Monday, September 30, 2013

Federal Government Shutdown will Affect Immigration-Related Services

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The impending shutdown of the U.S. Government and the consequential furloughing of thousands of federal employees will affect various federal agencies in different ways as explained here. There are four main U.S. agencies that engage in U.S. immigration-related services: the Department of Homeland Security, the Department of Justice, the Department of State, and the Department of Labor.  The federal courts also hear immigration-related cases.  To learn more about how a shutdown will affect the various federal agencies that engage in immigration-related services, watch the following short video:

Monday, September 23, 2013

Comprehensive Immigration Reform Appears Dead


Comprehensive Immigration Reform (“CIR”), the proposed legislation that would bring legal status to millions of undocumented individuals in the United States, appears to have all but been defeated in the United States Congress. Seven Members from both major political parties in the United States House of Representatives (“the House”) had formed a temporary coalition to seek passage of a comprehensive legislative bill that once passed would be the first major step forward to CIR becoming law since the United States Senate passed a legislative bill earlier this year in the summer. However, the Republican members of the “Gang of Seven” as the temporary coalition was called backed away from the proposed legislation after being criticized by more conservative elements within their political party. The breakdown of the coalition has already been acknowledged by the major media outlets as can be seen here. Even President Barack Obama’s former press secretary Robert Gibbs went on nationwide television and said himself that CIR appears dead:
NBC's Meet the Press, September 22, 2013
Although the Democrats are attempting on their own to salvage the CIR effort, the latest breakdown combined with the fact that the Republicans have a majority in the House shows that CIR is likely never to be signed into law.

Nevertheless, those who would have benefited from CIR if it had passed are not necessarily without any options. In recent years, the United States Department of Homeland Security has increased use of prosecutorial discretion, which includes administratively closing pending removal proceedings without issuance of an order of removal, granting stays of removal to those already ordered removed, and issuing Deferred Action for Childhood Arrivals (“DACA”) to those individuals brought to the United States at a young age. The United States Department of Homeland Security has issued a great deal of guidance on such a shift in policy with the latest guidance coming in the form of a memorandum on maintaining family unity found here. That same agency worked cooperatively with the United States Department of State to allow certain individuals, who are within the United States without lawful status and who would be deemed inadmissible upon departure solely for unlawful presence, to apply for a provisional waiver prior to even departing for an immigrant-visa interview abroad.

The federal courts have followed suit. For example, the United States District Court for the Central District of California last month ordered that foreign nationals detained within that court’s jurisdiction must be given a bond hearing at which they can actually be released. That order, found here, makes clear that its language is to be interpreted broadly and consequently is meant to apply to most immigrant detainees held in immigration custody for more than six months regardless of the current status of their removal proceedings.

Additionally, the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which is the federal appeals court that hears all petitions for review from the Board of Immigrations Appeals (“BIA”) regarding removal proceedings that take place in several Western states including but not limited to California, Arizona, Nevada, Washington, and Oregon, issued a decision today confirming its overturning of a BIA decision that found a foreign national not to be credible regarding his asylum application. The case, Bassene v. Holder, held that the BIA was wrong in concluding that alleged inconsistencies in two separate applications filed by a Senegalese man amounted to his being inconsistent and therefore dishonest. The Ninth Circuit agreed that the foreign national reconciled the alleged inconsistencies and even went out of its way to acknowledge that the foreign national’s asylum application was timely despite its being filed more than a year after his last entry because he filed it within a reasonable time following the expiration of his nonimmigrant status and of his discovery that he initially had filed the wrong form.

Therefore, for those foreign nationals willing to put in a little bit of energy to resolve their immigration matter, opportunities are there. Those who instead want for legal status to be delivered to them on a silver platter so to speak will keep waiting for CIR while these opportunities pass them by.

Wednesday, September 18, 2013

Court Constricts Rights of Those Seeking Fear-Based Forms of Relief



The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which is the federal appeals court that hears all petitions for review from the Board of Immigrations Appeals (“BIA”) regarding removal proceedings that take place in several Western states including but not limited to California, Arizona, Nevada, Washington, and Oregon, issued two decisions today restricting the ability of foreign nationals to obtain fear-based forms of immigration-related relief such as asylum and withholding of removal.

First, in a case called Garcia-Milian v. Holder the Ninth Circuit found that a woman could not establish that her suffering violent threats in her native Guatemala amounted to persecution based on a perceived political opinion despite such threats coming from individuals who were searching for her common-law husband because of his involvement in a guerilla group. The decision went further to find that the woman also had not established that the police in Guatemala were unwilling or unable to protect her from the threats despite the police’s declining to pursue the matter based on the conclusion that there was insufficient information.

Second, in a case called Kulakchyan v. Holder the Ninth Circuit held that one could not escape a potential frivolous-asylum-application finding simply by withdrawing the application. If an application for asylum is determined by an immigration judge to be frivolous, meaning it is wholly without merit potentially because it is fraudulent, then the applicant is barred not only from receiving asylum but also from receiving many other forms of relief including adjustment of status even if the applicant would otherwise have been eligible for a fraud-based waiver. In the decision, the Ninth Circuit deferred to the BIA’s determination that an Armenian woman’s asylum application was frivolous, triggering the devastating immigration consequences of such a determination, despite the woman’s later withdrawal of that application. The BIA had held, and the Ninth Circuit effectively condoned, that the filing of an asylum application is all that is required to begin an inquiry into whether such an application is frivolous, meaning the applicant does not even need to pursue it or otherwise seek a decision on it after filing for the application to be deemed frivolous.

The decisions are consistent with a similar decision issued at the end of last week by the Ninth Circuit in a case called Gutierrez v. Holder, which held that if the United States Department of Homeland Security (“DHS”) has evidence that a foreign national previously granted withholding of removal is no longer eligible for such relief because of some intervening occurrence, then it can seek to terminate the foreign national’s withholding-of-removal in conjunction with bringing removal proceedings, meaning without providing the foreign national a separate hearing on the issue of such termination. In that decision, the Ninth Circuit did not find that a Mexican woman was owed a separate proceeding solely for determination of whether her withholding-of-removal grant could be terminated and instead found that DHS could seek the termination in the context of new removal proceedings in which DHS need only show by a preponderance of the evidence that termination of such grant would be proper.

The cases show a trend toward making it more difficult for foreign nationals to obtain or maintain asylum, withholding of removal, and other forms of immigration-related relief if not careful in how they go about managing their immigration matter, something that should be taken very seriously.

Wednesday, September 11, 2013

A DREAM Deferred?

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A couple of weeks ago, the United States celebrated as a nation a speech made more than fifty years ago by Dr. Martin Luther King, Jr., who preached acceptance of and dignity for all. Today in the United States there are millions of individuals who face the indignity of not being accepted because of their immigration matter. The prospect of Comprehensive Immigration Reform ("CIR") brought hope to those foreign nationals that they would no longer have to suffer such an indignity. CIR was supposed to be the culmination of what many viewed in the United States as the new civil-rights movement, based not on race but rather on national origin. This movement included the idea that being an “American” did not require one to be born in, or even be a citizen or lawful permanent resident of, the United States. Instead, symbolically, being an American meant being instilled with American values, being raised in the United States, or being a contributing member of American society. If individuals fall into any of such categories, then, as this movement represented, their legal identity should match their symbolic identity.

The shift toward this new definition of what it meant to be an American began to make some actual progress. The debate over elimination of birthright citizenship instead turned toward inclusion of those who carried with them the same ideals that are ingrained in every citizen. For example, first in 2009, the United States Congress amended the Immigration and Nationality Act to permit primary and derivative beneficiaries of pending immigrant petitions to receive lawful permanent residency if they are in the United States despite the passing of the relevant petitioner. Previously, if a petitioner had passed away before the approval of his/her immigrant petition, then the immigrant petition was automatically withdrawn, thereby rendering the primary and derivative beneficiaries of that immigrant petition ineligible. Second, last year, the United States Department of Homeland Security implemented Deferred Action for Childhood Arrivals (“DACA”) to allow certain young people, known as “DREAMers” because they would have benefited from the proposed but defeated DREAM Act, to stabilize their ability to live and to work in the United States despite having no lawful immigration status. DACA became part of an overall shift in policy away from blind enforcement toward prosecutorial discretion. Third, earlier this year, the United States Department of Homeland Security implemented a regulation that permitted certain unlawfully present beneficiaries of immediate-relative immigrant petitions to avoid the uncertainty and long waits associated with returning to their home countries for immigrant-visa processing by allowing them to apply for a waiver provisionally while still in the United States. If the provisional waiver (“I-601A”) is approved, then the foreign national attends the immigrant-visa appointment abroad with confidence that the immigrant visa will be issued in a timely manner so that s/he may return to the United States soon thereafter. Finally, the United States Senate (“the Senate”) earlier this year passed CIR, making those who would benefit from it one step closer to their dream of being accepted in the United States and of having the dignity that comes with such lawful immigration status.

However, when the CIR bill moved to the floor of the United States House of Representatives (“the House”), that dream became indefinitely deferred. First, the Members in the House did not appear as eager to pass CIR as did their colleagues in the Senate. Such lack of eagerness stems from the different politics that exist in the House that do not necessarily exist in the Senate. Second, the United States became focused on the civil war in Syria because of the alleged use by the Syrian government of chemical weapons on those perceived to be rebelling against it. The discussion on whether the United States should use military action in light of the chemical-weapons attack dominated the news stories in the media, which all but stopped reporting on the prospect of CIR. Third, and related to the first two reasons, one of CIR’s strongest driving forces, the President of the United States (“the President”), may have lost any momentum he had with having the House pass a CIR bill similar to the Senate’s, if any, by not garnering the support necessary to obtain a resolution from the United States Congress authorizing the use of military action against the Syrian government. Although the two issues appear at first to be unrelated, their common link is the President’s being a proponent of each, and consistent with the politics that currently exist in the House, the President’s inability to build momentum on one affects such ability regarding the other.

While many remain hopeful that CIR will ultimately pass and become the law in the United States, one must be prepared for the prospect that it will fail and that reliance on the current law and the way in which it is being enforced will remain the only option. While such reliance may not be easy, it may still be beneficial because immigration law in the United States continues to evolve regardless of the United States Congress’s inaction. Such evolution as described above has helped hundreds of thousands if not millions, but the only way to know whether it can be beneficial to a certain individual, i.e., whether the dream of acceptance and dignity may actually be realized, requires confronting one’s immigration matter now rather than deferring it.