Scott’s New Era Immigration

INA 245(I)  is the latest grace extended by the U.S. government to legalize anyone in the United States back in April 2001 who overstayed their current U.S. visa or walked across the border without inspection (EWI).

In order to be considered grandfathered under 245i, an alien must satisfy the following requirements pursuant to 8 CFR 245.10:

1) The alien was the beneficiary of a qualifying immigrant petition or application for labor certification filed on or before April 30, 2001.
2)  The qualifying immigrant visa petition or the qualifying application for labor certification was “properly filed” and “approvable when filed”.
3) The principal alien was physically present in the United States on December 21, 2000, if the alien’s qualifying immigrant visa petition or application for labor certification was filed between January 15, 1998 and April 30, 2001.

Once it is determined that an alien is grandfathered, they remain grandfathered until they are eligible to adjust through almost any means.  In other words, an alien may adjust when a visa number is available, if they win the diversity visa lottery, or if they become the beneficiary of an I-140 or I-130 to name a few examples.

Whether one’s spouse or children are grandfathered or may adjust depends if they fall into one of 3 categories.

1st Category: If the grandfathered foreign national was married to his or her spouse at the time they became grandfathered pursuant to 245i, then the spouse is grandfathered and able to adjust status.

2nd Category: If at the time the foreign national was grandfathered he or she was NOT married, his or her spouse is NOT grandfathered.  But if the foreign national is married when they adjust status, their spouse may also adjust as a beneficiary.

3rd Category:  If at the tine the foreign national was grandfathered and adjusted status he or she was not married, and then their spouse or child will not be eligible to adjust status.

Please note that the rules for spouse also apply to children who are not permanent residents.  If you have any questions you may email us at info@scottcclaw.com or contact us at one of our offices in the DC, VA, MD area. You will find our telephone numbers and locations listed on our website at www.scottcclaw.com.

ScottMond Law Firm

Imagine, you are 16 years old and excited to finally get your driver’s license but suddenly you find out the worst!  Or you have dreamed your entire life about becoming a doctor, nurse or engineer and followed good advise  “just get good grades in school” and you will succeed; you do all this only to find out the roadblocks you face to a post secondary education and career are often insurmountable.

Without the Dream Act, millions of undocumented young women and men who were brought over the border illegally by their parents while they were infants or children have not been permitted to get a driver’s license or funding needed for a college education.  Often parents who brought their children over illegally do not share this with their children unless it is absolutely necessary. The children enjoy a normal life in the United States believing all is well.

The Dream Act addresses this major problem and today the U.S. House of Representatives voted to pass the American Dream Act. The legislation will provide undocumented young women and men who were brought to the U.S. illegally a path to citizenship if they attend college or serve in the military.

The legislation has many different aspects and requirements, none of which are discussed here.   If you have any further questions you may contact our office at info@scottcclaw.com or call us at one of our offices in Virgina, D.C, or Maryland.

ScottMond Immigration Law Firm

(703)955.7998/301.251.4003/202.296.0122

www.scottcclaw.com/info@scottcclaw.com

Categorical, Modified Categorical, Matter of Silva-Trevino—what does this all mean for someone who has been placed in removal based on past criminal convictions?

This brief article gives a simplified explanation of how someone, who is not a lawyer, may understand a couple critical ways to challenge ICE (“the government”) if they are placed in removal based on past criminal convictions. However, as this is a highly complex area of the law, immigration counsel is an absolute necessity to win in removal or deportation proceedings.

If a non-citizen is convicted of a Crime Involving Moral Turpitude. (“CIMT”), they may be placed in removal proceedings sooner or later. A CIMT in very simple terms is doing something that hurts society and is “very bad”.  When someone is placed in removal proceedings first it should be determined whether the offense is really a CIMT deeming the non-citizen removable from the United States.  If it is found that the non-citizen has indeed committed a CIMT, then determining the type of relief or defense is essential. This article only discusses whether a non-citizen is even removable, or has the government made a mistake in placing the non-citizen in removal proceedings.

When a non-citizen is placed in removal or deportation proceedings after they have already been tried in a court of law for their crime; he or she may feel they are on trial a second time. Federal and State law clearly prohibits double jeopardy and the retrying of a case. However, it is debatable under current litigation practices between the government and the non-citizen’s attorney that a “retrial” is not actually taking place.

Over the past years, when a non-citizen was placed in removal, the only evidence that the judge could consider was the actual statute in which the non-citizen was convicted to determine removability.  The government could try to introduce other evidence that proved what the actual  “conduct” of the non-citizen was, but this evidence would not be considered.  This method applied if the statute was not divided into small subparts.

If it was found that the statute incorporated removable and non removable offenses and the least “culpable” behavior did not meet the federal definition of a removable offense, the non-citizen would win.  In simple terms, if the State statute that an individual is convicted of violating is so broad that no one can be sure by looking at the statute alone what the non-citizen was even convicted of, the non-citizen wins if the statute includes offenses in which a non-citizen may NOT be removed.   It all depends on how the State decided to write the statute.  It would not be fair to remove someone if they were convicted for only touching someone against their will in a battery situation, where a CIMT required hitting, or hurting and the non-citizen did not commit the behavior which renders him or her to have committed a CIMT and therefore be removable.  It just so happens that the statute is written so broad no one can really tell.  Under this categorical approach the Immigration judge or court is only allowed to look at the conviction which is the indictment, plea, verdict, and sentence. (sometimes jury instructions). This is only how far they can “dig” to determine which section of the statute has been violated. And if in this digging no one can really tell because the statute is written very broad— the non-citizen wins and they would not be removed from the United States.

However, if the statute is divisible meaning that it is written with subparts and very specific in itemizing different types of violations, the non-citizen’s conviction is scrutinized much closer. The Immigration judge and court may allow the government to dig even further into the non-citizen’s file, not to determine conduct— but to determine what part of the itemized statute the non-citizen was actually convicted of. This is referred to as the modified categorical approach.  Now the evidence that can be looked at to determine what subpart of a divisible statue the non-citizen was convicted of includes, but may not be limited to, the factual basis for a plea, or the jury instructions in case of verdict.

Very recently, significant and dramatic changes have taken place that makes it tougher for the non-citizen in removal proceedings.  Under the new case Matter of Silva-Trevino the world of “how to determine if a non-citizen committed a CIMT” has become more challenging.  Now the court and judges can dig even deeper into the non-citizens criminal file.  The new method claims to still focus on the elements of the state statute to see if it is a CIMT, and not look at the actual circumstances underlying the offense. However, now even police notes amongst other evidence is being used to determine if a crime is a CIMT, and the burden of proof has also shifted largely from the government to an alien that is removable. (At least one judge suggested that the police note would need to be admitted and attached as actual evidence to the record of conviction to be considered).  Please note that some of the complex analysis has been left out here purposely to help the reader focus on the big picture.

One troublesome point to highlight is if a state statute is broad and involves removable and non-removable offenses then the burden is on the non-citizen to go and find a case or cases that show the criminal statute was used to prosecute and convict someone for conduct that did not involve moral turpitude (i.e. a CIMT) and then maybe the non-citizen will win.

Overall, the deeper digging where will it stop?  Keeping abreast of current cases with your immigration counsel is critical as this issue may in the future reach the U.S. Supreme court and the law continues to evolve. The non-citizen needs to work with their Immigration attorney to find a way to use the “deeper digging” to their advantage.  It is also important to argue that Matter of Silva-Trevino was wrongly decided if your immigration attorney sees this as advantageous and appropriate aggressive representation.

Please feel free to contact our office with any questions at info@scottcclaw.com . You may call us at 703.955.7998 or 202.296.0122. We have offices in Northern Virginia, Maryland and Washington D.C.

ScottMond Law Firm

www.scottcclaw.com

Domestic Violence is one of the most difficult forms of abuse to face “head on” as it touches every aspect of one’s life, whether male or female.  It can leave an individual emotionally, financially, spiritually, physically and logistically paralyzed.  The issues of shame, codependency,  and fear for themselves or fear for their “victimizer” (whom they love or loved) makes taking necessary quick protective action seem distant.  However, a supportive network of friends, family, psychological counselors, legal counselors and spiritual support is the essential key to prevailing in receiving U.S. immigration benefits such as a Legal Permanent Resident Status (Green Card).

The legal tool used to assist non- U.S. Permanent Resident victims of domestic violence is the Violence Against Women’s Act  (“VAWA”).  The purpose of this article is to  briefly highlight some of the powerful benefits and issues surrounding filing a VAWA I-I-360 self petition.  It is essential to have a one-on-one consultation with an experienced immigration attorney to see how you or someone you know can benefit from the points mentioned below.

Whether One’s Illegal  Status In The U.S. Matters When Filing A  VAWA Application.

Even if a victim has crossed the border illegally without inspection, has a prior removal order in place against them, is unlawfully present in the United States, or has a record of multiple illegal reentries; if the abuse and/or extreme cruelty was one of the central reasons for being out of status the victim may indeed be eligible for VAWA benefits.

Is it Too Late to Self Petition through VAWA  if a Victim is Already Placed in Removal Proceedings?

No. One’s removal may be stopped.  In fact, special rules apply for Cancellation of Removal for victims of domestic violence which can stop the removal altogether while the I-360 VAWA application is being adjudicated.

Who Really Can Benefit from  a  Self Petition through VAWA?

The following individuals are eligible to self petition under VAWA:

• Spouse
• Intended Spouse
• Divorced Spouse
• Widowed Spouse
• Child under 21
• Parent of a Child Abused by USC or LPR
• Adult son or daughter
• Parent of an Abuser over 21
• “Child” until age 25 with showing that failure to file by age 21 due to abuse

What does One Need to Establish to be Successful in a VAWA Petition?

In order for an individual to have a successful VAWA application, the following factors at least have to be met:

• Extreme Cruelty and Abuse
• Credible Evidence has to be provided
• The Marriage had to have been entered into in good faith
• A demonstration of Good Moral Character for the Statutory Period
• Proof that the Victim Resided with the Abuser at some point.
• Proof of the Abuser’s Status in the U.S.
• The self-petitioning victim has been residing in the U.S.

Is There Any Way to Get Work Authorization If I, the Victim,  am Self-Petitioning or in Removal Proceedings

Yes. Certain Rules apply that allow U.S. Citizenship and Immigration Services to grant work authorization to individuals who are self petitioning through VAWA.

The above discussion only “scratches the surface” of what it takes to move forward with  a VAWA petition and be successful. Again, if you believe that you or someone you know is eligible for VAWA, your next step is to contact experienced immigration counsel.  If you have any questions please feel free to contact us at info@scottcclaw.com or call 703.261.6881 in VA, or 301.251.4003 in MD.

Visit our website at www.scottcclaw.com.

ScottMond Law Firm

Marriage between U.S. Citizens and Lawful Permanent Residents to Nationals of other countries has become the norm rather than the exception. U.S. Immigration laws have strict guidelines and requirements for couples to demonstrate that their marriage under 2 years is “bona fide”.  In order to meet this mandate, U.S. Citizenship and Immigration Services (“USCIS”) will only issue a 2 year green card to individuals married under 2 years at the time the I-130 petition and concurrent I-485 application is filed by U.S. citizen or Legal Permanent Resident(“LPR”) status on behalf of his or her foreign national spouse.

It has been said jokingly that a true and bona fide marriage can only be determined if in fact there is serious conflict.  In other words, marriages that are real where two people who love each other unite from different backgrounds will inevitably experience conflict within their first two years.  USCIS’s view on marital conflict that may even result in separation is often misunderstood.

The purpose of this short article is to provide a proper perspective on marriage problems and how USCIS views a separation within the first 2 years of marriage; and the immigration consequences to the foreign national spouse who is a Conditional Permanent Resident (“CPR”). This article also provides an overview of options for when a waiver of the I-751 (application to remove conditions from Green Card) may be waived in the event a divorce occurs.  It is very important to understand that a break down of a marriage, or marriage difficulty does not mean that the marriage is not bona fide.  USCIS fully acknowledges this fact.

USCIS stated in a recent memo that unless a CPR is able to establish eligibility for a waiver, he or she must file the I-751 jointly with his or her U.S. citizen or Lawful Permanent Resident spouse.  INA §216(c)(3)(A) and (B) and 8 CFR §206.4(c) provide that USCIS may approve the I-751 and remove the CPR’s condition if

• The CPR and petitioning spouse (unless deceased) appear for an interview; and
• USCIS determines the following facts are true:
  • The marriage was legal where it took place;
  • The marriage has not been terminated;
  • The marriage was not entered into for the purpose of procuring permanent resident status; and
  • No fee (other than to an attorney) was paid for the filing of underlying I-130 or I-129F

The statute and regulations require approval of the I-751 petition if the above conditions are met. USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings. However, legal separation or initiation of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.

If a local USCIS officer encounters an I-751 petition jointly filed by co-petitioner who are still married but are legally separated and/or are in pending divorce or annulment proceedings, the ISO issues the CPR a Request for Evidence with an 87-day response period. In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree or annulment along with a request stating he or she would like to have the joint filing petition treated as a waiver petition.  This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refiling.

If the CPR provides evidence that the proceedings have been finalized, the Immigration Officer amends the I-751 petition to indicate that the CPR is eligible for a waiver of the joint filing requirement based on termination of marriage and adjudicates the petition on the merits in accordance with established procedure. In so doing, the ISO determines whether there is sufficient evidence the CPR entered the marriage in good faith, or  requires an in person interview.

If the CPR fails to respond to the RFE, or the CPR’s response does not satisfactorily establish that the marriage has been terminated, the Immigration officer assess evidence of the bona fides of the marriage to determine whether the petition should be approved, denied, or relocated for an in-person interview. Again, the interview is based on the four factors being met as enumerated above.

In many cases the divorce will take place during the response period to the RFE, which affords the CPR the opportunity to establish eligibility for the waiver by submitting a copy of his or her final divorce decree or annulment.  If the CPR does not respond to the RFE, or if the CPR’s response does not establish eligibility for the waiver, the ISO denies the notice and refers the case to the Immigration Court to initiate removal proceedings.

If a case is referred to the Executive Office of Immigration Review (EOIR) for an Immigration Judge to initiate removal proceeding all is not lost.  A CPR may successfully establish eligibility for the waiver before the judge with the assistance of legal counsel.

For further information you may contact our office at info@scottcclaw.com or 703.261.6881.  Calls and Emails are returned from 8am to 8pm EST.

ScottMond Law Firm

www.scottcclaw.com

The concept of a detainer is often hard to comprehend and accept.  What it means to an individual who is incarcerated in State custody, and his family is overwhelming and causes great grief when not immediately placed in perspective.  Not being able to get bond, or be released from jail after serving time is the harsh consequence of a detainer.

Overall, a detainer is placed by the federal government on a foreign national/non-citizen so that the state will hold them for a period as the federal government has a legal interest in the detained individual.

We hope by providing the following guidance directly from U.S. Immigration and Customs Enforcement (“ICE”) that our reader’s will better grasp the process of a detainer, and have some comfort.

Definition of Detainer: A detainer, issued on form I-247 is a notice that ICE issues to a Federal, State, and local law enforcement agency (“LEA”) to inform the LEA that ICE intends to assume custody of an individual in the LEA’s custody.  An immigration detainer may serve three key functions.

• Notify and LEA or jail that ICE intends to arrest or remove an alien in the LEA’s custody once the alien is no longest subject to the LEA’s detention;
• Request information from an LEA  or jail about an alien’s impending release so ICE may assume custody before the alien is released from LEA’s custody; and
• Request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays to provide ICE time to assume custody.

As a general matter, immigration officers should not issue detainers against an alien charged only with a traffic-related misdemeanor unless or until the alien is convicted, unless:

• The alien has a prior criminal conviction;
• The alien previously has been excluded, deported, or removed from the United States or allowed to voluntarily return to his or her country of nationality;
• The alien is the subject of an outstanding immigration warrant or is the subject of a final order;
• The alien is part of an existing criminal investigation;
• An articulable reason exists to believe that the alien presents a danger to national security or a genuine risk to public safety; or
• The traffic-related misdemeanor involved driving under the influence of alcohol or drugs, physical injury to a person or property, or flight from the scene of an accident.

Immigration officers should not issue a detainer unless an LEA or jail has exercised its independent authority to arrest the alien.  Immigration officers shall not issue detainers for aliens who have been temporarily detained by the LEA (i.e. roadside or Terry stops) but not arrested. This policy, however, does not preclude temporary detention of an alien by the LEA or jail while ICE responds to the scene.

Immigration officers are expected to make arrangements to assume custody of an alien who is the subject of a detainer in a timely manner and without unnecessary delay. Although a detainer serves to request that an LEA or jail temporarily detain an alien for a period not to exceed 48 hours from the time the LEA or jail otherwise would have released the alien (excluding Saturdays, Sundays, and holidays) to permit ICE to assume custody of the alien, immigration officers should avoid relying on that hold period.  If at any time after a detainer is issued, ICE determines it will not assume custody of the alien, the detainer should be withdrawn or rescinded and the LEA notified.

ICE shall timely assume custody of the alien if ICE has opted to lodge a detainer against an alien if any of the following categories:

• aliens who are subject to removal based upon certain criminal or security-related grounds set form in INAQ §236(c);
• Aliens who are with the “removal period,” as defined in INA §241(a)(2); and aliens who have been arrested for controlled substance offenses under INA §287(d).

Immigration officers shall take particular care when issuing a detainer against a lawful permanent resident (LPR) as some grounds of removability hinge on a conviction, while others do not (e.g. removability pursuant to INA §237(a)(4) and INA §237(a)(4) and INA §237(a)(1)(E).).  Although in certain instances ICE may hold LPRs for up to 48 hours to make charging determinations, immigration officers should exercise such authority judiciously and seek advice of counsel for guidance if the LPR has not been convicted of a crime.

The above guidance from U.S. Immigration and Customs Enforcement (ICE) is the general standard.  An attorney should be contacted ASAP  to ensure that your loved one is not moved out of state, to protect his or her rights, and to ensure that ICE is following it’s own guidelines and mandates.

Please contact our office with your questions or concerns. One of our attorneys will be happy to speak with you.

ScottMond Law Firm

(703)261.6881 or (202)296.0122

On August 20^th, 2010 U.S. Immigration Customs and Enforcement (“ICE”) issued a memorandum from Assistant Secretary John Morton that will make a non-citizen or alien who is placed in removal proceedings eligible for relief if they have a pending Petition for Alien Relative (“Form I-130 or petition”).

Basically, ICE and United States Citizenship and Immigration Services (“ USCIS”) will now work more efficiently together so that non-citizens placed in removal will either have his and/or her case expedited or dismissed without prejudice.  This would occur once ICE verifies that the individual is indeed eligible for the relief.

Detained individuals or aliens eligible for I-130 relief would seek to complete the adjudication of all applications and petitions referred by ICE within 30 days for detained aliens.  Once their are no adverse factors there should be prompt move to dismiss proceedings before the Executive Office of Immigration Review ( “EOIR”).

Undetained individuals or aliens would have their cases adjudicated within 45 days.   Where an underlying application or petition exists and ICE determines eligibility for relief from removal, the case should also be promptly dismissed with EOIR.

The memorandum sums up the standard of review as follows:

Only removal cases that meet the following criteria will be considered for dismissal:

• The alien must be the subject of an application or petition filed with USCIS to include a current priority date, if required, for adjust of status;
• The alien appears eligible for relief as a matter of law and in the exercise of discretion;
• The alien must preset a completed Application to register Permanent Residence or Adjust Stats (Form I-485), if required; and
• The alien beneficiary must be statutorily eligible for adjustment of status ( a waiver must be available for any ground of inadmissibility).

For more information you may contact our office at info@scottcclaw.com or call (703)955.7998.

ScottMond Law Firm

www.scottcclaw.com

A knock at the door and the dreaded happens.  All you can think of is why me?  An Immigration ICE official is at the door searching for you or your family member/friend. You knew your visa had expired and with valid reason.  You ran out of money for school, you can’t return to your home country where it is hopeless, destitute and no future exists for you at this time.  Plus all your family or friends may be here in the United States. Nonetheless, here you are caught with an ICE official at your door who wants you to surrender yourself and your travel plus visa documents.  Although you may have a good reason, U.S. Immigration laws are very strict regarding overstaying visas or falling out of status.

Cooperating with the ICE official is the first essential step in resolving your immigration status problems. Do not resist them for any reason, but promptly retain good aggressive immigration counsel.  Foreign Nationals are usually immediately detained, but can be released in as short as 24-48 hours with bond being arranged by immigration counsel.

Determining whether you have good immigration relief is the first step of immigration counsel. There are several immigration waivers and cancellation of removal may be available even if  you have a criminal record or encounters with the law on your record.

The overall process starts with an ICE officer coming out.  They usually ask that you appear the next morning, or may take you into custody the same day.  Once they process you, your attorney through DRO or Immigration court will arrange for bond.  Next a Notice to Appear  (NTA) is issued and you may be detained at an Immigration Facility until bond is paid.  In Virgina, Hampton Roads and Rappahannock Regional Jail are the standard facilities used.  Others are currently being opened.  Having an attorney enter there appearance through a G-28 helps to ensure you are not transferred to another state.  Finally, a court date is set and an immigration judge will then set a date once your immigration relief is identified.

For further information and questions please call (703)955.7998 or email glendiar@scottcclaw.com

Glendia Rice-Mondesir

Attorney-at-law

Traditionally, applying for U.S. Citizenship has been thought of as a simple “walk in the park”.  The process of a permanent resident filing a N-400 with U.S. Citizenship and Immigration Services after 3-5 years of continuous residence in the United States seems innocent enough.  
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