Sioban Albiol, Clinic Coordinator

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

USCIS Consolidated Guidance On Unlawful Presence

USCIS issueda memorandum on May 6, 2009 which consolidates USCIS guidance to adjudicators on how they should interpret and apply the unlawful presence provisions of INA § 212(a)(9)(B) and (C). The memo also rescinds prior memoranda concerning this topic.A few important points are highlighted below.

INA §212(a)(9)(B)(i)(I) renders inadmissible aliens who were unlawfully present for more than 180 days but less than one (1) year, who voluntarily departed the U.S. prior to the initiation of removal proceedings and who seek admission within three (3) years of the date of such departure from the INA§212(a)(9)(B)(i)(II) renders inadmissible aliens who were unlawfully present for one (1) year or more and who seek admission within ten (10) years of the date of the alien’s departure or removal. Both of these bars can be waived pursuant to INA §212(a)(9)(B)(v). Unlawful presence for purposes of the 3 and 10 year bar is not counted in the aggregate. It’s also important to note that even if the alien has an advance parole or refugee travel document, the alien’s actual departure from the U.S. will still trigger the bars.

INA §212(a)(9)(C)(i)(I) permanently renders inadmissible any alien who has been unlawfully present in the U.S. for an aggregate period of more than (1) year, and who enters, or attempts to reenter the U.S. without being admitted. Here, unlawful presence for purposes of the Permanent bar is counted in the aggregate. After (10) years outside of the U.S.(starting from the date of the last departure) the applicant make seek consent to reapply pursuant to INA §212(a)(9)(C)(iii). Form I-212, Application for Permission to Reapply for admission into the U.S. after deportation or removal, and the requirements of INA §212(a)(9) govern during the adjudication of Form I-212.

Only periods of unlawful presence spent in the U.S. after April 1, 1997 count towards unlawful presence for purposes of the 3/10 and permanent bars.

The memo distinguishes unlawful status and unlawful presence. One must be present in unlawful status in order to accrue unlawful presence; however, being in unlawful status does not necessarily mean that the 3/10 year bars have been triggered as some aliens who are actually present in an unlawful status are protected from accruing unlawful presence. Under INA § 212(a)(9)(B)(ii) an alien is deemed to be unlawfully present in the U.S. if the alien is (1) present after the expiration of the period of stay authorized by the Secretary of Homeland Security or (2) present without being admitted or paroled. On the other hand, unlawful status may mean a violation of a previously valid status.The memo addresses which aliens present in unlawful status do not accrue unlawful presence under INA §212(a)(9)(B), including: minors under 18, aliens with pending asylum applications, certain beneficiaries of family unity protection, certain battered spouses, parents and children, and Victims of severe forms of trafficking. The memo also addresses which aliens present in unlawful status do not accrue unlawful presence under INA §212(a)(9)(B) and (C)(i)(I) including: aliens with a properly filed, pending application for adjustment of status or registry, aliens with a pending legalization application, SAW application, LIFE legalization application, TPS application, certain aliens granted Family Unity Program Benefits, certain aliens granted voluntary departure, stay of removal, deferred action, withholding of removal, deferred enforced departure or satisfactory departure. It is important to note that the protection from accrual of unlawful presence does not cure previously accrued unlawful presence.

The memo also makes note that the USCIS position is that inadmissibility under INA §212(a)(9)(B) or (C) of the Act makes an ineligible for adjustment of status under INA §245, regardless of whether the alien applies under INA §245(a) and 245(i).

BOARD OF IMMIGRATION APPEALS

Definition of “child” under the Child Citizenship Act

Matter of Guzman-Gomez, 24 I & N Dec. 824 (BIA 2009)

A stepchild cannot derive citizenship by virtue of his/her relationship to the US citizen stepparent under INA Sec. 320(a).

Guzman-Gomez, a citizen of Mexico born in July of 1986, entered the US as a lawful permanent resident in February 2000 based on a petition filed by his mother’s US citizen husband (Guzman-Gomez’s mother was married to his stepfather in 1994). His mother’s husband never adopted him. His mother did not naturalize before he turned 18 years old. He could not derive citizenship through his stepfather because the definition of “child” is defined differently at INA Sec. 101(c) under INA Sec. 320(a) than it is elsewhere in the Act.

Definition of “conviction”

Matter of Cardenas Abreu, 24 I & N Dec. 795 (BIA 2009)

Where an appeal of a criminal conviction was filed late but remains pending, it does not affect the finality of the conviction for immigration purposes. Cardenas Abreu was convicted of burglary under a New York statute, and was placed in removal proceedings where he was ordered removed for having committed an aggravated felony. Cardenas Abreu did not appeal the deportation order. Cardenas Abreu filed an appeal of the state court conviction after the 30 day appeal period had run and the state court granted leave to file the late appeal. He then moved to reopen removal proceedings, but the motion to reopen was denied.

CIRCUIT COURT CASES

Second Circuit

Cancellation of removal for non-lawful permanent residents

Mendez v. Holder, No. 06-0032-AG (2d. Cir. 2009)

Mendez applied for non-LPR cancellation of removal requiring a showing of 10 years continuous presence, good moral character and exceptional and extremely unusual hardship to a USC or LPR qualifying family member. Mendez lived in the US since 1989 when he entered at age fifteen. He and his undocumented wife had two children born in the US: a son born in 1992, who was diagnosed with Grade II Vesicoureteral Reflux which can cause kidney or liver failure and for which he must see a specialist every year; and a daughter, born in 1999, who suffers from asthma—about 25 attacks a year—and requires a nebulizer, inhaler and requires regular visits to the emergency room for serious attacks.

Because circuit courts do not have jurisdiction over discretionary decisions, the Circuit Court first had to address whether it had jurisdiction to review the denial of cancellation of removal. The Court found that in this case, where facts (relating to the health conditions of the children) important to the determination of “exceptional and extremely unusual hardship” had been totally overlooked or seriously mischaracterized by the Immigration Judge and the BIA, an error of law occurred. The BIA was required to consider Mendez’s testimony about his children's' medical conditions in determining exceptional and extremely unusual hardship.

Fourth Circuit

In Midi v. Holder, (05/12/09, No. 08-1367), the 4th Circuit Court of Appeals upheld the BIA denial of an applicant’s petition for protection under the Haitian Refugee Immigration Fairness Act (HRIFA). Under HRIFA, to obtain permanent resident status, the applicant need only prove that s/he began residing in this country and filed for asylum prior to December 31, 1995. See HRIFA § 902(a)-(b). Midi’s father was granted adjustment under HRIFA in 2001. Shortly thereafter, when Midi was 20 years old, she was paroled into the United States for purposes of seeking adjustment of status as the derivative beneficiary on her father’s petition. Midi turned 21 years old before she filed her HRIFA application. The IJ and the BIA denied Midi’s application under HRIFA because, as the derivative on her father’s properly filed HRIFA petition, she could not show that she was physically present and filed for asylum prior to 1995. Thus they did not reach the issue of whether or not the Child Status Protection Act (CSPA) applied to her case. The 4th Circuit recognized that derivatives on HRIFA applications need not demonstrate pre-1996 continuous presence, citing HRIFA § 902(d); 8 C.F.R. § 245.15(j). The case was previously remanded to the BIA to determine if the CSPA applied in Midi’s case. The BIA held, on that issue, that the CSPA amended on particular sections of the INA but did not specifically amend HRIFA, and thus, Midi could not benefit from the CSPA. The 4th Circuit in evaluating the issue articulated that the CSPA “by its own terms [applies] only to children with a parent ‘granted admission as a refugee under this subsection,’ citing INA § 207. Because the HRIFA refugee provisions fall under a separate subsection than the general refugee subsection at 207, the Court concluded that Midi could not benefit from the CSPA. This is consistent with USCIS 2008 AFM Updates regarding the Child Status Protection Act. See Memo, Neufeld, Acting Assoc. Dir., Domestic Operations, USCIS HQ DOMO 70/6.1 (Apr. 30, 2008) (clarifying the Adjudicator’s Field Manual at Chapter 21.2(e)(5)).

Fifth Circuit

Aggravated felony – second simple possession offense as drug trafficking crime

Carachuri-Rosendo, v. Holder, No. 07-61006 (5th Cir. 2009).

Carachuri-Rosendo, a lawful permanent resident, pleaded guilty in 2004 in a Texas court to misdemeanor possession of marijuana and was sentenced to 20 days in jail. A year later in Texas he pleaded to misdemeanor possession of Xanax and was sentenced to 10 days in jail. He was not prosecuted under Texas law as a recidivist.

In 2006, Carachuri was placed in removal proceedings on the controlled substance ground of deportability (having “been convicted of a violation of ... any law ... of a State ... relating to a controlled substance”). Carachuri applied for cancellation of removal, but an immigration judge ruled that Carachuri was ineligible because his crimes could be classified as an aggravated felony because he had committed a “drug trafficking crime” as defined by the Controlled Substances Act (which characterizes as a felony a misdemeanor possession offense committed after the conviction for a prior misdemeanor possession offense).

The Fifth Circuit had previously determined that a second state possession offense that could have been punished as a felony under federal law qualified as a drug trafficking aggravated felony under 8 U.S.C. § 1101(a)(43)(B). United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir.2008). Consequently, notwithstanding the Supreme Court’s decision in Lopez (rejecting the argument that a single possession offense punished as a felony under state law, but as a misdemeanor under the CSA, qualifies as an aggravated felony), the alternative holding regarding successive state possession convictions remained untouched. In United States v. Cepeda-Rios, 550 F.3d 333 (5th Cir.2008) (per curiam).

Sentencing guidelines case – second drug possession as aggravated felony

United States v. Andrade-Aguilar,No. 07-41132(5th Cir. 2009).

Andrade-Aguilar appealed the sentence enhancement he received for an illegal reentry offense, arguing that his crime did not could not be classified under the Sentencing Guidelines' as an “aggravated felony.” The Circuit Court agreed, finding that because his first state drug possession conviction was not “final” in July of 2001 (there was no proof that he had waived appeal of this conviction) before he committedthe second state possession offense in November of 2001, the second offense could not be an aggravated felony.

Naturalization – bar to good moral character

Singh v. Holder, No. 08-20065 (5th Cir. 2009).
Singh, a citizen of India, entered the US in 1987. On October 29, 1987, he was found guilty of a Virginia crime of unlawful wounding, a felony which prohibits any person to:

maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

After his conviction, but before his sentencing, Singh fled. He was recaptured and taken into custody when he attempted to re-enter the United States in 1998. On May 15, 1998, a Virginia court sentenced him to fifteen months' imprisonment for his unlawful wounding conviction.

Singh later applied for naturalization. US CIS denied the application on the ground that he was convicted of an aggravated felony on or after November 29, 1990, as defined in the Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1101(f)(8); 8 C.F.R. § 316.10(b)(1)(ii). The Court upheld the US CIS determination finding that Singh’s conviction for Virginia crime of unlawful wounding was for crime that had as an element the use, attempted use, or threatened use of physical force, and that qualified as “crime of violence”; and that his conviction did not occur on date that jury originally found him guilty, prior to his flight from the United States, but only after he was apprehended while attempting to reenter country, when state court pronounced sentence.

Sixth Circuit

Corroborating Evidence requirement for Asylum Applicants

In Lin v. Holder, (05/14/2009 No. 08-3573) the 6th Circuit decided against a petitioner who had applied for asylum based on Falun Gong practices in China. The case focuses on the requirement of corroborating evidence. Under REALID, the law allows for the IJ to ask for corroborating evidence for specific claims. This case presented a situation where the IJ did not doubt the credibility of the asylum applicant, but nevertheless demanded corroboration that the applicant did not provide, or could not adequately explain the absence of. The IJ denied asylum, and the BIA upheld. The 6th Circuit using the substantial evidence standard of review upheld the BIA decision and denied the petition. One interesting note; the 6th Circuit would not take judicial notice of a more recent State Department Country report as it was not in the administrative record. This is a minor conflict with a similar situation in the 7th Circuit.

Seventh Circuit

Sexual Misconduct with a Minor under Indiana law qualifies as an Aggravated Felony

In Giaskov v. Holder, (05/28, 2009 No. 08-2700) the 7th Circuit ruled that a petitioner who commited “sexual misconduct” with a minor under Indiana law (Ind Code 35-42-4-9(b)) committed an aggravated felony as described in INA 101(a)(43)(A). The 7th Circuit in analyzing whether the state statute qualified as an aggravated felony used a categorical approach and relied extensively on a previous decision called Gattem v. Gonzales, 412 F3d 758, 763 (7th Cir. 2005). The court relying on old precedent focused on the intent that was required to be shown (intent do arouse sexual desire) and that harm to the child, even without a requirement of physical harm exists by nature of the offense. Finally, the 7th Circuit based it’s affirmance on the fact that the term “sexual abuse of a minor” is an indefinite term and therefore deference is owed to the BIA who had issued a precedential decision. This final point is significant as it has been unclear how much deference is owed to BIA decisions when it comes to deciding whether a crime fits an aggravated felony definition.

Brazilian Asylum applicant denied due process by IJ.

In Oliveira v. Holder, (05/08/2009, 07-3307) the Seventh Circuit ruled that an asylum applicant was denied due process during his hearing, and that the IJ acted inappropriately and in a manner that prevented the applicant from getting a fair hearing. The case was remanded back to the BIA for a new hearing. In this case, the applicant from Brazil applied for asylum based on the family’s cooperation with the prosecution of corrupt banking officials. The Seventh Circuit found the IJ had asked inappropriate questions, ignored corroborating evidence, and was biased against the applicant from the start.

IJ failed to consider family as a possible social group in analyzing asylum claim from Ethiopia

In Ayele v. Holder, (05/27/09, No.07-72843) the Court found that the IJ did not properly analyze an asylum applicant’s claim. The Court ruled that the IJ did not properly consider the applicant’s family as a social group, a claim that has been recognized in this circuit in the past. The applicant herself did not claim persecution, however her immediate family, including her mother and sisters were living in exile and her uncles had been mistreated in the past. The IJ dismissed concerns about the family by noting that the applicant’s father (a former minister in the Mengistu regime and the basis for the family based claim) was still living in Ethiopia. The Court found the IJ’s dismissal unpersuasive and noted that continuing surveillance and restrictions from leaving the country can amount to persecution. Additionally, the Court found that the IJ did not consider whether Ethiopia had a pattern or practice of persecuting members of the social group claimed (her family) and the court noted the history and number of persecuted family members. The court also noted that relying on country reports in analyzing family as social group was problematic, and that if the testimony was credible (which the IJ found) than Country reports should not be selectively used. Finally, the Court took judicial notice of more recent country reports which the applicant referenced in the appendix of her brief. Unlike the 6th Circuit, the 7th Circuit ruled that more recent Country Reports from the State Department can be judicially recognized and relied upon without having appeared in the administrative record.