One of the tools we often use is post-conviction relief, where we work with a criminal attorney to reopen or amend a conviction to alter it’s immigration impact. For some people, this means simply arguing to a Judge to resentence them at a slightly lower rate (even though it doesn’t impact their probation or time actually in jail) because the difference between a one year sentence and a 364 day sentence (even where all but 2 days were suspended) can be deportation and permanent banishment. Other times we need criminal charges to be reopened, dismissed, or plead down to something else that doesn’t have the same immigration consequences.
Other times, we simply need to demonstrate that even though someone has an old order of deportation, they didn't know about their hearings and therefore should be given an opportunity to fight their cases with actual notice and the ability to appear at their hearings. When the government sends notices to the last address given to them, it can be very difficult to overcome the presumption of normal mail delivery. However, we have been successful with such motions in the past, and nothing is more gratifying than turning the despair we see into hope once again.
So we have been really busy with people coming in to take advantage of the Deferred Action for Childhood Arrivals (DACA) program. I have met with lots of children, young adults, and their parents. So far, we don’t have any decisions, but for what its worth, the receipt notices and biometrics notices are all coming in very quickly. According to reports, some approvals are ready to go out (here's hoping some are ours!).
The requirements are fairly straight forward, but because there are no decisions yet to review, no Requests for Evidence, and not all of our questions answered yet, our advice is not at all cookie cutter. We need to carefully review all criminal issues, including tickets, juvenile offenses, trips abroad, and pore over sometimes hundreds of pages of documents to determine eligibility and more importantly (sometimes) whether it makes sense for the individual to risk filing. Sometimes our advice has been to wait and see how the cases are being decided before taking such risks.
As part of the process, we have to ask why they need employment authorization, and the answers are almost universally so that they can continue their education, advance their careers, and/or pay their fair share of family expenses. Most of the students wanted to become Nurses, or go into education programs they can’t get into right now because of a lack of documents, such as Architecture, Engineering, Law School, etc. I am amazed at some of the kids who I have seen who volunteered their time, helped out at home with their siblings, worked part-time, and still made straight A’s. We look forward to finally getting some approvals soon.
On President Obama announced a new initiative where some DREAM Act eligible people will be granted deferred action and potentially renewing two-year work cards. This program is lacking is final instructions, and some issues remain unclear, but within 60 days we should all have the final details. What we know so far is that it does not lead to a green card, and the exact criminal bars are a little unclear - though we know that any felony, any serious misdemeanor (including all drug, DUI, violence, and theft/fraud related offenses) or any three minor misdemeanors will be ineligible. One good thing is that it does apply to those in deportation proceedings, or who have already been ordered deported. In order to be eligible, you have to have come to the US before turning 16, and currently be under 31. You also have to have graduated from High School, be in school, or have your GED. You can also qualify if you have an honorable discharge from the military.
We recommend getting materials together to show when you came here, how long you have been here, and that you were here on June 15, 2012. This should include medical, school, financial, and other related records. Prepare them now so that you can file once the final details come out.
I will be speaking about this at Casa De Dios Para las Naciones, 948 Central Ave., Kansas City, Kansas 66101 on June 30, 2012 from 10am to Noon. Everyone is welcome, bring your friends and your questions.
Today the Supreme Court decides US v. Arizona, the federal government’s challenge to the SB1070, Arizona’s “Paper please” law. In it, the Court determined that three of the four challenged provision were unconstitutional, while they declined to decide on the fourth until Arizona has an opportunity to implement it. Depending on how it is implemented, the Court seemed willing to revisit that provision as well. Some have said that the Court “upheld” the papers please provision, but I don’t read the majority decision that way. Saying that something has not been implemented, and supposing that there is a way it could be implemented lawfully is not the same as finding it to be constitutional. The decision reiterates the long-standing principle that immigration is a federal issue, not a state issue, and that state laws will not be upheld when they are in conflict with the federal laws. I have often heard people make the argument that to the extent a state law creates a state penalty for a federal immigration violation, it is not in conflict, but the decision today refutes that. The Court reasoned that states can’t undo federal immigration-based prosecutorial discretion. That is, if the state creates a crime for an immigration violation, and the federal authorities decide someone shouldn’t be prosecuted for whatever national interest reason, the state can’t undo that by merely declining to agree and prosecuting under the state criminal setup.
On Saturday, August 11, 2012 at 10am we will hold a presentation, free and open to the public, on the new Deferred Action program for DREAMERs. The Obama administrative had indicated that the final rules would be out today, August 1, but so far we have received nothing, we will post updates here. We will meet at the Hilton at 520 Minnesota Ave., Kansas City, KS 66101. We only have the space from 10-12, so please be there promptly at 10 so we can give you all the updates and answer your questions. See you there.
A recent case decided by the Administrative Appeals Office (AAO) of the Unites States Citizenship and Immigration Services (USCIS), has expanded who can come to the United States on a temporary visa for cultural performances, P visas. In order to be eligible for such a visa, a performer, artist or group’s performance must be culturally unique. Before this decision, US CIS had often only allowed such visas for performances that were a pure form of the cultural exhibition, i.e. without other influences. The new opinion expands the types of performers and artists who qualify to exhibit their talents in the United States. Now a culturally unique performance includes hybrids or fusions of artistic styles or traditions from more than one culture or region. So in this case, there was a fusion of traditional Eastern European Jewish klezmer music with South American styles by an Argentinean group, which the AAO announced met the basic requirements.
This does not change the other requirements for bringing performers to the United States. If you are interested in bringing a group or artist to the United States, you still have to provide evidence about the authenticity of the artist or groups skills in “performing, presenting, coaching or teaching the unique or traditional art form.” This is done by providing affidavits or letters from experts in the field along with evidence of the expert’s credentials and the basis for the expert’s knowledge of the artist’s skills. Evidence that the performance is culturally unique is also required. This can be met by providing documents such as newspaper reviews, journals or other published materials showing that the performance is culturally unique.
This is exciting news as it opens opportunities for more performers to exhibit their talents in the United States; a benefit for performers and the people in the United States alike.