In the News
- June 9, 2014 - The Supreme Court of the United States issued its decision in Scialabba v. Cuellar de Osorio regarding the Child Status Protection Act and its impact on beneficiaries who "age-out" or turn twenty-one (21) years old while their visa petition is pending or awaiting a current visa number.
- June 5, 2014 - Security of Homeland Security Jeh Johnson announced the renewal process for all (DACA) Deferred Action for Childhood Arrivals program. The first DACA approvals will expire in September of this year. Beneficiaries of this program should apply now to avoid a lapse in work authorization.
- May 20, 2014 - The Board of Immigration Appeals issued three precedent decisions regarding the Adam Walsh Act and its applicability to the visa petition process. These cases are Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014); Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014) and Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014). The BIA found the Adam Walsh Act retroactively applies to all criminal convictions of the petitioner, that the BIA lacks the authority to review DHS's determination whether or not the petitioner poses "no risk" to beneficiary in the future and that DHS may look at not just the language of the conviction but the underlying acts that led to the original charges.
- June 8, 2012 - The Board of Immigration Appeals (BIA) held in Matter of O. Vazquez that the "sought to acquire" language found in INA 203(h)(1)(A) really means "timely filed" and that absent "extraordinary circumstances" cases not timely filed would be denied.
- June 7, 2012 - The Board of Immigration Appeals (BIA) held in Matter of Sosa Sanchez that immigrations judges must determine if a U visa is prima facie approvable to grant continuances for USCIS to adjudicate them.
- May 22, 2012 - The Department of Justice filed a lawsuit against Whiz International LLC for violating anti-discrimination provisions of the Immigration and Nationality Act.
- May 22, 2012 – The Eleventh Circuit Court of Appeals issued a precedent decision regarding the use of a 209(c) waiver of inadmissibility for adjustment of status for refugees. The Court embarked on a pragmatic explanation of Matter of Jean (the current BIA precedent for 209(c) waivers) and the procedure to be used by the court along with the appropriate legal standards. Makir-Marwil v. U.S. Attorney General
- May 21, 2012 – The Seventh Circuit Court of Appeals held that the filing of a motion to reconsider of a BIA dismissal does not toll the 90 day deadline to file a motion to reopen. In other words, a motion to reopen must be filed within 90 days of the date the BIA dismisses the appeal. Sarmiento v. Holder
- May 21, 2012 – The Supreme Court of the United States upheld the Board of Immigration Appeals (BIA) interpretation of the statutory criteria for cancellation of removal. The Court held that a noncitizen living in the U.S. as a child cannot count / use his parent's years of residence or time as a Lawful Permanent Resident to satisfy requirements delineated in INA §240A(a). Holder v. Martinez Gutierrez
- May 18, 2012 - USCIS updated its count of FY2013 cap-subject H-1B petitions and advanced degree cap-exempt petitions that they’ve receipted in. Accordingly USCIS indicates that nearly 42,000 H-1B cap-subject petitions were receipted. This is a large number and tends to show a much earlier cap exhaustion than the past two years. Additionally, USCIS has receipted 16,000 H-1B petitions for aliens with advanced degrees.
- May 17, 2012 – The Eleventh Circuit Court of Appeals held that they lacked jurisdiction to review the order of removal as a determination of whether or not an alien was battered (for purposes of special rule cancellation of removal) is a discretionary determination and not a question of law. Bedoya-Melendez v. Holder
- USCIS press release announcing that DHS Secretary Janet Napolitano has extended Temporary Protected Status (TPS) for eligible nationals of El Salvador for an additional 18 months, beginning March 10, 2012, and ending September 9, 2013.
- March 1, 2012 – The Third Circuit Court of Appeals, in Vera v. Holder , held even a minor child who is not of tender years can execute a visa waiver under the visa waiver program and that even though ICE could not produce the waiver form, her admission in a sworn statement was sufficient. Critically, the Court added a footnote where they expressed concern that ICE doesn’t have measures in place to “effectuate an order of removal by whatever means necessary.” This is egregious language in that the rogue and undisciplined ICE agents can now use this as an open invitation for improper conduct.
- February 29, 2012 – The Ninth Circuit Court of Appeals held, in Rohit v. Holder , that a conviction pursuant to California Penal Code section 647(b) which is disorderly conduct involving prostitution, is a crime involving moral turpitude.
- February 8, 2012 – The March 2012 Visa Bulletin has been released.
- February 1, 2012 – The United States District Court in the Northern District of California held, in SHIA Association of Bay Area v. U.S. et. al., that the regulations (8 C.F.R. 204.5(m)(4) & (11)) were ultra vires and contrary to Congressional intent. These regulations are for religious workers who are filing for adjustment of status based on approved I-360 special immigrant petitions. The Court also found the advanced parole revocation that occurred was contrary to law.
- January 31, 2012 – The Seventh Circuit Court of Appeals and Judge Posner issued a scathing opinion, in U.S. v. Costello , on the U.S. analysis of the word “harboring” in 8 U.S.C. 1324(a)(1)(A)(iii). More on my blog about this case as it has some excellent rhetoric.
- January 31, 2012 - The Board of Immigration Appeals held, in Matter of Avetisyan , that an immigration judge may grant administrative closure in a case over one parties objection. The BIA set a six part test for the IJ’s to consider in determining whether or not administrative closure is appropriate.
- January 30, 2012 - The Fourth Circuit Court of Appeals held, in Prudencio v. Holder , that because the provisions regarding convictions for moral turpitude are not ambiguous and there were no gaps present, the agency’s attempted clarification and initiation of a three-step process in Matter of Silva-Trevino to determine whether or not a crime involved moral turpitude was not necessary and therefore rejected.
- January 30, 2012 - The Tenth Circuit Court of Appeals, in Contreras Bocanegra v. Holder , granted a rehearing en banc and chose to overturn precedent previously disallowing an alien to from filing a motion to reopen after he or she departed from the U.S. The Tenth Circuit chose to follow five other circuits including the Sixth Circuit; Prudize v. Holder, 632 F.3d 234 (6th Cir. 2011).
- January 27, 2012 - The Ninth Circuit Court of Appeals held, in Tyson v. Holder , that a stipulated facts trial in a criminal case is substantially equal to a plea of guilty and therefore the immigration judge and the BIA erred in denying Tyson the right to pursue her 212(c) application for relief.
- January 26, 2012 - The Fourth Circuit Court of Appeals held, in Turkson v. Holder , that the BIA engaged an improper standard of review when reversing and denying the immigration judge’s grant of Convention Against Torture. The BIA engaged in a de novo review when it was limited by its own regulations to only “law, discretion and judgment.”
- January 24, 2010 - The Board of Immigration Appeals held, Matter of J.R. Velasquez , that an immigration judge may use “other probative evidence” to prove the existence of a criminal conviction and that electronically submitted conviction records can be admitted if properly authenticated as described in INA 240(c)(3)(C). The BIA held that the mere fact the government proffers a document for admission is not sufficient for its admissibility.
- February 24, 2012 - The Fifth Circuit Court of Appeals held, in U.S. v. Juarez , that failure to research a derivative citizenship claim for a defendant faced with illegal reentry charges constitutes ineffective assistance of counsel pursuant to both Padilla and Strickland.
- February 24, 2012 - The Second Circuit Court of Appeals held, in Guamanrigga v. Holder , that the service of a Notice to Appear that does not indicate a date or time for hearing and is followed by a Notice of Hearing combines to satisfy the notice requirements in INA 239(a). The service of the Notice of Hearing triggers the stop-time rule for purposes of Cancellation of Removal.
- February 23, 2012 - The Second Circuit Court of Appeals held, in Crocock v. Holder , that an alien who marks the box “Citizen or National” on a Form I-9 and is not such has falsely claimed to being a U.S. citizen. The alien is therefore permanently barred from adjusting status.
- January 19, 2012 - The Board of Immigration Appeals held, Matter of U. Singh , that a decision by a Federal court of appeals reversing a precedent decision of the BIA is not binding authority outside of that circuit. In the same case the BIA held that a conviction for section 646.9(b) of the California Penal Code (stalking for harassing conduct) is a crime of violence and an aggravated felony.
- January 18, 2012 - The Ninth Circuit Court of Appeals held, in U.S. v. Melendez-Castro an illegal reentry case, that the immigration judge’s failure to make him aware of his right to seek relief and also an opportunity to develop that issue violated his Due Process rights and was potentially grounds for a collateral attack on the underlying removal order.
- January 17, 2012 - The Ninth Circuit Court of Appeals held, in Chettiar v. Holder , that when USCIS fails to adjudicate an I-751 Petition to Remove Conditions within 90 days of filing pursuant to 8 U.S.C. 1186a(c)(3)(A), it does not lose jurisdiction to adjudicate it in the future.
- February 17, 2012 - The Ninth Circuit Court of Appeals held, in Latter Singh v. Holder , that a conviction pursuant to Cal. Penal Code Section 422 constitutes a crime involving moral turpitude.
- January 12, 2012 - The Third Circuit Court of Appeals held in Totimeh v. Att'y Gen., that failure to register as a predatory offender under Minnesota law is not a crime involving moral turpitude.
- January 12, 2012 - The Seventh Circuit Court of Appeals held, in Siddiqui v. Holder , that the AAO applied the incorrect definition of “conviction” to Siddiqui’s case. His conviction occurred prior to IIRIRA and without express intent to have IIRIRA’s definition applied retroactively, the AAO erred in applying said standard.
- February 9, 2012 - The American Immigration Lawyers Association submitted a letter to Department of Homeland Security Secretary Janet Napolitano requesting a more robust participation in prosecutorial discretion.
- February 1, 2012 - The Fourth Circuit Court of Appeals held, in Dung Phan v. Holder , that his conviction for drug trafficking that was later “set aside” pursuant to District of Columbia code was still a conviction for immigration purposes and therefore barred him from becoming a U.S. citizen by naturalization.
In the News Archive