Tuesday, February 17, 2015

Federal District Court Judge Enjoins Enforcement Of Executive Action Implementing DAPA And Expanding DACA

In response to a federal lawsuit filed by several states, including Indiana, a federal district court judge in Texas has issued a preliminary injunction enjoining the Department of Homeland Security from enforcing the major provisions contained in the recent executive action announced by President Barack Obama involving deferred action for some unlawfully present aliens. Today, the Secretary of Homeland Security Jeh Johnson announced the administration will halt implementation of those features of the executive action pending an appeal of the decision.

The Department had intended to begin accepting applications this week for the expansion of Deferred Action for Early Childhood Arrivals ("DACA"). Two years ago, the administration authorized certain unlawful aliens who arrived in the U.S. prior to their 16th birthday to obtain deferred action status, which permitted them to obtain work authorization for an initial two-year period, subject to renewals for subsequent two-year periods. Under the President's executive action, the so-called DACA beneficiaries would become eligible for three-year work authorization periods instead of the initial two-year period. Current DACA beneficiaries may renew their authorization but only for two years instead of the three years planned under the expansion. In addition, those eligible for the original DACA program who have not yet filed for the benefit may still come forward and file for it.

A second new deferred action category made work authorization available for parents of U.S. citizens and lawful permanent residents who have been continuously present in the country since January 1, 2010. The Department planned to begin accepting applications from so-called DAPA applicants within the next two to three months. The Department has halted those plans in light of the Texas court ruling for as long as the Court's order remains in effect.

The Department's plans for prioritizing enforcement actions is not affected by the court's ruling. Under the announced priorities for enforcement policies concerning apprehension, detention and removal, the emphasis focuses on those unlawful aliens who have been convicted of more serious crimes, suspected terrorists, gang members and persons apprehended at the border. Persons with multiple or serious misdemeanors and the most recent border crossers receive secondary priority for removal, while least priority is given to those who failed to leave under a prior removal order or returned after a prior removal order.

Wednesday, February 11, 2015

Record Number Of Americans Renounce Their Citizenship

What was once a rare event is becoming more common. Native born and naturalized U.S. citizens may voluntarily relinquish his or her citizenship. In 2014, a record number of U.S. citizens voluntarily relinquished their citizenship according to a recent report. Under 8 USC  §1481(a), there are several ways a citizen may lose his citizenship by voluntarily performing any one of several acts with the intention of relinquishing citizenship, including:

  • Becoming a naturalized citizen in or taking an oath of allegiance to a foreign state after reaching the age of 18;
  • Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving in any foreign army as a commissioned or noncommissioned officer;
  • Accepting, serving in or performing duties of any office, post or employment of a foreign government;
  • Making a formal renunciation of U.S. citizenship before a diplomatic or consular officer on a Department of State form or making a formal written renunciation whenever the U.S. is in a state of war; or
  • Committing an act of treason against, or attempting by force to overthrow, or bearing arms against the U.S.
The voluntary relinquishment of citizenship statute places the burden of demonstrating the loss of citizenship on the U.S. by a preponderance of the evidence and proof that the expatriating acts listed in the statute were done voluntarily. The Department of State is required to make a determination that a person's citizenship was voluntarily relinquished. There is a presumption against expatriation for persons who became a naturalized citizen of another country, takes a routine oath of allegiance or accepts non-policy level employment with a foreign government. That presumption doesn't apply to a person who formally renounced his or her citizenship before a consular official, takes a policy level position in a foreign government, is convicted of treason, or performs expatriating acts accompanied by conduct which is inconsistent with retention of U.S. citizenship that it compels a conclusion the person intended to relinquish his or her U.S. citizenship. 

Taxes are a primary reason behind a citizen's decision to expatriate. The Foreign Tax Compliance Act requires foreign banks to identify to U.S. taxing authorities any Americans with deposits of more than $50,000. The Act is intended to crack down on citizens who park money in overseas bank accounts to avoid taxation by the IRS. The Department of Treasury publishes a list of persons who have expatriated on a quarterly basis. Click here to see the list of Americans who expatriated during the fourth quarter of 2014. Obviously, any U.S. citizen seeking to expatriate wants to ensure the proper statutory steps are followed to escape the future reach of U.S. taxing authorities once they decide to give up their citizenship. 

Monday, December 22, 2014

Seventh Circuit Denies Review Of Moral Turpitude Finding In Removal Proceeding On State Conviction For Eluding Police

An immigration judge and the Board of Immigration Appeals both agreed that an unlawfully present alien's conviction under a Wisconsin statute for fleeing or eluding a police officer categorically constituted a crime of moral turpitude, thereby denying his petition for cancellation of removal. The Seventh Circuit Court of Appeals agreed with the Board of Immigration Appeals, which had issued its own free-standing opinion in the case of Pedro Cano-Oyarzabal v. Holder. The Court noted the state statute required a person convicted under the statute to "knowingly" flee or elude the police after receiving an officer's signal to stop. "Knowingly fleeing or attempting to elude an officer is an act wrong in itself and therefore a crime involving moral turpitude," the Court held.

The Immigration and Nationality Act provides that an alien convicted of a “crime involving moral turpitude” is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A conviction for such a crime also makes one ineligible for cancellation of removal, subject to some exceptions. 8 U.S.C. § 1229b(b)(1)(C). There are exceptions if: (1) the alien was under the age of 18 at the time the crime, and the crime was committed and the alien released from prison or confinement at least five years prior to the date for application for admission to the United States; or the maximum penalty for the crime of which the alien was convicted did not exceed imprisonment for one year and the alien was not sentenced to a term in excess of six months.

In deciding whether a conviction under a criminal statute is categorically one involving moral turpitude, it must be determined whether the government in question would apply its criminal
statute to reach both turpitudinous and non-turpitudinous acts. Because the statute in question only involved turpitudinous acts, the Court was not required to look at the record of the underlying conviction to determine whether the alien's conviction involved one of moral turpitude and, accordingly, afforded deference to the agency's administrative decision.

Thursday, November 20, 2014

What Changes To Expect From President Obama's Executive Action

President Barack Obama announced sweeping executive actions he intends to take significantly altering current immigration laws and policies. The President's executive actions, while welcomed by advocates of immigration reform, are drawing sharp reaction from many members of Congress and state and local officials. Opponents of his action are already threatening legal action to overturn the proposed changes on the basis that he is exceeding his executive powers. Indiana's Gov. Mike Pence was highly critical of the President's announcement. He called it an "unacceptable end run around the democratic process." "The State of Indiana will carefully evaluate the details of the Executive Order and take any available legal actions necessary to restore the rule of law and proper balance to our constitutional system of government," Gov. Pence said.

Here is an overview of what the President's executive action will mean assuming the President is legally allowed to go forward his plans.

Deferred Action For 4.4 Million Undocumented Aliens
Previously, President Obama by executive action enacted Deferred Action for Childhood Arrivals ("DACA") which allowed undocumented aliens under the age of 31 as of June  15, 2012 who arrived in the country prior to their 16th birthday and had continuously resided in the U.S. for at least five years to apply for a deferred action benefit, which allowed eligible beneficiaries to remain in the country for a 2-year period with opportunity for extensions and to obtain authorization to work. The President's executive action will eliminate the age cap and extend DACA coverage from those arriving prior to June 15, 2007 to include those arriving on or before June 15, 2010. Previously, only persons under the age of 31 were eligible for deferred action. Now anyone who entered the U.S. prior to their 16th birthday is eligible. A person granted the DACA benefit under the new program will be afforded the benefit for a 3-year period, subject to renewal. This part of the expanded DACA benefit is expected to be up and running within 90 days.

The second and most profound change in the deferred action benefit is the expanded coverage the President intends to offer to an estimated 4.4 million undocumented aliens who are parents of U.S. citizen and lawful permanent resident children who have been continuously present in the country since January 1, 2010. If individuals in this so-called DAP category pass background checks and pay back taxes, they will be eligible for deferred action with work authorization for a period of 3-years subject to renewal just like DACA beneficiaries. This new deferred action category is expected to be up and running within 180 days.

I-601A Waiver Expansion
The I-601A conditional waiver program, which allows undocumented aliens applying for a family immigration benefit for an immediate relative to apply for the hardship waiver prior to departing the country for an immigrant visa interview at a consulate abroad, will be expanded to include spouses and children of lawful permanent residents. The President's action will also clarify and expand the definition what qualifies as an "extreme hardship."

Enforcement Priorities
Existing ICE memos regarding enforcement priorities and prosecutorial discretion are to be replaced with a priority on the following categories of immigrants: (1) suspected terrorists, convicted felons, convicted gang members and persons apprehended on the border; (2) persons convicted of multiple or serious misdemeanors and very recent border crossers (those entering after January 1, 2014; and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. The revised memo will contain strong language on the use of prosecutorial discretion.

Employer-based Adjustment of Status
Individuals with an approved employment-based immigrant petition who are caught in the quota backlog for adjustment of status will be advanced to permit them to obtain the benefit of a pending adjustment. This change will affect about 410,000 petitions.

Business Immigration Changes
Changes are being proposed that are billed as improvements in business immigration such as those offered to investors or national interest waivers could be made available to entrepreneurs, inventors, researchers and founders. The length of optional practical training ("OPT") for STEM graduates is expected to be expanded.

Parole-in-place will be expanded to include families of individuals trying to enlist in the armed forces.

Visa Modernization
Efforts will be made to modernize the current visa system. One such issue that may be addressed is whether derivative family members should be counted against the visa quota and whether past unused visa numbers can be recaptured.

State and Local Law Enforcement
The Secure Communities program will be replaced with the Priority Enforcement Program ("PEP"). Detainers are expected to be replaced by requests for notification to ICE when a law enforcement agency is about to release an alien from jail.

Friday, August 1, 2014

Bureau Of Motor Vehicles Now Offering Driver Test In 11 Languages

The Indiana Bureau of Motor Vehicles announced this past week that it will now be offering driver tests necessary to obtain an Indiana driver's license in 11 other languages. In addition to English, driver's license applicants will now have the choice of taking the exam in the following languages: Arabic, Burmese, Chin, German, Japanese, Korean, Punjabi, Russian, Simple Chinese, Spanish and Vietnamese.

Wednesday, July 16, 2014

Cancellation Of Removal And The Operation Of The Stop-Time Rule

An alien otherwise inadmissible can be eligible for cancellation of removal if, among other things, he establishes that he "has been physically present in the United States for a continuous period of at least ten (10) years immediately preceding the date of such application, among other requirements set forth at 8 U.S.C. 1229b. Under the so-called stop-time rule, continuous residence is deemed to end when an alien has been served a Notice to Appear under 8 U.S.C. 1229. In Wang v. Holder, the 7th Circuit Court of Appeals recently decided what form a Notice to Appear must take in order to trigger the stop-time rule.

Yi Di Wang was a Chinese national who was smuggled into the United States in 1999 through the Virgin Islands. Immigration authorities discovered Wang within two days of his arrival and took him into custody. He was personally served with a Notice to Appear and ordered to appear at a date and time to be later determined at the immigration court in New Orleans. While Wang was in custody in New Orleans, he was released on bond. He was later served two notices for subsequent hearings but failed to appear. The immigration court closed the case on the motion of the government. Wang remained in the U.S. continuously for a period of at least 10 years after his initial release and married a Chinese citizen in 2009 with whom he had two children. Wang voluntarily returned to the immigration court in 2010 wherein he announced he was an applicant for a U visa as a victim of human trafficking. The immigration judge granted continuances while the U visa was being adjudicated, but declined to grant any further continuances in 2012 after his U visa had been turned down.

Wang then sought cancellation of removal, but the immigration judge denied his petition, holding that the stop-time rule had been triggered when he was personally served a Notice to Appear two days after he entered the country without admission. Wang argued that the Notice to Appear did not include a date and time for his hearing as required under 8 U.S.C. 1229(a). The Board of Immigration Appeals denied Wang's appeal, holding that the stop-time rule only required receipt of a Notice to Appear to be triggered regardless of whether such notice included the time and date of hearing.

The 7th Circuit affirmed the Board of Immigration Appeals' decision. Applying the two-part Chevron test, the Court concluded that Congress had not addressed the precise question in the statute and left it to the administrative agency to fill in the gaps. It next applied the second part of the Chevron test to determine if the Board's construction of the statute was a permissible construction. Although the Court agreed that the best way to fill the gap might have been as Wang argued to require a Notice to Appear to comply with every detail of 1229(a) to trigger the stop-time rule, it afforded deference to the Board's conclusion that the stop-time rule only required the type of notice and not the specific content of the notice as a permissible construction of the statute.

Wednesday, July 9, 2014

Another Case Demonstrates Roadblock Convictions For Crimes Involving Moral Turpitude Pose For Cancellation Of Removal

Cancellation of removal is a valuable statutory remedy to save an otherwise removable undocumented alien from deportation, but proof of good moral character is an unavoidable necessity to securing it. Get a conviction for a crime of moral turpitude on your record or admit to committing acts that constitute the essential elements of a crime of moral turpitude, and the door slams shut. But what is a crime of moral turpitude? Like many terms in the Immigration & Naturalization Act, it's not defined. The Courts and the Board of Immigration Appeals defines the term to mean "conduct that shocks the public conscience as being 'inherently base, vile, or deprave, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." That's quite a mouthfull, but a recent 7th Circuit Court of Appeals decision in Sanchez v. Holder helps shed some light on its intricacies and the fact that a mere conviction under a criminal statute touching on moral turpitude alone doesn't always answer the question.

The case involved Fredy Arnoldo Sanchez, a 47-year old citizen of El Salvador who unlawfully entered the U.S. in 1987. Sanchez, who resides in Indianapolis, is married to a lawful permanent resident and has four children, all of whom are U.S. citizens. For reasons that are unclear, Sanchez' case languished in removal proceedings for many years after his initial asylum claim proved unsuccessful. At an initial appearance before an immigration judge in 2006, he conceded the government's contention that he was removable from the country. At his next hearing in 2007, Sanchez renewed his petition for cancellation of removal based on hardship to his U.S. citizen children, as well as the special rule for cancellation under the Nicaraguan and Central American Relief Act ("NACARA"). The government contended he wasn't eligible for NACARA relief because of acts he allegedly committed as a soldier in the El Salvadoran military. Sanchez was granted more time to respond to the government's allegations.

A new issue arose when Sanchez appeared at his next hearing in 2009. Since his last hearing, Sanchez had been arrested for leaving the scene of an accident where serious bodily injury occurred, a Class D felony under I.C. 9-26-1-8. Upon hearing the information for the first time, the government argued the crime with which Sanchez had been charged involved a crime of moral turpitude, rendering him ineligible for cancellation of removal. Sanchez was offered an alternative sentencing plea agreement under which he pleaded guilty to the felony charge but was sentenced as committing a Class A misdemeanor charge. He received a sentence of 365 days with 363 days suspended and one year of probation. The Court described a personal affidavit Sanchez submitted to the sentencing court describing his crime as follows:
Sanchez was driving at night on a road without any lights, that it was raining heavily, and that there was a lot of fog. He "heard a noise, which was an impact on [his] car." Unsure whether he could stop safely in traffic, and believing that he had merely hit "a post or a small object," Sanchez continued driving. The affidavit states that he only became aware that he had hit a person when police officers arrived at his residence the next day and told him.
Upon reviewing the facts, the immigration law judge hearing Sanchez' case concluded that he committed a crime of moral turpitude, was ineligible for cancellation of removal and ordered him removed to El Salvador. Sanchez appealed the decision to the Board of Immigration Appeals, which affirmed the immigration law judge's ruling. Sanchez appealed to the 7th Circuit Court of Appeals which held that the Board had failed to follow the required analytical examination required to determine that Sanchez' crime indeed involved a crime of moral turpitude. The Court went on to describe a 3-part examination courts have determined is necessary for ascertaining that fact based on Matter of Silva-Trevino.

The first part of the test requires the adjudicator to determine whether there is any realistic possibility that the statute under which a person has been convicted could be based on conduct not involving a crime of moral turpitude. If it is determined that the statute covers both turpitudinous and non-turpitudinous conduct, then the adjudicator moves to step two. At that stage, the adjudicator must ascertain whether the conduct with which the person's criminal conviction was based involved turpitudinous conduct from the criminal court records. If the criminal court records are insufficient to answer the question, then the adjudicator is required to move to a third step and conduct a further inquiry to more accurately make a determination. The burden rests on the moving party to prove his crime involved non-turpitudinous conduct. Because the Court found that the Board of Immigration Appeals had only mentioned the Silva-Trevino analysis in passing without actually employing it, the Court vacated its order and remanded it back for re-adjudication. The Court further noted that a person could be found guilty under I.C. 9-26-28-1 for crimes other than hit-and-run, allowing Sanchez to make it past the first part of the Silva-Trevino analysis. The Court noted the possibility that Sanchez' appeal still might fail in the event the evidence in the court record is inconclusive with the burden falling on him to prove otherwise, but the Board can't simply end the inquiry early until he's been given the opportunity to prove otherwise.