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Blandon Law Immigration

Wednesday, December 23, 2009

Cancellation of Removal ... more than just cancellation

     Foreign nationals can obtain a form of relief known as cancellation from removal.  As the name suggests, this means that the foreign national is not returned to the home country.  Moreover, the Immigration Judge -- by granting cancellation -- makes the foreigner a legal permanent resident as of the date of the grant.  Any unlawful presence accrued prior to the grant is eliminated.
     The requirements for cancellation vary, depending whether the foreigner was ever a legal permanent resident or not.  Generally, however, the person must have lived in the United States for a specific period of time (at least 7 years), with good moral character and must be deserving of discretion for this type of relief.
     More importantly, the foreign national must also demonstrate that his or her removal would cause an extreme hardship to a qualifying relative -- a US citizen or legal permanent resident spouse, child or parent, for example.  Again, this is one of those situations where it is important for the foreign national -- through his or her attorney and extensive documentation -- to cry a river.

Monday, December 21, 2009

One Year Deadline for Asylum

     A foreign national must apply for asylum within one year after entering the U.S.  There are various exceptions to this, where the person's personal circumstances or the country circumstances have changed since entry.  If asylum is granted, s/he (and spouse and children) can apply for legal permanent residency one year after the approval.
     Importantly, the one year deadline does not apply at all if the foreign national qualifies for withholding.  Withholding means that the foreign national cannot be deported to a specific country because his or her life would be harmed upon return.  Under the law, an Immigration Judge does not even have discretion to deny a withholding claim if the evidence demonstrates that the foreign national qualifies.
    The one year deadline also does not apply to Convention Against Torture claims.  In those cases, a foreign national cannot be returned to his or her home country because the United States has signed an international treaty forbidding such a return.  In a CAT claim, the foreign national must demonstrate the government acquiesced to the torture.

Friday, December 18, 2009

Difference between Lying & Document Fraud

     Document fraud includes creating, possessing, using, etc. a document for the purpose of an immigration benefit.  Importantly, this author would argue that possessing a false driver's license is not document fraud because driving is not an immigration benefit.  However, telling an authority that the driver's license is valid is definitely a willful misrepresentation.  A foreign national can be denied entry into the U.S. or be denied residency for document fraud or willful misrepresentation. 
     As already discussed, a waiver can be obtained for a lie (misrepresentation).  However, when the authorities have imposed a monetary fine for document fraud, that waiver is not available.  Practically the only light at the end of the document fraud tunnel is that Immigration has stated through memos that they will not prosecute a foreign national for document fraud is s/he has applied for adjustment of status (residency, green card).

Thursday, December 17, 2009

Waiver for Lying to Authorities

     Let's face it:  sometimes a lie (known in immigration as a willful misrepresentation) slips out.  Maybe the officer at the airport asked the purpose of entry and the foreign national said a trip to Disney when in reality he had the wedding ring for his U.S. citizen fiancee in his pocket.  Worse:  maybe the foreign national fraudulently obtained a driver's license.  If the immigration authorities discover these lies, the foreign national is inadmissible, which means s/he cannot enter the country or cannot become a legal permanent resident (LPR).
     Fortunately, a waiver is sometimes available for these mess-ups.  If the foreign national is the spouse or son or daughter of a U.S. citizen or LPR and s/he can establish EXTREME hardship to that other person, the misrepresentation will be -- in a manner of speaking -- forgiven and overlooked.  If the foreign national is in removal proceedings, the Immigration Judge may have the authority to grant a waiver for fraud that occurred some time ago.
     The waiver is also available to a Violence Against Women Act self-petitioner if s/he demonstrates extreme hardship either to her/himself or a US citizen or LPR parent or child.

Wednesday, December 16, 2009

Happy Clients Premium Processed

     The Premium Process with U.S Citizenship and Immigration Services (CIS) allows for cases to be adjudicated within thirty days upon the payment of an extra $1,000.  In that time, the case is either approved, denied, or placed on hold for further evidence.  As soon as the foreign national returns the evidence to CIS, Immigration continues to process the application quickly.  Recently the author of this blog succeeded with both multinational manager/executive cases as well as work visas (L, transferee and H, professional).

     There is nothing happier than a client whose case is adjudicated successfully and quickly, except for an attorney who receives gifts and large bouquets of flowers from those clients.

Monday, December 14, 2009

HIV & Waiver for Health Issues

     Since immigration law was in its infancy, foreign nationals have been excluded from the U.S. for mental and physical disorders.  The words used were not kind: imbecile, idiot, mental retardation.  Fortunately, those words are gone from the law now.  What is best, foreigners cannot be excluded from the U.S. just because they have a disorder.  There must be a disorder and behavior that would pose a threat to the safety or welfare of the people of this country.  If the disorder exists, but the dangerous behavior is in the past, then the foreigner will be excluded only if the behavior is likely to recur.  A foreign national can also apply for a waiver of most kinds of health-related reasons for inadmissibility.
     Until recently, if a foreign national with HIV applied for an immigrant visa or for residency (adjustment of status), s/he had to file a separate waiver and wait for clearance from the Center for Disease Control.  Now, because HIV is no longer on the list of communicable diseases of public health significance, a waiver is not needed.  HIV testing will also not be part of immigration-related medical exams.

Thursday, December 10, 2009

Entering the U.S. Despite Prior Deportation

     On December 9, 2009, I attended an Immigration Court hearing on behalf of a client in his early 20s.  Although I repeatedly warn my clients that Immigration Court hearings are sacred functions and THOU SHALL NOT BE LATE, my client was 20 minutes late.  The judge was about to hand me a removal order when the foreign national walked in.  Big sigh.
     Tardiness resulting in a removal order is probably not an uncommon occurrence throughout the country's Immigration Courts.  Unfortunately, not all foreign nationals are as lucky as my client.  Those depart the U.S. and then seek to return -- even if they left against their will by being deported -- are eligible to apply for a waiver so that they can re-enter legally.  This is filed on Form I-212, as are other types of waivers.

Monday, December 7, 2009

Can Aggravated Felons Become Residents?

     A more common question is whether a foreign national convicted of an aggravated felony can avoid removal.  The word "aggravated felony" sends shivers, sounding so terrible.  However, many crimes -- including misdemeanors -- qualify as aggravated felonies under the definition of IIRIRA.  That law, which became effective on April 1, 1997, eliminated a waiver known as 212(c).  However, some persons are still eligible for it and can thus avoid removal (and maintain or obtain legal permanent residency).  The following persons can qualify for a 212(c) waiver: 
  • an aggravated felon who has served less than five years if the plea agreement was made before April 24, 1996
  • an aggravated felon who served more than five years if the plea agreement was made before November 29, 1990
  • a foreign national who was not an aggravated felon, but was convicted of a crime, if the plea agreement was made between April 24, 1996 and April 1, 1997, and s/he complies with a section of the immigration law known as AEDPA 440(d).
     When examining a foreign national's criminal record, two separate questions come to mind: does the crime qualify as an aggravated felony AND what are the consequences if the crime is an aggravated felony?  An immigration professional should answer these questions.

Friday, December 4, 2009

The Cure All Waiver

     Waivers are the next topic of study.  It's fun because it takes everything I learned so far and flips it on its head.  For example, persons are inadmissible for a whole host of reasons, including past immigration and criminal violations.  Along come waivers (background cavalry music) to the rescue.
     There are specific waivers for specific grounds of inadmissibility, but the general waiver allowing nonimmigrants to enter the U.S. is the 212(d)(3)(A) waiver.  Persons who already have travel documents, such as visas, apply when they enter -- at airports, for example.  There is no application or fee.  Persons who are applying for a visa apply for the waiver on a separate application form which they submit to the U.S. consulate or embassy.  The waiver can also be requested if a person is in removal proceedings on an inadmissibility charge.
     There are three factors that will be reviewed:  whether the applicant poses a risk to the U.S. if she is allowed to enter, the seriousness of the criminal or immigration law violation and the reason for wanting to enter the U.S.  In a nutshell, the success of all waivers depends on the applicant's (or her attorney's) ability to document human suffering on paper.  Cry me a river.

Wednesday, December 2, 2009

Parents Abused by Citizens/LPRs

     The Violence Against Women Act allows women and men who are or have been married to U.S. citizens or legal permanent residents to self-petition for immigration benefits in order to remain in the country legally.  They do not need the permission or assistance of the abuser, and the information in the case is held to confidentiality standards.  In addition, the Act also protects the children of these relationships, including the children of the foreign national.
     What surprises many is that VAWA also protects parents of US citizens or legal permanent residents.  The abuse does not have to be physical.  It is sufficient if the son or daughter was emotionally abusive or if the foreign parent was detained against his or her will by threat of force.  Victims have many problems; immigration can be the least of their worries.

Tuesday, December 1, 2009

Widow Penalty Gone

     Gratefully, I could not rely on any textbook for this part of my studies.  According to the books, the death of a U.S. citizen spouse automatically terminates the foreign spouse’s chance for becoming a legal permanent resident (LPR) based on that relationship if they were married for less than two years.  Fortunately, a new law was passed by President Obama on October 28, 2009, obliterating the widow penalty.
     Now foreigners can become LPR years after their US citizen spouse died even though the US citizen’s petition was initially denied by Immigration or the U.S. citizen never filed a petition on the foreign spouse's behalf.  CIS agreed that it will not remove, or deport, widows or their children even if they are currently in unlawful status. In addition, the following already-filed applications will be adjudicated by CIS despite the death of the principal: immediate relative, family preference petitions, employment-based dependents, T and U nonimmigrants, and asylum and asylee relative petitions.  Surprise: as with everything immigration, there are deadlines and exceptions, but if this applies to anyone you know, pass it on now.

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