Jose and Andres Orellana-Monson, ages 11 and 8 at the time they fled El Salvador, were running from a local, violent gang known as Mara 18. The gang had tried to recruit Jose. When he refused, they threatened to kill him, then forced him, at gunpoint, to help rob a store. Andres feared he would be next.

It’s a sad situation, especially given the boys’ young age at the time — but does it qualify the two for asylum in the United States? Unfortunately not, under current U.S. law — at least, in the Fifth Circuit (which covers Louisiana, Mississippi, and Texas).

The two brothers did indeed try to gain asylum, saying that they feared persecution from the Mara 18 gang. U.S. immigration authorities apparently found them believable. But there was one major problem in the case. (No, it’s not that the persecution didn’t come from an official Salvadoran source, but from common criminals — that issue is taken care of by the fact that the group fits into the category of one that is beyond the government’s capacity to control.)

The problem is establishing the critical “nexus” between the persecution and its basis in either the boys’ race, religion, nationality, political option, or particular social group. Lack of such a nexus is the downfall of many an asylum case, and ultimately led the Fifth Circuit Court of Appeals to deny the Orellana-Monson’s claim (in an opinion issued June 25, 2012).

The lawyers for the brothers did their best to fit the two within a particular social group. Such groups don’t necessarily have to match up to any predefined list — the lawyers described them as Salvadoran males between the ages of 8 and 15 who have been recruited by Mara 18 but have refused to join the gang because of their principal opposition to the gang and what they want; and their family members.

The Fifth Circuit found, however, that this supposed group lacked “particularity.” It explained that such a group “is exceedingly broad and encompasses a diverse cross section of society.” The judge’s quoted another court’s opinion in a similar case stating, “Only shared experience — that of gang recruitment — unites them. The gangs target a wide swath of society, and we have no evidence before us that they target young men with any particular political orientation, interests, lifestyle, or any other identifying factors.” In other words, one might say, the definition of this group struck the court as too random to qualify under this legal standard.

The Fifth Circuit further concluded that the Orellana-Monsons’ group lacks the required “social visibility” to qualify for asylum. It stated, “There is little evidence that people who were recruited to join gangs but refused to do so would be ‘perceived as a group’ by society. There is no indication that the gang themselves would even see such ‘non-recruits’ as a group within Salvadoran society.” This argument seems to suggest — without actually coming out and saying so — that the group needs to have formed before the persecutor’s contact with it. And in fact the court does mention a Seventh Circuit court opinion finding “that a member of a family seeking police protection from Mara 18 was not a member of a particular social group, as a social group cannot be defined by its relationship to its persecutor alone or by the fact that its members face dangers in retaliation for the actions against the persecutor.”

To see the entire court opinion, go to the Fifth Circuit’s website at http://www.ca5.uscourts.gov/opinions/pub/11/11-60147-CV0.wpd.pdf.

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.

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.

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.”

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.

Now that Rutgers University student Dharun Ravi has been convicted of bias intimidation and invasion of privacy, the question becomes, will he be deported from the United States to his native India? Ravi is apparently a U.S. lawful permanent resident (green card holder), which means he is subject to the grounds of deportability set forth in the Immigration and Nationality Act (I.N.A.). (If Ravi had become a naturalized citizen, he would have been safe from deportation — but at age 20, he has been eligible to apply for only two years — probably didn’t get around to it.)

Ravi’s case presents a classic example, however, of the difficulties of determining which crimes make a person deportable. With few exceptions, there’s no easy, cut and dried list to follow. It’s a matter of matching state law and the facts of the case to the federal statutes. David Isaacson, an immigration attorney with Cyrus D. Mehta and Associates told New Jersey Public Radio reporter Nancy Solomon, “It would take him several hours of research, if not days, to determine how the Ravi convictions fit into the federal statutes.” (He’s a respected attorney, and not exaggerating! Okay, maybe exaggerating a little.)

Attorney Matthew Kolken did a helpful blog post on the case — and posited that Ravi is probably not deportable — but noted that, ” I don’t have enough information to be able to answer the question . . . [and] don’t have the time today to dig up any more of the facts.”

Even if Ravi is deportable, whether the prosecutors choose to act on this is a matter of discretion. Prosecutorial discretion by the immigration authorities has been in the news a lot lately, with this administration trying to create some consistency and focus resources only on the most serious criminals or those with few meaningful ties to the United States. Some commentators have predicted that, given the high-profile nature of the case, the immigration authorities would pursue deportation. Then again, the judge issued a recommendation against it. That’s not binding, but government authorities don’t  like to step on each others toes. Stay tuned . . . .

In various parts of the U.S., moves are afoot to have fewer naturalization oath ceremonies done at federal courts, and more done at offices of U.S. Citizenship and Immigration Services (USCIS). The stated motivation is to to give applicants the option of receiving citizenship within a shorter time (the wait for a court ceremony can be weeks). I imagine USCIS also has some internal motivations — the faster it can close pending naturalization cases, the less the chance that something will happen in the weeks before the swearing-in that causes the cases to need another look.

If you are applying for naturalization, then upon your approval, you may be given a choice between an oath ceremony at a courtroom and one at a USCIS office. You may have already figured out that timing is one important consideration in this decision, as well as being able to change your name, if you wish (only at court ceremonies can you legally change your name within the citizenship process).

However, there’s another consideration that I hadn’t even considered until reading some notes of a meeting between the American Immigration Lawyers’ Association (AILA) and the Sacramento office of USCIS: The ability to take pictures!

Federal buildings usually have a no-camera policy. So if your proud friends and family members want to join the occasion and take pictures to remember it by, they’ll be sorely disappointed, and perhaps a little anxious, when required to check their valuable camera equipment at the front door.

The Sacramento USCIS office, at least, recognizes this problem, and says it is looking into other options, such as having the ceremony held outdoors.

But if photos of your swearing-in are important to you, you’ll want to ask about your options for this ceremony.

If you submitted an entry for the DV-2013 lottery (meaning you would have done so in the fall of 2011), tomorrow, May 1, 2012, is when you’ll be able to find out the results. They won’t be announced publicly: You will need to go to the State Department’s Electronic Diversity Visa website and enter your confirmation number, name, and year of birth.

If you win, congratulations — but realize that you are only at the beginning of the green card application process. You will need to submit various forms and documents, and prove that you are not inadmissible to the U.S. (for health, security, or financial reasons), and do so before the visas run out. (For more on inadmissibility, see Inadmissibility: When the U.S. Can Keep You Out.)

It might be worth your while to hire an experienced immigration attorney to help with this part of the process.

Don’t miss this recent update on Nolo’s site if you are applying for a green card in the U.S. through the procedure known as “adjustment of status,” might like to travel while awaiting your green card interview, but were afraid to leave because your accrual of unlawful presence in the U.S., might result in you being found inadmissible upon your return.

The Board of Immigration Appeals has held that departures under Advance Parole with an adjustment of status application pending do NOT trigger the unlawful presence bars. You can travel after all.

There’s more information here, under “New Ruling Allows Applicants for Adjustment of Status to Leave U.S. With Advance Parole Without Facing Time Bars Upon Return.“

I suppose we should be glad that no one gets a free pass from U.S. Customs and Border Protection (CBP) officials, no matter how great their fame or following. Yet something seems out of whack when international celebrities, whose regular world travels are practically part of their job description, routinely report major trouble entering the United States.

The latest such account comes from mega-Bollywood star Shah Rukh Khan. Khan was reportedly detained and held for over two hours by U.S. immigration officials upon a recent arrival in New York. He had come from India by private jet in order to address students at Yale University — and ended up late for his talk.

The  reports did not indicate the basis upon which Khan was detained. The rest of his group was cleared for entry immediately.

Khan is quoted as commenting, “Whenever I start feeling too arrogant about myself I always take a trip to America. The immigration guys kicked the star out of stardom.”

For more such tales, see “International Celebrities Denied U.S. Entry Visas.”