Update on the New ICE Policy on Prosecutorial Discretion

The Chief Counsel’s office that handles cases in the San Francisco immigration court appears to be approving requests to administratively close deportation cases for young persons who were brought to the U.S. with their parents while still minors, are in the U.S. without legal status and who are currently attending college.  If this applies to you or your family member, seek the advice of a competent immigration attorney to determine whether it is appropriate to try to close your deportation case.

New USCIS Medical Form

For those filing a green card application, you should be aware that USCIS has a new medical form, Form I-693 as of November 1, 2011.  To ensure no delays in your green card case, ensure that your Civil Surgeon, or USCIS approved physician, uses the new form.   Civil surgeons completing medical examinations between Nov. 1 and Dec. 31, 2011, should use the new form dated 10/11/11. However, USCIS will continue to accept the previous version, dated 7/20/10, for examinations completed between Nov. 1 and Dec. 31, 2011. Beginning Jan. 1, 2012, civil surgeons must use the new version of the form.  If a medical examination completed on or after Jan. 1, 2012, is reported using an outdated form, USCIS will reject the form, requiring the applicant to return to the civil surgeon and resubmit the new form.

Stepped Up On Site Inspections for H-1B Visa Holders in the Bay Area

USCIS has recently notified local immigration attorneys that the FDNS (Fraud Detection and National Security) has stepped up its local inspections of H-1B temporary workers in the Bay Area.  USCIS started on-site fraud inspections related to nonimmigrant visa petitions in 2008. Since then, thousands of worksite inspections have taken place.  In July 2009, FDNS implemented the Administrative Site Visit and Verification Program (ASVVP) to conduct unannounced site inspections to verify information contained in certain visa petitions.  USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection.

The following scenario is typical for a site visit.  FDNS inspectors will show up unannounced at the work site, and ask for the employee.  The employer is not necessarily notified of the visit when the inspector arrives, but the employee can notify the employer or HR of the visit.  The Inspector will usually ask to see the employees desk, and ask questions related to the employee's I-129 Petition job duties.  Note that the Inspector does have a DHS badge, but it is generic, and does not have a name on the badge.  If employer's are uncomfortable, they can ask that the review be rescheduled, which may or may not be honored. The visit does not include a review of the public access file, which is DOL's responsibility.

The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

The American Immigration Lawyer's Association (AILA) recommend the following:

Clients should be advised to retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation regarding a random petition selected by counsel. Be careful to refrain from coaching the witness during the mock session and always have a firm representative present to memorialize the session in the event you are later accused of coaching.

If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not “guess” about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.

Should Technology Be Tempered With a Social Conscious?

In May 2011, three Chinese dissidents and Human Rights Law Foundation in Washington filed a lawsuit in the Federal District Court in San Jose, California, accusing Cisco Systems, Inc. of designing products to help the Chinese government persecute members of China's banned spiritual group, Falun Gong.  The issue in his cases is whether U.S. comanies can be held liable if foreign governments use their product to repress the rights of their citizens.  China treats political dissent as a crime and heavily filters the Internet to suppress it. Since February, the Chinese government it has stepped up its efforts to quash its detractors, detaining dozens of dissidents mostly for writing articles critical of the government.

On September 9, 2011, Human Rights Law Foundation amended its original complaint, saying it had new evidence that Cisco customized its products specifically to enable the authorities to persecute members of Falun Gong, some of whom were allegedly tortured and killed by the Chinese authorities.  The lawsuit said Cisco "willingly and knowingly provided Chinese officials with technology and training to access private Internet communications, identify anonymous web log authors, prevent the broadcast and dissemination of peaceful speech, and otherwise aid and abet in the violation of...fundamental human rights."  The new evidence includes a PowerPoint presentation from Cisco that describes a specific line of products "as the only product on the market capable of recognising over 90 percent of Falun Gong pictures." 

This lawsuit folows a string of lawsuits against large technology companies such as Yahoo, IBM and Microsoft for aiding in human rights abuses.

Cisco denies that the company has aided the Chinese government in persecuting its citizens who advocate for human rights, commenting that this technology is sold in worldwide markets.

Immigration News

Good News—Children of K-1 Fiancée Now Protected From Aging Out After They Enter the U.S.! 

In its June decision in Matter of Le, the Board of Immigration Appeals resolved the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. under the age of 21, is eligible for adjustment of status even after turning 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. Previously, the Department of Homeland Security denied many adjustment of status applications, or green card applications for children who entered as a K-2, arguing that the K-2 child was ineligible for a green card because they had turned 21 after entering the U.S, but before the green card application was decided. Now, as long as a K-2 child is under 21 and enters the U.S., they can still obtain a green card as a K-2 even if they later turn 21 before the green card application is decided.

Beware—If ICE Takes You Into Custody, They Don’t Have to Tell You Your Rights!

The Board of Immigration Appeals recently held that noncitizens arrested without a warrant need not be advised of their rights under immigration regulation 8 C.F.R. 287.3(c)—including their right to an attorney and notification that any statements made can be used against them—until after a Notice to Appear has been filed with an Immigration Court. A Notice to Appear is the document that formally places a person in deportation or removal proceedings.  Be aware that if you are taken into ICE custody and questioned, what you say can be used against you later.  Ask for immigration counsel before answering any questions.

Alabama Anti-Immigrant Law Blocked

Yesterday, U.S. District Judge Sharon Blackburn blocked Alabama's immigration law for up to 30 days, saying more time is needed to consider various challenges to the statute.  Most of the statute's provisions were scheduled to become law on Thursday. The federal judge will consider the legality of the new law and rule on the specific requests for preliminary injunction by September 28. A preliminary injunction would stop some or all of the law from going into effect, but would not overturn it.

The law, signed by Gov. Robert Bentley on June 9, makes it a state crime to be an undocumented alien in Alabama. It also gives law enforcement the ability to detain those they have "reasonable suspicion" of being in the country illegally, and also provides non-criminal sanctions to businesses that knowingly hire undocumented aliens.

California Dream Act

 On July 25, 2011, Governor Jerry Brown signed a bill that will let students who are in the U.S. with no legal status receive private financial aid at California's public colleges, even as debate continues over a more contentious bill that would allow access to public funding.  The Democratic governor signed AB130 at Los Angeles City College. It is the first of a two-bill package referred to as the California Dream Act, which is aimed at getting financial aid for college students in the country illegally.

In practical terms, it would mean that those students who already qualify for in-state tuition under a 2001 state law could apply for private funds donated to schools. Currently, undocumented immigrants are ineligible for any financial help, including private scholarships.

The Act will open a window of opportunity for those students who, through no fault of their own, were brought here illegally, who studied hard and earned a spot in a college or university but now can't afford it.  Brown told a crowd of about 100 students and community leaders who gathered inside the city college’s library that “It's crucial that we invest in every child that lives and is born in this state. Signing this Dream Act is another piece of investment in people because people drives the culture, the economy."

The governor did not address the second bill in the package, which is more controversial because it would allow illegal immigrants to receive state-funded scholarships and financial aid. That bill, AB131, is in the state Senate.  The legislative package authored by state Assemblyman Gil Cedillo, D-Los Angeles, differs from the federal Dream Act, which would include a path to citizenship for those bought to the country illegally as children.

Anti-Immigrant Legislation Backfiring Against State Law Makers

     While the authors and supporters of state level anti-immigrant legislation received some national attention initially, the legislation now seems to be backfiring against them. Last Friday, enough signatures were certified to initiate a recall election against Arizona Senate President Russell Pearce this November. This will be the first recall election of a state legislator in Arizona history. 

     Moreover, in Georgia, there is evidence that the anti-immigrant legislation is backfiring as well.  The state’s agricultural industry is suffering because it cannot now find enough workers to harvest their fields.  Harvesting is hard labor, with low wages, and predominantly done by immigrants without status.  

     As well, in Alabama where the most aggressive anti-immigrant legislation has recently been passed, school principals and church leaders have been required to police for immigration status.  Many church leaders say they will disobey the law because it is unjust. Other outcries focus on the massive amount of paperwork the law requires in a state with severe educational budget cuts. 

San Francisco Immigration Judge Offers Reprieve to Same Sex Partner of U.S. Citizen

Alex Benshimol, a 47-year-old Venezuelan man who over-stayed his visa and married his American spouse Doug Gentry, has just been granted a two-year deportation reprieve from immigration judge Marilyn Teeter in San Francisco. Immigration and Customs Enforcement (ICE) has 60 days to pursue the deportation or let it drop altogether. The judge has scheduled the next hearing in 2013 if ICE moves forward.

An American who marries a same-sex immigrant in one of the states that allow gay marriage cannot sponsor his or her spouse for a green card, due to the federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman only.  Immigration judges around the country are growing more reluctant to deport same-sex spouses of American citizens, particularly after the Department of Justice announced the Obama administration would no longer defend DOMA in court in February. Since the Justice Department's position is that DOMA is unconstitutional, immigration judges , who are themselves a part of the Justice Department, find it increasingly contradictory to deport people who would otherwise qualify for citizenship if the law did not exist.

Gone, But Not For Good: Drug Convictions Now Remain Convictions for Immigration Purposes Despite Being Eliminated at the State Level

Today the Ninth Circuit Court of Appeals overruled the prior Lujan-Armendariz decision and held that “rehabilitative relief” will no longer eliminate a first conviction for simple possession of a controlled substance or a similar other minor drug offense. Generally, rehabilitative relief is expungement or other withdrawal of plea after successful completion of probation, such as, in California, under Deferred Entry of Judgment, a record clearance under California Penal Code Section 1203.4, or Prop 36. The good news is that the decision will apply only PROSPECTIVELY. This means that persons who had sought and obtained rehabilitative relief for simple drug possession or a lesser offense can still consider their drug convictions eliminated for immigration purposes.  On the contrary, convictions received after the date of publication of the decision in mid-July 2011 will not be able to expunge their simple drug possession conviction and eliminate it for immigration purposes. 

This is a major departure from prior immigration law in the 9th circuit, in which California is included.  If you or a family member have pending drug charges, seek the advice of a competent immigration and criminal defense attorney immediately.  Entering a plea of not guilty to simple possession or under the influence of a controlled substance can have devastating effects for a non-permanent resident who later seeks a green card or cancellation of removal.

Good Things Come to Those Who Ask

I recently had a permanent resident client who was convicted of possession of a controlled substance and grand theft.  This rendered the client deportable, and he was taken into immigration custody in San Jose and placed in deportation proceedings by the Immigration and Customs Enforcement (ICE). San Jose ICE transfered the Client to a detention facility in Tacoma, Washington. 

In addition to being deportable, this client is also subject to mandatory custody under current immigration law. This means that the law requires that such a person be kept in immigration custody throughout the duration of the removal or deportation proceedings. The immigration judge does not have the authority to let that person out of custody. Normally, no immigration bond would be set.

Despite knowing this, I contacted the ICE Duty Attorney in Tacoma and inquired about ICE's postion on bond for this client.  I was apprised that ICE's local policy was to not assert mandatory detention if the client did not come into their custody in the first instance.  As my client was first taken into custody in San Jose, and later transferred to Tacoma, no mandatory detention would be asserted.  I requested that bond be set for the client, ICE did not contest the bond request, and the Immigration Judge set a very reasonable bond.  The client is now home with his family.

The moral of this story is to be proactive on behalf of the client, even when the law appears to not be in their favor.  You don't know what you'll get until you ask.

Are You Here Illegally? ICE May Be Nice!

On June 17, 2011, U.S. Immigration and Customs Enforcement (ICE) issued a Memorandum to all ICE offices guiding them on exercising prosecutorial discretion in not taking enforcement action to remove from the United States certain individuals illegally in the U.S. and what factors to take into consideration.  ICE’s purpose in issuing the memo is to ensure that their limited resources are used wisely and in line with the agency’s priorities.

More than ever, it is important to consult with a competent immigration attorney to discuss your immigration situation, especially if you or a family member has been contacted by ICE, taken into custody, placed in deportation proceedings or have been ordered removed by an immigration judge.

Factors to Consider When Exercising Prosecutorial Discretion

When weighing whether an exercise of prosecutorial discretion may be warranted for a given person, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to:

• the agency's civil immigration enforcement priorities;

• the person's length of presence in the United States, with particular consideration given to presence while in lawful status;

• the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;

• the person's pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;

• whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;

• the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;

• the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;

• whether the person poses a national security or public safety concern;

• the person's ties and contributions to the community, including family relationships;

• the person's ties to the home country and conditions in the country;

• the person's age, with particular consideration given to minors and the elderly;

• whether the person has a U.S. citizen or permanent resident spouse, child, or parent;

• whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;

• whether the person or the person's spouse is pregnant or nursing;

• whether the person or the person's spouse suffers from severe mental or physical illness;

• whether the person's nationality renders removal unlikely;

• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;

• whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and

• whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities.

Beware! Checking Your Mail Could Get You Deported.

Reynaldo came to the U.S. from the Philippines nine years ago on a tourist visa and never went back. He left in the Philippines five children and a wife, and decided to work here to support them. Though sad without his family, he sacrificed being with them so he could give them a better life in the Philippines.

Year after year, he worked long hours and saved all the money he could, living humbly in a rented room. Every month for nine years he has sent money home to his family. Because of his sacrifice, his family lives comfortably and his two oldest daughters are in nursing school in the Philippines.

But last month, Reynaldo’s loving daughter unknowingly caused her dad’s deportation when she sent him a package from the Philippines. The package went through customs at the airport in San Francisco, and Reynaldo went there to pick it up. When trying to retrieve the package from the Department of Homeland Security’s Customs and Border Protection, he was asked for his ID. When he couldn’t produce a valid ID, he was questioned regarding his immigration status in the U.S.

This questioning led to Reynaldo being placed in deportation proceedings because he has no legal status here in the U.S. He faces certain deportation because he does not qualify for any relief from deportation. His daughters’ nursing careers are now uncertain, and his family will suddenly be without income.

Beware, if you or someone you know has overstayed a required deadline to leave the U.S. and is here illegally, think carefully about coming into contact with the Department of Homeland Security. The consequences could be severe if you have no relief from deportation. If you are placed in deportation proceedings, immediately seek help from a knowledgeable immigration attorney to see what defense you might have from deportation. It could make all the difference in your future.