Provisional Waiver Expected Soon

We expect that the U.S. Government will soon publish a new procedure that will enable certain persons to apply for waivers while they remain in the United States.

Although we cannot be sure, we believe that the new procedures will be announced very soon, possibly as early as Monday.  We do not yet know when the new procedure will take effect, but we believe that the new procedure will take effect soon.

As soon as the new procedure is announced, we will have more information about eligibility requirements and procedures.

DREAM Announcement – Don’t Be Fooled

On June 15, 2012, the U.S. Department of Homeland Security announced that it would grant “Deferred Action” for certain people in the United States.

If U.S. Government officials are not in the process of trying to deport you, and if U.S. Government officials have never ordered your deportation in the past, then at this time you are NOT yet eligible to make any applications for anything related to this announcement.

Don’t be fooled by people offering you a green card, work authorization, or any other immigration benefit due to the recent announcement by the U.S. Government!

If the U.S. Government is not trying to deport you at this time, then you will need to wait until government officials create an application process, which will probably be in the month of August 2012.

If U.S. Government officials are in the process of trying to deport you at this time, then you should contact a knowledgeable and ethical immigration lawyer to determine if you might be eligible for the new procedures.

You might be eligible for “Deferred Action” if you meet all of the following:

  • You entered the United States before you turned age 16
  • You are now under age 31
  • You have lived in the United States for at least 5 years as of June 15, 2012
  • You are enrolled in school now, OR you graduated from high school, OR you have a GED, OR you have been honorably discharged from the Armed Forces
  • You have not been convicted of a felony, you have not been convicted of a “significant” misdemeanor, and you have not been convicted of more than 3 misdemeanors
  • You do not pose a threat to national security of public safety

You should speak with a knowledgeable and ethical immigration lawyer about your own particular immigration matter.

U.S. announces Deferred Action for some DREAMers

From the U.S. Department of Homeland Security:

WASHINGTON— Secretary of Homeland Security Janet Napolitano today announced that effective immediately, certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.

“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”

DHS continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals.

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.

While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. In the meantime, individuals seeking more information on the new policy should visit USCIS’s website (at www.uscis.gov), ICE’s website (at www.ice.gov), or DHS’s website (at www.dhs.gov). Beginning Monday, individuals can also call USCIS’ hotline at 1-800-375-5283 or ICE’s hotline at 1-888-351-4024 during business hours with questions or to request more information on the forthcoming process.

For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria and have been offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE will immediately begin to offer them deferred action for a period of two years, subject to renewal.

Temporary Protected Status for Syrians

On March 23, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), announced that DHS will designate Temporary Protected Status (TPS) for Syrians currently present in the United States.  Napolitano stated that “conditions in Syria have worsened to the point where Syrian nationals already in the United States would face serious threats to their personal safety if they were to return to their home country.”

Within the next several days, DHS will provide further guidance about TPS eligibility requirements and registration procedures.

Click here for a DHS press release.

Click here for USCIS information about TPS.

Michigan Court of Appeals rules that Padilla is not retroactive

The Michigan Court of Appeals has issued a decision that a new rule of criminal procedure announced by the U.S. Supreme Court is not retroactive, and thus only applies to current and future cases.

The U.S. Supreme Court, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), ruled that a criminal defense attorney must advise a defendant whether or not a guilty plea or a no-contest plea will have adverse consequences to the defendant’s immigration status.

In the Michigan case, People of Michigan v. Isaac Alvarez Gomez, the defendant is a permanent resident who pleaded no contest to possession with intent to deliver marijuana.  Four years later, the Department of Homeland Security initiated removal proceedings against the defendant.

After the U.S. Supreme Court issued the Padilla decision, the defendant in the Michigan case requested that his no-contest plea and his conviction be withdrawn, because his criminal defense attorney did not inform him of the immigration consequences of his plea.

The Michigan Court of Appeals ruled that Padilla does not apply to convictions that occurred prior to the Padilla ruling on March 31, 2010.

This case or other similar cases in Michigan might be appealed to the Michigan Supreme Court.

Courts around the country are split on the issue of whether Padilla is retroactive – whether the ruling applies to convictions issued prior to the Padilla ruling.

Access the decision here:  People of Michigan v. Isaac Alvarez Gomez

BIA issues ruling regarding drug conviction

The Board of Immigration Appeals (BIA) recently issued a ruling regarding a permanent resident in removal proceedings who had been convicted of possession of marijuana with intent to distribute under a state law.  Although the state law conviction was a misdemeanor, the U.S. government charged him with having committed an aggravated felony under federal law.

At issue in the case is whether the respondent qualifies under a federal exception to the aggravated felony determination if the crime involved a small amount of marijuana for no remuneration, or payment.

The BIA ruled that the respondent must show that he qualifies for the exception, and that he may present evidence outside of the record of conviction to establish that the crime involved a small amount of marijuana and no payment.  Examples of such evidence could include police reports and crime lab reports.

Although the BIA did not rule specifically on the quantity of marijuana that would qualify as a “small amount,” the Board indicated that 30 grams or less could generally be considered as a “useful guidepost in determining whether an amount is ‘small.'”

Access the decision here:  Matter of Wilmer Rodrigo CASTRO RODRIGUEZ, Respondent

Judge orders DOJ to release emails

“Trust everybody, but cut the cards.”  Thus began the opinion of Judge Jed Rakoff, of the U.S. District Court for the Southern District of New York, ordering the U.S. Department of Justice to release some of the contents of four emails sent between federal officials and their lawyers.  The judge ordered the information to be released by February 13, 2012.  The judge issued his opinion in response to a lawsuit filed by several immigrants’ rights groups.

In a case argued before the Supreme Court in 2009, Nken v. Holder, 129 S. Ct. 1749 (2009), attorneys representing the U.S. government stated to the Supreme Court that aliens deported from the United States while their appeals are still pending, and who later win their court cases, will be allowed to return to the United States and to get back the immigration status that they had prior to their deportation.

The plaintiffs in the New York case had filed a request under the Freedom of Information Act, seeking documents related to the U.S. government’s procedures for bring back deported aliens who later won their court cases on appeal.  In response, the U.S. government issued a series of emails, but most of the information was redacted, or blacked out.

Government lawyers made several arguments in defense of the decision not to release the information contained in the emails.  Judge Rakoff rejected all of them, and ordered the government to release certain information from each of the four emails.

Supreme Court will hear arguments April 25 in Arizona immigration case

The U.S. Supreme Court will hear oral arguments on April 25 in Arizona v. United States, the controversial case surrounding Arizona’s S.B. 1070, a state law that requires, among other things, the following actions in Arizona:

  • Police who make any stop or arrest, and who have a “reasonable suspicion” that a person is in the United States without permission, must determine whether the person has a right to be in the United States, and if police arrest a person, they may not release them until the person’s legal status has been verified by the federal government.
  • Any person in Arizona who is not a United States Citizen must obtain and carry documents proving legal status.  Any such person who does not do so is guilty of a crime.
  • Any undocumented person who applies for a job or works in Arizona is guilty of a crime.
  • Police are authorized to arrest without a warrant any person whom the officer believes has committed a crime that would subject the person to deportation, even if the crime was committed outside Arizona.

The United States Court of Appeals for the Ninth Circuit has blocked these 4 provisions.  The State of Arizona appealed the Ninth Circuit’s decision, and the Supreme Court has agreed to hear the case.

Supreme Court Justice Elena Kagan will not be taking part in deciding the case.  That means that only 8 Justices will decide the case.  In the event of a 4-4 split, the Ninth Circuit’s decision will stand.

The case sets up a showdown of sorts between Arizona Governor Jan Brewer, who contends that S.B. 1070 is simply an attempt to allow Arizona law enforcement to cooperate with federal immigration officials, and the Obama Administration, which contends that Arizona has attempted to write its own immigration laws – something that only the federal government has the power to do.

DHS extends TPS for Salvadorans

The U.S. Department of Homeland Security has extended Temporary Protected Status (TPS) for 18 months for eligible persons from El Salvador who are present in the United States.  Persons from El Salvador who are currently in TPS status must re-register with U.S. Citizenship and Immigration Services (USCIS) on or before March 12, 2012.

TPS re-registrants are eligible to apply for a new Employment Authorization Document (EAD), which will be valid until September 9, 2013.

If you have any questions about TPS or the procedures required to re-register, please contact a qualified immigration attorney.