Monthly Archives: June 2012

B.I.A.’s Valenzuela Gallardo Decision a Reminder of Broad Scope of Aggravated Felony Definition

If you had to guess, would you think that being convicted under California’s Penal Code Section 32 for an after-the fact “accessory to a felony” would itself be considered an aggravated felony — and therefore cause someone with a green card to lose his or her permanent resident status and be deported?

Section 32 of the California Penal Code makes it a crime when someone:

"after a felony has been committed, harbors,
conceals or aids a principal in such felony, with the intent that
said principal may avoid or escape from arrest, trial, conviction or
punishment . . . ."

In other words, the convicted person wasn’t part of the original crime, but seems to have somehow helped the criminal(s) hide out afterwards.

This is indeed an aggravated felony, according to the Board of Immigration Appeals’ (B.I.A’s) June 27 decision in Matter of Agustin Valenzuela Gallardo. The B.I.A. pointed to Section 101(1)(a)(43)(S) of the Immigration and Nationality Act (I.N.A.), which says that among the many types of aggravated felonies are “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.”

Mr. Valenzuela Gallardo had received a 16-month prison sentence. And, the B.I.A. reasoned, the California statute’s specific mention of the convicted person’s intent to help a felon escape capture brings it squarely in line with the definition of obstruction of justice.

I don’t know the history of this case — namely what type of legal help the defendant had early on — but may well be a classic example of why immigrants to the U.S. should hire an immigration lawyer, not just a criminal lawyer, the minute they find themselves in trouble with the law. With some negotiation, it is sometimes possible to obtain a conviction that does not lead so directly to deportation.

Next Best Thing to the DREAM Act: Prosecutorial Discretion for Undocumented Students

It’s not an amnesty, and it’s not a law: But the announcement today by Secretary of Homeland Security Janet Napolitano is big news nonetheless.

Effective immediately, undocumented immigrants under age 30 who were brought to the U.S. as young children, present no risk to national security or public safety, and meet various educational and other criteria will be considered for relief from removal and protected from placement in removal proceedings.

What’s more, they will be eligible for what’s known as “deferred action” — a sort of limbo status that comes with benefits — for two years, subject to renewal. One of the benefits of deferred action is, in this case, eligibility to apply for employment authorization (a work permit).

This dovetails with DHS efforts to focus its enforcement resources away from people who are a low priority — and toward the removal of people who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders.

The specific criteria for deferred action eligibility include that the person:

  1. came to the United States under the age of 16
  2. has continuously resided in the United States for at least the preceding five years and are present in the United States on the date of the Napolitano memorandum
  3. is currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States
  4. has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety, and
  5. is not above the age of 30.

To apply, you will need to prove through verifiable documentation that you meet these criteria for deferred action. Better not rush to apply right away, however.  U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforement (ICE) say they will begin implementation of the application processes within 60 days. In the meantime, consult an attorney or see USCIS’s website (www.uscis.gov), ICE’s website (www.ice.gov), or DHS’s website (www.dhs.gov).

If you are already in removal (deportation) proceedings and have been identified as meeting the eligibility criteria and offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE may immediately offer you deferred action.

Supply of New H-1B Visas for FY 2013 Already Used Up!

Despite a slow economy, the demand for new H-1B visas for specialty workers (such as scientists, engineers and computer programmers) is higher than ever. As usual, it is higher than the number of visas Congress has allotted per year in this category (65,000).

According to an announcement from U.S. Citizenship and Immigration Services (USCIS), the 65,000 cap was reached on June 11, 2012. That’s even earlier than the date upon which H-1B visas ran out last year.

Any new H-1B specialty occupation petitions physically received by USCIS after that date, and requesting an employment start date in FY 2013, will be rejected. What is FY 2013? It starts on October 1 2012, and runs through September 30 2013.

This announcement does not mean, however, that everyone who seeks an H-1B visa is out of luck.

Some people may be exempt from the cap under an  “advanced degree” or other exemption. Others may be renewing their current H-1B status or changing employers. USCIS will continue to accept and process such petitions.

For more information, see “Who Is Exempt From the H-1B Cap on Visas.”

Media Muddles Description of Indiana Teen’s Difficult Visa Case

Okay, I’ve practiced immigration law; I shouldn’t have had to read the news articles on Elizabeth Olivas, who got stuck in her native Mexico and almost missed graduation due to a leap-year timing glitch, five times to figure out what they were talking about.

To listen to the news tell it, Elizabeth, an undocumented citizen of Mexico who arrived at age four and was about to graduate from high school, was facing a law that says that “children of immigrant parents have until 180 days from their 18th birthday to leave the United States for their country of origin and apply for a visa.” (That’s straight from the CNN article called “Indiana student returns home from Mexico after a visa mixup.”)

But with a little pressure on the consulate, according to these reports, Ms. Olivas applied for a waiver, got a visa, and can now graduate and live happily ever after.

Huh? Any layperson, especially of the anti-immigrant variety, might be left wondering things like why she had to wait for age 18 to get a visa in the first place; how it can be so easy for an undocumented person to leave the U.S., go to a U.S. consulate and say, “Please give me a waiver and a visa to resume my life in the U.S.,” and what this oddball law about turning 18 is.

So, let’s try to clear things up.

1) Elizabeth wasn’t just any undocumented immigrant. She was the unmarried daughter of a (naturalized) U.S. citizen. That makes her an “immediate relative,” and immediately eligible for U.S. lawful permanent residence (a green card). Why couldn’t she apply for it? First off, the news mention some processing delays in the initial paperwork (all too common). Second, for her to apply for her green card in the U.S., she would have to be eligible for “adjustment of status” — a procedure allowing immediate relatives who are in the U.S. after a legal entry to avoid returning to their home country to complete the application process. I’m guessing that Elizabeth and family entered unlawfully, across the Mexican border, in which case her only choice for applying for the green card is “consular processing,” via the U.S. consulate in Mexico.

2) When the news talks about her needing to apply for a “visa,” they’re not talking about the type of visa most people think of, as in a tourist or student visa. She was applying for an “immigrant visa,” which is the rough equivalent of a green card. (Immigrants use it to enter the U.S. and claim permanent resident status, and the actual green card arrives a few weeks later.) The CNN report that I picked on earlier was actually the only one I came across to mention this, stating that Elizabeth’s father “filed an immigrant visa petition for his daughter to gain legal status.”

3) The 180-day issue arises because people who spend excessive amounts of time in the U.S. unlawfully become “inadmissible,” that is, ineligible for any U.S. green card, visa, or other entry. That law applies to everyone over the age of 18, whether or not they are children of immigrants. If someone over 18 spends more than 180 days in the U.S. unlawfully, and then leaves (perhaps to attend a visa interview at a U.S. consulate), he or she is barred from returning for three years. A 365-day unlawful stay will get the person a ten-year bar on returning. Once Ms. Olivas turned 18, the clock started ticking, such that her unlawful presence would trigger a time bar. And due to her lawyer using a calendar that forgot leap year, she accrued 181 days of unlawful presence. Oops.

4) With 181 days of unlawful presence on Ms. Olivas’s record, her only hope for the U.S. consulate to approve her for an immigrant visa/green card was to apply for a waiver, which one can apply for only by showing that extreme hardship would result to U.S. citizen or permanent resident close relatives in the United States if the applicant were denied the visa. Again, Ms. Olivas was in a special position — many undocumented immigrants do not have qualifying relatives like this, and so would not be able to apply for the waiver.

That’s complicated stuff, I know. There’s a good reason the news reports didn’t devote as much space to this topic as I did. Nevertheless, with the fast-and-loose reporting about immigration laws that we see in this and other cases, it’s no wonder that strange rumors abound in this area. People start believing weird things, like that a new amnesty has been authorized, or that undocumented people could apply for green cards — or even U.S. citizenship — if they would just take a little initiative, and so on. The truth is inevitably more complicated.