Monthly Archives: October 2013

Got Immigration Court Oct. 18? BE THERE!

traffic_lightAs you may have heard, the U.S. federal government shutdown has been brought to an end (at least for this year). We can probably expect that immigration-related operations by the Department of Homeland Security and U.S. Citizenship and Immigration Services will pick up slowly, with some delays as workers who were furloughed get back to the piles on their desks.

In the case of Immigration Court proceedings, however (which are run by the Department of Justice), things are already moving quickly. While court hearings that were scheduled for today (October 17, 2013) in non-detained cases will not go forward, anyone with a hearing set for tomorrow, October 18, 2013, needs to be there! If you haven’t heard from your attorney about this, give him or her a call.

The “EOIR Operations for October 17, 2013” page of the Department of Justice website provides details.EEOIR Operations for October 17, 2013OIR Operations for October 17, 2013

California Lawmakers Take Practical Approach to Treatment of Undocumented Immigrants

sanjoseAn estimated two-million plus undocumented immigrants live, work, study, and otherwise make their home in California.

So perhaps it’s fitting that the California legislature recently passed a number of bills (subsequently signed by Governor Jerry Brown) that seem designed to make sure that, as long as they’re here, the undocumented are not treated in ways that are either grossly unfair or lead to unfortunate or dangerous unintended consequences.

Here’s a brief summary of the new laws (click the links for details):

  • AB 4, which forbids law enforcement officials from detaining noncitizens beyond their release date on the basis of a U.S. Immigration and Customs Enforcement (ICE) hold, unless the person has actually been convicted of one of various crimes or meets certain specified conditions. (This seems designed to put a stop to the expense and absurdity of local law enforcement agencies serving as detention units for the federal government by holding undocumented immigrants even if the criminal charges against them were dismissed or were minor in nature.)
  • AB 35, which says that no one can charge fees for serving people applying for the immigration program known as “Deferred Action for Childhood Arrivals” (or DACA) unless they are either immigration consultants, attorneys, notaries public, or organizations that have received accreditation from the U.S. Board of Immigration Appeals (B.I.A.); and even those who have received such accreditation cannot engage in price gouging.
  • AB 60, which makes undocumented California residents eligible for a drivers’ license upon providing satisfactory proof of identity and state residency. The license will contain a notation stating that it “does not establish eligibility for employment, voter registration, or public benefits,” and will contain the initials “DP” (Drivers Privilege) instead of “DL” (Drivers’ License).
  • AB 524, which specifies that threatening to report the immigration status or suspected immigration status of an person or family may be considered an inducement of fear sufficient to constitute extortion, and thus punishable under the California Penal Code.
  • AB 1024, which allows undocumented persons to be admitted to the California State Bar Association as attorneys, and therefore to practice law in this state.
  • AB 1159, which attempts to crack down on the practice of immigration law without a license, by imposing financial penalties on people who pose as attorneys, in particular by calling themselves “notarios” or other terms which have a more elevated meaning in other countries. The law specifies that the proceeds shall be used to help people damaged by such con artists, as well as to provide free legal advice concerning federal immigration reform.
  • SB 141, which requires community colleges and universities within the California state system to charge in-state, resident tuition to U.S. citizens who live in a foreign country because their parent or guardian was deported or voluntarily departed from the U. S., so long as they will be entering in their first year as matriculated students, can demonstrate financial need, lived in California immediately before moving abroad, attended a secondary school in California for at least three years, and intend to establish residency in California.
  • SB 150, which authorizes community college districts to charge only in-state, resident tuition to certain special part-time students, namely high schoolers who would benefit from advanced scholastic or vocational work, if they are non-citizens in financial need, or students from other states who had to move due to Hurricane Katrina.
  • SB 666, which creates criminal and civil penalties for attorneys and businesses that retaliate against employees and others on the basis of citizenship and immigration status or who report or threaten to report the suspected immigration status of a witness or party to a lawsuit because the person exercises a right related to employment.

In related news, San Francisco’s Board of Supervisors recently passed an ordinance prohibiting law enforcement officials from holding for deportation noncitizens who have not been convicted of felonies or deemed public safety risks. (It’s called the “Due Process Ordinance for All on Civil Immigration Detainers.”) Mayor Lee is expected to sign it.

Chances of Provisional Waiver Approval? About 60-40

tracksThanks to CLINIC (the Catholic Legal Immigration Network), we now have a clearer picture of how U.S. Citizenship and Immigration Services (USCIS) is responding to requests for provisional waivers (on Form I-601A). The approval rate thus far is 59% — hardly encouraging for prospective applicants. (See “Update from the NBC on Provisional Waivers.”)

The statistics confirm what many immigration attorneys have been observing: The issue of whether USCIS finds “reason to believe” that the applicant could be inadmissible (for reasons other than unlawful presence) accounts for the highest number of denials, at 48% of the total.

According to attorney experience, “reason to believe” is taken extremely broadly by USCIS, with minimal or no consideration given to whether the perceived issue could, if true, actually amount to a ground of inadmissibility. A minor traffic violation on a person’s record, could, for example, lead to denial of the provisional waiver – but is not actually a ground of inadmissibility.

The second highest reason for denial was failure to establish extreme hardship to a qualifying U.S. relative. That’s more in line with what one might expect as a reason for denials. Proving extreme hardship in any immigration context can be tricky, depending as much on one’s ability to weave facts into a compelling narrative and the sympathies of the person making the decision as on whether one applicant’s case is actually any more deserving than another’s.

Should this news discourage people from applying for provisional waivers? In the short term, probably yes. Immigration attorneys are already gearing up to try to convince USCIS to shift its approach on this matter, and the dust will need some time in which to settle.

But if you’ve got unlimited funds, or are urgently in need of a green card, applying now isn’t the worst idea, either. It won’t stop you from applying for another provisional waiver if you can show new information in support of your request. And it won’t stop you from taking a chance and leaving the U.S. to apply for your waiver at an overseas consulate. (If this isn’t making sense to you, then please read the more extensive discussion of how to get a waiver or provisional waiver of unlawful presence on the “Waivers and Inadmissibility” page of Nolo’s website.)

The Shutdown Isn’t Total: Don’t Miss Your Green Card Appointment!

stop signAs of October 1, the Republicans have succeeded in shutting down all “non-essential” U.S. government functions. What that means for immigrants, however, depends on which agency you’re dealing with, how its’ funded, how urgent its functions are considered to be, and of course how long this shutdown lasts.

So, for example, if you are scheduled for a green card (adjustment of status) interview during the shutdown, U.S. Citizenship and Immigration Services so far says that these will continue. On the other hand, immigration court proceedings are largely canceled, except in cases where the person is being held in detention.

And in case you were wondering, the shutdown doesn’t change the fact that today is the first day people from certain countries can apply for the U.S.’s annual diversity visa lottery.

For further details, see Nolo’s update on “What the Federal Shutdown Means for Immigration Agencies.”