A LPR who is convicted of an aggravated felony but is otherwise eligible for adjustment of status (for example as an immediate relative of a US citizen) can in theory seek such relief in an attempt to avoid deportation.  However individuals seeking adjustment of status are subject to the grounds of inadmissibility set forth in Section 212(a)(2) of the INA.  Most criminal convictions that amount to an aggravated felony  will also render an individual inadmissible; for either commission of a crime involving moral turpitude or violation of a controlled substance state or federal law. 

Section 212(h) of the INA provides a waiver for commission of a crime involving moral turpitude and substance abuse violations that involve a single offense of simple possession of 30 grams or less of marijuana.  In the case of crimes less than 15 years old, the waiver requires a showing that the applicant’s US citizen or lawful permanent resident parent, spouse, son and/or daughter would suffer extreme hardship.  The waiver provision also includes the following additional limitation:

No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

Previously this provision had been interpreted to bar all LPRs, regardless as to how they received their status, from waiver eligibility.  In 2008, the US Court of Appeals for the Fifth Circuit came to a different conclusion.In Martinez v. Mukasey, the Fifth Circuit held that an LPR who entered the US as a non-immigrant and then later adjusted status to permanent residency had not “previously been admitted to the United States as an alien lawfully admitted for permanent residence”.  See Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008).  The Fifth Circuit found that the phrase in bold above refers to an actual initial physical entry at a US border by an individual who applied for and received an immigrant visa at the US Embassy abroad; commonly referred to as consular processing  Thus LPRs who did not make an initial physical entry as an LPR but instead later applied for adjustment of status while in the U.S. may still be eligible for the waiver if they otherwise qualify.

On March 29, 2012, the US Court of Appeals for the Fourth Circuit (which includes MD and VA) issued a decision in Bracamontes v. Holder, 2012 U.S. App. LEXIS 6366, which essentially mirrored the reasoning and holding of the Fifth Circuit and several other circuit courts which had agreed with Martinez v. Mukasey.  The Fourth Circuit found that because the plain language of the statutory provision was unambiguous, it was not obliged to defer to the interpretation of the Board of Immigration Appeals or the Department of Homeland Security. 

The decision is welcomed by immigration advocates as a reasoned interpretation of clear statutory language which opens a window of possible relief for lawful permanent residents with certain criminal convictions.  Many of these individuals committed their crimes many years ago and have been rehabilitated and become contributing members of their communities and devoted parents and spouses to US citizens.  Our office has worked with several clients who are eligible for a discretionary 212(h) waiver under the Bracamontes v. Holder decision.

In 2008, Georgia police arrested Adrian Moncrieffe, a Lawful Permanent Resident (LPR) for possessing 1.3 grams of marijuana (about the weight of a paperclip). Mr. Moncrieffe pleaded guilty to the offense of “Possession of Marijuana With Intent To Distribute,” pursuant to Ga. Code Ann. §16-13-30(j)(1). This statute is not limited to a minimum amount of marijuana and does not require proof that Mr. Moncrieffe obtained payment in exchange for the drugs.

In April of 2010, the Department of Homeland Security charged that Mr. Moncrieffe had been convicted in Georgia of an aggravated felony, which under the Immigration and Nationality Act (INA) subjects any noncitizen to removal (deportation), and initiated removal proceedings against him. A state law offense may constitute an aggravated felony if it is the equivalent of a felony punishable under the Controlled Substances Act (CSA), 8 U.S.C. §1101(a)(43)(B); 18 U.S.C. § 924(c)(2).  Under the CSA, while a person who possesses with intent to distribute less than 50 kilograms of marijuana commits a felony and is subject to up to five years imprisonment, 21 U.S.C. § 841, an offense involving distributing a small amount of marijuana for no remuneration is viewed as simple possession, a misdemeanor, id. §§ 841(b)(4), 844, thus not being considered an aggravated felony and not triggering removal proceedings.

Although it may seem that Mr. Moncrieffe committed a misdemeanor under the CSA because the amount of marijuana he possessed was so small, and because there was no evidence in the record of conviction that Mr. Moncrieffe’s offense involved payment, the immigration judge held that Mr. Moncrieffe had committed the aggravated felony of drug trafficking, a decision upheld by the BIA and then by the Fifth Circuit.  Despite the Court’s recognition that the courts of appeals are split on whether a conviction that lacks the details of the criminal conduct should be presumed to be a felony or a misdemeanor, the Court did not disturb the finding that Mr. Moncrieffe had been convicted of an aggravated felony.  Mr. Moncrieffe then filed the petition for a writ of certiorari in order for the Supreme Court to review the case.

This case highlights discrepancies between state and federal immigration laws and the injustice that can result from these differences. It is unconscionable that the Court would deem Mr. Moncrieffe’s possession of 1.3 grams of marijuana to be an aggravated felony, which would make a long-term LPR not only removable, but also ineligible for discretionary relief, permanently barred from readmission to the U.S., ineligible for asylum, and barred from establishing “good moral character” for the rest of his life.  Mr. Moncrieffe’s case also highlights the importance of having criminal and immigration attorneys confer in reaching a plea and/or establishing the record of conviction. Our office awaits the Supreme Court’s decision in this case, which will be argued in the fall of 2012.

One of the judges strongly disagreed and wrote a dissenting opinion.  It t is not clear whether the case will be appealed to a Circuit Court, which could either affirm or reverse the decision.

The legal community is very excited about this decision, which has awakened hopes that individuals who have traveled abroad with advance parole while in Temporary Protected Status will now be clearly eligible to adjust status based on relative or employer petitions without a waiver, even if they had accrued more than six months or a year of unlawful presence prior to traveling abroad.  This is an issue which has been handled inconsistently in the past.  We are cautiously optimistic, while we wait to see how this decision is applied and whether the case may be appealed.  Individuals with TPS or pending applications to adjust status who have previously accrued unlawful presence and wish to travel abroad with advanced parole are strongly advised to seek out competent legal advice before leaving the US.

Currently, immediate relatives of U.S. citizens who have accrued unlawful presence in the U.S. and leave the country may be barred from returning for up to 10 years. Waivers of the bar are available for applicants whose U.S. citizen spouses or parents would experience extreme hardship without them, but you have to leave the U.S. to apply and remain abroad while the waiver is processed. With no sense of whether the waiver will be granted by the consulate, leaving the country to apply can be frightening and emotionally strenuous: applicants often endure painful separations from their spouses and children because of the long processing times.

In the proposed new provisional waiver program, USCIS would determine eligibility and approve provisional waivers before the applicant leaves the U.S. for the immigrant visa interview. Because of the way the adjudication process is designed, individuals who receive a provisional waiver will likely be separated from their families for significantly shorter periods than is the case now. 

If the provisional waiver is denied, applicants will not be able to re-apply or file motions to reopen or reconsider, and USCIS will follow its current policy of prioritizing certain types of cases for initiation of removal proceedings. However, applicants will still be able to apply for the regular waiver under the current procedure.

The streamlined process would only apply to spouses and children of U.S. citizens who are otherwise eligible for an immigrant visa based on an approved immediate relative petition (I-130 Petition) and whose only ground of inadmissibility is unlawful presence. Applicants must also have already paid the visa processing fee, be at least 17 years old, and still be able to demonstrate that their U.S. citizen spouse or parent would suffer extreme hardship without them.

The provisional waivers will not be available to relatives of lawful permanent residents, immediate relatives that already have an application for adjustment of status pending, have been scheduled for an immigration visa interview, are not physically present in the U.S. or are subject to a final order of removal.

USCIS is currently in the stage of requesting public comments on the proposed waiver program. The 60-day comment period runs from April 2, 2012 until June 1, 2012. As part of the rulemaking process, DHS is considering how to address provisional waiver requests from individuals who are in removal proceedings. We encourage you to submit formal comments with your views and suggestions at www.regulations.gov (search for “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” to access the proposed rule and “submit a comment” button).

NOTE: The proposed process is not yet in effect and will not be available until USCIS publishes a final rule with an effective date in the Federal Register.

Recently the US Court of Appeals for the Fourth Circuit, which includes VA, MD and DC, had the opportunity to review the way the Board of Immigration Appeals analyzes whether a state criminal infraction constitutes a crime involving moral turpitude.  In Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), the Attorney General implored the BIA and Immigration Courts to implement a three step analysis to decide whether the state criminal conviction amounts to a crime involving moral turpitude.  The Attorney General added an additional step to the two-part test that had previously been in place.  In determining whether a conviction under a state statute equates to crime involving moral turpitude under the INA, the Immigration Judge will first evaluate the statue to determine whether it categorically includes or excludes crimes involving moral turpitude.  If this is the case than the inquiry ends there.  If however the statute is divisible and contains some actions that constitute a crime involving moral turpitude and some that do not, the Immigration Judge looks to the documents that constitute the record of conviction (in a guilty plea this includes the charging document, the plea agreement, the plea colloquy, and any explicit findings of fact made by the trial judge) to see if it can be determined whether the individual was convicted for the portion that is a crime involving moral turpitude or not.  If this cannot be determined than the Immigration Judge cannot find that the individual has committed an crime involving moral turpitude.

In Matter of Silva-Trevino, supra, the Attorney General extended the inquiry out one more step in those cases where a review of the record is vague as to which portion of the statute the respondent was convicted.  In these cases, the Attorney General authorized the Immigration Judges to consider evidence beyond the record of conviction to the extent they deem it necessary and appropriate. 

In a recent case, Prudencio v. Holder, 2012 U.S. App. LEXIS 1693, the Fourth Circuit rejected the approach set forth by the Attorney General in Silva-Trevino, supra.  In so doing, the Fourth Circuit emphasized that the proper analysis includes only the first two steps and review by the Immigration Judge of matters outside of the record of conviction is improper.  The Court noted that often the documents considered by the Immigration Judge as part of the third-step in Silva-Trevino, include police reports, pre-sentencing reports and others that are based on hearsay and contain facts not proven beyond a reasonable doubt or even considered by the Immigration Judge and/or respondent / defendant.  Prudencio v. Holder puts the emphasis back on the official documents of record as well as the specific statutory elements for immigration officials determining whether a state conviction is a crime involving moral turpitude and avoids a re-trying of the facts of the underlying criminal hearing. 

Administrative closure is a procedural tool used to temporarily remove a case from the Immigration Judge’s calendar or the BIA’s docket. Administrative closure does not result in a final resolution of the case. When a case is administratively closed, it is just removed from the docket, but the merits of the case still remain pending.  In the immigration context, this procedural convenience may be appropriate in circumstances where the parties have other immigration applications pending, but the resolution on those is outside of their control and may not occur for a long period of time.

It was not always that an Immigration Judge could administratively close a case despite the opposition of one of the parties. In 1996, the BIA decided that an Immigration Judge could not close a case if either of the parties opposed (Matter of Gutierrez). In the recent Matter of Avetisyan, the BIA overruled the principle established in Gutierrez and found that “neither an Immigration Judge nor the Board may abdicate the responsibility to exercise independent judgment and discretion in a case by permitting a party’s opposition to act as an absolute bar to administrative closure of that case when circumstances otherwise warrant such action.” Thus, according to the new legal standard, the Immigration Judge may administratively close removal proceedings even if one party (usually DHS) opposes.

According to this new legal standard, the Immigration Judge should look at the totality of the circumstances of the case when deciding whether or not to grant administrative closure. The BIA has emphasized some of the relevant factors to be considered: “(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside the removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current anticipated delay; and (6) the ultimate outcome of removal proceedings.”

The new legal standard for administrative closure emphasizes that Immigration Judges and the BIA have the responsibility to exercise their independent judgment and discretion when deciding whether or not to make use of this procedural tool. The new standard clearly recognizes the Immigration Judge’s power to regulate the course of the removal proceedings and distinguishes this power from DHS’s authority to exercise prosecutorial discretion. We look forward to see how this new standard will be used by the Immigration Courts in the future and we hope this decision will be beneficial for many of our clients.

Presidential primaries are intended to strengthen the eventual nominee but can also have the opposite effect. 2008’s protracted primary battle with Hillary Clinton made Obama into a strong general election candidate. But unfortunately for Romney, his failure to lock up the nomination is steadily weakening him nationally.

As Massachusetts governor, Romney showed tact and consideration regarding immigration, but as a candidate in Arizona he positioned himself to the extreme right. He called the Arizona law permitting police to racially profile Latinos a “model” for the nation and blasted the Dream Act as a “handout.” The mastermind behind Romney’s policy devolution is campaign advisor Kris Kobach, infamous for helping create the country’s most draconian immigration laws, including those in Alabama and yes, Arizona.

Romney and the rest of the GOP hopefuls have a poor understanding of where their party traditionally has stood on immigration. Presidents Ronald Reagan and George W. Bush supported comprehensive immigration reform and embraced the immigrant community as a vital and welcome part of the United States. They were also aware that this stance was politically shrewd and were both reelected with at least 40 percent of the Latino vote.

Unfortunately, Romney isn’t following the inclusive path of his GOP predecessors. Instead he favors divisive, harsh rhetoric that brings short-term wins and, as we will see in November, long-term losses.

Currently immediate relatives who are here in the US but did not enter lawfully are not eligible to stay in the US and adjust their status to become permanent residents under current law.  (Please note that there are limited exceptions to this general rule).  Instead they must return to their country to apply for an immigrant visa there.  However under current immigration law, once these individuals depart the US, they are usually ineligible to return to the US for either 3 or 10 years unless they are able to obtain a waiver.  In order to obtain a waiver, they need to show that their US citizen or lawful permanent resident spouse or parent would suffer extreme hardship if they are not able to return.  This standard is often difficult to meet as case law holds that mere separation from a family member is not sufficient to constitute extreme hardship.

Under the current procedures, an individual who wishes to apply for such a waiver must first leave the country, apply for the visa, be denied and then apply for the waiver.  Due to long processing times, this often results in the individual being stuck outside of the country and away from their US citizen family members for several months to over a year or two.  This wait creates undue hardships on both the individual applicant and their US citizen family members.

The proposed change would allow these individuals to first apply for the waiver in the US.  If their application receives a provisional approval, they would still have to return to their country to apply for the visa.  However the processing time during which they would be separated from their families would be much shorter.

As we often consult with individuals who are facing the difficult decision of remaining in the US without lawful status but united with their US citizen family members or taking the risk of leaving the US and submitting to an uncertain waiver process that includes a long separation from their spouse, parent and/or children, we welcome this proposed change and hope that it is implemented as soon as possible.

We would also warn individuals that at this time it is only a PROPOSED change.  Nothing official has taken effect and until further notice, individuals should not submit any applications in reliance of this proposed change.  Please feel free to contact our office to discuss this further.