New Win for the Law Offices of Brian D. Lerner, APC: In absentia MTR granted by IJ . Client was ordered removed after her case was transferred from Missouri to Los Angeles and then she failed to appear. The Notice of Hearing was sent to her correct address but she did not receive it.
Filed under: removal order | Tagged: Immigration, Immigration Attorney, Immigration Lawyer, Removal, removal order, removal orders, Removal Proceedings | Leave a comment »
Unlawful Presence for Minors
Question: I am 17 years old and do not know if I will be subject to being unlawfully present. Can you clarify?
Answer: There has been a significant change in the interpretation of unlawful presence as it relates to minors by the U.S. Consulate in Ciudad Juarez, Mexico (“CDJ”) and perhaps other U.S. consulates, with devastating results. Accordingly, the Visa Office has directed the consulate at CDJ to cease applying the “minor exception” of INA §212(a)(9)(B)(iii)(1) to unlawful presence findings under INA §212(a)(9)(C)2, resulting in denial of immigrant visas to children under the age of 18, as well as denial of immigrant visas to adults who had unlawful presence and a re-entry as a minor. This action may need Federal Court action in order to best determine how to proceed as it was not previously applied in this manner and it subject to interpretation.
Question: What is the background of this provision?
Answer: INA §212(a)(9)(B)(i)3 imposes three- and ten-year bars upon foreign nationals who have accrued specific periods of time in the U.S. INA §212(a)(9)(B)(iii) provides a series of statutory exceptions to the period of time which can be counted toward an alien’s unlawful presence. The so-called “minor exception” is found there, and exempts from unlawful presence periods of time when the alien is under 18 years of age.In practice at CDJ, the “minor exception” has been applied to the INA §212(a)(9)(C) permanent bar for aliens who have been unlawfully present for an aggregate period of one year, or who have been ordered removed under INA §235(b)(1) and INA §240, or any other provision, who then returned to the U.S. without inspection. Previously, if an alien minor was in the U.S. unlawfully for one year, was then taken home, for example, to Mexico to see his grandparents, and was brought back into the U.S. without inspection, the permanent bar of INA §212(a)(9)(C) has not been applied. This makes sense because INA §212(a)(9)(B) defines unlawful presence for “this paragraph,” and states the exceptions.Recently CDJ has been taking the position that the unlawful presence exception for minors does not apply to the permanent bar of INA §212(a)(9)(C), because the statutory exception is only listed under INA §212(a)(9)(B). As noted above, INA §212(a)(9)(C) does not include a definition of unlawful presence, but CDJ continues to “import’ that definition from §212(a)(9)(B) without applying the exceptions found therein. This by itself could be a violation of due process considering there is no notice that it would be applied in this manner.
Until a resolution is reached, minors, or those who had been unlawfully present in the U.S. as a minor, and thus, who fall under the newly-interpreted INA §212(a)(9)(C) bars, should not consular process, at least through CDJ, and perhaps at all. It is not known at this time if other U.S. consulates are applying this interpretation of the law, and if the same issue is present with theother exceptions to the unlawful presence bars found at INA §212(a)(9)(B)(iii).
Therefore, what we have is an agencies interpretation of a particular law without any guidance, caselaw or statutory provisions mandating the proper procedure. It simply does not make sense that the unlawful presence does not apply to a minor EXCEPT if it supposedly falls under the above escenerio. Congress enacted this provision and specifically excluded minors. Why would they exclude minors under this provision only to have CDJ apply it completely against minors by referring to another section? This will have to go to Court to protect those who need its protection the most – the minors.
Filed under: unlawful presence | Tagged: Immigration Attorney, Immigration Lawyer, minor, unlawful presence | Leave a comment »
To be timely, petitioner’s motion to reopen had to be filed within 90 days of the Board of Immigration Appeals’ initial merits determination, not within 90 days of the denial of his motion to reconsider.
Soria Vega v. Holder – filed July 19, 2010
Law Offices of Brian D. Lerner
Filed under: Motion to Reopen (MTR) | Tagged: BIA, Immigration, Immigration Attorney, Immigration Judges, Immigration Lawyer, motion to reopen, motion to reopen attorney, MTR | Leave a comment »
While the Arizona Law promotes racism and division, it has brought to the forefront the immigration debate. Hopefully, now, there will be real immigration reform. In any event, if you are not here legally, you should get an immigration attorney to help you. There are debates on this issue going all over the country. Amazingly, the Arizona Governor called the Federal Lawsuit ‘outrageous’ which is comical considering how racist the law is.
Find a good Immigration Attorney
Filed under: Arizona Law | Tagged: arizona law, Federal Lawsuit, Immigration Attorney, Immigration Debates, Immigration Lawyer | 2 Comments »
How to prepare an Asylum Application – Avvo.com http://ping.fm/1mlAo
Filed under: asylum | Tagged: asylum, deportation attorney, Immigration Attorney, Immigration Laws, Immigration Lawyer | Leave a comment »
Please help me Public intoxication, Citizinship – Avvo.com http://ping.fm/Xesuq
Filed under: Citizenship | Tagged: Citizenship, Citizenship and Immigration Data Repository System, citizenship application, Immigration, Immigration Attorney, Immigration Lawyer, US Citizen | Leave a comment »
Why I was offered only 15 days?! Why suddenly a rude and aggressive supervisor had to handle the case?!Should I complain to CBP? – Avvo.com http://ping.fm/4x3ed
Filed under: CBP - Customs & Border Protection | Tagged: cbp, CBP Liaison, Customs and Border Protection (CBP), Immigration, Immigration Attorney, Immigration Lawyer, immunity of cbp agents, U.S. Customs and Border Protection (CBP) | Leave a comment »
If my spouse with L2 visa can continue to stay in US when I finish my job and go back to my home country ( I have L1-B visa)? – Avvo.com http://ping.fm/BgH2q
L-1 intracompany transferee petition
Filed under: L2 L1-B | Tagged: Immigration, Immigration Attorney, Immigration Lawyer, L-1B, l1b | Leave a comment »
NIJHAWAN changes Criminal Conviction Analysis
The manner in which Immigration Attorneys used to analyze whether a particular conviction is an aggravated felon has changed. It is necessary to look into the newly issued Supreme Court case NIJHAWAN to find out what must be done by the Immigration Attorneys and what should be done to try to help the criminal defendant. First, however, you should know the basic facts of this case. First, it was a defendant that committed fraud. In Immigration Law, it specifically states that an aggravated felony is one whereby the defendant commits fraud upon someone else in which the deceit to the victim is more than $10,000.
In this particular case, there was no amount specified in the judgment as to the amount that the victim suffered. However, in other documents in the file and in other parts of the proceedings there was information that the amount the victim suffered was $1,000,000U.S.. Therefore, the issue becomes what can the Immigration court, BIA or Circuit Courts look at in order to determine whether an aggravated felony as put forth under Immigration Law has been committed. Under the old TAYLOR analysis, it was quite limited what could or could not be looked at by the Immigration court to determine this. Without going into too much detail, there was analysis as to whether the it should be a ‘categorical’ or ‘non-categorical’ approach.
Nijhawan put forth a different type of analysis dealing with ‘circumstances’. Words such as “crime,” “felony, and “offense” sometimes refer to a generic crime (a “categorical” interpretation), and sometimes refer to the specific acts in which an offender engaged (“circumstance- specific” interpretation). The basic argument favoring the “categorical” interpretation rests upon the Taylor case. The categorical analysis rests heavily on interpretation of the statute, a breakdown of the language in the statute of the crime that was committed and an analysis as to whether the federal definition of the crime matched the actual crime the defendant was convicted under.
In Nijhawan, the Supreme Court stated that the Immigration Attorneys in this case would have to use the circumstance specific interpretation, not the categorical interpretation. Here, the analysis does not fall on the language of the statute, but the circumstances which is anticipated by the language of the statute. Thus, whereby Nijhawan was arguing that the Immigration Court should only be allowed to look at the charging documents, abstract of judgment and other very specific documents, the Supreme Court disagreed. The decision of the Supreme Court was unanimous. Thus, it will probably not be overturned anytime soon.
To make clear, Nijhawan states that in this particular case, the $10,000 threshold is NOT an element of the crime, and therefore, the categorical approach is not applicable. The jury in this case found Nijhawan guilty, but nowhere in any of the crimes that he was convicted is the amount of the deceit to the victim an element of the crime. If it is ‘element’ specific, then we must look at the specific facts giving rise to the conviction, not the statute itself. Keep in mind that the categorical approach is when looking at the general definition of the crime itself and still can be used if an elemental analysis is not called for.
As for documents that are permitted, it seems that under the Nijhawan ‘circumstance’ specific interpretation, the door has been opened considerably. Specifically, plea agreements, stipulations and the like will be admissible for the Immigration Court to be able to see. Thus, it seems that it has become more difficult for Immigration Attorneys to try to argue that certain crimes are not aggravated felonies. However, it does seem to fall on whether a particular crime involves using the categorical approach, or the elemental approach. As to which approach to use and as to which crime falls under either approach, I am certain there will be much litigation in the future.
Filed under: Aggravated Felonies, BIA, Immigration Attorney, Immigration Law, Immigration Lawyer | Tagged: Aggravated Felonies, BIA, Immigration Attorney, Immigration Lawyer, nijhawan | Leave a comment »
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