BIA Limits Application of the INA 212 Waiver

The Board of Immigration Appeals (BIA) recently limited the availability of the INA§212(h) waiver to lawful permanent residents who have been convicted of aggravated felonies. The Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits have previously held an aggravated felony conviction disqualifies an alien from a waiver under INA §212(h) only if the conviction occurred after the alien was admitted to the United States as a lawful permanent resident following inspection at a port of entry. See Bracamontes v. Holder, 2012 WL 1037479 (4th Cir. 2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); and Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011). In Martinez, the Court of Appeals for the Fifth Circuit held

the statutory phrase “an alien who has previously been admitted for permanent residence” was unambiguous and referred exclusively to individuals who had lawfully entered the United States as permanent residents after inspection at a port of entry, not to aliens who had acquired lawful permanent residence through adjustment of status within the United States after entry.

Matter of E.W. Rodriguez, 25 I&N Dec. 784, 786 (BIA 2012) citing Martinez, 519 F.3d at 524-526. The Court of Appeals for the Fifth Circuit based this conclusion on a finding that “for aliens who adjust post-entry to LPR status, § 212(h)'s plain language demonstrates unambiguously Congress' intent not to bar them from seeking a waiver of inadmissibility.” Martinez, 519 F.3d at 546.

However, the BIA declined to apply the holdings of the Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits in removal “proceedings arising elsewhere.” Matter of E.W. Rodriguez, 25 I&N Dec. at 789. Rather, the BIA held “[w]e respectfully disagree with the Martinez court's interpretation of the statute, but are not free to construe the statute differently in Fifth Circuit cases because the Martinez court found the language of section 212(h) to be unambiguous.” Id. at 788. The BIA further held as the Courts of Appeals for the Fourth and Eleventh Circuits “also found section 212(h) to be unambiguous, we likewise conclude that those decisions are binding precedent in removal proceedings arising within the Fourth and Eleventh Circuits[.]” Id.

The BIA declined to follow the precedent established by the Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits concluding “that the language of section 212(h) is ambiguous when understood in context of the statute taken as a whole.” Id. at 789. The BIA relied upon its prior decision in the Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), and held “the proper solution of that ambiguity is to interpret the statute as barring relief for any alien who has been convicted of an aggravated felony after acquiring lawful permanent residence status, without regard to the manner in which such status was acquired.” Id. The rationale was that “the statutory terms 'admitted' and 'admission' should be construed to include a grant of adjustment of status.” Id. Although the BIA “acknowledged that adjustment of status does not fit within the statutory definition of the term 'admission' set forth at section 101(a)(13)(A) of the Act, [it further stated] we have nevertheless been constrained to treat adjustment as an admission in order to preserve the coherence of the statutory scheme and avoid absurdities.” Id.

This decision has deprived lawful permanent residents who have been convicted of aggravated felonies of a valuable form of relief from removal. The hope for those lawful permanent residents who have been convicted of aggravated felonies who are not within the jurisdiction of the Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits is to have the BIA's decisions in the Matter of E.W. Rodriguez, supra. and the Matter of Koljenovic, supra. overturned. This can only be achieved by challenging the ruling in other Courts of Appeals. If you are lawful permanent resident who has been convicted of an aggravated felony and are in removal proceedings, or are seeking appellate review, it is important to retain experienced counsel to represent you. You may be able to successfully argue the BIA's decisions in the Matter of E.W. Rodriguez, supra. and the Matter of Koljenovic, supra. found an ambiguity in the law that in reality does not exist and thus, should be overturned.

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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Obama Administration Announces Deferred Action for Young Aliens

On June 15, 2012, the Obama Administration announced a deferred action process for young aliens considered low enforcement priorities. This is effectively an expansion of prior efforts by the Obama Administration to focus on public safety, border security, and the integrity of the immigration system. The Department of Homeland Security (DHS) has concentrated its limited resources on the removal of aliens that pose a danger to national security or a risk to public safety, including aliens who have been convicted of crimes, with particular emphasis on violent criminals, felons, and repeat offenders. At the same time, DHS has determined it will exercise prosecutorial discretion when dealing with low priority cases such as aliens who were brought into the United States as children and who have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses.

To be eligible for deferred action, an alien must establish through verifiable documentation that he or she:

1. Came to the United States while under sixteen (16) years of age;
2. Has continuously resided in the United States for at least five (5) years preceding June 15, 2012 and was present in the United States on June 15, 2012;
3. Currently attending school, has graduated from high school, has obtained a general education development certificate (GED), or is an honorably discharged veteran of the United States Coast Guard or Armed Forces;
4. Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
5. Not be above thirty (30) years of age.

An alien who demonstrates that he or she meets the criteria will be eligible to receive deferred action for a period of two years, subject to renewal. Each request will be considered on a case-by-case basis. An alien who is subject to a final order of removal is also eligible for a grant of deferred action assuming he or she can satisfy the criteria set forth above. Deferred action is a discretionary decision made by the Bureau of U.S. Citizenship & Immigration Services (USCIS) or Immigration & Customs Enforcement (ICE) to defer removal of an alien.

An alien granted deferred action will not accrue unlawful presence during the period of deferred action, but deferred action does not forgive any previous or subsequent periods of unlawful presence an individual may or has accrued. In addition to not being removed from the United States, an alien granted deferred action may be eligible to receive employment authorization for the period of deferred action provided he or she can demonstrate economic necessity.

This deferred action policy is not in effect yet. Requests for deferred action should not be filed with USCIS and/or DHS at this time. Any requests filed at this time will be rejected. USCIS has been given sixty (60) days to create a process for accepting requests for deferred action. You can get more information at www.uscis.gov or by calling the ICE hotline at 1-888-351-4024 between the hours of 9A.M. to 5P.M. You can also check back here for future updates on the deferred action program.

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 DHS'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 Holds Child Can Cease Being a Qualifying Relative

Cancellation of removal is a form of relief available to certain permanent residents and non-permanent residents in removal proceedings before the Immigration Judge. A non-permanent resident may seek cancellation of removal if the alien has been in the United States continuously for at least ten (10) years, is a person of good moral character, and can establish that his or her removal would result in “exceptional and extremely unusual hardship” to the alien's United States citizen or legal permanent resident spouse, parent, or child. A “child” is defined by the Immigration and Nationality Act (INA) as “an unmarried person under twenty-one years of age.” INA §101(b)(1). In the Matter of Valentin Isidro-Zamorano, the Board of Immigration Appeals (BIA) recently addressed how to handle an application of cancellation of removal where the son or daughter met the definition of a “child” when the application was filed with the Immigration Court, but subsequently turned twenty-one (21) before the Immigration Judge was able to adjudicate the application on the merits, which resulted in the alien no longer having a qualifying relative under section 240A(b)(1)(D) of the INA. See Matter of Valentin Isidro-Zamorano, 25 I&N Dec. 829 (BIA 2012).

The alien in the Matter of Valentin Isidro-Zamorano was a native and citizen of Mexico who had entered the United States without inspection on May 1, 1994. Id. His son, a United States citizen, was born on January 29, 1985. Id. at 829-830. The alien was subsequently placed in removal proceedings. He filed an application for cancellation of removal (EIOR-42B) with the Immigration Judge in 2005. Id. at 830. At the time this application was filed, the alien's son was under twenty-one (21) years of age. Id. Before the Immigration Judge could adjudicate the application for cancellation of removal, the alien's son turned twenty-one (21). The Immigration Judge concluded “the son could no longer be a qualifying relative for purposes of establishing the respondent's eligibility for cancellation of removal and denied the application.” Id. The BIA dismissed the alien's appeal on August 30, 2007.

The Court of Appeals for the Ninth Circuit remanded the case to the BIA “to determine whether Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006), 'should be extended to circumstances like those in this case.'” Isidro-Zamorano v. Holder, 365 F. App'x 846, 847 (9th Cir. 2010). Id. at 829. The issue before the BIA in Matter of Bautista Gomez was whether the applicant for cancellation of removal must establish he or she was eligible for such relief at the time the notice to appear was served. In the Matter of Bautista Gomez, the alien was ineligible for cancellation of removal as she did not have a qualifying relative. The alien subsequently filed a motion to reopen arguing she acquired qualifying relatives as her parents were granted cancellation of removal in the same removal proceedings. However, the Immigration Judge denied her motion to reopen based upon a conclusion that she did not have qualifying relatives at the time she was served with the notice to appear placing her in removal proceedings. The Immigration Judge relied upon 8 C.F.R. §1003.23(b)(3), which provides “that a motion to reopen for consideration or further consideration of an application for cancellation of removal '[p]ursuant to section 240A(d)(1) [ ] may be granted only if the alien demonstrates that he or she was statutorily eligible for such relief prior to the service of a notice to appear.'” Matter of Valentin Isidro-Zamorano, 25 I&N at 830.

The BIA reversed the decision in the Matter of Bautista Gomez holding, “[b]ecause the regulation made reference to section 240A(d)(1) of the Act [ ] its restriction only applied to an applicant's continuous physical presence requirement.” Id. As the alien in the in the Matter of Bautista Gomez had satisfied the continuous physical presence requirement at the time she was served with the notice to appear, the BIA concluded the alien “could establish eligibility for cancellation of removal based on the acquisition of qualifying relatives.” Id. The BIA specifically held “that the issues of good moral character and qualifying relatives are properly considered at the time an application for cancellation of removal is decided.” Id. at 830-831 citing Matter of Bautista Gomez, 23 I&N Dec. at 894-95. A contrary position would result in a situation where “factors arising subsequent to the filing of an application that may be favorable to the respondent's claim, such as the birth of a United States citizen child, marriage to a lawful permanent resident or citizen, or a serious accident or illness involving a qualifying relative, could not be considered in determining the existence of exceptional and extremely unusual hardship.” Id. at 831.

However, in the Matter of Isidro-Zamorano, the BIA declined to extend the rationale in the Matter of Bautista Gomez to a situation where the qualifying child no matter met the definition of a child at the time the Immigration Judge adjudicated the application on its merits. Id. The BIA relied on prior precedent that established an application for relief from removal was a “continuing” application. Id. See also Matter of Garcia, 24 I&N Dec. 179, 181 (BIA 2007); Matter of Castro, 19 I&N Dec. 692 (BIA 1988); and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005). The BIA held “[c]onsistent with this principle, we conclude that the respondent did not have a qualifying relative when the Immigration Judge adjudicated the application and therefore could not establish eligibility for relief.” Id. See Matter of Morales, 25 I&N Dec. 186, 187 (BIA 2010); and Matter of Portillo-Gutierrez, 25 I&N Dec. 148, 149 (BIA 2009). Though this ruling created a difficult situation for the alien, the BIA found there was “no basis in law to conclude that an applicant in the respondent's circumstances, who loses his qualifying relationship before his application is even adjudicated on its merits by the Immigration Judge, nonetheless retains his eligibility for cancellation of removal.” Id.

The BIA further addressed whether the Child Status Protection Act (CSPA) applied to the situation in the Matter of Isidro-Zamorano. The BIA was not persuaded that the intent of the CSPA “was to allow an alien whose qualifying relative had turned 21 to retain eligibility for cancellation of removal.” Id. Rather, the CSPA was intended to preserve “the 'child status' for individuals who qualified as a 'child' at the time a visa petition or application for permanent resident or derivative asylum status was filed on their behalf, but who turned 21 before a final adjudication was made.” Id. The BIA found its position was reinforced given the language of the CSPA “explicitly refer[ed] to certain forms of relief and to particular sections of the Act”, Id., of which cancellation of removal was not included.

There is a potential glimmer of hope for an alien who finds himself or herself in a similar situation to the alien in the Matter of Isidro-Zamorano. The BIA did not foreclose an argument that the qualifying child should still be considered a “child” after attaining the age of twenty-one (21) where there was an “improper delay on the part of the Immigration Judge”, Id. at 832, or where there was “an unreasonable or even unusual amount of time for the conclusion of removal proceedings.” Id. If you or a loved one is in a situation where the qualifying child is nearing the age of twenty-one (21), it is important to retain an experienced attorney to assist you to avoid being in the same situation as the alien in the Matter of Isidro-Zamorano. However, if you find yourself in a situation where your son or daughter has already turned twenty-one (21) it is imperative that you retain experience counsel to determine whether you can argue the removal proceedings were improperly or unreasonably delayed or whether there are other applications for relief you could pursue.

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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Traveling on Advance Parole

I often run into this question asked by my clients: Can an individual who has overstayed his original visa in the USA or otherwise been present illegally in the USA for many years, travel abroad and return to pursue adjustment of status application, which had been pending with USCIS on the day of the travel? For years, the answer I would give had been a resounding NO! Well, it may no longer be necessarily so. Historically, DHS’s position on this issue has been that such individual would be ineligible for admission to the USA, including adjustment of status, on the grounds of the inadmissibility bars set forth in INA 212(a)(9)(B)(i)(II).  Consequently, many of such individuals would inevitably end up in removal proceedings before an immigration judge, having been charged with the inadmissibility.

This section of the law sets forth two major inadmissibility bars originally designed to discourage nonimmigrants from overstaying their welcome in the USA. Hence, with very few exceptions, an individual who had overstayed their authorized nonimmigrant stay in the USA would, on the next travel, be barred from being admitted into this country for three years if such overstay lasted for longer than 180 days. An individual whose overstay lasted for over “ a year or more” would be barred from reentering/being admitted into the USA for even longer period of ten years.  Since the DHS was taking a position that any departure would trigger these bars, the very fact of such individual's travel would, in the eyes of the DHS, render him or her barred from being admitted. Absent a grant by an immigration judge of the proven extreme hardship waiver to qualifying relative in the USA, these noncitizens would render themselves ineligible for adjustment of status by the very virtue of having traveled abroad, even though such travel occurred after a grant of advance parole by the USCIS and even though absent such travel, this very individual would have been still eligible for the very immigration benefit he or she found themselves now barred from pursuing. This situation lasted for years, creating voluminous history of litigation by the immigration bar.

Recently, a welcomed change has come for some such noncitizens. It was effectuated by the Board of Immigration Appeals holding in the joined decision in the Matter of Manohar Rao ARRABALLY and Matter of Sarala YERRABELLY (25 I&N Dec. 771 (BIA 2012)), decided by the Board on April 17, 2012. The majority of the panel has held that an undocumented noncitizen who has been granted an advance parole by the USCIS while waiting for adjudication of his or her adjustment of status application and temporary travels abroad “ does not thereby make a departure … from the United States” within the meaning of the INA 212(a)(9)(B)(i)(II).  What this holding means from the practical standpoint is that such noncitizens should be allowed back into the United States if they have their good faith adjustment applications pending before the USCIS and sought advance parole so they could be allowed to return to the USA from a temporary travel abroad, if such advance parole benefit was granted by the DHS. The Board held that such individuals would no longer be considered having departed from this country and thus should be allowed to enter the USA in order to continue pursuing their adjustment application, effectively making the “overstay inadmissibility bars” inapplicable to them in these narrow circumstances.

This important decision by the BIA, in essence, established the following conditions under which certain noncitizens who are not legal permanent residents could travel abroad, while awaiting adjudication of their adjustment of status application in a situation in which they would have been otherwise inadmissible as legally barred from being admitted into this country. To travel, such an individual needs (1) to have his or her bona fide adjustment of status application pending before the USCIS; (2) be otherwise not inadmissible or have a prima facie eligibility for a waiver of such inadmissibility; (3) to have been granted advance parole by the USCIS; (4) travel abroad temporarily; (5) be returning to the USA in order to continue pursuing this very application for adjustment of status. If all of these conditions are met, such individuals, the BIA held, do not make a “departure” from the USA for purposes of triggering the overstay bars.

In arriving at this conclusion, the BIA pointed out that the Congress did not define the term “departure” in the Immigration and Nationality Act, because such definition would be very difficult to arrive at. Instead, the meaning of the term was left for the regulations to determine. While continuing to define “departure” broadly, the Board, nevertheless, refused to read into it just about any departure from the USA, regardless of the circumstances. Instead, the Board used a common sense approach, emphasizing importance of “taking into account Congress’ intention to enact a symmetrical and coherent regulatory scheme in which all parts fit into a harmonious whole.” In doing so, the Board cited FDA v. Brown Y Williamson Tobacco Corp 529 U.S. 120, 133(2000) wherein US Supreme Court emphasized this very Congress’s intend, albeit as applied to a different regulatory scheme. The Board concluded that the intention of the Congress for enacting the overstay bars was to place nonimmigrants on notice that if they overstayed their welcome in the USA long enough, they would thereafter be unwelcome to come back for substantial period of time of three/ ten years, depending on the length of the overstay.

The Board concluded “the same cannot be said” for noncitizens who “left the United States and returned with the Government authorization pursuant to the grant of advance parole.” The Board opined that by granting the advance parole, the DHS, in essence, gave permission to the individual to travel abroad temporarily and then return to the United States to continue pursuing their immigration benefits. In so doing, the DHS provided assurances to such individuals that their application for this immigration benefit will not be “deemed abandoned” during their absence and that they will be “paroled back into the United States upon return under prescribed conditions if [they] cannot establish that [they are] admissible at the time.” The Board explained that it opined so because under the law, advance parole is a distinct immigration benefit for “which the alien must demonstrate his eligibility and worthiness,” grant of which by the DHS presupposes both that the grantee “will be permitted to return to the United States thereafter and that he will, upon return, continue to pursue the adjustment application he or she had filed before departing.

The Board found that it was not a Congress’s intention to render such an individual inadmissible under INA 212(a)(9)(B)(i)(II) “solely by virtue of the trip abroad that (1) was approved in advance by the United States Government on the basis of application demonstrating the alien’s qualification for and worthiness of the benefit sought; (2) presupposes the alien’s authorized return thereafter; (3) and was requested solely for purposes of preserving the alien’s eligibility for adjustment of status.”   

At the same time, the BIA emphasized that its holding only applied to inadmissibility under the overstay bars of the INA 212(a)(9)(B)(i)(II). The Board explained that other inadmissibility grounds, such as those imposed by certain criminal convictions, might still apply. The Board explained that those inadmissibility grounds would still be applicable in the context of adjustment of status and would not be triggered by the sole virtue of the alien’s preauthorized travel abroad by the grant of advance parole. For this reason, noncitizens should always consult an experienced immigration attorney for a legal advice on the inadmissibility issues prior to traveling abroad even pursuant to the grant of an advance parole.

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