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Written by: Jonathan Willmoth

18 April 2013

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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Written by: Jonathan Willmoth

01 March 2013

Hearing screams of joy on the other end of the line never gets old. This week we won two appeals from the Board of Immigration Appeals. One is for a detained man who will now get a chance to *hopefully* be approved for cancellation of removal as a permanent resident. In that case, the Judge had already indicated that but for the legal issue the BIA reversed her on, she would have approved him for cancellation of removal - which would allow him to remain in the United States as a resident, even though he has removable (deportable) criminal offenses. The legal issue dealt with the federal drug laws and how they make a second simple possession offense an Aggravated Felony (which render a resident ineligible for cancellation of removal). This may seem ridiculous, but its true. At trial, we had argued that because the second possession arrest was before he had been sentenced on the first, he was not a recidivist, and therefore not an Aggravated Felon. The BIA agreed with our argument and sent it back to the Judge to consider her claim for relief from removal, now that his eligibility had been resolved. The worst part of this case for him and his family is that he is detained under the Mandatory Detention law which makes anyone with drug convictions ineligible for release on an immigration bond.

The second case we won at the BIA this week was an asylum case where there was no question that the alien suffered unspeakable abuse in her native country. I honestly can’t even describe what happened to her here - I hated making her relive it to prepare her for trial, and I don’t like thinking about it myself. However, simply suffering atrocities is not enough for asylum protections. One has to show that the abuse was at the hands of the foreign government or a group the government can not or will not control, and that it was on account of one of the enumerated grounds: race, religion, national origin, membership in a particular social group, or political opinion. In her case there was also a threshold issue - asylum cases have to be filed within a year of arriving to the US. We were able to convince the BIA that because she had been unable to apply for asylum with her family, and her husband’s case listing her as a derivative was denied, she falsely believed she couldn’t file on her own. Because she filed within a few months of being told by a competent attorney that she could file on her own, the BIA found her application timely. Again, I don’t want to say too much about the facts, but the BIA also overturned the court’s decision that the horrors visited upon her were not on account of one of the enumerated grounds. 

The sound of shrieking, happy clients is music to my ears. Not every case turns out like this, making the unlikely victories all the sweeter.

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Written by: Jonathan Willmoth

24 January 2013

Normally, at the Kansas City Immigration Court, it takes a month or longer to get a trial date scheduled for people who are detained (can be 18 months for non-detained cases). Last week, we had a scheduling hearing on Thursday and asked for the next available time. The Judge graciously gave us her next opening, in six days. Therefore, our employees had to cram a month’s work of work into just six days (of course it was really only 4 because of the weekend). Today we won that trial, and he is home with his family.It was so important to him to get home as quickly as possible, because he was separated from his 8-year-old daughter who needed him and was developing stress-related emotional and physical ailments because of his being detained by immigration. Tonight he could tuck her in, or read her a story, or just sit and be with her for the first time in weeks. 

I am incredibly proud of our staff who worked at break-neck speed to get all of the documents prepared. In all of our materials we indicate that we handle emergency cases and this is just another example of our staff pulling together to get a tough job done, and done well, in almost no time at all. 

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Written by: Jonathan Willmoth

17 September 2012

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.