Attorney Role at the Adjustment Interview Is Expended

When called for a USCIS interview, an applicant should make sure to bring a duly qualified Attorney. Such legal representative will ensure that the interview will be conducted in a professional and business-like manner, and that the rights of the client are protected.

According to the Policy Memorandum, published on December 21, 2011, by the Office of the Director of the USCIS and the subsequent Policy Memorandum dated May 23, 2012 , which amended relevant provisions of the USCIS Adjudicator's Field Manual, aka Policy Manual, the applicants are entitled to the right to have legal representation before the Service, at no expense to the Government, as defined in 8 CFR 292.1(a). This Policy Memorandum provides certain conduct guidelines for the USCIS officers. It also delineates the appropriate role of the Attorneys.

Should there be a need to adjourn or reschedule the interview; your Attorney will be able to secure such an adjournment in a proper and efficient manner. The Policy Memorandum sets out specific rules and guidelines for such eventualities.

Although an Attorney will not be allowed to answer questions posed to either petitioner or the beneficiary, he or she will be allowed to clarify these questions, to make sure they were posed in a clear and direct manner and without the use of any professional jargon. An Attorney will also make certain that the interview will be conducted in a polite and un-adversarial manner. An Attorney will be allowed to sit next to his or her client, and to make sure that all documents prepared will make it into the official record and will be afforded the appropriate weight. Should any information unfavorable to the client be presented either by the USCIS officer or by the client, the Attorney will be able to address and resolve this issue by alleviating any negative consequences that may otherwise follow. Your Attorney will remind the USCIS officer that they are duty-bound to consider all relevant information, both favorable and unfavorable. Your Attorney can also ask questions of you or any witness at the end of the interview, which questions could assist in addressing the issues raised during the interview, which the Attorney determined had not been adequately addressed. Such questions could be very important and often might contribute to the positive outcome of the case because they allow for a more detailed description of the facts relevant to the adjudication of the matter. Specially so when the officer might have missed entirely and not adequately explored those during his or her questioning.

It is important for every applicant and beneficiary to know that an Attorney will not be allowed to interpret for either of them during a USCIS interview, as that would create a certain conflict of interest, and would not be ethically permissible.

Your Attorney will also see to it that the interview would be appropriately thorough and cover all pertinent points which will avoid the potential necessity of an additional interview or a delayed decision with a Request For Additional Information. In the rare case of an improperly conducted interview, your Attorney will proceed to file suitable complaints with the USCIS, the DHS Office of the Inspector General or the USCIS Office of Civil Rights and Civil Liberties.

In sum, an Attorney's participation at your USCIS interview may prove invaluable, especially if your case is complicated by past criminal issues or other problems, or if you are forced to deal with a difficult USCIS officer.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Obama Administration’s Immigration Policy Changes

Introduction

Yesterday, November 20, 2014, President Obama announced in his prime time televised address to the nation that he would sign an executive order today, November 21, 2014, which would make some changes to the U.S. immigration policy and provide some temporary relief to estimated five million undocumented immigrants now in the USA. While the action is not a permanent, it is expected to help changing immediate life conditions of many people. It will change immigration policy in several ways. First, it will remove the heavy burden of living under continuous threat of deportation from some individuals with substantial times to the USA. While the policy still fell short of providing any such protection to parents of DACA eligible children, it does offered it to individuals who, on the date of the new policy announcement — November 20, 2014 — had either USC or LPR children in the USA. In the spirit of the same, the new policy also expended the reach of DACA by removing the upper age restrictions on those, otherwise eligible, as well as demanded some liberalization of the legal definitions applicable to many immigration cases which, if implemented, would clarify and expend the reach of the Provisional Waiver program; expend the reach of the National Interest Waiver and improve the utilization of the immigrant visas, allocated annually by the Congress. It will also eliminate the “save communities” initiative, which rendered many people in the limbo of awaiting for ICE detention after serving their time in state custody for relatively minor criminal infractions. Below is the overview of some of the changes.

Making DACA Available To a Larger Pool Of Young People

The original reach of DACA — a program designed to provide some protection against deportation to young people who came to this country before turning 16 years old — was to extend only to those of the youngsters who did not reach the age of 31 on the day the new policy was announced on June 15, 2012, provided they could established they had been present continuously in the USA since March of 2007 and did not commit any felony or significant misdemeanor — a term defined rather loosely in the policy.

With the announced changes, the program now provides a new deadline for continuous presence — that of January 1, 2010 instead of March 2007. That means individuals who arrived in the USA while under the age of 16 prior to January 1, 2010, will now be included in the reach of the program and thus able to obtain work authorization and ability to not be deported by ICE. As a procedural change, the new policy also lengthened the term of the work authorization, which is now going to be issued with three-year validity instead of two. The updated program also removed the requirement that the individual had to be under the age of 31 on the date DACA was first announced on June 15, 2012. This requirement is completely eliminated under the new policy, making the current age of the applicant irrelevant as long as other eligibility requirements are met.

Here is a summary of the new eligibility requirements, which are expected to be implemented within the next 90 days:

•    The applicant came to the U.S. prior to his or her sixteen's birthday regardless of whether born before on or after June 15, 1981 — the now abolished deadline of the previous DACA program version
•     Is physically present in the USA on November 20, 2014
•     Had no lawful status on November 20, 2014
•    Can establish continuous residence in the United States since January 1, 2010, thus including individuals continuously resigning in the USA after June 15, 2007 — the prior DACA version deadline — but prior to January 1, 2010 — the new program's deadline for continuous presence
•     Is either a current DACA recipient or an individual who is currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States
•    Qualify as a matter of discretion including having not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety

These individuals now, if approved, would be able to get deferred action — relief from removal — and employment authorization for an extended period of three years, as opposed to two years under the previous DACA version.

The new Programs are expected to be implemented within 180 days of November 20, 2014:

New Program for Parents of USC or LPR Children

The New Policy will now create a new temporary benefit for individuals who have USC or LPR children in the USA, provided these individuals can establish they have been in the country since January 1, 2010, continuously. They will now be able to request deferred action and employment authorization for three years. This new benefit will be referred to as Deferred Action for Parental Accountability (DAPA). As a prerequisite, the individuals will have to undergo necessary background checks.

To qualify, the applicant will have to show that on November 20, 2014 he or she is:

•     Has no legal immigration status in the USA
•     Continuously residing in the United States since January 1, 2010
•     The parent of a U.S. citizen or lawful permanent resident born on or before November 20, 2014
•     Not an enforcement priority for removal from the United States, pursuant to the November 20,     2014, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum

Provisional Waiver Expansion

Immigration and Nationality Act (INA) provides for inadmissibility waiver to individuals who accumulated requisite amount of unlawful presence in the USA. The waiver eligibility requires proof of extreme hardship to a qualifying relative, having identified USC and LPR spouses and parents as such. To file for the waiver the applicant had to depart the USA, appear at an immigrant visa interview at the U.S. Consulate in the country of residence, get rejected for inadmissibility reasons (3 and 10 year overstay bars only) and then file for the waiver at the consulate and pay requisite fees. Such procedure always resulted in long family separation as waiver adjudication often took close to two years. The applicant was not allowed in the USA during this time and had to await adjudication while staying outside of the USA and away from the family. The situation created especially harsh conditions for those families where the applicant was the primary breadwinner in the family.

The administratively created Provisional Waiver program, also know as stateside or I-601A waiver by the identifying number of the USCIS form it utilizes, somewhat addressed the issue by allowing qualified individuals to apply for the waiver and await adjudication while still in the USA. Such procedural change had the effect of cutting to minimum the amount of time needed to be spent outside of the country to that required by the immigrant visa interview at the consulate. Unfortunately, the Provisional Waiver procedure limited qualifying relatives to U.S. Citizen souses and parents, thus providing no relief to those whose parents or spouses were LPRs.

The changes the President announced yesterday, November 20, 2014, will correct this problem by expanding the use of the Provisional Waiver of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens, thus bring the Provisional Waiver in par with the statutory provided inadmissibly waiver for the overstay. Here are the new eligibility requirements as announced: The applicant will have to demonstrate that he or she is:

•     An individuals with no legal immigration status in the USA who have resided unlawfully in the United States for at least 180 days.
•     The son or daughter of a U.S. citizens or the spouse, sons or daughters of a lawful permanent resident, regardless of whether the qualifying relative is the petitioner.
•     An immigrant visa is immediately available for the applicant.
•     The applicant, who can establish to the satisfaction of USCIS that his or her removal from the USA would result in the “extreme hardship” to the qualifying relative under the clarified definition of the “extreme hardship”.

The following programs are to be implemented as soon as the regulations are published:

Legal Clarifications and Improved Coordination with Other Agencies

The policy as announced also directed various DHS department to take steps in the direction of “modernizing, improving and clarifying” immigrant and nonimmigrant programs “to grow our economy and create jobs” and clarifying and liberalizing important legal definitions like “extreme hardship” in the provisional waiver context and “same or similar occupation” in the AC 21 context, just to name a few.

In particular, the DHS Secretary has charged various DHS Departments to take the following specific steps:

•     Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
•     Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.
•     Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.
•     Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.
•     Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:

•      Have been awarded substantial U.S. investor financing;or
•     Otherwise hold the promise of innovation and job creation through the development of new   technologies or the pursuit of cutting-edge research.

•     Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
•     Work with Immigration and Customs Enforcement (ICE) to develop regulations to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.
•     Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies' confidence in the program.

Encouraging Application for Citizenship

The final important initiative announced by the President Obama carried as it stated goal “promoting citizenship education and public awareness for lawful permanent residents”.

This program will be designed to deal with the LPR moral, encouraging LPRs to apply for Naturalization and providing necessary resources to prepare for the process. It will also be providing an option for naturalization applicants to use credit cards to pay the application fee as today they can only do so by check or money order, and review the potential of offering a partial (50%) fee reduction to those LPRs who do not qualify for a complete fee waiver as they earn more than 150% of the Federal Poverty Guidelines but less than 200%.

The Programs Are Not Yet Implemented

The President's announcements and corresponding memoranda published by the DHS Secretary Johnson make it clear that it will take new federal regulations and in some cases, policy memoranda are needed in order to implement the initiatives. The Government estimates between 90 to 180 days to accomplish that. Hence, no application for a new or expended benefit can be presently filed until such regulations and policy memoranda are in place.

Secretary Johnson has charged the requisite DHS agencies with the responsibility to complete this process with estimated time including producing relevant detailed definitions, clarifications, explanations, instructions, regulations and forms to implement the initiatives.

References:

1.     USCIS Information Page on the Executive Action
2.     Transcript of the President Obama Remarks
3.     Sec. Johnson's Memo on Military Families
4.     ICE Instructions on seeking Prosecutorial Discretion
5.     DHS directive on consistency of Advance Parole
6.     DHS Memo on Expending Access to Citizenship
7.     Thompson's Opinion On Legality of Deferred Action
8.     Johnson's Memo on ICE Officers' Pay
9.     Johnson's Memo on PD and Deferred Action
10.     Johnson's Memo on Secured Communities
11.     Johnson Memo on Policies for Apprehension and Removal of Criminal Aliens

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

President Obama’s Expansion of Executive Action on Immigration

Many agree the United States immigration system is broken. It will likely be several years before meaningful immigration reform is even considered by the U.S. Congress let alone actually enacted into law. In the interim, President Obama has indicated his willingness to use executive action to alter U.S. immigration policy. Recent reports indicate President Obama may announce a ten-point plan to modify immigration policy using his executive authority as early as November 21, 2014. This ten-point plan sets forth a wide-range of initiatives from increasing border to security and pay for immigration officers to expanding deferred action. Other initiatives include promotion of the new naturalization process by discounting the filing fee to the first 10,000 applicants, making immigrant visas available for tech jobs, changing removal priorities to target serious criminal offenders, and replacing the Secure Communities program with a new cooperative program designed to assist in immigration enforcement.

The most controversial aspect of President Obama's ten-point plan will likely be deferred action. Many people erroneously believe deferred action is equivalent to amnesty. However, deferred action is nothing more than a form of prosecutorial discretion that defers the physical removal/deportation of an alien for a set period of time. Beneficiaries of deferred action not only receive a reprieve from physical removal/deportation from the United States, but often also receive an employment authorization document (“EAD” or “work permit”). With an EAD an alien can typically apply for a social security number and government-issued identifications. It is important to note that deferred action does not provide any lawful status or a path to permanent residence/citizenship.

President Obama previously used his executive authority to implement Deferred Action for Childhood Arrivals (“DACA”) in June 2012. DACA could be requested by an alien who met the following criteria: (1) he/she was under 31 years of age as of June 15, 2012; (2) he/she entered the United States before their 16th birthday; (3) he/she continuously resided in the United States since June 15, 2007; (4) he/she was physically present in the United States on June 15, 2012 and on the date of filing his/her request for DACA with U.S. Citizenship and Immigration Services; (5) he/she was not in a valid lawful status on June 15, 2012; (6) he/she was currently enrolled in school, had graduated from high school, had obtained a GED certificate, or was honorably discharged from the Coast Guard or Armed Forces of the United States; and (7) he/she had not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and did not otherwise pose a threat to national security or public safety.

There is speculation that President Obama intends to expand deferred action for both individuals who entered the United States as children and parents of U.S. citizens and lawful permanent residents (“LPRs”). DACA is expected to be expanded to cover anyone who entered before reaching the age of sixteen and has continuously resided in the United States since January 1, 2010. Expanding deferred action to allow parents of U.S. citizens and LPRs could benefit approximately 4.5 million aliens without legal status while expanding deferred action to cover additional childhood arrivals is estimated to benefit approximately 300,000 aliens. While deferred action is beneficial for many aliens, it is not a permanent solution. It is important to consult an experienced immigration attorney regarding eligibility for immigration benefits including deferred action.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

President Obama’s Expansion of Executive Action on Immigration

Many agree the United States immigration system is broken. It will likely be several years before meaningful immigration reform is even considered by the U.S. Congress let alone actually enacted into law. In the interim, President Obama has indicated his willingness to use executive action to alter U.S. immigration policy. Recent reports indicate President Obama may announce a ten-point plan to modify immigration policy using his executive authority as early as November 21, 2014. This ten-point plan sets forth a wide-range of initiatives from increasing border to security and pay for immigration officers to expanding deferred action. Other initiatives include promotion of the new naturalization process by discounting the filing fee to the first 10,000 applicants, making immigrant visas available for tech jobs, changing removal priorities to target serious criminal offenders, and replacing the Secure Communities program with a new cooperative program designed to assist in immigration enforcement.

The most controversial aspect of President Obama's ten-point plan will likely be deferred action. Many people erroneously believe deferred action is equivalent to amnesty. However, deferred action is nothing more than a form of prosecutorial discretion that defers the physical removal/deportation of an alien for a set period of time. Beneficiaries of deferred action not only receive a reprieve from physical removal/deportation from the United States, but often also receive an employment authorization document (“EAD” or “work permit”). With an EAD an alien can typically apply for a social security number and government-issued identifications. It is important to note that deferred action does not provide any lawful status or a path to permanent residence/citizenship.

President Obama previously used his executive authority to implement Deferred Action for Childhood Arrivals (“DACA”) in June 2012. DACA could be requested by an alien who met the following criteria: (1) he/she was under 31 years of age as of June 15, 2012; (2) he/she entered the United States before their 16th birthday; (3) he/she continuously resided in the United States since June 15, 2007; (4) he/she was physically present in the United States on June 15, 2012 and on the date of filing his/her request for DACA with U.S. Citizenship and Immigration Services; (5) he/she was not in a valid lawful status on June 15, 2012; (6) he/she was currently enrolled in school, had graduated from high school, had obtained a GED certificate, or was honorably discharged from the Coast Guard or Armed Forces of the United States; and (7) he/she had not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and did not otherwise pose a threat to national security or public safety.

There is speculation that President Obama intends to expand deferred action for both individuals who entered the United States as children and parents of U.S. citizens and lawful permanent residents (“LPRs”). DACA is expected to be expanded to cover anyone who entered before reaching the age of sixteen and has continuously resided in the United States since January 1, 2010. Expanding deferred action to allow parents of U.S. citizens and LPRs could benefit approximately 4.5 million aliens without legal status while expanding deferred action to cover additional childhood arrivals is estimated to benefit approximately 300,000 aliens. While deferred action is beneficial for many aliens, it is not a permanent solution. It is important to consult an experienced immigration attorney regarding eligibility for immigration benefits including deferred action.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Same - Sex Marriage and Immigration Benefits

On June 26, 2013, the U.S. Supreme Court found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. See Windsor v. United States, 133 S.Ct. 2675 (2013). Section 3 of DOMA had amended the federal definition of “marriage” and “spouse”; after the enactment of DOMA “marriage” was defined as “only a legal union between one man and one woman as husband and wife”, 1 U.S.C. §7, and “spouse” referred “only to a person of the opposite sex who is a husband or a wife.” Id. DOMA precluded same-sex couples from deriving immigration benefits that were otherwise available to similarly situated heterosexual couples.

Immediately after the U.S. Supreme Court's decision, a variety of immigration benefits became available to same-sex couples. U.S. Citizenship and Immigration Services (USCIS) and the U.S. Embassies/Consulates now adjudicate petitions and applications for same-sex couples in the same manner as similarly situated heterosexual couples. A United States citizen or lawful permanent resident (LPR) may sponsor his/her same-sex spouse and/or stepchildren to receive lawful permanent residence in the United States. A United States citizen or LPR's eligibility to petition for his/her spouse and stepchildren, and the foreign national(s) admissibility as an immigrant at the immigrant visa application or adjustment of status phase, will be decided in accordance with applicable immigration law and will not be denied because the underlying marriage involves a same-sex couple.

While the ability to sponsor a same-sex spouse for lawful permanent residence is significant, same-sex couples may also receive immigrant or nonimmigrant visas as a qualifying beneficiary or derivative. This means that a same-sex spouse of a visa applicant coming to the United States for any purpose — including, but not limited to, work, study, international exchange or lawful permanent residence — will be eligible for the appropriate derivative visa status. Stepchildren acquired through a same-sex marriage may also qualify as beneficiaries or derivatives. A United States citizen who is engaged to be married to a foreign national of the same sex may also seek a fiancé(e) visa on behalf of his/her foreign national fiancé(e). In addition, abused spouses and stepchildren from same-sex marriages may also be able to self-petition for lawful permanent residence under the Violence Against Women Act (VAWA) where the abuser was a United States citizen or LPR.

With the exception of a fiancé(e), to be eligible for an immigrant or nonimmigrant visa as a qualifying beneficiary or derivative, the same-sex couple must be married. The marriage must be valid in the U.S. state or foreign country where it occurred to be valid for immigration purposes. Same-sex couples who live in a state or foreign country that does not recognize same-sex marriage may enter into a valid marriage for immigration purposes by marrying in a state or foreign country that recognizes marriage equality so long as the applicable laws allow out-of-state couples to marry there. Neither USCIS nor the U.S. Embassies/Consulates will recognize a civil union or domestic partnership for immigration purposes.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

BIA Reaffirms Use of "Circumstance-Specific" Inquiry When Determining Whether "Possession for Personal Use" Exception Applies

Criminal convictions can significantly impact whether an alien can remain in the United States regardless of the alien's immigration status. Many aliens are under the mistaken impression that the designation of a crime as a felony or misdemeanor is what is most relevant in assessing the immigration consequences of a criminal conviction. The designation of crime as a misdemeanor or felony has little bearing on whether an alien is subject removal/deportation based upon a criminal conviction. Rather, the most relevant factor in assessing the potential immigration consequences is the actual criminal conduct for which the alien has been or will be convicted. Depending upon the language of the criminal statute under which the alien was convicted and the charge of removability/deportability lodged by the Department of Homeland Security (DHS), the immigration judge will employ the “categorical approach”, “modified categorical approach”, or “circumstance-specific” inquiry to determine whether the alien is removable/deportable as charged.

Recently, the Board of Immigration Appeals (BIA) reaffirmed the use of the “circumstance-specific” inquiry when determining whether an alien is removable/deportable as an alien who after admission has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance [ ], other than a single offense involving possession for one's own use of 30 grams or less of marijuana[.]” 8 U.S.C. §1227. See also Matter of Jonet Dominguez-Rodriguez, 26 I. & N. Dec. 408 (BIA 2014). Jonet Dominguez-Rodriguez was convicted on July 2, 2013 of “possessing more than 1 ounce of marijuana in violation of section 453.336 of the Nevada Revised Statutes[.]”Matter of Jonet Dominguez-Rodriguez, 26 I. & N. Dec. at 408-409. The Immigration Judge (IJ) “concluded that the respondent [was] not removable based on his determination that the minimum conduct punishable under section 453.336 of the Nevada Revised Statutes involved possession of 30 grams or less of marijuana for personal use.” Id. at 409. DHS had sought to introduce documents from the record of conviction in order to establish the respondent's criminal conduct involved possession of more than 30 grams of marijuana, but the IJ precluded such evidence from the administrative record. See Id. The IJ concluded the U.S. Supreme Court's decision in Moncrieffe v. Holder “forbade such 'circumstance-specific' inquiry and required termination of the proceedings unless the DHS could establish that the respondent was convicted of possessing more than 30 grams of marijuana by reference to documents included in the 'record of conviction' under the 'modified categorical approach,' such as the judgment, charging document, or plea agreement.” Id. citing Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

However, the BIA sustained DHS's appeal, reinstated the removal proceedings, and remanded the matter to the IJ for further consideration. In reversing the IJ's termination of the removal proceedings, the BIA noted “[t]he Supreme Court and the lower Federal courts have recognized, however, that the categorical approach is inapplicable in removal proceedings when the immigration provision under review 'call[s] for a “circumstance-specific approach” that allows for an examination, in immigration court, of the “particular circumstances in which an offender committed the crime on a particular occasion.”'” Id. at 411 citing Moncrieffe, 133 S. Ct. at 1697. The BIA, relying on its prior decision in the Matter of Davey, 26 I. & N. Dec. 37 (BIA 2012), ” remain[ed] convinced that the language of the 'possession for personal use' exception most naturally invites a circumstance-specific inquiry, not a categorical one”, Id., as it requires the adjudicator to consider very explicit facts regarding the alien's criminal conduct. This is not to say the IJ may conduct a mini trial during the alien's removal proceedings every time the “possession for personal use” exception is at issue. Id. at 413. Rather, if the conviction is satisfactory “to conclusively establish all facts relevant to prove the applicability of the 'possession for personal use' exception, the Immigration Judge's inquiry is at an end, and the removal charge must be dismissed without resort to a circumstance-specific inquiry.” Id. The IJ may only employ the “circumstance-specific” inquiry “in those instances where the applicability of the exception is not determinable by reference to the elements of the offense[.]” Id. The BIA further clarified that when using the “circumstance-specific” inquiry “DHS may proffer any evidence that is reliable and probative”, Id. at 414, to establish the alien is removable/deportable as charged in the NTA. Id. Regardless of whether “categorical approach”, “modified categorical approach”, or “circumstance-specific” inquiry is employed, DHS is required to establish an alien is removable/deportable as charged in the Notice to Appear (NTA) with “clear and convincing” evidence. Id. Once DHS sustains its burden of proof, the alien would have to be given an opportunity to challenge DHS's claim and/or evidence. Id.

The take away from decisions like the Matter of Jonet Dominguez-Rodriguez is to involve an experienced immigration attorney as early as possible in the criminal and/or immigration proceedings. Prior to a criminal conviction an experienced immigration attorney may be able to provide guidance to minimize the potential immigration consequences of said criminal conviction. After an alien has been convicted of a crime, an experienced immigration attorney can attempt to terminate the charges of removability/deportability in the NTA as well as assist the alien in preparing applications for relief from removal/deportation.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

BIA Recognizes Domestic Vioence as a Basis for Asylum

After more than fifteen years of consideration, the Board of Immigration Appeals (BIA) finally issued a groundbreaking precedential decision recognizing domestic violence may be a basis for asylum. See Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). The BIA was first asked to consider whether a woman who was abused by her husband could be deemed a member of a social group for purposes of asylum in the Matter of R-A-. See Matter of R-A-, 22 I. & N. Dec. 906 (BIA 1999). Though the BIA agreed with the IJ's finding that the abuse suffered by R-A- rose to the level of past persecution and the Guatemalan government had been unwilling and/or unable to stop the abuse, it nonetheless concluded the abuse was not on account of one of the protected grounds (i.e. political opinion, race, religion, nationality, and/or membership in a particular social group). Id. This decision was subsequently vacated by Attorney General Janet Reno pending consideration of proposed Federal Regulations, which would have specifically provided for gender-based asylum claims. See Matter of R-A, 22 I. & N. Dec. 906 (A.G. 2001). On February 21, 2003 Attorney General John Ashcroft certified the Matter of R-A- for review and allowed for additional briefing. Id. The Matter of R-A- was again remanded to the BIA in January 2005 by Attorney General John Ashcroft “for reconsideration following final publication of the proposed rule published at 65 Fed. Reg. 76,588 (Dec. 7, 2000).” Matter of R-A-, 23 I. & N. Dec. 694 (A.G. 2005). These proposed Federal Regulations were never enacted. On September 25, 2008 Attorney General Michael Mukasey certified the case yet again. He issued a decision suspending the stay of adjudication previously imposed pending enactment of the proposed Federal Regulations and again remanded the Matter of R-A- to the BIA for reconsideration of the issues presented under the present construction of United States asylum law. Matter of R-A-. 24 I. & N. Dec. 629 (A.G. 2008). The BIA subsequently remanded the Matter of R-A- to the Immigration Court in San Francisco, California on December 4, 2008 upon joint motion of the parties. This remand allowed both parties to further develop the administrative record regarding the social visibility of the respondent's proposed social group. The respondent in the Matter of R-A- was subsequently granted asylum by the Immigration Court in San Francisco, CA in December 2009.

While the Matter of R-A- was pending before the Immigration Court in San Francisco, CA, the Department of Homeland Security (DHS) “accept[ed] that in some cases, a victim of domestic violence may be a member of a cognizable particular social group and may be able to show that her abuse was or would be persecution on account of such membership.” DHS's Supplemental Brief in the Matter of L-R- dated April 13, 2009, page 12. According to DHS, the particular social group for purposes of asylum and withholding of removal for “claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship.” Id. at 14. In the context of the Matter of L-R-, the evidence demonstrated the abuser believed “women should occupy a subordinate position within a domestic relationship”, Id., and “abuse of women within such a relationship can therefore be tolerated, and that societal expectations in Mexico reinforce this view.” Id. Though DHS had changed its position as to whether domestic violence could form the basis of an asylum claim, the BIA did not issue a precedential decision. Rather, the BIA remanded the matter to the Immigration Court in San Francisco, CA for further fact-finding. The respondent in the Matter of L-R- was subsequently granted asylum by the Immigration Court in San Francisco, CA on August 4, 2010.

Though the respondents in the Matter of R-A and Matter of L-R- were eventually granted asylum, there was still no precedential decision from the BIA clearly recognizing domestic violence as a basis for asylum. The lack of precedential decision from the BIA recognizing domestic violence as a basis for asylum was problematic as it left Immigration Courts throughout the country without guidance, which in turn resulted in a lack of uniformity when adjudicating such claims. On August 26, 2014, the BIA issued a precedential decision in the Matter of A-R-C-G- specifically recognizing domestic violence as a basis for asylum. The BIA concluded an asylum applicant may be able to establish the domestic violence was on account of the asylum applicant's membership in a particular social group. The BIA applied the legal principles from the Matter of W-G-R- and Matter of M-E-V-G- requiring “an applicant seeking asylum based on his or her membership in a 'particular social group' [ ] establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. Dec. at 392. See also Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014); and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014).

The proposed social group in the Matter of A-R-C-G- was “'married women in Guatemala who are unable to leave their relationship.'” Id. The BIA specifically found “the group is composed of members who share the common immutable characteristic of gender.” Id. citing Matter of Acotsa, 19 I. & N. Dec. 233 (BIA 1985). The BIA also found that marital status could also be considered an immutable characteristic “where the individual is unable to leave the relationship.” Id. at 393. The BIA further found the proposed group in the Matter of A-R-C-G- was both particular and socially distinct. Id. The BIA found that the terms used to describe the group (i.e. “married”, “women”, and “unable to leave the relationship) could be combined “to create a group with discrete and definable boundaries.” Id. The BIA reminded the adjudicator that in assessing “a group's particularity, it may be necessary to take into account the social and cultural context of the alien's country of citizenship or nationality.” Id. See also Matter of W-G-R-, 26 I. & N. Dec. at 214. The BIA further found the group was socially distinct. Id. at 394. The group's social distinction “is 'determined by the perception of the society in question, rather than by the persecutor.'” Id. at 393-394 citing Matter of W-G-R, 26 I. & N. Dec. at 217. To make a determination on social distinction where the asylum claim is based upon domestic violence, the adjudicator should consider evidence regarding “whether the society in question recognizes the need to offer protection to victims of domestic violence, including whether the country has criminal laws designed to protect domestic abuse victims, whether those laws are effectively enforced, and other sociopolitical factors.” Id. The BIA cautioned that “even within the domestic violence context, the issue of social distinction will depend on the facts and evidence in each individual case, including documented country conditions; law enforcement statistics and expert witnesses, if proffered; the respondent's past experiences; and other reliable and credible sources of information.” Id. at 394-395.

The BIA's landmark decision in the Matter of A-R-C-G- is a major victory for immigrants as it provides strong support for women who have fled to the United States after enduring horrific domestic violence. However, it is important to note that not all victims of domestic violence will qualify for asylum. A grant of asylum will depend upon the particular facts of the claim including country conditions, law enforcement statistics, expert witnesses, the asylum applicant's past experiences, and other credible evidence.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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Particularly Serious Crime and Mental Illness/Disorder

Criminal convictions can significantly impact whether an alien can remain in the United States. An alien is ineligible for a grant of asylum if he/she has “been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” INA §208(b)(2)(A)(ii). See also 8 C.F.R. §208.13(c)(1). For purposes of eligibility for asylum, the Immigration and Nationality Act (INA) provides “an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” INA §208(b)(2)(B)(i). Similarly, an alien will be ineligible for withholding of removal pursuant to INA §241(b)(3)(B)(ii) as an alien convicted of a particularly serious crime if he/she “has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 [.] ” INA §241(b)(3)(B). Regardless of the sentence imposed by the criminal court the Attorney General may determine the alien has been convicted of a particularly serious crime. Id. The Federal Regulations provide that “an alien who has been convicted of a particularly serious crime shall be considered to constitute a danger to the community.” 8 C.F.R. §208.16(d)(2).

There is no further statutory or regulatory guidance as to what constitutes a “particularly serious crime” for purposes of determining eligibility for asylum or withholding of removal under INA §241(b)(3). To determine whether a conviction constitutes a “particularly serious crime”, the Board of Immigration Appeals (BIA) has held that “such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community”, Matter of Frentescu, 18 I. & N. Dec. 244, 246 (BIA 1982), are to be examined. Another important factor to be considered is whether the victim was physically harmed by the alien's criminal conduct. See Matter of R-A-M-, 25 I. & N. Dec. 657, 661 (BIA 2012); Matter of N-A-M-, 24 I. & N. Dec. 336, 343 (BIA 2007); and Matter of L-S-, 22 I. & N. Dec. 645, 655-656 (BIA 1999). The “particularly serious crime” inquiry focuses on the crime committed not the “alien's personal circumstances and equities, such as family or community ties or any risk of persecution in the country of removal.” Matter of G-G-S-, 26 I. & N. Dec. 339, 343 (BIA 2014) citing Matter of L-S-, 22 I. & N. at 651.

In the Matter of G-G-S-, the BIA was tasked with determining “whether an alien's mental illness should be considered when determining if his or her criminal conviction is for a 'particularly serious crime'[.]” Id. at 339. The alien was a lawful permanent resident who suffered from chronic paranoid schizophrenia from an early age. Id. at 340. He was convicted of assault with a deadly weapon under California Penal Code and sentenced to a term of imprisonment of two years. Id. While the BIA “recognize[d] the significance of the respondent's mental health struggles and sympathize[d] with the resulting hardships he ha[d] faced”, Id. at 344, it nonetheless concluded his “conviction for assault with a deadly weapon was for a particularly serious crime.” Id. The BIA declined to consider the alien's mental health as a factor in determining whether his conviction was for a “particularly serious crime”. Id. at 345. According to the BIA, “[w]hether and to what extent an individual's mental illness or disorder is relevant to his or her commission of an offense and conviction for the crime are issues best resolved in criminal proceedings by the finders of fact.” Id. These factfinders are in the best position to make such a determination, because they “have expertise in the applicable State and Federal criminal law, are informed by the evidence presented by the defendant and the prosecution, and have the benefit of weighing all the factors firsthand.” Id. A criminal defendant's mental condition can be raised at various points during the criminal proceedings including determination of competency to stand trial, presentation of an affirmative defense of not guilty due to mental illness or disorder, arguments that there was an absence of the specific intent required for conviction, mitigation for purposes of sentencing, and post-conviction filings. Id. The BIA has effectively declined to reassess determinations regarding criminal culpability due to mental illness of disorder.

The take away from decisions like the Matter of G-G-S- is to involve an experienced immigration attorney as early as possible in the criminal proceedings. An experienced immigration attorney may be able to provide guidance to minimize the potential immigration consequences of a criminal conviction.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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New York State Enacts Legislation to Protect Immigrants

At a time when many states have chosen to enact legislation to drive away immigrants, the State of New York is taking significant steps to create a welcoming environment for immigrants. On August 6, 2014 Governor Cuomo signed legislation designed to improve the provision of immigration-related assistance in the State of New York. One of the primary goals of this legislation is to better protect immigrants from potential fraud and misconduct from individuals who prey on immigrant communities. This legislation created stricter assistance-provider requirements including ensuring only attorney and non-attorney representatives authorized by the Board of Immigration Appeals (BIA) can provide legal services, enhancing translation requirements, increasing civil penalties for violations, and prohibiting the use of titles designed to mislead the immigrant into believing the provider is an attorney or specialized professional.

Not only did this legislation enhance requirements on the provision of immigration-related services, but also created the new criminal offense of “immigrant assistance fraud”. The addition of these criminal offenses to the Penal Law are important as individuals who engage in “immigrant assistance fraud” often engage in conduct that jeopardizes an immigrant's future ability to qualify for immigration benefits and places the immigrant at risk of deportation from the United States while at the same time extracting significant sums of money from hardworking individuals. Under the amended Penal Law “immigrant assistance fraud” can be either a Class A misdemeanor or Class E felony depending upon whether the fraud involved less than $1,000.00 or more than $1,000.00. These new crimes will allow law enforcement to specifically target those who prey on immigrant communities.

Another key component of this legislation is the designation of the New York State Office for New Americans as a permanent executive office. The Office for New Americans was established in March 2013 by Governor Cuomo to provide support to New York State's immigrant population through the creation of opportunity centers, increasing access to English language and civics classes, connecting immigrants to business resources such as job training, developing and capitalizing on immigrants' skills, maximizing the number of Deferred Action for Childhood Arrivals (DACA) recipients, strengthening connections between immigrants and communities, preventing the fraud directed at immigrant communities, and providing State resources to better aid immigrants. The Office for New Americans has already helped over 34,000 immigrants since its inception. More information on the New York State Office for New Americans can be found at http://www.newamericans.ny.gov/.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com