Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I know that Congress has a ‘lame-duck’ session now. I was wondering if there were any new and recent developments in the immigration laws.

Answer: There has actually been quite a bit that has been recently signed into law by President Bush. Here is the summary of those recent laws.

On November 2, President Bush signed into law the “21st Century Department of Justice Appropriations Authorization Act.” It includes the following.

Waiver of Foreign Country Residence Requirement with Respect International Medical Graduates. Extends until 2004 the “Conrad State 20” program, which allows states to request waivers of the two-year home residence requirement of INA § 212(e) for certain J–1 physicians who agree to work in medically underserved areas for a period of at least three years, and raises the number of visas available per state from 20 to 30.

Posthumous Citizenship for Non-Citizen Veterans.: Extends the deadline for allowing family members to apply for honorary posthumous citizenship for noncitizen veterans who died while honorably serving the U.S. in past wars.

Extension of H-1B Status for Aliens with Lengthy Adjudications.: Recognizing that lengthy processing times by the Department of Labor have precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000, this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the six-year limitation. As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed his or her status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point.

Application for Naturalization by Alternative Applicant if Citizen Parent Has Died: Amends the INA to authorize a child’s grandparents or legal guardian to submit an application for naturalization on behalf of the child under section 322 of the INA where the child’s parent, who otherwise would be authorized to submit the petition, died during the preceding five years.

Also on November 2, the President signed the “Border Student Commuter Act of 2002”. The new law amends INA §§ 101(a)(15)(F) and (M) by creating a new border commuter nonimmigrant classification under the F and M visa categories for Canadian and Mexican nationals who maintain residence in their country of nationality and commute to the U.S. for full- or part-time academic or vocational studies. The legislation was triggered by a May 22, 2002, INS proclamation that commuter students residing in contiguous territory would no longer be allowed to enter the U.S. as visitors to attend school on a part-time basis.

President Bush, on October 29, signed the “Persian Gulf POW/MIA War Accountability Act” to provide refugee status to any alien (and his or her spouse or child) who: (1) is a national of Iraq or a nation of the Greater Middle East Region; and (2) personally delivers into the custody of the U.S. government a living American Persian Gulf War prisoner of war or individual missing in action. Excepted from the Act’s benefits are persons who are ineligible for asylum (including terrorists, persecutors, certain criminals, and individuals presenting a danger to the security of the U.S.).

On September 30, President Bush signed the “Foreign Relations Authorization Act for Fiscal Year 2003” (H.R. 1646, Pub. L. No. 107–228). The Act contains numerous immigration-related provisions, including authorization for $4.97 billion in appropriations for the administration of foreign affairs in fiscal year 2003.

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Question: I am a Lawful Permanent Resident and have been convicted of a drug crime of possession. I have heard that there is no chance to win in Immigration Court. Is this true?

Answer: Since 1996, the list of crimes constituting aggravated felonies was increased tenfold. Since that time, there have been numerous Petitions for Review filed in Circuit Courts of Appeal to determine which crimes actually fall under the ambit of an aggravated felony.

One such crime deals with convictions for drugs. Under the Immigration and Nationality Act Section 101(a)(43), a ‘drug trafficking’ crime is considered to be an aggravated felony. Thus, the critical point is what is considered to be a drug trafficking crime. The case Cazarez-Gutierrez v. Ashcroft has ruled on what they consider to be a drug trafficking crime.

Petitioner Jesus Aaron Cazarez-Gutierrez (“Cazarez-Gutierrez”) appealed the decision of the Board of Immigration Appeals (“BIA”) finding him statutorily ineligible for cancellation of removal because he was convicted of the “aggravated felony” of a “drug trafficking crime.” Id. People who have their ‘Green Cards’ and are long time lawful permanent residents in the U.S. are generally eligible for what is known as cancellation of removal. This is where the immigration judge essentially decides whether all of the resident’s equities outweigh the crime.

A lawful permanent resident is eligible for discretionary cancellation of removal if he: (1) has been lawfully admitted for permanent residence for not less than five years; (2) has resided in the United States continuously for seven years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. 8 U.S.C. § 1229b(a). If cancellation of removal is granted, then the resident is given his or her ‘Green Card’ back and allowed to stay in the United States.

However, if one has been convicted of an aggravated felony, they are not eligible for Cancellation of Removal. Thus, in Gutierrez, supra, the immigration court and the BIA ruled that he was ineligible for cancellation of removal because he was convicted of an aggravated felony.

The first two elements of eligibility for cancellation of removal are not at issue. This case turns upon whether Cazarez-Gutierrez’s state-court felony conviction for possession of methamphetamine is an aggravated felony for immigration purposes.

In January 1999, an Immigration Judge (“IJ”) found Cazarez-Gutierrez removable because of his conviction, but exercised his discretion to grant him cancellation of removal. The government appealed the decision, arguing that the IJ had abused his discretion in granting Cazarez-Gutierrez cancellation of removal. On August 30, 2002, the BIA reversed the cancellation of removal, holding that Cazarez-Gutierrez is statutorily ineligible for cancellation of removal because his conviction for possession of methamphetamine is an “aggravated felony”.

The court went into some analysis of how other circuits have ruled. It stated that Congress had passed these laws in order to try to give some uniformity to the immigration laws. Therefore, this court ruled that a state drug offense is an aggravated felony for immigration purposes only if it would be punishable as a felony under federal drug laws or the crime contains a trafficking element. It followed the general reasoning of the Second and Third Circuit Courts of Appeal and rejected the contrary view put forth in the Fifth Circuit Court of Appeal. Given the strong desirability of uniformity in the application of immigration law, the court ruled that it should interpret immigration law to be nationally uniform absent clear indication that Congress intended otherwise.

In analyzing the intent of Congress to make the laws uniform in this type of case, the court referred to the development of the definitions of “aggravated felony” and “drug trafficking crime” in the INA and how it showed that Congress intended a federal definition for those terms.

In summary, the court held that a state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of “drug trafficking crime,” or is a crime involving a trafficking element. Cazarez-Gutierrez’s offense, possession of methamphetamine, was not punishable as a felony under federal law and involves no trafficking element. Therefore, his offense is not an aggravated felony for immigration purposes, and the BIA erred in finding Cazarez-Gutierrez statutorily ineligible for cancellation of removal.

Thus, you should apply for and be eligible for cancellation of removal in order to keep your Lawful Permanent Resident Status.

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Question: I am a lawful permanent resident and have petitioned my wife and son many years ago. Just recently I found out about the V Visa which allowed my wife and son to come to the United States and reside with me while we are waiting for the visa number to become current. However, my son is going to be 21 years old in two months. I have been told by USCIS that he will have to return home and he can no longer reside here on the V Visa. I have missed him so much that I cannot bear to be separated for years to come. Is there anything I can do?

Answer: Actually, there was just a case that came out in the Ninth Circuit Court of Appeal. Therefore, if you live in the jurisdiction of the Ninth Circuit (basically the Western United States), then you are in luck.

In this case, the court held that Immigration regulations terminating V nonimmigrant status the day before the visa holder’s 21st birthday, was contrary to Congress’ intent to reunite families when it enacted the Legal Immigration Family Equity Act (“LIFE Act“).

As background: the LIFE Act added a new nonimmigrant visa category, INA § 101(a)(15)(V). Spouses and children of lawful permanent residents who have been waiting for permanent resident status for at least three years are eligible for V visas. These V visa holders are entitled to certain benefits, including employment authorization. The INS regulations implementing INA § 101(a)(15)(V) provide that V visa status “will be granted a period of admission not to exceed 2 years or the day before the alien’s 21st birthday, whichever comes first.” Upon termination of V nonimmigrant status, the individual is no longer eligible for employment authorization.

In this Ninth Circuit case, the government argued that, the court should allow the USCIS regulations to stand. The court ultimately disagreed, stating “[w]e do not owe deference…to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.”

The court concluded that Congress did not directly speak to the issue of whether a person could lose V status by turning 21. The court found that the LIFE Act made clear that a person over the age of 21 was not eligible to receive a V visa but that the statute was silent regarding whether a person over the age of 21 who has been issued a V issue is able to continue to hold that visa. Thus, the court concluded that Congress’ intent was ambiguous.

The court noted that the LIFE Act provided three ways that V visa status may terminate and that aging-out was not one of those ways. Thus, applying the presumption that “when a statute designates certain . . . manners of operation, all omissions should be understood as exclusions,” the court concluded that “[s]ince Congress explicitly enumerated circumstances by which V Visa benefits are terminated, the presumption is that Congress purposely excluded all other possible means, such as aging-out.” The court further found that its conclusion was supported by: (1) statements in the congressional record regarding another LIFE Act provision (adjustment of status under INA § 245(i)); (2) “the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion;” (3) and the rule of lenity (in immigration cases, “doubts are to be resolved in favor of the alien.”).

Thus, the court invalidated the age-out provisions of the V Visa. Thus, your son can legally stay with you under the V Visa even though he will be older than 21 years of age. This is a significant victory for immigrants as it shows the power of the family unit and how Immigration cannot simply make arbitrary regulations.

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