Refugee Status and Removal Proceedings

The Board of Immigration Appeals (BIA) recently issued a precedent decision that addressed removal proceedings for aliens that entered the United States as refugees. Matter of D-K, 25 I&N Dec. 761 (BIA 2012). In the Matter of D-K, the BIA first determined “that a refugee who has not adjusted status to that of a lawful permanent resident (LPR) may be placed in removal proceedings without a prior determination by the Department of Homeland Security (DHS) that the alien is inadmissible.” Id. This decision overruled prior BIA precedent set in the Matter of Garcia-Alzugaray, which held exclusion proceedings had been improperly initiated against the alien as “the former Immigration and Naturalization Service (INS) failed to terminate the alien's refugee status or determine him to be inadmissible as an immigrant after examination under oath by an immigration officer.” Id. at 763-764 citing Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986). The BIA found the reversal was necessary as the Federal Regulations pertaining to refugees had been “amended to streamline the adjustment process, making the decision whether to interview a refugee seeking permanent resident status a discretionary determination for DHS.” Id. at 764.

The BIA further relied upon the fact that neither the Immigration and Nationality Act (INA) §209 nor the Federal Regulations “explicitly state that termination of refugee status is necessary before an alien is placed in removal proceedings.” Id. In the Matter of Smriko, the BIA relied upon 8 C.F.R. §209.1(e) to conclude “that a refugee who had adjusted status could be placed in removal proceedings even though his status as a refugee was never terminated.” Id. citing Matter of Smriko, 23 I&N Dec. 836, 839-840 (BIA 2005). Specifically, the BIA focused on the fact that INA §239 “refers to 'the alien' and does not distinguish between aliens who are refugees and other aliens.” Matter of Smriko, 23 I&N at 838. As such, the DHS may properly initiate removal proceedings against an alien who is a refugee without taking the preliminary step of determining the alien is inadmissible to the United States.

The second issue addressed by the BIA was whether a refugee placed in removal proceedings should be subject to charges of deportability/ removability or inadmissibility. The BIA determined that when removal proceedings are initiated against an alien who entered the United States as a refugee the charges against the alien in the Notice to Appear should be removability under INA §237 rather than charges of inadmissibility under INA §212. Id. Pursuant to INA §237(a) “any alien in and 'admitted' to the United States shall be removed if the alien falls within one or more specific enumerated classes of deportable aliens.” Id. at 765. An “admission” is defined as “the lawful entry of an alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A). Refugees are admitted into the United States at the discretion of the U.S. Government. Any alien who believes he or she qualifies for refugee status “may apply for 'admission' with the DHS or consular office in the area he or she is located.” Id. at 766 citing 8 C.F.R. §207.1(a) and 8 C.F.R. §207.2(a).

In the Matter of D-K, the BIA acknowledged “the conditional nature of a refugee's status.” Id. at 767 (emphasis in the original). An alien's admission as a refugee is conditional due to its impermanent and contingent nature. The BIA nonetheless specifically held “to the extent that the pertinent language is ambiguous, we believe that a construction recognizing that a 'conditional admission' is nevertheless a form of 'admission' for purposes of section 237(a) of the Act would best comport with the overall structure of the statute.” Id. at 768. In making this conclusion, the BIA focused on the fact that a refugee makes “a lawful entry into the United States after inspection and authorization by an immigration officer.” Id. at 769. While a refugee must be reinspected after a year “for admission in a different status, that of a lawful permanent resident, this requirement does not undermine his or her initial admission as a refugee under section 207 of the Act.” Id. As such, the BIA concluded a refugee was “present in the United States pursuant to a prior admission and any charges in the notice to appear must be based on the grounds of deportability under section 237 of the Act.” Id. Thus, a refugee who ultimately becomes an LPR will be “admitted” twice. The first admission will be a conditional admission as a refugee pursuant to INA §207. The second admission will occur after reinspection and adjustment of status to an LPR pursuant to INA §209(a). After each “admission”, the alien would be subject to removal proceedings under deportability charges not inadmissibility.

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K Visa Derivative Can Only Adjust status Based Upon Marriage Between K Petitioner and K Visa Principal

The Board of Immigration Appeals (BIA) has unequivocally held an alien who entered the United States on a K-4 non-immigrant visa can “only adjust his or her status to that of a lawful permanent resident based on the Petition for Alien Relative (Form I-130) filed by the United States citizen K visa petitioner.” Matter of Jean Ro Saclolo Valenzuela, 25 I&N Dec. 867 (BIA 2012). In the Matter of Jean Ro Saclolo Valenzuela, the respondent's mother married a United States citizen who petitioned for both the respondent and her mother to receive K non-immigrant visas. Id. at 868. The respondent was issued a K-4 non-immigrant visa, which she used to enter the United States on December 28, 2003. Id. She was authorized to remain in the United States until December 27, 2005. Id.

On May 2, 2007, the respondent's mother adjusted her status adjusted her status to a lawful permanent resident (LPR) based upon her marriage to the K non-immigrant visa petitioner. Id. The respondent's Form I-130 filed by the K non-immigrant visa petitioner was denied as the respondent failed to appear for an interview. Id. The respondent subsequently married and sought adjustment of status through her marriage. Id. Though the respondent's Form I-130 had been approved by the Bureau of U.S. Citizenship and Immigration Services (USCIS), the Immigration Judge (IJ) denied her application for adjustment of status. Id. The IJ found the respondent was “ineligible to adjust her status on any basis other than the Form I-130 filed by the K visa petitioner.” Id.

The respondent appealed to the BIA arguing she was eligible to adjust her status based upon her marriage to a United States citizen despite entering the United States with a K-4 non-immigrant visa, because the statutory language of Immigration and Nationality Act (INA) §245(d) was ambiguous. Id. at 869. Pursuant to INA §245(d)

The Attorney General may not adjust [ ] the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216 of this title. The Attorney General may not adjust, under subsection (a) of this section, the status of a nonimmigrant alien described in section 101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) of this title.

INA §245(d). On appeal, the respondent argued the statute only referenced the primary K non-immigrant visa beneficiary. The respondent argued “as long as the principal beneficiary of the K-1 or K-3 visa petition adjusted his or her status in compliance with section 245(d), a derivative beneficiary of the K-1 or K-3 visa holder may adjust status on any valid basis.” Id.

However, the BIA found the language of INA §245(d) was not ambiguous as it “expressly includes 'the minor children' of a principal beneficiary.” Id. Thus, INA §245(d) “applies to any K visa holder, whether a principal beneficiary or a derivative.” Id. While the BIA has previously identified ambiguities in INA §245(d), it has repeatedly found “the language in section 245(d) of the Act is unambiguous to the extent that it clearly precludes a [K visa holder] from adjusting status on any basis other than marriage to the K visa petitioner.” Id. at 870 citing Matter of Sesay, 25 I&N Dec. 431, 433 (BIA 2011). See also Matter of Le, 25 I&N Dec. 541 (BIA 2011).

The respondent further argued “the restrictions on adjusting status apply only to the principal beneficiary of the K visa petition, and that once the principal beneficiary has adjusted status based on his or her marriage to the K visa petitioner, the restrictions are 'lifted' as to any derivative beneficiaries.” Id. However, such an interpretation of the statute would place the K non-immigrant visa derivative beneficiary in a better position than the K non-immigrant visa principal. Id. Though Congress' goal through the Immigration Marriage Fraud Amendments Act of 1986 to combat marriage fraud would be achieved “once the K-3 nonimmigrant adjusts status based on a bona fide marriage to the K visa petitioner”, Id., it nonetheless opted to create “a broad prohibition on the adjustment of status of K visa holders on any basis other than the marriage between the K visa petitioner and the principal K visa beneficiary.” Id. at 870-871. See also INA §245(d). The express intent of Congress was to limit all K non-immigrant visa holders to adjustment of status based upon the K visa petitioner and the principal K visa holder. Id. at 871.

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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Deferred Action Is Here

Today, the Bureau of U.S. Citizenship and Immigration Services announced the process for filing for requesting deferred action for aliens who arrived as children. The Obama Administration-had previously announced a deferred action process for young aliens considered low enforcement priorities on June 15, 2012. Deferred action is a discretionary determination to defer removal of an individual as an act of prosecutorial discretion. Deferred action is not the DREAM Act. It is important to remember that deferred action does not confer lawful status upon an individual. It does not provide a path to lawful permanent residence and/ or United States citizenship.

An individual may request consideration for deferred action if you meet the following criteria:

1.     You were under the age of thirty-one (31) as of June 15, 2012;
2.     You came to the United States prior to reaching your sixteenth birthday;
3.     You have continuously resided in the United States since June 15, 2007 through the present time;
4.     You were physically present in the United States on June 15, 2012, and at the time of filing your request for consideration of deferred action with the Bureau of U.S. Citizenship and Immigration Services;
5.     You entered the United States without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6.     You are 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; and
7.     You have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Aliens who demonstrate that they meet the above guidelines may request consideration for deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

To request deferred action, you must file Form I-821D Consideration of Deferred Action for Childhood Arrivals. This Form must be supported by evidence to establish you meet the above-referenced criteria. There is no fee for the Form I-821D Consideration of Deferred Action for Childhood Arrivals. However, applicants will be required to pay a biometrics servicing fee of $85.00. If you wish to request employment authorization, you must also file a Form I-765 Application for Employment Authorization and Form I-765WS Worksheet. You will need to pay a filing fee of $380.00 to file a Form I-765 Application for Employment Authorization.

While deferred action can be beneficial for some aliens, it is important to remember that deferred action does not confer lawful status upon an alien and can be terminated at any time at the Department of Homeland Security's discretion. Only Congress, through the enactment of legislation, can create a path to lawful permanent residence status or citizenship. Deferred action does not provide a permanent solution to young aliens present in the United States without lawful status. As such, it is important to discuss your unique facts with an experienced immigration attorney prior to applying for 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.

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BIA Broadly Defines the What Constitutes an Offense Relating to Obstruction of Justice"

Under section 101(a)(43)(S) of the Immigration and Nationality Act (INA) “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year”, INA §101(a)(43)(S), constitutes an aggravated felony. INA §101(a)(43)(S). However, the INA fails to define the phrase “an offense relating to obstruction of justice.” The Board of Immigration Appeals (BIA) recently used its authority to interpret statutes to conclude “accessory after the fact offenses necessarily relate to obstruction of justice within the meaning of section of 101(a)(43)(S) of the Act.” Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 844 (BIA 2012).

In the Matter of Valenzuela Gallardo, the alien was a native and citizen of Mexico. Id. at 839. He was previously admitted to the United States as a lawful permanent resident on or about May 23, 2002. Id. On December 28, 2007, the alien was “convicted of the crime of accessory to a felony in violation of section 32 of the California Penal Code and was sentenced to 16 months in prison.” Id. The alien was subsequently placed in removal proceedings charged with removability as an alien convicted of an aggravated felony. Id. He sought termination of the removal proceedings arguing “his crime does not qualify as 'an offense relating to obstruction of justice' because the statute under which he was convicted does not require that the offender's actions relate to any ongoing investigation or judicial proceedings.” Id.

The BIA concluded Congress specifically used the phrase “obstruction of justice” when drafting the aggravated felony definition found at INA §101(a)(43)(S). As such, the “use of this term of art indicated an intent that the phrase be interpreted consistent with its use in the Federal criminal code.” Id. at 840. According to the Federal criminal code, “whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” 18 U.S.C. §3. A conviction for accessory after the fact requires the offender to hinder or prevent the “apprehension, trial or punishment”, 18 U.S.C. §3, for the specific purpose of concealment. Id. at 841. In the Matter of Espinoza, the BIA held “'the specific purpose of hindering the process of justice brings the federal “accessory after the fact” crime within the general ambit of offenses that fall under the 'obstruction of justice' designation.'” Matter of Espinoza, 22 I&N Dec. 889, 894-895 (BIA 1999).

The critical element in determining whether a crime constitutes obstruction of justice is “the affirmative and intentional attempt, with specific intent, to interfere with the process of justice.” Matter of Valenzuela Gallardo, 25 I&N at 841. In the Matter of Valenzuela Gallardo, the BIA clarified that the existence of an ongoing criminal investigation or trial “is not an essential element of 'an offense relating to obstruction of justice.'” Id. The BIA relied upon other offenses considered “construction of justice” under the Federal criminal code such as those acts “performed with [the] intent to 'hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.'” Id. at 842. See Fowler v. United States, 131 S. Ct. 2045 (2011).

The BIA's decision in the Matter of Valenzuela Gallardo is just one in a series of recent decisions affecting aliens with criminal convictions. If you or a loved one is an alien and has been arrested for a criminal violation it is important to contact an experienced immigration as soon as possible. An experienced immigration attorney can insure you understand the possible immigration consequences of entering a guilty plea or being convicted of a crime. This attorney can also help develop a strategy to contest removal from the United States.

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