215 W. 18th Street, Suite 101
Kansas City, Missouri 64108
Phone: 816.753.7382 • Fax: 816.605.1129

About a year ago, we were visited by a woman distraught that her husband had been arrested and detained by Immigration. He had two little girls who were born in the US, one who was still a baby, as well as two step-children. He also had no criminal history at all. After looking into his case, it turns out he had an old order of deportation from 2004, when he failed to appear at an immigration court hearing - which he had no notice of. Becuase of that old order, he was subject to immediate removal, and we had to act immediately or else he was to be put on a plane to be deported. We filed a motion to reopen his case with the Immigration Court, which was ultimately denied because he failed to provide a change of address, after being given instructions to do so. We also filed a motion to ICE to stay his removal, which was granted and he was released from detention. Simultaneously, we filed for a U visa, because he had been the victim of a violent assault (which required hospitalization), and he assisted the police in tracking down the criminal. Over the course of the next year, we had to fight with US CIS to prove his eligibility for the U visa. Recently, we received his U visa approval, which means he can remain in the United States, and in three years time, he can apply for permanent residence (green card). A U visa is very powerful, almost anything can be waived, and someone can be approved, even if they have an old order of deportation. Because of this, even though the Immigration Court refused to reopen his case, he will still be able to remain in the US with his family and someday potentially become a US citizen.

The biggest news out of the Supreme Court this term has to be the death of DOMA. However, in the immigration context there were two other very important decisions that were handed down. 

 

In Moncrieffe v. Holder, the Court decided that the courts must look to the state statute of conviction and not the underlying facts of the case. If the state statute criminalizes conduct which falls outside of the Controlled Substances Act (CSA), Felony definition, then it is not an Aggravated Felony. Importantly, the Court also held that any ambiguity in what the state statute criminalizes must weigh in favor of the “criminal,” not the government. This case is important not only for what it does to help save some immigrants from the serious consequences of possession charges being treated as Aggravated Felonies, but also for what it does to the way the Immigration Courts have too easily gone beyond the Categorical Approach. 

 

Last year, the Board of Immigration Appeals decided Matter of Davey, in which they held that where someone has two counts in a conviction, for possession of marijuana and for possession of paraphernalia, where they both relate to the same incident, and also related to possession of less than 30 grams of marijuana, the “petty offense” exemption is available. Previously, multiple counts made someone ineligible for the exemption. Taken together, the negative consequences for immigrants with relatively minor drug related convictions have been significantly reduced. 

 

We already had a case come up in the Immigration Court where someone was convicted of a possession offense, but because the statute didn’t address this exception in the CSA, he was not deemed to have been convicted of an Aggravated Felony, and was eligible for the relief requested. 

 

In Descamps v. United States, the Court continued to chip away at the Modified Categorical Approach. The Court decided that where the statute someone is convicted under a statute that has a single, indivisible set of elements the courts may not look beyond that statute to the actual facts of the case to determine the immigration consequences for that conviction. The Court essentially chastised the lower courts for too eagerly going to the Modified Categorical Approach, and under Attorney General Mukasey’s Matter of Silva-Trevino decision, even further. The Court very clearly restated its position that the Modified Categorical Approach is to be used only in a narrow set of cases where it is necessary to determine which crime, among a series of potentials, the conviction is based. 

 

In Lanferman, the BIA had decided that it could use the Modified Categorical Approach more widely in the immigration context than in the criminal context. It is clear that we still have future fights on our hands on this issue. Because they argue that immigration cases are different, it may be necessary for the Circuit Courts to address the applicability of Descamps in immigration cases if the Immigration Courts don’t follow the Supreme Court’s decision.

So to follow up with a previous post, both of these cases were subsequently approved by the Immigration Court after the Department of Homeland Security's Office of Chief Counsel decided not to contest the cases further and in fact agreed to a grant of relief for each of these individuals. We could not be more pleased with the result for both. 

Additionally, we have also received another win from the Board of Immigration Appeals in a case where another attorney won Cancellation of Removal for someone, but then the government appeal to the BIA arguing that because they admitted they were alcoholics, they were barred from a grant of relief as a "habitual drunkard." As we explained to the Board, the mere fact that someone admits their alcoholism exists is not the same as the standard required for a finding that someone is a "habitual drunkard," which is comically defined as someone who is habitually habitually drunk. In any event, that case was also sent back to the Court for background check completion, and we are hoping that he will also be approved without need of any further hearings. 

The Supreme Court recently held that the Defense of Marriage Act (section 3) is unconstitutional. In so doing, they took away the only thing standing between same-sex married couples and immigration benefits. Almost immediately after the decision, the Department of Homeland Security, US CIS, and the Department of State all indicated that they would begin considering family-based immigration petitions for same-sex married couples provided that their marriages were valid in the location where celebrated. That means that if a couple in Missouri went to get married in Iowa, then return to reside in Missouri (a state with a very specific ban on same-sex marriage) they would still be considered married for immigration purposes. 

 

In fact, the Director of US CIS, Alejandro Mayorkas, stated at the AILA annual convention in San Francisco that they had in fact kept track of all denied petitions dating back to February 2011 (when the President announced his administration would no longer defend DOMA), and they would take action on them soon - leading us to believe US CIS would reopen them on their own. 

 

The first green card approved was for a couple in Florida who were married in New York. Because their case was still pending at the time DOMA was struck down, they did not need to wait to get a petition on file, and did not have to have it reopened. 

 

We are now days away from filing our first case for a same-sex married couple and could not be more excited for them. One thing to keep in mind is that married couples have to prove that their marriages are bona fide, which for couples in states which do not recognize their marriage, this can be tricky. Being creative with evidence to establish the bona fides of the marriage is important, and something we take great pride in.

The Senate Bill, titled the “Border Security, Economic Opportunity, and Immigration Modernization Act,” has just today been introduced and the likely months-long process of committee review, amendments, etc. can begin. The bill is 844 pages long, and because I am only one person, I will take an in-depth look at just a few portions of it, leaving the comprehensive review to AILA and AIC

 

The Bill has a lot of enforcement provisions, but the most important part to those currently without immigration options is the creation of Registered Provisional Immigrant (RPI) status which allows those here prior to 12.31.2011 to apply for RPI status, to remain in the United States and obtain employment and travel authorization. Those with RPI can also get social security numbers and enlist in the Armed Forces, should they be so inclined. RPI status is good for 5 years, and can be extended for 5 years. After those ten years, and depending on the border enforcement provisions being successful, those on RPI status can apply for permanent residence based on family, employment, or other bases. Again, for tonight, I won’t be getting into the family, business, and other categories for permanent residence, just the RPI status itself. 


In order to be eligible for RPI, you have to:

  • be physically present in the US on the date of application
  • be physically present in the US on or before 12/31/2011
  • be continuous present from 12/31/2011 to the date of the RPI grant 
    • can’t leave the US once the BSEOIMA has been enacted
    • unless absence is “brief, casual, and innocent,” whether or not it was authorized
  • pay all back taxes* more on this later
  • pay the required filing fee and a $1000 penalty ($500 up front, $500 before end of five year term in installments)
  • can not be an LPR (green card holder), asylee, refugee, or someone with a valid non-immigrant visa (though those with TPS are still eligible)
  • those granted DACA will be directly eligible for RPI provided they get their background checks taken again and do not have any intervening conduct which would render them ineligible

 

There are a number of bars to eligibility, including:

  • no felonies, unless its a state or local offense based on immigration status or immigration violations
  • no aggravated felonies
  • can not have 3 or more misdemeanors - not including minor traffic offenses or immigration violations  
    • importantly, the 3 convictions have to be on separate dates, so this would appear not to include the situation where someone has 3 violations in one conviction
    • this can be waived for humanitarian purposes, to ensure family unity, or in the public interest - this is a very generous waiver provision 
    • can not waive multiple CIMTs, drug trafficking, prostitution, human smuggling, money laundering, and several other grounds of inadmissibility, including any material misrepresentations made during the RPI process
  • no foreign crimes which would be Crimes Involving Moral Turpitude or Aggravated Felonies, etc.
  • may NOT have voted unlawfully (you must be a citizen to vote in the US - so DON’T DO IT)
  • can not be inadmissible, except there are a number of admissibility provisions that do not apply, such as:

 

Someone applying for RPI is NOT barred by any of the following:

  • entering the country without authorization
  • making a material misrepresentation to a government official (unless done during the RPI process or after)
  • making a false claim to US citizen (unless done during the RPI process or after)
  • unlawful presences 
  • failing to attend removal (deportation) proceedings
  • returning to the US after an order of removal (deportation)
  • overstaying a grant of voluntary departure
  • making a frivolous asylum application
  • the public charge ground
  • labor certification requirement 
  • possession of valid documents

 

Convictions do not include expunged or set aside convictions, which is a change from current immigration policy which is much more restrictive on when a conviction is no longer effective to impact immigration status. 

 

Spouse and children of RPI applications can also apply and are eligible if:

  • they are physically present on the date of enactment and on or before 12/30/2012 - a year later than the principle RPI applicant
  • spouse and children can continue their derivative application even if the relationship is ended by death, divorce, or domestic violence grounds
  • spouse and children can continue their derivative application even if the principle’s RPI is terminated or revoked

 

RPI applications have to be filed within a year of enactment, but that can be extended for 18 months. This certainly has to be an amendment before enactment. It is simply unreasonable to assume that so many millions of people will apply in the amount of time allowed for. I would expect them to amend the language to allow for 18 month extensions (more than 1).

 

Another provision that I hope is amended for clarity is the requirement for applicants to pay back taxes. The language of the bill is not very clear. It says: “all federal income taxes assessed.” I am unsure whether this means that you have to pay all taxes for income when you were authorized to work, when it was reported to Social Security, or just any taxes for any years in which you earned any money. Not being a tax expert, I can’t comment on this further, except to say that it will have to be clarified.

 

There are some repetitive sections about removal proceedings for RPIs, essentially saying that those with RPI applications can not be removed while the application is pending, and that those who are in proceedings, have been ordered removed, have left pursuant to a removal order or Voluntary Departure, and even those who returned without authorization after such a departure, can not apply for RPI, but all of that can be waived if they are the parent, spouse, or child of a US citizen or LPR, and for DREAMERs. For those who were in removal proceedings and then were granted RPI status, they can file a Motion to Reopen which SHALL be granted unless 1 or more ground of ineligibility is proved by the government by clear and convincing evidence. 

 

Another key section says that Employers who know an alien has applied for RPI or will apply once it becomes available will not be found to violate the employment enforcement provisions for allowing them to continue to work without authorization. This should, if it can be explained to employers, result in RPI applicants not losing their jobs when their status or lack of authorization comes out. 

 

RPI status is good for five years, and can be extended for five years, but the applicant must show that they have been employed throughout the process except for up to 60 days at a time of unemployment, or have financial resources up to 100% of the poverty guidelines, or simply fall under the DREAMER provisions, and of course you must show that you paid all taxes during those five years. This is important, because those with RPI are NOT eligible for public benefits.

 

RPI status can be revoked at any time if the alien is no longer eligible (most likely criminal grounds), if they committed fraud in the application process, if they were gone for 180 days at once or in the aggregate unless it was because of circumstances beyond their control. 

 

Some related provisions are that anyone (RPI, LPR, etc.) who is convicted of 3 separate DUIs will be inadmissible to the US, ineligible for RPI, and deportable. This is the first time such a provision will be enacted, though those familiar with DACA will see that the government has started placing a higher priority in cracking down on drunk driving.

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