18 May 2010
DHS granted an extension for Temporary Protected Status (TPS) for Hondurans, allowing them to maintain legal status through January 5, 2012. Hondurans were originally granted TPS status in 1999, following a devastating Hurricane in 1998, which left thousands dead and millions homeless. At the time, the Honduran President Flores claimed it destroyed fifty years of progress to the country, because of massive damage to the infrastructure, including the transportation and communication networks. This year, DHS reviewed the current conditions of the country and determined that Honduras is still not able to adequately handle the return of its nationals.
What does this mean for Hondurans who are currently in the United States? All Hondurans who currently have the benefit of TPS in the United States will have this benefit expire on July 6, 2010 and thus they must re-register with DHS in order to extend their status. Re-registration requires filing an I-821 and an I-765. This includes complying with the biometrics service fee and EAD application fee. Once this has been complied with, TPS status will be good through January 5, 2012. However, failure to comply before July 6, 2010 will result is a withdrawal of TPS. This could result in being subjected to removal from the United States, and thus must be addressed in a timely fashion.
10 May 2010
Retired Supreme Court Justice O’Connor weighed in on the recent Senate bill passed in her home state of Arizona. While acknowledging that Arizona does have a legitimate concern with immigrants illegally crossing the border from Mexico, she still finds that the Bill goes to far. The bill, on its face, allows state police officers to question a person’s residency status, and if information is not adequately provided the person can be imprisoned and even deported. While many argue that this law only does what federal law already allows federal agents to do, O’Conner looked beyond the face of the law when expressing concern that it would allow officers to target people who look Hispanic, thus legalizing racial profiling. She has no doubt that the law will be the subject of extensive litigation over application and the constitutionality of the law.
The ABA issued a report, conducted by Arnold & Porter LLC, outlining what it found to be the most pressing issues with the current immigration judicial system and making several recommendations for system restructuring to held ease the burdens.
The report states immigration courts have more than 280,000 proceedings a year. This amounts to over 1,000 heard by each immigration judge a year. The BIA decided more than 30,000 appeals a year, and of these more than 10,000 were filed for appeal to the federal circuit courts. This amounts to about 17% of the total cases handled by the federal circuit courts. This has amounted to the court systems being overwhelmed with backlogged immigration cases, and thus, effectively robbing many aliens of any chance of a fair hearing; this is especially alarming given the high stakes in removability proceedings, as in many times the alien is being faced with being sent back to a place they had hoped to leave behind. The report also states that there is great disparity between the immigration judges, determining that success is more often based on the judge that oversees the case than the actual merits of the case.
Thus, the report calls for an overhaul of the system, and proposes three restructuring themes that would ease the burden on the immigration judicial system and create more uniformity in the system. The Report also suggests that certain provision of the INA should be reformed, allowing certain undocumented noncitizens to more easily become lawful permanent residents through the adjustment of status process. It also recommends a narrowing of the definitions of aggravated felony and crimes involving moral turpitude to allow more fair application for noncitizens who have had longstanding ties to the United States.
For more information, please see the extensive and insightful report, located here.
A Jamaican man was convicted of conspiracy to commit a robbery, and on this basis was found to be removable as an aggravated felon. Respondent filed a motion to terminate, but this was denied by the Immigration Judge, so he appealed, asserting that his conspiracy conviction did not require a finding of commission of an overt act, and thus is not an aggravated felony under 101(a)(43).
The BIA agreed with the Respondent, finding that the Immigration Judge went too far in considering evidence that showed that the conspirators actually did carry out the alleged robbery, saying that only the offense that is actually charged can be considered. Thus, a conviction for conspiracy to commit a theft cannot be considered a theft offense under 101(a)(43)(G), even if there is evidence that the theft was completed. On the issue of the conspiracy conviction, for the purposes of 101(a)(43)(U), the court held that the conspiracy does not require the commission of an overt act. This conclusion was based on the Supreme Court decisions in Whitfield v. US, 543 U.S. 209 and United v. Shabani, 513 U.S. 10, which found that Congress had intentionally removed language from the statute negating the need to show an overt act to sustain a finding of conspiracy under the Act. They also looked at the common law meaning of the term conspiracy, which met the same conclusion. Thus, the court held that conspiracy under 101(a)(43)(U) does not require a finding of the commission of an overt act in furtherance of the conspiracy by one of the conspirators, and the Respondent was thus still removable.
Matter of Richardson, 25 I&N Dec. 226 (BIA 2010).
10 May 2010
A Chinese couple applied for asylum on the basis of their two United States citizen children. The family alleged that the wife would be subjected to forced sterilization and the family to be subjected to fines because having two children is a violation of the China’s one-child-only policy.
As evidence of their claim, they submitted affidavits from family members and friends, newspaper articles about the country policy, and an affidavit from the wife’s mother stating that she has spoken with the local Family Planning office that would have jurisdiction over the family, whom informed her that the family would be subjected to the alleged penalties.
The Immigration Judge found the respondents’ testimony credible and the evidence submitted compelling enough to grant their application for asylum. The Government appealed, alleging that they did not adequately meet their burden of proof.
The BIA reconsidered the respondents’ applications, and, agreeing with the Government, held that they did not meet their burden of proof. The Appellate court found especially compelling State Department country reports that stated that US officials were not aware of any official policy in China that mandates sterilization because of the birth of two or more children abroad and instead reported that the government policy of prohibited the use of physical coercion to force sterilization. The court deemphasized the articles submitted by the Respondents on the basis that they were not adequately authenticated, having to titled author and failing to provide any specific details that supported the Respondents’ contentions. The court similarly disqualified the affidavits of the family members and friends, specifically stating that they should not be given heavy evidentiary weight since they are not subject to cross-examination and also failed to provide sufficient detail to meet the high burden of proof for fear of persecution. Because they were not able to show that any specific evidence to show that the wife would likely to subjected to forced sterilization, and that no evidence was submitted to show that the fines would be severe enough to put them at an economic disadvantage, the court vacated the Immigration Judge’s grant of asylum.
Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010).
A Peruvian man came to America on a nonimmigrant work visa, but overstayed and subsequently engaged in unauthorized employment. DHS later approved an I-140 on his behalf, but then issued him a Notice to Appear shortly after. He argued before the Immigration Judges that based on his approved I-140, he should be eligible for adjustment of status under INA 245(i). The Government argued that he is not eligible because of his period of unauthorized employment. The Immigration Judge agreed with the Government and denied his application for Adjustment of Status. On appeal, the alien argued that the unauthorized employment provisions of second 245(c) do not apply to adjustment of status under 245(i). The Government rebutted this argument by asserting that, instead, section 245(k)’s unauthorized employment provision does.
The BIA looked at the plain language of the INA as a whole, and determined that the Attorney General does not regard unauthorized employment as a bar to adjustment of status, and instead, the Act means to specifically exempt aliens who would otherwise be barred from applying for adjustment of status because of unauthorized employment.
Thus, the Court held that an alien who is eligible for adjustment of status under 245(i) is not barred under 245(c) because of unauthorized employment and that the exception in 245(k) applies under 245(a).
Matter of Alania-Martin, 25 I&N Dec. 231 (BIA 2010).
28 Mar 2010
Democratic Senator Patrick Leahy of Vermont introduced the Refugee Protection Act of 2010 to the senate this month. This bill hopes to make improvements to the current law, the Refugee Act of 1980, by making the process for asylum seekers more streamlined and accessible. This is an improvement that the U.S. Committee for Refugees and Immigrants finds is crucial.
The current legislation requires a waiting period of a year before asylees can be granted work permits. The proposed bill would eliminate this waiting period, allowing asylees to automatically become lawful permanent residents. This is arguably even more important for asylees, who often times are fleeing terrible conditions in their home country and are often the most vulnerable, because it will not only provide them the means to be more self sustaining, but also aid in their assimilation to the United States.
The bill is cosponsored by Senators Carl Levin of Michigan, Richard Durbin of Illinois, and Daniel Akaka of Hawaii.