much is the flip side to this announcement. If 300,000 immigration cases are demoted to low priority, what does that do to the rest of the immigration court cases? That's right: those cases are now, relatively speaking, "high priority." The court dates will be quicker, and DHS will have more resources available to it to prosecute the case, make legal arguments for removal, spend the time and money to sniff out and prosecute cases for fraud, work with other federal agencies, and generally do what it does: detain and deport people. If you have a question about it - talk to an LAWYER. Do NOT listen to your friends. Do NOT listen to notarios or other "immigration specialists." Do NOT try to file something by yourself. ICE is still an agency that exists to deport people: dealing with them unrepresented is like sticking your head in a lion's mouth: it might not bite, but it's not a good idea. It's Broke But We Have No Tool To Fix It 03/29/2011
Blazing new trails in the law here in Virginia. It's been a year since the Padilla v. Kentucky decision of the US Supreme Court, which found that defense lawyers have an affirmative duty to warn their non-citizen clients about the immigration consequences of their plea. And state courts continue to wrestle with how to incorporate the ruling into their laws dealing with postconviction remedies. Shouldn't Padilla be enough? Shouldn't the US Supreme Court's words be binding on all courts? Well, yes and no. It is true that no court can, after the decision, state that defense lawyers do not have to advise their clients. What's not clear is whether the rule is retroactive, ie, does it apply to defendants who pled guilty before the Padilla decision, and also whether the state court's postconviction laws provide a way to reopen the conviction. In Virginia, there were two cases on appeal to the Virginia Supreme Court – Commonwealth v. Chan and Commonwealth v. Morris. In these two cases, the defense lawyers had failed to provide correct information regarding the immigration consequences of their pleas. Once put in removal proceedings, they filed writs of coram nobis (sometimes called coram vobis) – an ancient common law writ that was meant to correct errors in a proceeding which, if known, would have prevented the judgment from being rendered. For example, suppose a court adjudges a defendant guilty and sentences him, and several years later it is discovered that the defendant was only 16 years old and hence a minor. If that fact was known at the time, it would have prevented rendition of the judgment. The writ of coram nobis exists to correct these types of errors. On January 13, 2011, the Virginia Supreme Court sharply limited the usability of the writ for cases of misadvice of immigration consequences. The “error” here is the recognition of the fact that the attorney did a competent job. After Padilla, if there was no warning of immigration consequences, it was ineffective assistance of counsel as a matter of law. Would a court render judgment if it knew that the attorney didn't represent his client? Of course not. Therefore, you would think that coram nobis is available to correct the error. The Virginia Supreme Court didn't think so. In its consolidated decision, it ruled that coram nobis is not available for these types of errors. There are a host of problems with a decision like this, not the least of which is the fact that it does an end run around Padilla, effectively stating, with regard to a conviction tainted by misadvice on immigration consequences, that “we agree that it's broken, but we have no tool to fix it.” The decision acts as a complete bar to relief. Postconviction remedies in Virginia are usually limited to appeals, motions for reconsideration, or writs of habeus corpus. After that, it becomes very difficult – if not impossible – to challenge a conviction. It is certainly good policy to make convictions “sticky” - they should not be able to be easily overturned. But surely the US Supreme Court ruling that a conviction is unconstitutional should be reason enough to reopen a conviction and fix it. Unfortunately, the Virginia Supreme Court found reliance on Padilla “misplaced,” yet somehow quoted its own ruling to declare that coram nobis is not available. The decision lets a constitutional error remain not only uncorrected, but uncorrectable. On January 31, 2011 a strange thing happened. A Loudoun County, Virginia district court judge wrote an opinion in Commonwealth v. Cabrera which defied the Virginia Supreme Court and found that coram nobis was available to correct such errors. There was a fascinating discussion on the principle of stare decisis, a legal doctrine that says that courts are bound to follow previous decisions of other courts, especially higher courts. But the doctrine is not absolute. In the Cabrera decision, Judge Worcester found that if a decision is at odds with longstanding precedent and creates confusion, a court is not bound to follow it. Moreover, there is the matter that the US Supreme Court is superior to the Virginia Supreme Court. It calls into question the Supremacy Clause, a part of the US Constitution that says that it is the supreme law of the land. Judges are bound by oath to uphold the constitution, not follow stare decisis. Courts can get it wrong. The right decision should ultimately prevail. And even in the doctrine of stare decisis, if a decision is “wrong,” then it takes time to “stick”- in other words, there must be an element of societal reliance built up to such an extent that to unravel the bad decision would do more harm than good. Applying all these factors, it is clear that Virginia Supreme Court got it wrong. On February 11, 2011 USCIS announced that work permits and advance parole will now be issued on a single card. This card will look just like a work permit (known officially as an "employment authorization document" or EAD) but will have the words "Serves as I-512 Advance Parole" on it. It is supposed to be more secure than the paper advance paroles you may be accustomed to seeing. Hopefully it should save the agency some money and streamline the process of interim benefits: as anyone who has filed for adjustment of status knows, usually advance parole and the work permit arrive at about the same time. But all of this - while welcome for the majority of cases - is still somewhat problematic. Many aliens believe that when they obtain advance parole, they are being given the permission to leave the United States. Advance parole is popularly called a "travel document" or "travel paper." For some aliens, travel outside the United States is big no-no, because they will not be allowed in. Leaving the United States often triggers a 3 year or 10 year bar to re-entry, due to unlawful presence while in the US. Yet any alien who has applied for adjustment of status (Form I-485) are allowed to apply for advance parole. Indeed, the filing fee for Form I-485 includes the fee for the EAD and advance parole; moreover, most aliens will usually obtain approvals. Thus USCIS creates the impression that these aliens may travel without negative consequence. This is a real problem for many people, who don't come to appreciate the real meaning of "advance parole" until they are arrested at the border and put into removal proceedings, losing the right to bond because they are considered "arriving aliens" and therefore not even admitted into the United States. In 2010, a memo that proposed to reinterpret many provisions of the current immigration law proposed a change in how the 3 and 10 year bars would be triggered was leaked to the press. In this confidential policy proposal, it was argued that the normal waivers that would be required to bypass these bars was narrowly construed, and in doing so was at odds with longstanding USCIS policies promoting family unity. The leaked memo addressed a myriad of other issues that would have served to lessen the Draconian impact of some of our immigration laws. With regard to departing the US with advance parole triggering the 3/10 year bars, DHS certainly has the discretion to apply the waivers in a less rigid manner. Now that advance parole will be stamped on a person's work permit, it will be nearly impossible to erase the perception that advance parole means permission to travel. Tri Valley University: Who Are The Victims? 02/12/2011
 On January 18, 2011 the Student and Exchange Visitor Program (SEVP) invalidated all student visas issued on behalf of Tri Valley University in Pleasanton, California. At this point, it looks like the university was a sham, run as a business after defrauding the US government into granting authorization to issue I-20's to enable foreign students to obtain F-1 visas and obtain nonimmigrant student status in the United States. Nearly all of TVU's students hailed from Andhra Pradesh, a province in South India. Immigration & Customs Enforcement (ICE) has promised to use good judgment, evaluating each student's situation on a case by case basis. In the weeks after January 18, some students were detained, others were placed with GPS monitoring bracelets on their ankles, and still others have been let alone. There is a lot of speculation on the Internet as to what can or should be done. Unfortunately, as this is an ongoing and developing situation, hard facts are hard to come by. ICE has indicated on its website that TVU students are encouraged (if not forced) to call in and give their contact information and they would be told what options they had. To date, it seems there are 3 options: 1) go back home (with no penalty, although that's somewhat unclear), 2) reinstate F-1 with another school, or 3) voluntary departure. Some students have been placed in removal proceedings. As a general rule, it is somewhat troubling that ICE asks all the students to report all their information in the absence of clear guidance or assurance that they will not be criminally associated with the fraud. The concern I have as a criminal immigration lawyer is that the student body of TVU is a vulnerable group that may become swept up in the allegations of fraud. Remember, because immigration benefits are not rights, they can be taken away much more easily. One potential consequence is that once the students leave the US, their names may be submitted to SEVP's counterterrorism and criminal exploitation unit. Result? Not coming back to the US, because it will be impossible to secure any type of visa. Obviously this is an ongoing investigation. We do not yet know where it will go, or what picture the fraud will finally take. One catch phrase that seems to be repeated in this case is “if it seems too good to be true, it probably is.” My concern is: will the US Attorney's Office and/or ICE hold the students of TVU criminally responsible for getting duped by Dr. Susan Su's allegedly “sham university”? There are several troubling details: the fact that a large number of students (more than half) were registered in SEVIS as living in one apartment in Sunnyvale, California. And according to the forfeiture complaint filed in US District Court for the Northern District of California, TVU employed a kickback referral scheme wherein a referring student would collect 20% of a referee student's tuition payment, thus creating a large pyramid scheme. And there is also the fact that nearly all (95+%) of TVU's students hail from Telugu-speaking Andhra Pradesh, and that Anji Reddy and Rama Krishta Karra - two of the TVU staff now being blamed by Dr. Su – are also Telugu speaking. The US Attorney's Office will want to know how much students “knew.” Remember – just because the students of TVU (or, for that matter, the Government of India) believe the students to be victims of an elaborate fraud does not mean the US government sees it the same way. At our office we have been receiving calls requesting attorney presence at “interviews” being requested by ICE. And from reading posts made by my colleagues at the immigration bar, it would seem that the purpose of these ICE interviews, at least in part, is to investigate: to find out how TVU operated, how money was collected, and how much people knew. I believe there is a real risk that the more information the student body gives, the less likely it is that the US Attorney's Office will believe that they are victims. There are real risks in this very unfortunate situation. If you have been contacted by DHS ICE or other law enforcement, do not agree to meet them without a lawyer present. Ideally you need to have a lawyer familiar with both criminal and immigration law. Remember that ICE is not necessarily interested in helping you remain in the United States. US District Judge Bolton blocks the "papers please" portion of the Arizona "Support Our Law Enforcement and Safe Neighborhoods Act" better known simply as SB1070. Just in time, as the law was set to take effect tomorrow. Not surprisingly, the basis of the lawsuit filed by the United States was, simply, "Stop stepping on our toes, Arizona!" And after reading the Order, I think the Court's finding that "Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws" hits the nail on the head. We are all concerned about the effects of illegal immigration to the United States. Arizona's concerns about border violence and the drug trade are real concerns. However, it is hard to deny that the issue has become so politicized that it has obscured the facts. But however strongly we feel about illegal immigration, allowing one state (or 5, or 22) to enforce a fundamentally federal policy like immigration is simply not a good idea. We have a federal system for a reason. We can go on about state's rights but immigration is a uniquely federal issue, and it is important that the federal government be primarily responsible for administering it. The body of law is very complex - we lawyers will be the first to tell you there are a lot of shades of "illegal" - and it is simply impossible to train state law enforcement agents on the legal minutiae of what it means to be "in status" or "in a period of stay authorized by the Attorney General" or "prima facie eligible for relief." We already have a system for determining who gets to stay and who has to leave, and it can take several rounds of legal briefing to definitively say one way or another what the law says. Leave the job to those who have been doing it. Yes, we need change in that system, but the solution to the federal immigration policy's problems is not to hatch fifty different state policies.  Padilla v. Kentucky: A Change is Gonna Come 04/11/2010
On March 31, 2010 the US Supreme Court handed down a 7-2 decision in the case of Padilla v. Kentucky, 559 U.S. _____ (2010). And boy, have we been waiting on this one. Briefly, the case is about a long-term green card holder who was given a piece of very bad advice by his lawyer when pleading guilty to a drug offense. The Sixth Amendment to the US Constitution guarantees that all criminal defendants will have a competent lawyer for their defense. So the question is, is it incompetence if a lawyer either gives wrong advice or fails to advise his client about the clear risk of deportation? The lower courts all said no, reasoning that deportation is not a direct criminal consequence of a guilty plea, so a criminal defense attorney has no duty to advise his client of it. The defense attorney has to advise his client, for example, that he is giving up his right to appeal, to a trial, to confront witnesses against him, to the presumption of innocence, and many other rights, because these are direct consequences of a guilty plea. But there are other potential consequences: ineligibility to vote, difficulty in finding a job, or loss of security clearance. What about deportation? The lower courts found that deportation is not a direct consequence, but a collateral (or indirect) consequence of pleading guilty. And these courts refused to place a duty on the defense attorney to advise about deportation, saying in effect it was the same as other indirect consequences, like ineligibility to vote. The Supreme Court, thankfully, saw differently. It rejected this whole distinction between direct and collateral. It is an artificial distinction, it has actually never been used, in this context, and it invites absurd results, allowing a defense attorney to misadvise his client regarding what may be the most important factor in his decision to plead guilty. Even worse, it allows a defense attorney who does not know immigration law to merely remain silent, and fail to advise his client about what may be the most important factor in his decision to plead guilty. Although deportation has long been considered a "drastic measure," (see Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948)) this is the first time the Court has found that because deportation is "intimately related to the criminal process" the defense attorney has an affirmative duty to advise about it correctly. Other immigration consequences (such as ineligibility for naturalization, or eligibility for some form of relief in removal proceedings) should also be advised about, but the Court did not place the duty of knowing all immigration law on the shoulders of defense counsel. Rather, the duty extends to saying, "Pleading guilty may have some adverse consequences," but if the risk of deportation is truly clear (e.g., the conviction is considered an aggravated felony by the immigration law) then the advice must be, "Pleading guilty will likely result in your deportation from the United States." In my opinion, this is an important case. But more importantly, I believe this will become a very important case. Why? Because for the first time, the highest court in the land has come down definitively to say that "changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction," and further that the Court found it "most difficult" to divorce the penalty from the conviction in the deportation context. The law has severely limited judicial review, taken away the old trump card of the JRAD (judicial recommendation against deportation), made deportation virtually automatic for an ever increasing list of offenses, and has exalted form over function in the criminal immigration law. This is the first time since IIRAIRA in 1996 that the Court has recognized that the current law is so strict that it can easily impinge on an individual's constitutional rights. Deportation breaks up families and causes untold hardships on innocent people, the same as a criminal conviction. I am not suggesting that the law treat immigrants and citizens the same in all contexts. But to demote deportation to a "collateral civil consequence" like ineligibility to vote is just ludicrous. It's time to start using common sense and stop pretending that a Vietnam veteran like Padilla who's been in the country for 40 years has the same rights as a person who overstayed their visa last month. The system can't have it both ways: first making this incredibly complex (and frequently nonsensical) criminal immigration law with the power to automatically deport, but at the same time tell defense attorneys that there's no need to advise their clients about any of it. The Court's decision, to me, represents the dawning awareness that people's lives should not be easily destroyable. If you have a criminal conviction that has made you removable from the United States, contact an attorney to see if this new decision opens up any new options for you.  Exceptional and Extremely Unusual Hardship 03/17/2010
One of the forms of relief some foreign nationals who unhappily find themselves in removal proceedings can apply for is called cancellation of removal. There are two types, one for people who have a green card but stand to lose it due to some violation or criminal ground, and the other for those aliens who never had a green card. "LPR" means "lawful permanent resident," or green card holder - so the first type is often called LPR cancellation, and the second type non-LPR cancellation. Each one has its own requirements, but the lynchpin is usually the showing of hardship. The law doesn't care about hardship to the foreign national. Instead, it focuses on hardship to family members (spouses and children) who are US citizens or green card holders. Essentially, assuming they meet the other requirements, they have to show that their removal from the United States would result in hardship to their spouse and/or children. If it's LPR cancellation, the hardship to the family must be "extreme." And for non-LPR cancellation, it must be "exceptional and extremely unusual." What do these terms mean? In short - it depends. Part of a lawyer's job is to conduct a very thorough investigation into the personal lives of their client, to determine exactly how a foreign national's removal will impact a family. This is one of the hardest and most challenging things for a lawyer to do. Because every foreign national's family thinks that the hardship they would have to go through is extreme. (And, in the opinion of this lawyer, they're usually right.) But the law doesn't necessarily agree. These hardship standards can be very difficult to meet. LPR cancellation's "extreme" hardship, despite the way it sounds, is actually more workable of a standard than non-LPR's "exceptional and extremely unusual" standard. Each form of hardship must involve the examination of many factors, not the least of which is family separation, particularly where there are young US citizen children involved. We have found it is useful (if not essentially a requirement) to have a psychiatric or psychological evaluation to determine, in medically objective terms, the effect of a family member's removal. These standards date back to the original Immigration & Nationality Act of 1952. In Matter of Monreal, 23 I&N Dec. 56 (BIA 2001) the Board of Immigration Appeals first considered the application of the standard for "exceptional and extremely unusual hardship." It noted that in the original Act, Congress intended for suspension of deportation (the old term for cancellation of removal) only if it would be "unconscionable" to deport the person. According to the Board, this standard was meant to be very high indeed. Yet Board case law from 1952 onward shows that in practice, the standard was (comparatively) not that difficult to meet. In addition, it used to be relevant to show hardship to the foreign national in addition to the hardship to the family. That all changed in 1996. With the passage of IIRAIRA, the old suspension of deportation form of relief was replaced by the new scheme of cancellation of removal, one for LPR's and another for non-LPR's. No longer would hardship to the foreign national be considered, no matter how extreme or exceptional it was. In Monreal, the Board attempted to define the meaning of "extreme" and "exceptional and extremely unusual." And here's the main point: They are both difficult, high standards. Much higher than a mere showing of hardship. But not necessarily to show that it would be "unconscionable." For both types of removal, there is a focus on the raw level of hardship, and it has to be pretty extreme. For non-LPR cancellation, however, there is another focus. That is the uniqueness of the hardship. The year after Monreal, the Board considered two more cases to further define what "exceptional and extremely unusual hardship" means. These two cases were Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). The Board found that “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” Recinas at 470. Recinas, which is the most recent of these three cases, noted further that any review of “exceptional and extremely unusual hardship” decisions from the Immigration Judges would start with a consideration of the factors in Monreal and Andazola. So what types of factors were looked at in these three cases? Things like how foreign the culture would be to the US citizen children. Financial and emotional support. Family separation. Family support in the US versus in the country of removal. Educational opportunities for the children. Medical conditions. Whether the foreign national had any other form of relief available. Quite literally, almost anything could be considered, but these factors would definitely be looked at. Facts must be independently considered, and the hardship evaluated in the aggregate (per Matter of Ige, 20 I&N Dec. 880 (BIA 1994). And once looked at, how would they be applied? In the non-LPR cancellation scenario, the court will ask not only how hard would it be, but how unusual is the hardship. In other words, removal almost always results in financial hardship. There is almost always some degree of cultural readjustment. There is almost always a loss of family support. So if that's all that's there, then even if the hardship is extreme, cancellation will likely not be granted because these hardships, while extreme, are not unusual. Contrast that with the case of a single mother with, say, 6 children who don't speak the language of the removal country. Or where there's only one child but the child is autistic and there is no treatment for this condition in the country of removal. These types of hardship are not as run-of-the-mill. Caring for 6 children is not the same as caring for 1 or 2. Assuming other requirements are met, these scenarios are more likely to result in the grant of cancellation of removal. These are tough cases. The burden is high, and the proof is very detailed. We hope that legislation might be passed to allow the court to consider the hardship to the foreign national, because applying legal blinders to this hardship necessarily means that the hardship analysis will be shortsighted and incomplete. If you are in removal proceedings, cancellation is one option that can work to save your life in the United States when there are no other options available. The BIA Resolves an Impasse They Created 03/01/2010
It's always nice to share good news. HMALF attorney Hassan Ahmad just completed a brief for an foreign national whose green card application had been stuck in limbo for 5 years. The reason? No one thought they had jurisdiction to decide his application! This is what happens when your system is made up of so many parts that don't always work together. It's kind of like driving a car pressing the gas and the brake at the same time. In this case, it has to do with certain aliens in removal proceedings who have ported employers under INA 204(j). This section of law was passed as part of the American Competitiveness in the 21st Century Act (often abbreviated "AC21") and helps remedy the interminably long process of getting a green card based on employment by a US employer. Since these cases took so long, aliens took a big risk: there was no guarantee the employer would still be around by the time the government was able to decide his green card application. So 204(j) allows aliens who have a green card application pending for more than 180 days to switch employers, so long as the new position is "the same or substantially similar occupation" as the one for which he was originally petitioned for. The problem arose in the case of an alien in removal proceedings. An employer petition is filed with USCIS, which is the only agency that can decide that petition. Once an alien is in removal proceedings, the immigration judge is the only one who can decide the alien's green card application, and USCIS has no power to do so. Ordinarily then, an immigration judge will wait for the petition to be approved or denied by USCIS, and then decide the green card application accordingly. But when an alien changes employers, then someone has to judge whether the new position is the "same or substantially similar" occupation as the original. Who decides? Well, USCIS refused to do so. In 2005 the Board of Immigration Appeals decided Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), and said that immigration judges couldn't either. So employment sponsored aliens in removal proceedings were at an impasse. No one would adjudicate their green card applications! Happily, the Board reversed itself. After Perez Vargas was shot down by the Fourth, Fifth and Sixth Circuits, on January 21, 2010 the Board decided Matter of Marcal Neto, 23 I&N Dec. 169 (BIA 2010), concluding that immigration judges do in fact have the jurisdiction over 204(j) employer ports. Great news for an undoubtedly large class of aliens whose files likely landed in the office of a Detention & Removal officer. If you are (or were) in removal proceedings and your case was denied or administratively closed because the Court concluded it couldn't decide your application because you switched employers, contact an attorney now. | AuthorHassan M. Ahmad, Esq. ArchivesJanuary 2012 CategoriesAll 
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