Immigration Visa Attorney Blog

Deferred Action for Childhood Arrivals program is the government's way of providing a two-year respite from deportation for so-called DREAM Act youths. And while not a permanent solution to the country's many immigration issues, Deferred Action does seems to be a positive step towards addressing an immigrant group with unique characteristics.

As with virtually any program of this nature, there will always be complications arising from its parameters. Deferred Action is no exception, and in recent weeks we've been seeing some of those make their way to into the public eye.

To meet the criteria for Deferred Action, one must "have continuously resided in the country between June 15, 2007 to the present." Which means immigrants who otherwise would have qualified for Deferred Action but chose to leave the U.S. temporarily in order to apply for citizenship are stuck in a type of limbo.

Continue reading "More on Deferred Action" »

In recent weeks we've done some blogging about Deferred Action for Childhood Arrivals, the program similar in many ways to the DREAM Act most people are familiar with. (If you're not up to date on Deferred Action for Childhood Arrivals, please check out THIS POST.)

An interesting component of the Deferred Action for Childhood Arrivals which will begin to play itself out over the upcoming months deals with how qualified candidates will be made aware of the program. Some estimates say more than 1 million immigrants are eligible for Deferred Action. According to United States Citizenship and Immigration Services, less than 85,000 have signed up.

That disparity means there are quite a number of immigrants who are unaware they qualify for the two-year deferment. That is literally hundreds of thousands of children, teenagers and younger adults who don't have access to information that could impact their lives significantly.

Continue reading "Getting Creative to Reach DREAM Act Candidates" »

This will be the third blog in our series on Consideration of Deferred Action for Childhood Arrivals. After an examination of the program as a whole (LINK) and some of the program's specific guidelines (LINK), we will now take a look at the documentation needed to demonstrate for the United States Citizenship and Immigration Services (USCIS) that guidelines have been met.

For proof of identity, an applicant must be able to submit one of the following: A passport/national identity document from the country of origin; a birth certificate with photo ID; a school or military ID; or a U.S. government immigration document containing both name and photo. For proof of immigration status the USCIS will accept a Form I-94/I-95/I-94W with authorized stay expiration date; final order of exclusion or deportation as of June 15, 2012; or a charging document which places the applicant into proceedings for removal.

Records from U.S. schools attended, travels records, Form I-94/I-95/I-94W, immigration documents from the DHS or INS stating date or entry or hospital records can be used to prove an applicant came to the U.S. prior to the age of 16.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part III" »

The Department of Homeland Security (DHS) continues to focus its immigration enforcement efforts on the removal of two types of individuals: 1. Those who pose a threat to national security, and 2. Those who are a risk to public safety, such as violent criminals, felons, and repeat offenders. DHS does not want to expend resources on low priority cases, such as individuals who came to the United States as children, have not committed serious crimes, and who meet certain guidelines. This is where the process of Consideration of Deferred Action for Childhood Arrivals comes in.

While this deferral does not confer lawful status upon an individual, nor excuse an individual from previous or subsequent periods of unlawful presence in the United States, the Deferred Action for Childhood Arrivals gives an undocumented individual some allowances. That is, under existing regulations an individual who has obtained this deferral, which lasts for two years, is eligible to receive employment authorization for the period of deferred action, provided the person in question can demonstrate "an economic necessity for employment." Additionally, it also allows the individual to attend school.

Continue reading "Consideration of Deferred Action for Childhood Arrivals - Part I" »

A recent case brought before the Sixth Circuit Court of Appeals highlights the issue of immigrants facing removal based on the Immigration and Nationality Act's (INA) policy dealing with so-called crimes involving moral turpitude (CIMT).

INA code refers to elements of CIMT as most commonly involving fraud, larceny and "intent to harm persons or things." Along with giving or being aware of false testimony, there is a long list of crimes the government believes contain "an inherently evil act." Everything from arson, to bribing a public official, to assault and murder is included.

In the case before the Sixth Circuit, the judge was asked to rule on whether the crime of felony-flight is one that involves moral turpitude. Mexican native Armando Ruiz-Lopez entered the country in 1991 and had been living in the U.S. for six years when he was pulled over for speeding less than a mile from his home. He continued driving and pulled into his driveway where he was arrested. As a first-time offender Ruiz-Lopez received a 40-day prison sentence and two years of community supervision for felony flight.

Continue reading "Crime Involving Moral Turpitude" »

The United States of America is based on basic freedom. If a foreign government, or a group within that country that the government cannot control, jeopardizes that freedom, the person being persecuted can seek asylum. The application process can be difficult and has a high rejection rate. Working with an experienced immigration attorney like Sam Shihab and Associates will improve chances of approval in the shortest time frame possible.

Continue reading "SEEKING ASYLUM" »

Advocates of immigration are hailing an announcement last month that the U.S.
Immigration and Customs Enforcement (ICE) has ceased seeking deportation for
foreign nationals eligible for green cards.

The announcement was made by John Morton, the assistant secretary for ICE.
Morton added that the agency would drop existing deportation proceedings
against anyone eligible under this new guideline.

Morton wrote in an Aug. 20 memo that in situations where there is "an
underlying application or petition" and ICE determines "a non-detained
individual appears eligible for relief from removal, [its attorneys] should
promptly move to dismiss proceedings." ICE lawyers are being told to move
towards dismissal in situations where the immigrant does not have a criminal
record and is likely to receive a green card.

According to the Miami Herald, those impacted by the change in policy "are
possibly tens of thousands who are married to a U.S. citizen or a legal
resident who has filed a petition for them."

Advocates for immigration believe this is better use of ICE's time and
budget. Cheryl Little, executive director of the Florida Immigrant Advocacy
Center told USA Today that "Targeting those who intend to do harm while
expediting the cases of law-abiding immigrants is the best use of ICE's
precious resources and will save taxpayers money."

Indeed, ICEs press secretary emphasized to the Herald that the agency is
"committed to smart, effective immigration reform, prioritizing the arrest
and removal of criminal aliens and those who pose a danger to national
security,''

The overwhelming reason for the policy change is to deal with what Morton
called "major inefficiency." The New York Times reported that 17,000 cases
could be eliminated from the immigration court dockets if ICE dismissed cases
of immigrants like those married to U.S. citizens. Currently the wait for
hearings in immigration court begun by an ICE deportation case is 459 days.

Continue reading "Columbus Immigration Attorney Comments On Commonsense Deportation Policy " »

Nine years ago Jose Padilla, a Honduran-born Vietnam veteran who had lived in the United States legally for four decades, asked his attorney if pleading guilty to a drug charge would impact his immigration status. The lawyer told Padilla it would not.

The lawyer was wrong.

Padilla pleaded guilty to a felony drug charge and received a five year sentence. It meant he would almost certainly be deported after serving his time. Padilla said later he only agreed to the deal because of his lawyer's assurance he would not be deported and appealed the decision based on his sixth amendment right to competent representation.

On March 31 the Supreme Court decided by a 7 to 2 margin that attorneys must advise non-citizen clients when there is a possibility they can be deported.

Writing on behalf of five members of the majority Justice John Paul Stevens said that "It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the mercies of incompetent counsel."

"Deportation is an integral part," Stevens added, "indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes."

While Padilla's is an extreme case (he was arrested with 1,000 pounds of marijuana in his truck) the ramifications will be felt across the country.
Immigrants facing very minor legal issues could see the benefits of the court's decision. Padilla's lawyer for the Supreme Court case noted that that with 13 million legal immigrants living in the United States it is self-evident that tens of thousands will be impacted by this decision.

You don't have to look far to find cases where proper counsel would have helped legal citizens.

Continue reading "Right To Immigration Advice Is Protected Says The Supreme Court" »

Certain acts, events or circumstances can render a foreign national ineligible for a visa or inadmissible to the United States. One such event is certain criminal convictions.It matter not if such conviction occurred in Columbus, Ohio, Troy Michigan, or anywhere in the US or overseas. Any foreign national that is convicted of, or admits to having committed, a crime of moral turpitude or a violation of any U.S. or foreign law or regulation relating to most controlled substances is considered inadmissible. Generally, a foreign national seeking admission to the United States who has committed a crime of moral turpitude would need to apply for a waiver of inadmissibility using Form I-601, Application for Waiver of Ground of Inadmissibility. However, there are exceptions to the rule of inadmissibility.

Under the Immigration and Nationality Act § 212(a)(2)(A)(ii)(II), a foreign national who has committed a single crime of moral turpitude will still be admissible if the maximum penalty possible for the crime is less than one year imprisonment and the foreign national was not sentenced to more than six months in prison. If the foreign national's conviction falls under the aforementioned Petty Offense Exception, they need not apply for a waiver of inadmissibility. Along the same lines, a foreign national's petty offense crime cannot be used against them as evidence of bad moral character for purposes of voluntary departure or to stop the clock for cancellation of removal.

It is important to remember that under the Petty Offense Exception the foreign national's conviction or admission must be their first and only crime. Notably, the foreign national need not be convicted of the crime to be deemed to have committed the crime for admissibility purposes. If a foreign national admits to having committed a crime, or even admits to having committed the elements of a crime, the Department of Homeland Security will treat such admissions the same as if the foreign national was actually convicted of the crime. Thus, foreign nationals should be aware of, and immigration attorneys should counsel their clients on, the consequences of making admissions to the Department of Homeland Security.

In light of the immigration law recently passed in Arizona, similar legislation has been proposed in other states and, unfortunately, Michigan will be no exception. House Representative Kim Meltzer announced on May 7, 2010 that she is in the process of drafting and will be introducing an immigration bill modeled after the Arizona law in the Michigan Legislature. Though the actual bill has not yet been introduced, Representative Meltzer has been speaking publicly about the contents of the fledgling bill.

In particular, the proposed bill would give Michigan law enforcement the authority to inquire about an individual's immigration status if they have been stopped for any lawful reason. The stopped individual can be questioned about and required to prove their lawful status on the spot. Any individual that cannot prove their lawful status risks being arrested. Interestingly, according to Representative Meltzer, a Michigan Driver's License would be acceptable proof of lawful status. This begs the question, will the inability to produce a Michigan Driver's License lead to the presumption that an individual is not lawfully in the United States?

Representative Meltzer has stated the bill would prevent law enforcement from solely considering race, color or national origin when questioning an individual about their immigration status. The exact language of the bill remains to be seen, but based on Representative Meltzer's comments race, color and national origin can be a consideration, just not the only consideration. If the bill is in fact drafted in such a fashion, it would essentially be giving law enforcement the ability to discriminate and racially profile. Regardless of the reasons, discriminatory conduct and racial profiling should never be tolerated, let alone legalized by the Legislature.

There are several immigration-related bills that have been introduced in the Michigan Legislature not patterned after the Arizona law, including one which was just passed into law. The new law requires employers that are servicing public contracts to verify the legal status of their workers. The new law also prevents cities and counties from enacting legislation that restrains local authorities enforcement of immigration-related laws, otherwise known as sanctuary ordinances. There are also bills pending in the Michigan Legislature that require heightened scrutiny and additional verification of the employment authorization of foreign national workers.

With each immigration law passed at the state level, the immigration system becomes more and more fractured at the national level. Michigan is not the first state, and it certainly will not be the last state, to try to address the national system's deficiencies through mis-guided policies at the state level. These state immigration laws are a clear indication of more to come and Congress would be wise to reform immigration at the national-level before each state takes it upon itself to enact its own immigration law.

On May 5, 2010, President Obama held a Cinco de Mayo Reception to celebrate Latino culture in America. He used the opportunity to voice his concerns regarding Arizona's recently enacted immigration law and, more generally, to discuss comprehensive immigration reform. In his remarks, the President signaled the need for comprehensive immigration reform and his desire to begin work on such reforms this year. He also made his disapproval of Arizona's immigration law clear, stating "the answer isn't to undermine fundamental principles that define us as a nation. We can't start singling out people because of who they look like, or how they talk, or how they dress. We can't turn law-abiding American citizens --- and law-abiding immigrants --- into subjects of suspicion and abuse." The President is undoubtedly sensitive to the racial profiling and discrimination that will inevitably stem from the enforcement of Arizona's new law.

Though it may comfort some to know the Administration will be closely monitoring Arizona's law, and evaluating the civil rights and other implications it may have, the only solution in the end will be comprehensive immigration reform. Comprehensive immigration reform, as noted by President Obama, will be difficult, especially because it will require bipartisan support which has not been easy to come by as of late. Regardless, it is the only solution that will "close the door on [the] kind of misconceived action" that we recently witnessed in Arizona.

In his speech, President Obama called for "common-sense, comprehensive immigration reform." He did not provide many details regarding his vision for comprehensive immigration reform, but what he did say was enlightening nonetheless. The President predictably spoke out in favor of securing our borders and holding businesses accountable for "undermining American workers and exploiting undocumented workers." The most interesting comment, though, was what the President said regarding illegal immigration. Specifically, the President stated that people who are living illegally in the U.S. should "admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law -- and then get in line and earn their citizenship."

In one very carefully crafted yet informative sentence, the President laid out his proposal for how to handle the current population of people living in the United States illegally. Though he never used the word amnesty, the President appears to be endorsing a program that would ultimately allow undocumented foreign nationals to earn U.S. citizenship. The problem of illegal immigration is one of the greatest challenges facing comprehensive immigration reform and it is encouraging to know the President has a realistic and constructive solution to the problem. Before comprehensive immigration reform can be debated in Congress, however, a proposal must first be put forth. No bill has been introduced, but the Senate Democrats have developed a conceptual proposal for immigration reform. The introduction of the Senate Democrats' immigration reform plan is the first measure in what will surely become the next hotly debated issue of the Obama Administration and, needless to say, the world and history will be watching closely as the debate unfolds.

The American Bar Association recently released an executive summary on the findings of a study conducted to understand the current U.S. system for removal. It discribed the current system as "crisis." The study focused on the four governmental bodies that handle removal cases, namely the Department of Homeland Security (DHS), the Immigration Courts, the Board of Immigration Appeals (BIA) and the Federal Circuit Courts of Appeals. Not surprisingly, the report found that the four governmental bodies have actually contributed to the problems associated with the overwhelming number of removal cases and "are not doing as good a job as they should" in providing fair decision making and due process. To rectify these problems, the executive summary suggests a complete overhaul of the current removal system, but also provides scaled-back reforms that would require less political impetus to be realized.

With the goals of ensuring political independence and adjudicatory fairness, as well promoting greater efficiency and professionalism, the executive summary proposes three alternatives for revamping the system. The first option would be to create an independent Article I Court to replace the Immigration Courts and BIA. The trial function of the Immigration Courts and the appellate function of the BIA would both be handled by the Article I Court. The second approach would, similarly, eliminate the Immigration Courts and BIA, but replace them with an executive adjudicatory agency. The third, and final, proposal is considered the hybrid approach. The Immigration Courts and BIA would be replaced by an administrative agency that would handle trial-level cases and an Article I Court that would hear appeals. The executive summary ultimately concludes that the Article I Court is the best option, with the administrative agency being a close second. Despite the apparent advantages of the hybrid approach, the authors of executive summary do not endorse this method "since it is too complex and too costly relative to the other two options."

Acknowledging that overarching changes would take significant time to implement, if ever fully realized, the executive summary makes recommendations for smaller scale initiatives that could be undertaken to foster more immediate change. The suggestions, which would require the enactment of legislation, include:

• Requesting additional immigration judges;
• Permitting all eligible non-citizens to adjust to lawful permanent residence or eliminate bars to entry;
• Amending the definition of "aggravated felony" and eliminating retroactive application of such provisions;
• Curtailing the use of the administrative removal process by DHS and the use of expedited removal for non-citizens at the border or within the U.S.;
• Amending the definition of "crime involving moral turpitude";
• Eliminating or narrowing the mandatory detention provisions to persons who are clearly a risk;
• Restoring judicial review of discretionary decisions under an abuse-of-discretion standard;
• Permitting the Federal Circuit Courts of Appeals to remand cases to the BIA for further fact finding;
• Extending the deadline for filing a petition for review of a BIA decision; and
• Establishing a right to representation in adversarial removal proceedings and for individuals in groups with special needs.

Given the current contentious political climate, reforms that can only be accomplished through legislation seem highly unlikely to come to fruition anytime soon. Alternatively, the governmental bodies should concentrate on implementing the proposed reforms that do not require legislative action. These reforms include:

• Increasing the use of prosecutorial discretion by DHS officers and attorneys and giving DHS attorneys greater control over removal proceedings;
• Requiring asylum claims arising in expedited removal proceedings be adjudicated by asylum officers;
• Reducing the use of detention and expanding alternatives to detention;
• Requiring more written and reasoned decisions from immigration judges and more written decisions from the BIA;
• Increasing training opportunities for immigration judges;
• Limiting the conduct of hearings by videoconference to procedural matters in which the non-citizen has given their consent;
• Increasing three-member panel review at the BIA;
• Permitting de novo review by the BIA of immigration judge factual findings and credibility determinations;
• Amending regulations to require BIA removal orders to contain notice of appeal rights; and
• Modifying and expanding the Legal Orientation Program to reach additional non-citizens needing legal assistance.

The executive summary's objectives are certainly honorable and commendable, but unfortunately not completely plausible given the current political climate in the U.S. The governmental bodies should, at the very least, work towards implementing the recommendations that do not require legislation. And, hopefully, they will continue to strive towards the larger reforms that are necessary to ensure independence, fairness, efficiency and professionalism in the adjudication of removal cases