Our Articles on Recent United States Supreme Court Decisions

INTRODUCTION: NEW SUPREME COURT CASES RELATING TO IMMIGRATION

The Supreme Court issued numerous high profile decisions in the final days of its October term 2015 (ending on June 27, 2016). Several of the Supreme Court's decisions are either about immigration law or may have a tangential effect on aspects of immigration law. We have written five articles about the actions of the Supreme Court in the final weeks of October term 2015 and how they relate to immigration law and policy. In this post, I will list the decisions that we have articles about on this website along with brief summaries and links to the full articles.

1. United States v. Texas [see full article]

Case Name: United States v. Texas, 579 U.S. ___ (2016) [PDF version]

Summary: This case concerned the ability of the Department of Homeland Security (DHS) to implement the Deferred Action for Parents and Lawful Permanent Residents (DAPA) Program and the expansion of the Deferred Action for Childhood Arrivals (DACA) Program. The Government petitioned the Supreme Court, asking it to vacate a District Court's preliminary injunction against the implementation of DAPA and the DACA expansion that had been upheld by the Fifth Circuit.

Decision: An equally divided Supreme Court (4-4) affirmed the judgment of the Fifth Circuit, thereby leaving the preliminary injunction against the implementation of DAPA and the DACA expansion in place.

Article: Our article on United States v. Texas provides a summary of the litigation and what we can expect as the case returns to the District Court for further litigation. The article contains links to previous posts that I have written about the litigation in the case.

Blog: I also wrote a blog post about the possible impcat of the November elections on the future of DAPA and the DACA expansion [see blog].

2. Mathis v. United States [see full article]

Case Name: Mathis v. United States, 579 U.S. ___ (2016) [PDF version]

Summary: The case concerned whether five separate convictions for violating an Iowa state statute for burglary were predicate offenses for purpose of enhanced sentencing under the Armed Career Criminals Act (ACCA). At issue in the case was whether courts may look at the underlying factual record of crime if the conviction was for violation of a statute that contains a single element, but provides different means for fulfilling that element, and where at least one of the means would fall under the definition of generic burglary (which would be an ACCA predicate offense) while at least one of the means would fall outside of the definition of generic burglary.

Decision: By a 5-3 margin, the Supreme Court held that sentencing courts may not explore the record of the underlying facts of an offense when there are different means for satisfying a single element required for conviction, but where at least one of the means would fall under the definition of the generic offense while at least one of the means would not. Accordingly, the Supreme Court held that the petitioner's burglary convictions were not predicate offenses for enhanced sentencing under the ACCA.

Article: Our article discusses the potential applications of the Mathis precedent in the immigration context. Specifically, we explain how Mathis may be beneficial to nonimmigrants who are charged with immigration aggravated felonies in certain cases. Furthermore, given the close nature of the decision, we also review the dissenting opinions in Mathis.

3. Voisine v. United States [see full article]

Case Name: Voisine v. United States, 579 U.S. __ (2016) [PDF version]

Summary: The case concerned a statute that prohibits a person who has been convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. We focus on the part of the decision that discusses whether the statutory definition of “misdemeanor crime of domestic violence” encompasses a conviction for “reckless assault.”

Decision: By a 6-2 margin, the Supreme Court held that “reckless assault” is included in the statutory definition of “misdemeanor crime of domestic violence.”

Article: In our article, we examine the possibility that the decision in Voisine will impact how immigration adjudicators and federal courts interpret the statutory definition of a “crime of violence” found in 18 U.S.C. 16. We pay particular attention to the decision's discussion of Leocal v. Aschroft, 543 U.S. 1 (2004), which we have written about in detail on this site [see article].

4. Supreme Court Grants Cert in Lynch v. Morales-Santana [see full article]

Case Name: Lynch v. Morales-Santana, Docket No. 15-1191 [PDF version of questions presented]

Summary: The Supreme Court granted the Government's petition to review the Second Circuit decision in Morales-Santana v. Lynch, 804 F.3d 520 (Jul. 8, 2015). In Morales-Santana v. Lynch, the Second Circuit held that gender-based distinctions for the derivation of citizenship for a child born overseas to two unmarried parents (where one parent is a U.S. citizen) violates the guarantee of equal protection under the Fifth Amendment of the United States Constitution. The Second Circuit also held that the petitioner in the case was a U.S. Citizen.

Questions Presented: The Supreme Court will review whether the gender-based distinctions in the derivation of citizenship laws violate equal protection. Furthermore, the Supreme Court will review whether the Second Circuit was correct in determining that the petitioner was a U.S. citizen.

Article: In our article, we discuss the reasoning behind the Second Circuit decision in great detail. After examining the questions that the Supreme Court will review, we look briefly at previous Supreme Court decisions dealing with equal protection challenges to other provisions of the same statute for derivation of citizenship. Finally, we explain what the effects would likely be if the Supreme Court affirms the Second Circuit's decision.

CONCLUSION

Supreme Court decisions are not only binding on all lower federal courts but also on immigration adjudicators. Accordingly, when a Supreme Court decision either directly or indirectly addresses an aspect of immigration law, it is important to understand the precedential impact of that decision. At myattorneyusa.com, we will stay on top of the continuing litigation regarding DAPA and the DACA expansion and Morales-Santana, and we will look to update the site with information when immigration adjudicators or federal courts issue precedent decisions relating to immigration law that cite to Mathis or Voisine.

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

Election Issues and Immigration #1: The Future of DAPA and the DACA Expansion

INTRODUCTION: THE FUTURE OF DAPA AND THE DACA EXPANSION AND THE ELECTION

On June 23, 2016, the an equally-divided Supreme Court affirmed the Fifth Circuit's judgment that uphold a preliminary injunction issued by a federal District Court against the Deferred Action for Parents and Lawful Permanent Residents (DAPA) Program [see blog] and the expansion of the Deferred Action for Childhood Arrivals (DACA) Program in United States v. Texas, 579 U.S. ___ (2016) [PDF version]. I discuss the background of the decision and what it means in this post [see blog].

In this article, I will examine the future of the DAPA Program and DACA expansion in conjunction with the November elections. This is the second of my series of posts on immigration issues and the 2016 elections [see main post].

PRESIDENTIAL ELECTION

The presumptive Democratic nominee, Hillary Clinton, has staked out a clear position on DAPA and DACA. Her website states that she “will defend DACA and DAPA against partisan attacks and politically motivated lawsuits that would put DREAMers and others at risk of deportation.”[1] In a statement released after the decision, Clinton stated that the “deadlocked decision from the Supreme Court is unacceptable” [link]. Furthermore, she pledged, as president, to “continue to defend DAPA and DACA, and do everything possible under the law to go further to protect families.” To be sure, Clinton has been a consistent and unequivocal supporter of both DAPA and DACA. In fact, the only reservations she has expressed are that these initiatives do not go far enough. In the same statement, Clinton pledged to “introduce comprehensive immigration reform with a path to citizenship within my first 100 days” in office.

For better or worse depending on your positions, it is clear where Clinton stands on DAPA, DACA, and a path to citizenship. The same cannot be said for the presumptive nominee of my Republican Party, Donald Trump [see blog]. However, while Trump's positions on many immigration positions have shifted dramatically over the last couple of years, and even at times within his Presidential campaign, he has been consistently opposed to both DACA and DAPA. In a statement on his campaign website, Trump stated that “[the] Supreme Court ruling has blocked one of the most unconstitutional actions ever taken by a President” [link]. Trump continued, “[t]he executive amnesty from President Obama wipes away the immigration rules written by Congress…” Finally, Trump's statement laid out what his campaign believes is at stake in November: “The election, and the Supreme Court appointments that come with it will decide whether or not we have a border and, hence, a country.”

The Libertarian Party nominee, Gary Johnson,[2] has said that “I happen to agree with Obama. … I think that what Obama has done [with DACA and DAPA] is what needs to happen … But the executive orders that he has implemented — I agree with.”[3] In addition to defending both DAPA and DACA as matters of policy, Johnson echoed Clinton's and Obama's explanations for why the executive actions were necessary: “I saw [the executive orders] as a reasonable use [of the President's power], challenging Congress to action.”[4] However, while Johnson praised the President for DAPA and DACA, he has been critical of the President for breaking up too many families with his deportation policies.

If we limit our inquiry to the future of DACA and DAPA, the Presidential election presents a clear choice. Hillary Clinton supports both programs and would seek to expand them and create a generous pathway to citizenship. Accordingly, it can be assumed that Clinton would continue to defend the programs in court. Donald Trump has consistently opposed both DACA and DAPA and, from his statements, it seems likely that he would rescind both programs upon taking office. For those considering Johnson, they should know that Johnson supports DACA and DAPA both as matters of policy and matters of executive authority, and that he would likely seek even more liberal immigration policies than those found in the two programs.

On family unity issues in general, Trump is a bit harder to pin down than he is on DACA and DAPA. For example, in August of 2015, Trump stated that, while he would rescind DACA and DAPA, he would “keep the families together.”[5] However, in the same interview, Trump said that “[t]hey have to go” if they are unlawfully present. Interestingly, despite often proposing an increased emphasis on deportation, Trump echoed Gary Johnson when, on June 25, 2016, when he criticized President Obama for “mass [deporting] vast numbers of people.” Furthermore, Trump promised that “I have not only the best policies, but I will have the biggest heart of anybody.”[6] It seems overwhelmingly likely that, as President, Trump would rescind DACA and DAPA. However, it is harder to say what the immigration policies of a Trump administration would be for those who would benefit from DACA and DAPA if they were to be implemented. He has at times pledged to deport all persons here unlawfully and at others pledged to preserve family unity and possibly cut down on deportations.

CONGRESS AND THE SUPREME COURT

While many voters fixate on the Presidential election, it is important to remember that immigration policy begins with legislation that is written by Congress. For those like me who hope to see DAPA struck down on the merits, it is especially important to elect a Congress that will pass better and more permanent immigration policies.

With regard to DAPA and the DACA expansion specifically, there are two things which we must consider when voting for members of Congress.

First, Congress wields what is called “the power of the purse.” This means that Congress is responsible for passing legislation to fund government departments and, by effect, government programs. The President does not have the power to fund government functions without congressional authorization. While DAPA and the DACA expansion are being fought over in the courts, there is nothing preventing Congress from seeking to use the power of the purse to compel the President to change policy. In late 2014, Senators Ted Cruz and Mike Lee raised a constitutional point of order against funding for the Department of Homeland Security (DHS) on the basis that the President would use the funding to implement DAPA and his expansion of DACA illegally.[7] Although the point of order was soundly defeated, it serves as a good example of an attempt to use the power of the purse to change the policy of the President. When voting for members of Congress, it is important to not only look at the positions of the candidates, but also the type of tactics they pledge to use to advance their objectives. For example, on the Republican side, there is often a significant difference in the tactics advocated by Senators Cruz and Lee and the tactics advocated by the Republican leadership, even where their positions on an issue are similar, if not identical.

The most immediate issue with regard to the future of DAPA and the DACA expansion is the composition of the Supreme Court. If Hillary Clinton becomes the next President, the programs will quite likely end up once again before the Supreme Court. If Donald Trump is the next President, he would presumably revoke the executive orders authorizing DAPA and the DACA expansion, thereby rendering the issue over the legality of the orders moot. Accordingly, I will reserve the discussion of a Trump Administration and the effects of his potential Supreme Court appointments for a future post, and focus on what may happen if Clinton is the next President.[8]

Currently, President Obama's nominee to the Supreme Court, Judge Merrick Garland of the D.C. Circuit, is in limbo. The Senate has at this time decided not to hold hearings on Judge Garland's nomination, and it has taken the position that the next President should nominate former Justice Antonin Scalia's replacement [see blog on Justice Scalia's career]. Assuming the Senate holds firm, a President Clinton would have the option of either re-nominating Garland or nominating a different candidate.

Although we do not know the specific voting alignment of U.S. v. Texas, it is generally assumed that Justices Roberts, Kennedy, Thomas, and Alito voted against the administration's position, while Justices Ginsburg, Breyer, Sotomayor, and Kagan voted for the administration's position. Accordingly, it is generally assumed that a Justice Garland, or any Justice whom Clinton would appoint, would be more likely than not to vote in a way that would be favorable to the current position of the Obama Administration. I must caution, of course, that it is possible the voting alignment of U.S. v. Texas is not what is generally assumed, and that we thus do not know what the Justices would have decided if they had reached a majority on either side. Furthermore, it cannot be assumed with absolute certainty what position would be taken by Justice Garland or by a different Clinton nominee. While adding Justice Garland or a different Clinton nominee to the Court would likely increase the chances of a favorable ruling for DAPA and the DACA expansion, it would by no means guarantee it.

Under current rules, it is possible to require cloture for a vote on a Supreme Court nominee. This means that a Senator may force the Senate to obtain 60 votes to end debate on the nominee rather than permit a straight up or down vote. This provision increases the power of the party that is opposed to the nominee. However, it is possible for the majority party in the Senate to change the rules such that only a straight up or down vote is required. In 2013, the Democrats abolished the cloture requirement for all executive appointments and federal court nominees except for the Supreme Court.

The current alignment of the Senate is 54 Republicans, 45 Democrats, and 1 independent Senator who caucuses with the Democrats. If Clinton becomes the next President and the Democrats win the Senate majority, the Democrats would be in commanding position to confirm Clinton's nominee. They could either do this by changing the rules or by using the threat of a rule change to deter the Republicans from requiring cloture. If the Republicans maintain the Senate majority and Clinton becomes the next President, the Republicans would still be in strong position to deny consent to any Clinton nominee who the Republican caucus finds unacceptable. However, even in the second scenario, it would be far more likely than not that a Clinton nominee would be confirmed by the Senate.

Voters for the U.S. Senate should take the future composition of the Supreme Court into account in casting a vote, especially in conjunction with the Presidential election. The ultimate fate of DAPA and the DACA expansion is just one of a multiplicity of issues that may ultimately hinge on who the next President, with the advice and consent of the Senate, has appointed to the Supreme Court.

CONCLUSION

The debate over DAPA and the DACA expansion is not just a debate about the specific immigration policies, but also a debate about the limits of executive authority and the very way immigration law and policy should be made and implemented. Accordingly, for those of us who are interested in immigration law and policy, the debate presents important issues to consider before casting ballots this November. As I have discussed in previous posts [see blog], I do not support DAPA and the DACA expansions as either a matter of policy or procedure. At the very least, I hope that the next President exercises his or her authority over immigration policy with far more concern for procedural regularity and the limits of statutory authority than did the current administration in the executive orders authorizing DAPA and the DACA expansion.

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.

1. “America Needs Comprehensive Immigration Reform with a Pathway to Citizenship,” hillaryclinton.com, (accessed Jun. 28, 2016)
2. Johnson is the Libertarian Party nominee and the former two-term Governor of New Mexico (1995-2003) as a Republican. Johnson received 0.99% of the vote in the 2012 election. Although it is exceedingly unlikely that he will seriously contend for the presidency, several polls have him in the high single to low double digits. Accordingly, I will examine his immigration positions in my blog posts so that those considering him as a third party alternative have a good understanding of where he stands.
3. “2016 presidential candidates on DACA and DAPA,” ballotpedia.org, (retrieved on Jun. 28, 2016), available at https://ballotpedia.org/2016_presidential_candidates_on_DACA_and_DAPA
4. Allahpundit, “Gary Johnson: I support Obama's executive amnesty because it “challenged Congress to action”,” hotair.com, (Jun. 6, 2016)
5. “2016 presidential candidates on DACA and DAPA,” ballotpedia.org, (retrieved on Jun. 28, 2016)
6. Cirilli, Kevin, “Trump Says Muslim Ban Plan to Focus on 'Terrorist' Countries,” Bloomberg.com, (Jun. 26, 2016)
7. I discuss it here [see footnote 5].
8. Gary Johnson voters have a more complicated set of considerations on this issue. Although Johnson himself favors DACA and DAPA, I believe it cannot be safely assumed that Johnson would nominate to the Court a person who would be more likely than not to rule in favor of the legality of DAPA and the DACA expansion. This is because Johnson, as a libertarian/moderate conservative, would potentially be more likely to pick a libertarian/conservative judge who would be less likely to uphold the particular use of executive power on this issue than would a Clinton nominee.

Lawyer website: http://myattorneyusa.com

EOIR Announces Investiture of 15 New Immigration Judges

On June 27, 2016, the Executive Office of Immigration Review (EOIR) announced the investiture of 15 new immigration judges [link]. Acting Chief Immigration Judge Michael C. McGoings presided over the investiture ceremony on June 17, 2016. Judge McGoings stated at the investiture ceremony for the new immigration judges that “[t]heir arrival brings our immigration judge corps to 273 adjudicators, our highest level to date.”

The new immigration judges will sit in immigration courts all across the country. The following is the list of new judges and the immigration courts in which they will serve.

• Nathan A. Aina (Los Angeles Immigration Court)
• John B. Carle (Philadelphia Immigration Court)
• Barbara Cigarroa (Port Isabel Immigration Court)
• John G. Crews II (Port Isabel Immigration Court)
• John P. Ellington (York Immigration Court)
• Justin W. Howard (Kansas City Immigration Court)
• Alison R. Kane (Denver Immigration Court)
• James M. Left (Adelanto Immigration Court)
• Clay N. Martin (Pearsall Immigration Court)
• Donald C. O'Hare (Denver Immigration Court)
• Jeanette L. Park (Los Angeles Immigration Court)
• Ana L. Partida (Los Angeles Immigration Court)
• Georgina M. Picos (Houston Immigration Court)
• Jayme Salinardi (Kansas City Immigration Court)
• Sandra J. Santos-Garcia (Adelanto Immigration Court)

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

Denaturalization

A. GROUNDS FOR Denaturalization -- A NATURALIZED USC MAY LOSE CITIZENSHIP BY REVOCATION OFTEN REFERRED TO AS DENATURALIZATION PROCESS

However, citizenship should only be taken away where there is clear, unequivocal and convincing evidence that leaves the issue of illegality free of doubt. Fedorenko v. Us., 449 U.S. 490, 505--06 (J 981). Moreover, a naturalized USC cannot lose citizenship except through a final determination brought in denaturalization proceedings under 8 U.S.C. §1451 or administratively. U.S. v. Clarke, 628 F.Supp.2d 1 (D.D.C. 2009) [refusing to dismiss charge that defendant kidnapped a United States citizen because the person obtained citizenship by fraud]. If USCIS believes there are grounds for revocation, they can recommend the institution of such proceeding pursuant to INA §340(a). 8 C.F.R.§340.2(a). The venue for such proceedings is in the judicial district in which the naturalized citizen resides. INA §340(a). But what if the citizen is in prison? Given the specific definition of residence in INA §101(a)(33), the Ninth Circuit determined that there is a "rebuttable presumption that an incarcerated individual 'retains residence in the judicial district where he lived prior to incarceration." US. v. Arango, 670F.3d 988, 995-99 (9th Cir. 2012) [remanding for determination whether prison is in fact place of residence]. But see U.S. v. Stabler, 169 F.2d 995,998 (3d Cir. 1948) [last residence was proper venue because a person does not acquire a domicile while imprisoned].

1. Membership in Certain Organizations; Prima Facie Evidence-INA §340(c), 8 U.S.C. §1451(c). Membership or affiliation with a subversive, communist, or anarchist organization under INA §313, 8 U.S.C. § 1424, within.5 years of naturalization is prima facie evidence that the applicant was not attached to the principles of the U.S. Constitution and was not well-disposed to the good order and happiness of the U.S. at the time of naturalization. INA §340(c), 8 U.S.C. § 1451(c).
2. Concealment of Material Evidence or Willful Misrepresentation-INA §340(a), 8 U.S.C. §1451(a). In Kungys v. u.s., 485 U.S. 759 (1988) the Court's plurality opinion cast aside the previous standard defaming material misrepresentation for denaturalization purposes in Chaunt v. U.S., 364 U.S. 350 (1960) and determined that "the test of whether ... concealments or misrepresentation were material [under 8 US.C. §1451(a)] is whether they had a natural tendency to influence the decision of the INS." Denaturalization based on a material misrepresentation requires 4 independent elements: "the naturalized citizen must have misrepresented -- or concealed some fact, the misrepresentation or concealment must have been willful, the fact must have been material, and the naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment." 485 U.S. at 767. Determination of materiality is therefore a mixed question of law and fact. u.s. v. Gaudin, 515 U.S. 506, 521-22 (1995). The government must prove that the citizen procured naturalization by unlawful conduct. Us. v. Stelmokas, 100 F.3d 302,337-42 (3d Cir. 1996). And that the naturalized citizen did so willfully. Us. v. Arango, 670 F.3d 988,994-95 (9th Cir. 2012) [existence of possible agreement with government to discount prior marriage fraud raised issue of fact as to whether any misrepresentation was willful]. If the government establishes materiality, the respondent may rebut the presumption of denaturalization by demonstrating that he nevertheless met the statutory requirements. Kungys, 485 U.S. at 777; Monter v. Gonzales, 430 F.3d 546, 554 (2d Cir. 2005) [applying Kungys test to material misrepresentation in I-751 and reversing removal where respondent was denied the opportunity to overcome the presumption]. See also US. v. Rebelo, 646 F.Supp.2d 682 (D.N.I. 2009) [granting denaturalization for material misrepresentation for not disclosing the nature of charges and eventual conviction, and for wrongful procurement where applicant was naturalized while still on probation]; Us. v. Mahalia, 545 F.Supp.2d 1035, 1041-44 (CD. Cal. 2008) [summary judgment granted to U.S. on material misrepresentation and illegal procurement where person naturalized on basis of living with United States citizen spouse in marital union was not living with his spouse]; US. v. Nunez-Garcia. 262 F.Supp.2d 1073, 1084-85 (C.D. Cal. 2003) [rejecting defendant's claim that he told the notary the correct information where defendant read and spoke English and signed document]; US. v. Damrah, 412 FJd 618, 625-28 (6th Cir. 2005) [upholding conviction under 1425(a) and (b) and automatic denaturalization under 1451 (e) of Moslem cleric who was a member of and assisted organizations that persecuted others]; US. v. Ekpin, 214 F.Supp.2d 707, 715-17 (S.D. Tex. 2002) [misrepresentation was willful and material where applicant answered "no" to whether he had committed a crime for which he had not been arrested and he sexually abused his daughter during the 5-year Good Moral Character period].
3. Illegal Procurement-INA §340(a), 8 U.S.C. §1451(a). In Fedorenko v. US., 449 U.S. 490 (1981), the Court addressed the meaning of "illegally procured" under INA §340(a) and determined that because naturalization under INA §§316(a), 318;8 U.S.C. §§1427(a), 1429 requires lawful admission to the U.S., Fedorenko's citizenship was illegally procured where misrepresentations on his application for admission rendered his admission unlawful. Therefore, under Fedorenko, denaturalization based on illegal procurement may be based on misconduct not arising out of the naturalization application. Accord. Intenji v. USCIS, 737 F.3d 311 (4th Cir. 2013) [where respondent failed to reveal prior husband in an employment based AOS and there was no finding of a violation of INA 212(a)(6)(C)(i) her LPR status was invalid for purposes of naturalization because 8 C.F.R. § 103.2(a)(2) requires an applicant to certify that all information on an application is true and correct]; US. v. Geiser, 527 F.3d 288 (3d Cir. 2008) [upholding illegal procurement finding because under the plain meaning of the Refugee Relief Act of 1953, a concentration camp guard "personally" assisted in the "persecution" of others]; US. v. Firishchak, 468 F.3d 1015, 1025 (7th Cir. 2006) [memjoer of Ukrainian Auxiliary Police illegally procured citizenship even ifhe was not personally involved in Nazi atrocities]; US. v. Wittje, 422 F.3d 479 (7th Cir. 2005) [rejecting equal protection argument against denaturalization and involuntary argument against DPA]; US. v. Friedrich, 402 F.3d 842 (8th Cir. 2005) [working as a guard at Nazi concentration camp was sufficient to establish; assisting in persecution for purposes of illegal procurement]; US. v. Demjanjuk, 367 F.3d 623, 636-37 (6th Cir. 2004) [voluntarily providing assistance in persecution is not an element for illegal procurement of residency through the DPA]; US. v. Reimer, 356 F.3d 456 (2d Cir. 2004) [person who assisted Nazis in the persecution of Jews illegally procured citizenship]; US. v. Dailide, 316 F.3d 611, 618 (6th. Cir. 2003) [revoking citizenship of former member of Lithuanian special unit that persecuted Jews during WWII based on illegal procurement]; US. v. Rebelo, 646 F.Supp.2d 682, 692-96 (D.N.J. 2009) [granting denaturalization under wrongful procurement where applicant was naturalized while still on probation in violation of 8 C.F.R. §316.10(c)(I)]; Us. v. Mahalia, 545 F.Supp.2d 1035, 1040-41 (C.D. Cal. 2008) [summary judgment granted to U.S. on illegal procurement and material misrepresentation where person naturalized on basis of living with USC spouse in marital union was not living with spouse]; US. v. Nunez-Garcia, 262 F.Supp.2d 1073, 1081-83 (C.D. Cal. 2003) [person who committed aggravated felony prior to the 5-year period and a CIMT (crime involving moral turpitude) for lewd conduct in public during the 5-year period illegally procured citizenship]; us, v. Samaei, 260 F.Supp.2d 1223 (M.D. Fla. 2003) [person who committed second petty theft before swearing-in ceremony but after interview illegally procured citizenship because he lacked GMC]. Illegal procurement has been extended to encompass illegal acts reflecting on a person's GMC which arose before naturalization, but for which the person was not arrested, charged or convicted until after he became a citizen. u.s. v. Suarez, 664 F.3d 655 (7th Cir. 2011) [followed Jean-Baptiste and found that naturalization could be revoked for illegal procurement where person charged after he became a U.S.C. for unlawful acts (possession with intent to distribute drugs) committed before he naturalized]; U.S. v. Dang, 488 F.3d 1135 (9th Cir. 2007) [rejecting ultra vires. void-for-vagueness, overbreadth, and Uniformity Clause challenges to GMC regulation at 8 C.F.R. §316.IO(b)(3)(iii) in the context of denaturalization for illegal procurement where petitioner committed crimes of arson, willful injury to a child and others prior to naturalization]; US. v. Jean-Baptiste, 395 F.3d 1190 (lith Cir. 2005) [denaturalizing a person who had a minor role in one incident of cocaine trafficking but was not arrested, charged, or indicted until after he became a citizen]; US. v. Mwalumba. 688 F.Supp.2d 565 (N.D. Tex. 201 O) [followed Jean-Baptiste and rejected plea agreement stating no further prosecution was a bar to denaturalization proceeding]; US. v. Lekarczyk. 354 F.Supp.2d 883 (W.O. Wis. 2005) [following Jean-Baptiste where bank fraud. forgery-uttering and bail jumping all occurred before but were not charged until after citizenship obtained]; Us. v. Ekpin, 214 F.Supp.2d 707, 713-15 (S.D. Tex. 2002) [illegal procurement sustained where applicant admitted to committing aggravated felony during statutory period but conviction was subsequent to naturalization]. A conviction under 18 U.S.C. §1425 for knowingly procuring naturalization in violation of law is a grounds for automatic denaturalization. INA §340(e), 8 U.S.C. §1451(e). However, if there was an agreement that the government would' not take any action to prevent naturalization despite prior fraudulent conduct, such agreement may bar an illegal procurement charge. US. E Arango, 670 F.3d 988,993-94 (9th Cir. 2012) [existence of possible cooperation agreement with government not to consider prior marriage fraud when petitioner sought naturalization may bar illegal procurement claim].
4. Subversive Activities-INA §340(a), 8 U.S.C. § 1451(a). Refusing to testify before a congressional committee regarding pre-naturalization subversive activities not revealed: in the' application is a ground for revocation where the person has been convicted of contempt for such' refusal and where it occurs within' 10 years of naturalization.
5. Military Service Denaturalization-Naturalization under INA §§328, 329 may be revoked if the person is dishonorably separated from the Armed Forces before serving honorably for a period or periods aggregating 5 years. Applies to citizenship granted after Nov. 24, 2003.

B. DENATURALIZATION PROCEDURE -- DENATURALIZATION MAY OCCUR:

• (1) through court proceedings;
• (2) through administrative proceedings; or
• (3) as a result of a criminal conviction for knowingly procuring naturalization by fraud under 18 U.S.C. §1425, where the judge strips the person of citizenship.

1. Court Proceedings-Revocation of naturalization by acourlunder INA §340(a), 8 U.S.C. §1451(a), is initiated by a U.S. Attorney in an action in a state or federal court competent to hear naturalization matters under INA §31 0, 8 U.S.C. § 1421. The basis for revocation is that the order and certificate were procured illegally or were procured by the concealment of a material fact or willful misrepresentation. Id. See, e.g., Us. v. Szehinskyj, 277 F.3d 331 (3d Cif.. 2002) [material misrepresentation is not necessary to revoke naturalization 'a's it is sufficient to demonstrate person did not qualify for the Displaced Persons' Act visa because he persecuted others]; US. v. Tittjung, 235 F.3d 330, 340-42 (7th Cir. 2000) [persecutor's ineligibility for DPA visa even without material misrepresentation renders naturalization invalid]; Us. v. Kiang, 175 F.Supp.2d 942 (E.D. Mich. 2001) [naturalization revoked because conviction for sexual misconduct under pre-1994 Michigan statute is a CIMT during Good Moral Character period]; US.v. TaI'ango-Pena, 173 F.Supp.2d 588 (E.D. Tex. 2001) [naturalization revoked where LPR status was procured by fraud because petitioner was not USC]; Us. v. Wasylyk, 162 F.Supp.2d 86, 87-89 (N.D.N.Y. 2001) [Nazi denaturalization case where LPR status illegally procured because respondent was a war criminal]. The action generally must be brought in the judicial district where the naturalized citizen resides. The government must comply with the Brady rule and provide all exculpatory evidence when denaturalization is based alleged criminal activities. Demjanjuk v. Petrovsky, 10 F.3d 338, 353 (6th Cir. 1993). At least one circuit has granted denaturalization on summary judgment. Us. v. Dailide, 227 F.3d 385, 388-90 (6th Cir. 2000). But see US. v. Singh, 94 F.Supp.2d 540 (W.O. Pa. 1999) [where naturalized USC pled guilty to a crime that antedated his application, INS was denied summary judgment because the failure to note on the naturalization application that he had committed a crime for which he was not arrested was a factual question]. 

• l.a. Burden of Proof-The government "carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship." Fedorenko v. Us., 449 U.S. 490, 505 (198)) [quoting Costello v. Us., 365 U.S. 265, 269 (1961)]. The government must prove its case by "clear, unequivocal, and convincing" evidence that does not leave "the• issue in doubt." Id. at 505. The standard is informed by the recognition that the loss of citizenship "can haye seyere and Unsettling consequences." Id. ' 
• l.b. Memorandum of Understanding-USC IS, OIL, and the U.S. Attorney offices have entered into, an MOU that allows OIL by "delegation and acquiescence" of the local U.S. Attorney offices to file denaturalization suits and litigate actions under 8 U.S.C. §14SI(a). USCIS will recommend whether there should be civil or criminal prosecutions and the U.S. Attorney offices will decide whether to prosecute criminally. MOU between the United States Attorney’s Offices, the Immigration and Naturalization Service and the Civil Division-Office of nunigration Litigation Regarding Actions to Revoke Naturalization, reprinted in 77 No. 30 Interpreter Releases 1130, 1144-50 (Aug. 7, 2000). 
• l.c. Defenses to Denaturalization-Laches, waiver, statute of limitations, and 'equitable estoppel may not be defenses to denaturalization. INSv. Pangilinan, 486 U.S. 875, 883~84 (1988); Robertson-Dewar v. Holder, 646 F.3d 226,229-30 (5th Cir. 2011) [II-year delay in adjudicating natz application' was not affirmative misconduct warranting termination of deportation proceedings]; us. v. Mandycz, 447 F.3d 951, 964-66 (6th Cir. 2006) [when government acts in its sovereign capacity, laches does not apply]; us. v. Robelo, 358 F.Supp.2d 400, 407-13 (D.N.I. 2005) [general statute of limitations for penalties and forfeitures under 28 U.S.C. §2462 is inapplicable to denaturalization proceedings]; us. v. Reve, 241 F.Supp.2d 470, 478 (D.N.I. 2003) [denaturalization for material misrepresentation may not be fought through equitable defenses such as waiver, laches or estoppel]; Us. v. Koreh, 856 F.Supp. 891, 893 n.3 (D.N.I.1994). In the view of one cour1, denaturalizing an incompetent person does not violate due process. Us. v. Mandycz, supra at 961-64. Nor does a plea agreement that states the U.S. will "not further prosecute the defendant" prohibit a denaturalization proceeding US. v. Mwalumba, 688 F.Supp.2d 565, 571-76 (N.D. Tex. 2010) [government could bring denaturalization proceeding, because plea only applied to criminal matters and denaturalization is civil]. But see Us. v. Wang, 404 F.Supp.2d 1155 (N.D. Cal. 2005) [rejecting statute of limitations and laches defenses, but allowing an estoppel claim where USC asserted that government was aware of his crimes prior to naturalization. The court rejected the estoppel defense on the merits because there was no affirmative misconduct].

2. Administrative Revocation-DRS has recognized it does not have the authority to administratively revoke naturalization and has eliminated 8 C.F.R. §340.l; 76 FR 53764, 53769, 53804. (Aug. 29, 2011). Instead, it has issued a regulation permitting it to recommend revocation pursuant to INA §340(a) to DOl. 8 C.F:R. §340.2(a).

3. Revocation after Conviction for Naturalization Fraud-8 U.S.C. § 1451(e). If a person is convicted of knowingly procuring naturalization by fraud, the convicting court shall revoke naturalization US. v. Inocencio, 215 F.Supp.2d 1095 (D. Rawaii 2002) [no prior notice needed as revocation is automatic under §1451(e)], aff'd, US. v. Inocencio, 328 F.3d 1207 (9th Cir. 2003) [revocation of naturalization as a result of a conviction under 18 U.S.C. § 1425(b) 5 years after sentencing does not violate due process]; US. v. Damrah, 412 F.3d 618, 625-28 (6th Cir. 2005) [upholding conviction under §§1425(a) and (b) and automatic denaturalization under §1451(e) of Moslem cleric on grounds he was a member of and assisted organizations that persecuted others]; US. v. Maduno, 40'F.3d 1212, 1217 (11th Cir.1994) [filing notice of appeal of conviction does not divest the court of authority under 8 U.S.C. § 1451(e) to revoke naturalization].

4. Effect on Family Members of Denaturalization-Denaturalization based on concealment or material misrepresentation causes any person who claimed citizenship through the denaturalized parent or spouse to lose their citizenship. INA §340(d), 8 U.S.C. § 1451(d);

5. Cancellation of Certificate. The AG may cancel a certificate of citizenship when the document was obtained illegally or fraudulently. Cancellation of the document does not affect the citizenship of the person. INA §342, 8 U.S.C. §1453.

C. VOLUNTARY RELINQUISHMENT OF U.S CITIZENSHIP

1. Generally-Pursuant to INA §349(a), 8 U.S.C. § 1481(a), a native born or naturalized USC may lose citizenship by voluntarily performing any of the following acts with the intention of relinquishing citizenship:

• Obtaining naturalization in of taking an oath of allegiance to a foreign state after age 18;
• Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving in any foreign army as a commissioned or noncommissioned officer;
• Accepting, serving in or performing duties of any office, post or, employment of a foreign government;
• Making a formal renunciation of U.S. citizenship before a diplomatic or consular officer on a DOS form. However, a parent or guardian cannot renounce or relinquish U.S. citizenship of a child who acquired U.S. citizenship at birth. 7 FAM 1292(e).  And a national, who within 6 months after attaining the age of 18 asserts his or her claim to U.S. nationality shall not be deemed to have lost U.S. nationality by the commission of certain acts.
• Making a formal written renunciation in the United States but only when the U.S, is in a state of war; Kauftnan v, Holder, 524 P.3d 1334 (D,C; CiT. 2008); Kauftnanv, Holder, 686 P,Supp,2d 40 (D,D,C; 2010) [finding term "state of war" unambignous and that U,S, was in state of war regarding terrorism when' petitioner applied, case remanded to USCIS], Cj Walker v, Holder, 714 P,Supp,2d 44 (D,D,C, 2010) [dismissed mandamus for failure to plead that he applied to Homeland Security or DOJ to renounce and was denied]. See also Schnitzler v. U.S., 863 F.Supp.2d 1 (D.D.C. 2012) [mandamus moot and no Article III standing for declaratory relief where prisoner requested renunciation and USCIS stated it would hold his application in abeyance until he was released].  But see Shuss v. USCIS, 899 F.Supp.2d 37, 41-42 (D.D.C. 2012) [finding INA § 349(a)(6) bars issuing a CLN while person is incarcerated in the U.S. without addressing Kaufman].
• Committing an act of treason against, or attempting by force to overthrow, or bearing arms against the U.S.

2. Burden of Proof-INA §349(b), 8 U.S.C; §1481(b), The burden of demonstrating loss of citizenship is on the U.S. by a preponderance of the evidence" Moreover, the expatriating acts listed in INA §349(a) are presumed to be voluntary, but such presumption may be rebutted,

3. Relinquishment Voluntary and Intentional-Naturalization lawfully obtained cannot be lost without a determination by DOS under INA §358 that citizenship was voluntarily relinquished, Afroyim v, Rusk, 387 U,S, 253 (1967) [statute expatriating USC due to voting in foreign election violates the Pour1eenth AmendIllent], Expatriation is constitutionally permissible only where the government proves that a party voluntarily engaged in the expatriating act and intended to relinquish citizenship, Vance v, Terrazas, 444 U,S, 252 (1980); Breyer v, Ashcroft,350 P.3d 327 (3d Cir, 2003) [continued military service in the Waffen SS after age 18 did not, under the totality of the circumstances, demonstrate intent to relinquish citizenship]; Action SA, v, Marc Rich & Co" Inc" 951 P.2d 504, 506-07 (2d Cir, 1991); US v' Schiffer, 831 P,Supp, 1166, I J 86-96 (E.D, Pa, 1993) [citizenship relinquished by serving in. Romanian Army and Nazi SS], Compare Kashani v, Shultz, 653 P,Supp, 1486 (E.D,N,Y, 1987) [citizenship not relinquished by taking seat in foreign parliament without evidence of intent to relinquish] with Kahani v, Secy, of State, 700 P'supp, 1162 (D,D,c' 1988) [relinquishment found where renunciation made at U.S. consulate],

4. Presumption Against Expatriation-In Matter of Kekich, 19 I&N Dec, 198 (BrA 1984), the BIA read Terrazas as pennitting the government to satisfy its burden, in light of the statute's presumption of voluntariness, by demonstrating by a preponderance of the evidence under INA §349(b) that the USC committed one of the intentional expatriating acts enunciated in INA §349(a), However, under DOS regnlations, 22 c'F,R, §50AO(a)-(b), a presumption against expatriation applies to cases where a person is:

• Naturalized in a foreign country;
• Takes a routine oath of allegiance; or
• Accepts non-policy level employment with a foreign government

See Fox v, Clinton, 751 F'supp,2d 122 (D,D,c' 2010) [USC did not expatriate by naturalizing through the Law of Return in Israel and taking an oath that was not required for naturalization instead of formally renouncing before a U,S, consular officer abroad],Cf. Fox v. Clinton, 684 F.3d 67, 75 (D.C. Cir. 2012) [finding expatriation where USC naturalized in Israel under the “Law of Return”]. The presumption is applicable retroactively to cases previously denied, However, the presumption is not applicable where someone;

• Formally renounces U.S. citizenship before a consular officer;
• Takes a policy level position in a foreign state;  
• Is convicted of treason; or
• Performs an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship. 

Statement about possible loss of U.S. citizenship and dual nationality, DOS, reprinted in 67 No. 37 Interpreter Releases 1092 (Oct. 1, 1990). See generally Office of Legal Counsel, DOJ, Survey of the Law of Expatriation (June 12, 2002), www.usdoj.gov/olc/opiniondocs/expatriation.pdf. See also Matter of CMS, Decision No. 90-12 (Board of Appellate Review July 5, 1990), reported in 67 No. 27 Interpreter Releases 799-800 (July 23, 1990).

5. Certificate of Loss of Nationality (CLN)—Before a consular officer may issue a CLN she must follow 20 C.F.R. §§ 50.40, 50.50 and 7 FAM 1293 and be assured that the person has the requisite intent and mental capacity to renounce his citizenship.  See e.g. Weber v. DOS, 885 F.Supp.2d 46 (D.D.C. 2012) [mandamus and APA under “unreasonably withheld” provision denied where DOS refused to issue CLN because it is not a nondiscretionary decision].

6. Loss of Citizenship and LPR Status—Costello v. INS, 376 U.S: 120 (1964) [denaturalized USC cannot be deported for 2 ClMTs when he was convicted of the crimes while he was a USC]; Matter of Vielma-Ortiz, 11 I&N Dec. 414 (BlA 1965) [loss of citizenship does not result in automatic loss of LPR status]; 8 C.F.R. § 340.1(g)(4) [a person remains a USC until a decision to reopen proceedings and deny naturalization becomes final]; U.S., v. Clarke, 628 F.Supp.2d 1, 8-9 (D.D.C. 2009) [cannot void citizenship without a final order pursuant to 8 U.S.C. § 1451]. But see Matter of Gonzalez-Muro, 24 I&N Dec. 472 (BIA 2008) [reaffirming Matter of Rossi, 11 I&N Dec. 514 (BlA 1966), distinguishing Costello, and finding that respondent could be removed for crimes he was convicted of while a USC, because he committed the crimes as an LPR, had citizenship revoked because he committed the crimes before naturalization, and obtained citizenship by concealing the activity].

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.

Resources and materials:

Alexander J Segal - "Denaturalization"

Reproduced From:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1817-22, Print. Treatises & Primers.

Lawyer website: http://myattorneyusa.com

Equally Divided Supreme Court Upholds Preliminary Injunction Against DAPA Implementation

UNITED STATES V. TEXAS AND THE 2016 ELECTION INTRODUCTION

On June 23, 2016, the Supreme Court issued its much-anticipated decision regarding the Deferred Action for Parents and Lawful Permanent Residents (DAPA) Program and the expansion of the Deferred Action for Childhood Arrivals (DACA) Program. In United States v. Texas, 579 U.S. ___ (2016) [PDF version], an equally divided Supreme Court (4-4) affirmed the judgment of the Fifth Circuit that left in place a district court injunction against the implementation of the President's initiatives. In this post, I will discuss the background of the case and what the Supreme Court's decision means going forward.

BACKGROUND

I have discussed the litigation surrounding the DAPA Program [see blog] on this blog. The following are the posts that I wrote on the subject:

1. Fifth Circuit Upholds Preliminary Injunction Against DAPA [see blog]
2. Obama Administration Petitions to the Supreme Court [see blog]
3. The Supreme Court Grants Review [see blog]

President Barack Obama and Secretary of Homeland Security Jeh Johnson announced several immigration “executive actions” in late 2014 [PDF version]. Among these executive actions were the DAPA Program and an expansion of the DACA.

Texas, joined by 25 other states, filed a lawsuit in federal district court seeking an injunction against the implementation of the DAPA Program and the expansion of the DACA Program. Texas made three arguments in support of its position:

1. The Administration violated the Administrative Procedure Act (APA) by not subjecting the programs to notice and comment rulemaking.
2. The Department of Homeland Security (DHS) did not have the authority to implement the programs under the Immigration and Nationality Act (INA).
3. The President abrogated his constitutional duty to “take care that the laws be faithfully executed.”

The District Court granted a preliminary injunction on the basis that Texas was likely to prevail in its first argument that the implementation of DAPA and the DACA expansion violated the APA [PDF version]. On appeal, the Fifth Circuit upheld the preliminary injunction and, in so doing, also found that Texas was likely to prevail in its second argument, that the Department of Homeland Security (DHS) did not have the authority to implement the programs under the INA [PDF version].

In seeking review by the Supreme Court, the Administration argued that the DAPA Program and DACA expansion were not subject to the APA and were within the President's authority under the INA. Furthermore, it argued that Texas and the other states did not have standing to sue. The Supreme Court requested that the parties provide briefing on Texas' third argument-that the President violated the “take care clause” of the United States Constitution.

SUPREME COURT DECISION

The Supreme Court's decision in United States v. Texas, 579 U.S. ___ (2016) [PDF version], was, so to speak, anticlimactic. Since the death of former Justice Antonin Scalia [see blog] last February, the Supreme Court has been operating with only eight Justices instead of nine. Under these circumstances, in the event that the Justices split 4-4, a decision of the lower court is. That is exactly what ended up happening in United States v. Texas. Moreover, because the Court deadlocked, we do not even know which Justices fell on each side of the split, much less their reasoning.

WHAT HAPPENS NOW?

Because the judgment of the Fifth Circuit was affirmed by an equally divided court, the preliminary injunction issued by the District Court against the implementation of DAPA and the DACA expansion stands. The case will presumably return to the District Court for a decision on the ultimate merits.

Given the content of the District Court decision and the Judge's subsequent claims that the government misled the court with regard to its implementation of the programs, it seems more likely than not that the District Court will strike down DAPA and the DACA expansion. However, we must note first that this is not assured and, second, that even if the District Court strikes down the programs, it is unclear whether it will do so merely for violating the APA or additionally because it finds that the programs exceed the President's authority under the INA.

Interesting, the District Court Judge, Andrew Hanen, has accused Justice Department lawyers of misleading the Court with regard to the government's implementation of the programs. Judge Hanen issued several controversial orders in response to the alleged misrepresentations of government lawyers, some of which have been challenged. Judge Hanen will hold a status conference with Justice Department lawyers on August 22.[1] At that time, we may have a better idea of how the case will proceed.

Regardless of the decision, the losing side will be able to appeal the decision to the Fifth Circuit (and subsequently seek review from the Supreme Court). Furthermore, the government may seek rehearing by the Supreme Court.

For all intents and purposes, this means that President Obama will be unable to implement DAPA and the DACA expansion (however, the main DACA program from 2012 is unaffected) during the final months of his term in office. It is unlikely that the issue will be fully resolved until 2018, at the earliest.[2]

WHAT DOES THIS MEAN IN THE SHORT TERM?

The Supreme Court decision merely maintains the status quo. Except for limited cases where the DHS erroneously issued employment authorization documents under the new immigration initiatives, neither DAPA nor the DACA expansion was ever implemented before the injunction. A person who would have been eligible to benefit under one of the enjoined initiatives should consult with an experienced immigration attorney for a full and individualized assessment of his or her immigration situation. Depending on the unique facts of each case, some individuals who would have been eligible to benefit from the implementation of DAPA may be eligible for other forms of immigration relief.

CONCLUSION

Ideally, the Supreme Court would have found that the President exceeded his authority under the APA and under the INA in endeavoring to implement DAPA and the DACA expansion. Such a decision would have created important precedent that would prevent the President from creating binding rules without following the procedures set forth in the APA and would have prevented the President from exceeding the statutory authority provided to the executive branch in the INA.

However, short of that outcome, the 4-4 split in the Supreme Court was an acceptable outcome. The decision affirms the Fifth Circuit's decision to uphold the preliminary injunction, and it sets the stage for the lower courts to strike down the President's initiatives on the merits.

The fate of these programs will be decided not only by the courts, but also by the voters in the November elections. To read my post about what the United States v. Texas decision means for November, please see my blog. Regardless of the outcome of the election, I hope that the next President abandons the current administration's approach of creating binding rules by executive fiat and instead endeavors to work with the next Congress in crafting new statutes that will make permanent improvements to our immigration system. It is my hope that the next President recognizes that a failure to reach an agreement on new legislation does not confer upon the executive the power to create new rules and programs without respect for procedural regularity and statutory restrictions.

I look forward to writing more about the election and its effect on immigration law in my series of blog posts on the subject [see blog].

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.

1. Lyle Denniston, Opinion analysis: Obama immigration plan all but doomed, SCOTUSblog (Jun. 23, 2016), available at http://www.scotusblog.com/2016/06/opinion-analysis-obama-immigration-plan-all-but-doomed/
2. AILA FAQs on Supreme Court's Ruling in U.S. v. Texas, (Jun. 24, 2016), available at AILA Doc. No. 16062436

Lawyer website: http://myattorneyusa.com

USCIS to Begin Deactivating E-Verify User IDs That Have Not Been Accessed for 270 Days

Beginning on August 1, 2016, the United States Citizenship and Immigration Services (USCIS) will begin deactivating E-Verify user IDs that have not been accessed for 270 days [PDF version].[1] In order to avoid deactivation, E-Verify users should log in to their accounts at least once every 270 days.

The news release lists three steps that corporate administrators and Program Administrators should take before August 1, 2016:

• Log in to E-Verify before August 1 if they have not accessed E-Verify for 270 days.
• Review all E-Verify user IDs for their company account in order to determine if E-Verify access is still required for those users.
• Terminate any active E-Verify user IDs that no longer need access to E-Verify.

Questions regarding the E-Verify system may be directed to USCIS [link current as of June 18, 2016]. Employers should consult with an experienced immigration attorney for guidance on issues regarding the E-Verify system and employing nonimmigrant and immigrant workers in general.

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.

1. AILA Doc. No. 16061704 (Jun. 17, 2016)

Lawyer website: http://myattorneyusa.com

USCIS Releases Updated Edition of Form I-131

On June 8, 2016, the United States Citizenship and Immigration Services (USCIS) posted an updated edition of the Form I-131, Application for Travel Document [PDF version].[1] The new edition of the Form I-131 is dated May 3, 2016. However, USCIS has stated that it will still accept the editions of the Form I-131 dated January 22, 2016, and March 22, 2013.

The Form I-131 is used to apply for a:

• Reentry permit;
• Refugee travel document;
• Advance Parole Travel Document; or
• To apply for an Advance Parole Document from outside the United States in order to seek parole in the United States due to urgent humanitarian reasons or for significant public benefit. “Significant public benefit” includes applicants under the Cuban Family Reunification Parole Program [see article], the Haitian Family Reunification Parole Program, and the Filipino WWII Veterans Parole Program (FVWP) [see article and blog].

An experienced immigration attorney will be able to provide assistance in immigration issues involving reentry permits, refugee travel documents [see article], advance parole [see article], humanitarian parole [see article], or the specific parole programs that the Form I-131 may be used to request benefits under. Please also see our article about parole-in-place for family members of military service members and veterans [see article].

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.

1. AILA Doc. No. 16060805 (Jun. 8, 2016)

Lawyer website: http://myattorneyusa.com

Comparing the "Same or Similar" Final Memorandum to the Draft Memorandum

COMPARING THE FINAL “SAME OR SIMILAR” MEMORANDUM TO THE DRAFT MEMORANDUM

On March 18, 2016, the United States Citizenship and Immigration Services (USCIS) released a final Policy Memorandum (“Final Memo”) setting forth the rules regarding the “same or similar” occupational classification requirement for exercising section 204(j) I-140 petition portability [PDF version]. We work through the Final Memo on site [see article]. In a separate article [see article], we examined the Draft Memorandum (“Draft Memo”) [PDF version] on the issue released on November 20, 2015. In that article, we discussed at comments submitted by the American Immigration Lawyers Association (AILA) regarding the Draft Memo [see comments]. In this post, I will revisit our article on the Draft Memo and examine how AILA's comments and suggestions fared in the Final Memo.

1. STANDARD OF PROOF: PREPONDERANCE OF THE EVIDENCE

AILA supported the statement in the Draft Memo that an applicant for section 204(j) portability [see article] need only establish that he or she is eligible by a preponderance of the evidence (meaning that the applicant is more likely eligible than not). The Final Memo retains the same language.

2. USE OF STANDARD OCCUPATIONAL CODES

AILA recognized that “the SOC represents a reasonable framework for this type of analysis.” However, AILA cautioned against overreliance on the SOC because the system was not established for the purpose of determining the level of similarity between two jobs. AILA asked USCIS to acknowledge limitations of the SOC for portability purposes in the Final Memo.

The Final Memo does not directly address “inappropriate SOC codes” assigned in labor certification. In fact, it does not provide any avenue for an applicant to argue that an SOC code assigned in labor certification was inappropriate. It also does not address a situation in which the SOC code assigned to the original petition no longer exists. The Final Memo acknowledges “catch-all” classifications, but only in the aspect that adjudicators “should carefully review the evidence to determine that [two positions with the same catch-all classification] are in the same or similar occupational classification.”

3. MATCHING DETAILED OCCUPATIONAL CODES

AILA asked USCIS to state in its Final Memo that when two positions have “matching detailed occupational codes,” there should be a “presumption that 204(j) portability has been established…”

The Final Memo does not go quite that far, instead stating that “[s]uch positions will generally be considered to be in the same occupational classification unless, upon review of the evidence presented and considering the totality of the circumstances, the preponderance of the evidence indicates that favorable treatment is not warranted.” The Final Memo retains a footnote explaining that if two occupations are in the same catch-all classification, further investigation is warranted to determine whether they are in the same or similar occupational classification.

4. DIFFERENT DETAILED OCCUPATIONAL CODES WITHIN THE SAME BROAD OCCUPATION

AILA supported the Draft Memo's language that a review of the “totality of the evidence” is appropriate for determining whether two positions within the same broad occupation are similar for section 204(j) purposes. The same standard is used in the Final Memo.

5. CAREER PROGRESSION AND “OTHER VARIATIONS”

AILA supported the Draft Memo's language regarding career progression. The Final Memo retains the standards from the Draft Memo.

6. DIFFERENCES IN WAGES

AILA argued that differences in wages should not be considered in determining whether two positions are in the same or similar occupational classification. The Final Memo did not adopt this position, instead retaining the language that differences in wages should be considered along with all other relevant evidence.

However, AILA requested that a footnote stating that “[A]n increase or decrease in pay may not be dispositive” be changed to “is not.” The Final Memo changed the footnote to state that “An increase or decrease in pay, in and of itself, is not dispositive.”

7. ADDITIONAL COMMENTS

AILA advocated for the Final Memo including language that the Dictionary of Occupational Titles (DOT)/O*NET may be used in section 204(j) adjudications. The final Memo includes this language in a footnote.

AILA asked that the Final Memo include a paragraph confirming that self-employment is permitted. The Final Memo includes self-employment in a sentence in the Memo and states unequivocally in a footnote that an applicant may port to self-employment.

AILA requested that sentence be included in the Final Memo that states that geographic location is not relevant for section 204(j) portability purposes. The Final Memo notes on multiple occasions that an applicant may port to a position in a different geographic location than the original job offer.

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