Amidst the coverage of the terrorist bombings in New York and New Jersey on Monday (Sept.19/16), a story broke that DHS mistakenly granted citizenship to some 800 aliens who were under orders of deportation.
The explanation was that the people had been deported under different names, and that their fingerprint results were lost or unavailable. That deserves further inquiry. How are non-citizens identified in the Immigration system so that their identity is a certainty to adjudicators?
1) Name checks
3) Alien Identification Number.
Name checks are an easy but less secure way of verifying identity. (Many countries / cultures have common given names, e.g. Singh, Hossain, Smith). Fingerprinting is the most reliable means of identification, and all applications granting lawful status in the U.S. require them. The Alien Identification Number gets assigned to aliens if they are granted Immigration status by U.S. CIS or are if they are arrested by U.S. ICE.
If an applicant for Naturalization failed to disclose the use of a different name during a deportation case DHS may not know it absent fingerprints. But such a failure to disclose could be the basis of a Federal Criminal charge, and /or a new basis for deportation.
CAN DHS UNDO THE GRANT OF CITIZENSHIP?
Yes, the Attorney General has the duty to file a denaturalization claim in Federal Court. Authority for denaturalization is found at 18 U.S. Code § 1425 – Procurement of citizenship or naturalization unlawfully. The statute of limitations for a Federal Court charge of denaturalization is 10 years.
More than 800 immigrants mistakenly granted citizenship…read more->bigstory.ap.org
What Harinder Bains did isn’t unusual: He saw something suspicious and called police. But who Harinder Bains is makes this story special. Bains is the bar owner who led police to Ahmad Rahami, the suspect in the New York and New Jersey blasts. While officials haven’t pinned an exact motive to the Afghanistan-born Rahami’s act,…
DIVERSITY VISA LOTTERY
U.S. Immigration Law attempts to accommodate the World-wide demand for Immigrant visas through Family based sponsorship, Employment-based sponsorship, and for those fleeing persecution. A lesser known category is the Diversity Visa(DV). Some 50, 000 Immigrant visas are allocated each year to lucky winners of the Visa Lottery, which is offered only to citizens of countries with otherwise low rates of emigrating to the U.S.. For fiscal year 2018, the Department of State has announced that the application process for the 50,000 visas will occur from October 4 to November 7, 2016.
Those countries that have had fewer than 50, 000 Immigrant visas issued by the U.S. in the past fiscal year are eligible. The countries not eligible for the Diversity Visa this year are Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Applications from natives of the eligible countries are randomly selected and are required to provide passport style photos taken within the past 6 months. Applicants also have to provide extensive biographic information but a completed background check is necessary only if their application is selected.
Presidential candidate Donald Trump set forth his proposed changes to Immigration policy, as follows:
- Build the wall
- Cut Federal funding to Sanctuary Cities
The House Appropriations Committee in July 2015 adopted an amendment into a spending bill that would make “sanctuary cities” ineligible for federal grants if they refuse to cooperate with federal officials in immigration cases.
- End the catch and release policy for undocumented immigrants and instead return them to their country of origin.
In 2014, Border Patrol agents received written guidelines instructing them that the vast majority of illegal immigrants in the U.S. are off limits to federal agents and are substantially immune to detention and deportation. The training materials, when coupled with a November 20, 2014 memo on prosecutorial discretion from Homeland Security Secretary Jeh Johnson, indicate that agents should primarily only arrest someone who they directly see cross the border, if they are a wanted criminal, a convicted felon, have an extensive or a violent criminal history, or otherwise pose a national security or public safety threat.
- Have zero tolerance for undocumented immigrants who have committed a crime, and deport them.
That would require a change in the law. For lawful residents that have resided in the U.S. for more than 5 years, a single misdemeanor or felony conviction would likely not be a removable offense. It usually takes two or more.
- Triple the number of deportation officers at the department of Immigration and Customs Enforcement. Add 5,000 additional border patrol agents.
- Repeal President Obama’s executive orders that temporarily protected undocumented immigrants from deportation and authorized them to receive work permit.
The only DACA program that survived judicial review is DACA I. DACA II and DAPA were blocked by the Texas Court and on appeal by the Supreme Court.
- Stop issuing visas to any country where “adequate screening cannot occur” that might endanger national security
- Ensure foreign countries take back deported immigrants from the United States (Mr. Trump said 23 countries refuse to do so).
The countries that refuse include China, India, Cuba, Pakistan, Vietnam, Honduras, Nicaragua, El Salvadore, and a number of island nations in the West Indies.
- Complete a biometric entry and exit visa tracking system under development. “It will be on land, it will be on sea, it will be in the air,” he said.
The biometric entry system is used currently for applications for LPR status, and most extended visitor visa applications but not for visitors arriving by car and plane at a port of entry.
The press has been questioning whether the presidential candidates support “amnesty” for illegal immigrants. Donald Trump is expected to give a speech on Wednesday (Aug 31, 2016) regarding his proposed Immigration policy. What does the press mean when they use the term amnesty?
AMNESTY defined (Black’s Law Dictionary):
A sovereign act of pardon and oblivion for past acts, granted by a government to all persons (or to certain persons) who have been guilty of crime or derelict, generally political offenses.
Q: In the Immigration context, what is being pardoned?
Under the U.S. Immigration law, A Foreign National (FN) who enters the U.S. without being inspected and admitted (EWI) is not eligible to remain in the U.S. and obtain lawful status. That includes non-immigrant visitor status, or lawful permanent resident status (Green Card). The only exceptions are for those seeking asylum , and those whose removal would result in “Extremely Unusual” hardship to certain U.S. citizen family members.
So, an exercise of amnesty would allow those in EWI status an opportunity to apply for legal status, without having to leave the U.S..
Q: Who are the beneficiaries of Amnesty:
Basically, we can divide the illegal population into 3 groups:
Those foreign nationals in the U.S. who have
1) entered the U.S. illegally, or
2) over stayed their non-immigrant visas (NIV), or
3) disobeyed an Order of Deportation requiring that they leave the U.S..
In the case of #1, those who have entered the U.S. without being inspected or admitted are very limited in their ability to obtain legal status. They cannot apply for valid non-immigrant status or Lawful permanent resident (green card) status while still in the U.S.. The limited exceptions to this are for those who are from countries that have received Temporary Protected Status (TPS) (which was detailed here in a recent post). Or for those fleeing persecution in their country and are granted asylum.
The only other option for #1 is what we practitioners consider to be the PRIMARY AMNESTY provision, and that is for those whom INA section 245(i) applies.
245(i) is a route to lawful permanent resident status for those who can show that they were the beneficiary of an LPR visa petition prior to a certain cut-off date, that they were physically present prior to that date, and THAT they pay a penalty ($1,000). The current date for eligibility under 245i is April 30, 2001, (along with physical presence as of December 21, 2000). If the FN has visa receipt and physical presence, by the cutoff dates, and they pay the penalty they can obtain a “green card” if a visa petition is approved.
In the case of #2, those who entered the U.S. legally with a visa, or were visa exempt, but overstayed, they are permitted to file for LPR status if petitioned by a U.S.C. immediate relative (spouse, parent, or child over 21). They can also obtain LPR status through an employer or non-immediate family member if they are 245(i) eligible. If not 245(i) eligible, they must return to their country and attempt to consular process the immigrant visa (subject to any bars of admissibility)
In the case of #3, those ordered deported, they cannot file for green card status while under a Deportation order. They must successfully file a motion to reopen the Deportation case, and have the Order rescinded. Due to time limitations imposed by law, an Order can only be reopened upon motion filed jointly with the DHS attorney assigned to the case.
So, if amnesty means obtaining LPR (green card) status, then the above rules apply.
Q: What about citizenship?
FNs can only obtain citizenship in the U.S. if they first obtain LPR status. An illegally present FN cannot be granted citizenship without first being granted a green card. They can apply for citizenship after having green card status for 5 years (3 years if obtained by marriage to U.S. citizen) and meet all other requirements of citizenship (physical presence, good moral character, etc.)
We don’t know yet what the candidates have in mind when they are questioned about “amnesty“. We practitioners know that the current amnesty provision, 245i, as outlined above requires having a petition filed prior to April 30, 2001, and the payment of a $1,000 penalty. We also know that citizenship can only be applied-for after LPR status is acquired. Thus, it would not be correct, under current law, for a candidate to say they supported green card status, but not citizenship.
If a candidate does support a new amnesty provision, a simple change in the law would be a new date for the 245i provision, one more recent than 2001.
There is speculation by some in the media that Melania Trump may have obtained her lawful permanent resident status, LPR, (Green card) despite having a possible visa violation.
Let’s skip the speculating, because we don’t know what her status was prior to her marriage with Donald Trump. But, based on what we do know, we can discuss as follows:
1. Was Melania, born in Slovenia, permitted to conduct a photo shoot in the U.S. in the mid-nineties?
She is reported to have had the name Melania Krauss when She performed modeling shoots in the U.S.. As a model, like any other non-immigrant who has not obtained a work permit, She cannot be employed in the U.S.. She can work for free, She can be self-employed, or She can run a business, but She can not be a paid employee of a U.S. company without work authorization.
So, yes, She was permitted to do a photo shoot but could not be paid.
2. In what specific visa status could She work as a model?
*** B-1 business visitor. If She was not paid for her work. The most common visitor visa, with a maximum stay of 6 months, the B visa is issued to tourists as a B-2, or for business as a B-1.
Models use the B-1 for photo shoots to build a resume and pardon the pun, exposure. They cannot receive pay for the work.
Ms. Trump could have done the same activity if She entered under the Visa Waiver program, with maximum stay of 3 months, except that Slovenia, a part of the former Yugoslavia, wasn’t added as a U.S. visa waiver country until September, 1997.
*** H-1B visa. This category is usually reserved for persons in high-skilled employment, with at least a bachelor’s degree, but an exception has been made for modeling. The H-1 visa permits compensable employment and a continuous stay in the U.S. for up to 3 years, and then is renewable for an additional 3 years.
3. What if Melania worked without authorization (for compensation) prior to her marriage to Trump and subsequent Immigrant Visa application?
It would not have prevented her from filing the visa application. Spouses of U.S. Citizens are given special status throughout Immigration law, and applying for Lawful Permanent Resident LPR status is one example. Unauthorized employment in the U.S. does not make spouses of U.S. citizens in-eligible to file for a green card.
THE TEMPORARY PROTECTED STATUS (TPS) PROGRAM
The Obama Administration just extended TPS status for Syrians through March, 2018. This temporary status has been used to protect nationals from strife-ridden countries since its inception in 1990. Other Countries currently extended TPS protection by the U.S. are: El Salvadore, Honduras, Nicaragua, Guinea, Nepal, Somalia, Sudan, South Sudan, Sierra Leone, Liberia, Haiti, and Yemen.
The TPS program protects eligible citizens from these countries from forced return to the country during the period designated by DHS. The status given to TPS recipients is simply that of “lawful” status. They are not lawful permanent residents “LPRs”, “Green Card” holders. Their status is temporary for the authorized period, and applicants must first meet the continuous presence requirements, showing that they were physically present in the U.S. prior to the initiation of the designation.
Applicants must also pass a background check, similar to the good moral character requirements found in most other applications, with ineligibility for those found to have a Felony, or two or more misdemeanor convictions. Other grounds of inadmissibility apply, and an applicant found inadmissible must, if eligible file a separate waiver application to waive the ground of inadmissibility.
The Obama administration has announced that most non-immigrant waivers will be granted for a 5 year period. Currently, waivers may be granted for either 1 or 5 years, but first time grants are normally for 1 year. The 1 year grant is a problem for practitioners because of the lengthy adjudication period involved with the waiver applications. Adjudications of the waiver applications by the Admissibility Review Office (ARO) have been taking 8 to 10 months. So clients need to re-file the application soon after receipt of the approval to avoid a lapse in admissibility.
CPB will begin the change in waiver approval in January, 2017. The listed exception to the 5 year grant policy is for those applications filed by “Crew members”, who will be limited to 2 years.
An additional benefit to the change will be a reduction in the volume of adjudications and presumably a speedier response time.
By the way, there is no one, in all of humanity (who hasn’t committed a serious crime) viewed lower than a crew member, by Immigration law. We’ll address that one of these days.
BASIS FOR INADMISSIBILITY
Because there is no statute of limitations, detrimental reliance, unclean hands , or other black letter Criminal law principals applied to U.S. Immigration law. A person who has committed a criminal conviction that is a basis of inadmissibility to the U.S. is inadmissible regardless of when it was committed or how many times they have since entered the U.S.. Our office has seen numerous cases involving clients with relatively minor offenses committed twenty to thirty years prior to their stop at a U.S. port of entry.
NO STATUTE OF LIMITATIONS
U.S. Immigration law is Administrative law, not Criminal law. Many of the legal principals that protect the rights of criminal defendants don’t apply to Immigration law. There is no statute of limitations for instance, precluding the prosecution of an offense after a substantial lapse in time. The one constitutional protection most often available to visa violators is for due process violations under the 5th amendment, and to a lesser extent the 4th amendment’s protection against undo searches and seizures. (Stops / arrests made by ICE and Customs officers are legal unless they are “Egregious” in nature)
BCBP uses several databases to determine a visitors admissibility. Most often an inspector checks the Treasury Enforcement Communications System (TECS) for any recent posts such as warrants , lookouts, or other reports by a law enforcement agency. If there is no recent activity for the visitor, inspectors usually look no further into the visitors background. But if a more extensive check of TECS is conducted, a more complete history of arrests and convictions may be revealed.
For those visitors found inadmissible due to a criminal history, they are usually refused entry and referred for a hearing before an immigration Judge, and told that they may file an application for a waiver of inadmissibility. If the criminal record is historic, the visitor is likely to receive a waiver.
JUNE 23, 2016
Today, the Supreme Court let stand the 5th Circuit Appeals Court’s Stay of President Obama’s Executive Actions, DACA II and DAPA. So, those programs will not be implemented while the litigation in Federal Court continues. The Supreme Court Justices voted 4 in favor of the Stay and 4 opposed, with no 9th vote due to the death of Judge Antonin Scalia. The tie leaves the 5th Circuit decision unchanged. The Court avoided inserting itself into the political skirmish that has followed the Obama Immigration policy by issuing a compact Decision:
“The judgment is affirmed by an equally divided Court.”