Pornography ruled as Aggravated Felony

The Second Circuit denied the petition for review, holding that even though the New York law under which the petitioner was convicted for possession of child pornography lacks an interstate commerce element that is present in the analogous federal child pornography statute, the petitioner’s conviction qualified as an aggravated felony under the INA in light of the U.S. Supreme Court’s decision in Torres v. Lynch.

File on time and you get another 240 day Extension

USCIS recently published a final rule amending 8 CFR §274a.12(b)(20) to authorize continued employment for up to 240 days for H-1B1 (Chile, Singapore), E-3 (Australia) and CW-1 (Commonwealth of the Northern Mariana Islands) nonimmigrants whose status has expired, provided that the employer filed a timely extension of stay with USCIS. The amended regulation took effect on February 16, 2016

Family Detention Case

The Ninth Circuit held that the Flores settlement agreement applies to both minors who are accompanied and unaccompanied by their parents, and that the lower court correctly refused to amend the agreement to accommodate family detention. The court also found that the lower court erred in interpreting the agreement to provide an affirmative right to release for accompanying parents, but did not preclude such release, and explicitly made no determination about whether DHS is making otherwise appropriate and individualized release determinations for parents.

Make sure to file BIA Appeal on Time

The Second Circuit held that the BIA’s decision declining to certify the petitioner’s untimely appeal of his removal order was a discretionary determination and, accordingly, was not subject to judicial review.

Sua Sponte Reopening

The Ninth Circuit granted in part and denied in part the petition for review, holding that petitioner’s ineffective assistance of counsel claim did not warrant equitable tolling of the limitations period for his untimely filed motion to reopen. However, the court also found that the BIA’s decision declining to exercise its sua sponte authority to reopen proceedings was based on an erroneous understanding of the legal principles concerning the relationship between prior deportation, reopening of deportation proceedings, and eligibility for INA §212(c) relief.

Don’t claim to be a USC!

In a precedent decision issued today, the BIA held that a false claim to U.S. citizenship falls within the scope of INA §212(a)(6)(C)(ii)(I) where there is direct or circumstantial evidence that the false claim was made with the subjective intent of obtaining a purpose or benefit under the INA or any other federal or state law, and where U.S. citizenship actually affects or matters to the purpose or benefit sought. The BIA further held that there is a distinction between achieving a “purpose” and obtaining a “benefit” under INA §212(a)(6)(C)(ii)(I), and that avoiding removal proceedings qualifies as a “purpose” within the meaning of that section.

Expanded Provisional Waiver

DHS will publish in the Federal Register a final rule that will expand eligibility for provisional unlawful presence waivers to all individuals who are statutorily eligible for the unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or lawful permanent resident (LPR) spouse or parent. This final rule adopts the proposed rule published on July 22, 2015, with changes made in response to comments received.

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