While we generally post about cases to our Facebook and Twitter accounts, I felt a new blog post was in order as we have updated our website, and make a number of changes that will hopfully make getting information about the firm easier, as well as making it easier to find and contact us online.
Since the last blog post, I have begun co-teaching an Immigration Law class at my alma mater, the University of Missouri - Kansas City, School of Law. I am teaching this year and next with my immigration law professor, Jim Austin. After next year, I will take it over on my own and work to continue the great tradition of Howard Eisberg and Jim Austin at UMKC.
Additionally, we continue to see a lot of children coming through in removal (deportation) proceedings. So far, we have had a lot of success with both asylum for unaccompanied minors as well as the Special Immigration Juvenile Visa, which requires us to pair with a family-law attorney to get a guardianship or similar family-court order for the children. While these two programs will not help every child in removal proceedings, we have seen quite a few already filing for their permanent residence on account of one or both of these programs.
We have had a number of other recent victories in immigration court, including: asylum for a family of converts to Christianity from Egypt, and victims of domestic violence from Central America; a long-time permanent resident (green card holder) who had a recent criminal issue after many years without any; and quite a few cases which were administratively closed - effectively stopping the removal proceedings and allowing those who are not enforcement priorities to remain in the country with their families and with work authortization.
We continue to see a great deal of success in our many motions to reopen removal proceedings where someone failed to appear in court, received ineffective assistance of counsel, or otherwise did not get their day in court.
On the business side of things, we just won an appeal of a wrongfully denied labor certification (PERM) case, which was heartening in part because of how quickly it was decided. Sometimes those cases are sent through the full Department of Labor appeal process which can take more than year to decide. This case, however, was quickly redecided without having to go through the whole process. We also won a religious worker visa for a local Somali religious facility which desperatly needs teachers for their students.
We have been posting our updates/victories on our Facebook and Twitter sites. Please check them out to stay informed. While we are updating here though, we have recently received another Cancellation of Removal approval which is rarer now as the number of available approvals had been reached for most of the year, and apparently just opened up again, at least temporarily.
We are still seeing I-601A stateside waiver approvals rolling in which is just a terrific development for so many families. We are seeing fairly fast turn arounds at US CIS once they are on file, though the National Visa Center appears to be slowing down in response. Be warned on almost all of our consular processing cases we are getting letters from the NVC indicating that it will be 60 days before they respond to our submissions.
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.
We recently received one of the first approvals for a same-sex marriage case in the Kansas City area. The couple has been together for years, but it has only been since the Supreme Court's decision in US v. Windsor that there has been the possibility for them to remain together permanently in the United States.
The process was fairly smooth, almost identical to what we are used to seeing in traditional marriage cases. Although there was some confusion on the part of the officer as to how to apply the different legal status of same sex marriage where the couple was married as opposed to where they live, the interview was almost without issue.
We have written about this issue in a few of our weekly articles being published in Dos Mundos, in our "Hablando con el Experto" section. Check out Dos Mundos each week for a new article.
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.