Sioban Albiol, Clinic Coordinator
Sarah Diaz, Staff Attorney
Linus Chan, Staff Attorney
Davina Campos, Paralegal
Lorena Hernandez, Administrative Assistant
*Please note that the information contained in the digest is not intended as legal advice and does not substitute for independent analysis in research in a particular case
United States Citizenship and Immigration Service (USCIS) Announcements
18-Month Extension of Temporary Protected Status for Somalia
The Department of Homeland Security (DHS) extended Temporary Protected Status (TPS) for nationals of Somalia from its current expiration date of Sept. 17, 2009 through March 17, 2011. Individuals, who have already been granted TPS, are eligible to re-register and maintain their status for an additional 18 months. TPS does not apply to Somali nationals who entered the United States after Sept. 4, 2001. Nationals of Somalia (and people having no nationality who last habitually resided in Somalia) who have been granted TPS must re-register for the 18-month extension during the 60-day re-registration period beginning July 27, 2009 and remaining in effect through September 24, 2009. USCIS has automatically extended the validity of EADs for eligible Somali TPS beneficiaries for six months through March 17, 2010.
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7862cb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
USCIS issues guidance regarding surviving spouses of Deceased U.S. Citizens and their Children.
Napolitano granted two year deferred action status for widows and widowers of US Citizens, and unmarried children under 18, whose residence is conditional on the petition of the deceased. Under the INA, spouses of US Citizens receive conditional permanent resident status for the first two years of marriage, after which they are eligible for full permanent residence if they are still married. Before this new policy, immigrants whose spousal petitioners passed away before the two years were completed would lose their lawful status.
Now, under Napolitano’s direction, USCIS is to suspend adjudication of visa petitions and adjustment applications filed for a widow where the sole reason for reevaluation of immigration status was the death of a U.S. citizen spouse before the two year anniversary of the marriage. ICE will no longer be initiating or continuing removal proceedings or executing final orders of removal against qualified widows.
http://www.ssad.org/images/Surviving_Spouses_Deferred_Action_Guidance.pdf
Department of Health and Human Services Repeals HIV Ban
The US Department of Health and Human Services (HHS), proposed regulations to end the HIV ban on travel to the United States, by removing HIV from the official list of “communicable diseases of public health significance.” Since 1993, HIV-positive individuals have been inadmissible to the United States on the grounds of their HIV-status, as both visitors and immigrants.
The proposed regulation is open for public comments and can be found here http://edocket.access.gpo.gov/2009/pdf/E9-15814.pdf
Department of Homeland Security (DHS) Announcements
DHS Expands 287(g) Program
DHS released a new standardized Memorandum of Agreement (MOA) that it will use in its expanded 287(g) program which grants state and local law enforcement agencies federal immigration enforcement authority. Section 287(g) of the Immigration and Nationality Act (INA) provides for the assignment of immigration enforcement authority in certain circumstances to specific state or local agencies. Before, MOAs between U.S. Immigration and Customs Enforcement (ICE) and local law enforcement varied by jurisdiction, but now the new standardized MOA would govern all 287(g) partnerships. The 66 local jurisdictions that currently have “287(g)” agreements in place will have to re-sign the new agreements.
The new standardized agreement can be found here: http://www.aclu.org/pdfs/immigrants/maricopa_moa_final_20090716.pdf
BOARD OF IMMIGRATION APPEALS (BIA) CASES
The case of Matter of Wang 25 I&N Dec. 28 (BIA 2009), regarding application of the Child Status Protection Act in cases where the derivative beneficiary has aged out and a new petition has been filed under a new preference category, has been previously discussed in emails distributed through our listserve and is not discussed here.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3646.pdf
Visa Waiver Pilot Program: No bond hearing in asylum-only removal proceedings
Matter of Werner, 25 I & N Dec. 45 (BIA 2009)
In asylum-only removal proceedings involving individuals admitted under the Visa Waiver Pilot Program, Immigration Judges do not have authority to re-determine bond.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3648.pdf
False claim to US citizenship
Matter of Barcenas-Barrera, 25 I & N Dec. 40 (BIA 2009)
In 2003, Olga Barcenas-Barrera, a noncitizen, applied for a US passport listing her place of birth as Edinburg, Texas. In 2004, she became a lawful permanent resident. In 2006, she was convicted of making a false statement on an application for a passport in violation of 8 USC Sec. 1542 and was sentenced to 3 years probation. The BIA found that she had falsely represented herself to be a US citizen for the purpose of obtaining a benefit under the INA, federal or state law as a passport can be used to enter the country and maintain employment. She was therefore inadmissible under INA Sec. 212(a)(6)(C)(ii) at the time of entry and therefore deportable. A 237(a)(1)(H) waiver would not waive inadmissibility under this ground, so she was ordered deported.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3647.pdf
Aggravated felony – receipt of stolen property
Matter of Cardiel, 25 I & N Dec. 12 (BIA 2009)
A conviction for receipt of stolen property under section 496(a) of the California Penal Code, with a sentence of imprisonment for at least 1 year, categorically qualifies as a receipt of stolen property aggravated felony conviction under INA Sec. 101(a)(43)(G).
http://www.usdoj.gov/eoir/vll/intdec/vol25/3645.pdf
Right to counsel/Ineffective assistance of counsel
Matter of Compean, 25 I & N Dec. 1 (AG 2009)
The Attorney General vacated the AG’s previous decision in Matter of Compean, Bangaly, & J-E-C, 24 I & N Dec. 710 (AG 2009). The AG directs that a new regulatory framework be drafted and proposed for evaluating ineffective assistance of counsel claims and that in the meantime, the BIA should apply pre-Compean standards for evaluating these motions.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3643.pdf
Asylum – female genital mutilation
Matter of A-T-, 25 I & N Dec. 4 (BIA 2009)
This case involved a citizen of Mali who had previously undergone female genital mutilation. The Attorney General had previously vacated the BIA decision denying withholding of removal (on the bases that she no longer had a future fear of persecution because FGM had already been performed) and remanded the case. Matter of A-T_, 24 I & N Dec. 617 (AG 2008). The BIA now remands the case to the IJ for further fact-finding in light of the AG’s decision. The BIA requested specificity with regard her claimed social group, the identification of her persecutors and her future fear of harm.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3644.pdf
Motion to reopen – Marriage in proceedings
Matter of LAMUS, 25 I&N Dec. 61 (BIA 2009) A motion to reopen to apply for adjustment of status based on a marriage entered into after the commencement of removal proceedings may not be denied under the fifth factor enumerated in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), based on the mere fact that the Government has filed an opposition to the motion, without regard to the merit of that
opposition.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3652.pdf
Motion to reopen in absentia order
Matter of BULNES, 25 I&N Dec. 57 (BIA 2009) An alien’s departure from the United States while under an outstanding order of deportation or removal issued in absentia does not deprive the Immigration Judge of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised upon lack of notice.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3651.pdf
Vacating an expedited removal order; US citizen
Matter of LUJAN, 25 I&N Dec. 53 (BIA 2009) The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge’s decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3650.pdf
TPS- jurisdiction in removal proceedings
Matter of LOPEZ, 25 I&N Dec. 49 (BIA 2009) An applicant for Temporary Protected Status may seek de novo review by an Immigration Judge in removal proceedings, regardless of whether all appeal rights before the Department of Homeland Security have been exhausted. Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007), clarified.
http://www.usdoj.gov/eoir/vll/intdec/vol25/3649.pdf
FIRST CIRCUIT COURT OF APPEALS
Asylum – victim of trafficking
Burbiene v. Holder, No. 08-1478 (1st Cir. 2009)
Petitioner, a from Lithuania, filed an asylum application on behalf of herself and her daughter based on her fear that she or her daughter could fall victim to human trafficking in the sex trade if they returned to Lithuania. The asylum application was rejected on the basis that she had not established the government is unable or unwilling to control the traffickers. For this reason the court did not reach the question as to whether she had established asylum based on membership in a particular social group.
http://www.ca1.uscourts.gov/pdf.opinions/08-1478P-01A.pdf
Adjustment of Status under 245(i) – “Approvable when filed”
McCreath v. Holder, No. 08-2276, 2009 (1st Cir. 2009)
McCreath entered the US without inspection in 1996 and sought to adjust his status in removal proceedings. Two petitions had been filed on his behalf. The first was submitted in 1997 by his then USC spouse. The marriage was later annulled. The second was filed on April 4, 2001 by his second USC wife, but was rejected for failure to pay the proper filing fee—it appeared that neither McCreath nor his wife has signed the money order. McCreath later resubmitted the Form I-130 petition and was issued a May 2001 priority date. The Court upheld the BIA’s decision that neither petition had been “approvable when filed”—the first marriage was void and could not support a petition and the second was not properly filed—therefore, McCreath had not established eligibility for adjustment of status under 245(i).
http://www.ca1.uscourts.gov/pdf.opinions/08-2276P-01A.pdf
Motion to reopen removal proceedings
Chedid v. Holder, No. 08-1552. (1st Cir. 2009).
After Chedid’s applications for withholding and CAT were denied, he filed a motion to reopen removal proceedings based on marriage to a USC wife. The initial motion to reopen was denied. It had been filed after the expiration of voluntary departure granted by the Board of Immigration Appeals and beyond the 90 day deadline for motions to reopen. Chedid then filed a second motion to reopen arguing that the time and number limits for the motion should be tolled due to ineffective assistance of counsel. Chedid filed a bar complaint against his previous attorney stating that he was not seeking disciplinary action or sanctions, but was filing the complaint to comply with the Matter of Lozada motion to reopen. The motion to reopen was denied as being untimely, and because Chedid had not acted with “due diligence” filing the motion to reopen—a year had passed between the first and second motions and the Court did not find sufficient Chedid’s explanation that the delay was due in part to taking several months to find an attorney to assist with the case. Further, Chedid’s bar complaint showed less than full compliance with Lozada requirements for a motion to reopen.
http://www.ca1.uscourts.gov/pdf.opinions/08-2277P-01A.pdf
SECOND CIRCUIT COURT OF APPEALS
Asylum – persecution
Baba v. Holder, No. 08-0212, (2d Cir. 2009),
Baba, a citizen of Togo, was a member and activist of a political party. He was imprisoned in a tiny cell with more than ten people in unsanitary conditions on two occasions (once for three days and then for a week), given only one meal per day of inedible food, beaten every day for a week with batons, threatened with death if he was ever caught again engaging in political activity. The Circuit Court found that this treatment constituted persecution notwithstanding that Baba subsequently retained government-provided employment, services, or benefits.
The Court also rejected the BIA’s determination that circumstances in Togo had changed to such an extent that Baba no longer had a well-founded fear, rejecting the findings that there had been democratic elections, and that developments in political parties and a change in presidential leadership (transferring power from father to son) constituted changed circumstances.
http://www.ca2.uscourts.gov/decisions/isysquery/66a938e8-2b2a-4a6a-b387-9bcc9f54d5e9/2/doc/08-0212-ag_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/66a938e8-2b2a-4a6a-b387-9bcc9f54d5e9/2/hilite/
Cancellation of removal – BIA’s ability to engage in fact-finding
Guzman v. Holder, No. 08-2544, (2nd Cir. 2009.
Notwithstanding a criminal complaint and a pre-sentencing hearing report referencing commission of a sex crime, the Immigration Judge granted Guzman cancellation of removal finding that the record (the complaint and the report) did not conclusively establish that Guzman had committed the crime alleged. The BIA disagreed finding that the adverse factors—including the criminal record—did not outweigh the positive factors. However the Circuit Court found that the BIA’s conclusion was based on impermissible fact-finding. Under the regulations at 8 CFR 1003(d)(3)(i), the BIA must defer to the IJ’s factual findings and may only overturn them if clearly erroneous. Here there were competing versions of facts about the criminal conduct, and by accepting one version of contested facts over another, the BIA made it’s own finding about the nature of the crime. Such fact-finding is prohibited by the regulations.
Child Abuse ground of removability under INA Sec 237(a)(2)(E)(i): Whether NY statute of endangering the welfare of a child qualifies as “child abuse.”
Guzman v. Holder, No. 08-2544.(2d Cir. 2009).
This case involved a New York child endangerment statute. The Court looked at whether the New York statute would fall under the child abuse deportability ground found at INA Sec. 237(a)(2)(E)(ii). The Court looked at the language of the statute: under N.Y. Penal Law § 260.10 “[a] person is guilty of endangering the welfare of a child when ... [h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health.” And how the statute had been interpreted. The statute includes: 1) conduct that did not itself harm a child but merely created a “likelihood” of harm; 2) conduct not necessarily directed at a child but merely undertaken with an awareness that the conduct may likely result in harm to a child, whether directed at the child or not.; 3) a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the crime. And what type of conduct could be prosecuted. The following acts have been found to violates N.Y. Penal Law § 260.10: the assault of a mother in front of her children; possession of a large number of firearms and ammunition in easy reach of a child known to have played with the guns; having smoked marijuana in the home in the presence of children; selling fireworks to a child; leaving a seven-year-old alone in a locked apartment for two-and-one-half hours; driving drunk with the child in the car; and leaving two young children unsupervised in an automobile for over two hours.