Effective October 1, 2015, an executive order from the President will allow thousands of immigrants and their spouses and children with backlogged priority dates in either employment or family based categories to apply for adjustment of status. The best thing about this rule is that the immigrants will be allowed to file for adjustment of status even though their priority dates are not yet current. Obviously, this may help immigrants in back-logged categories. Stay tuned for further details once the actual new rule is published.
The 5th Circuit Court of Appeal refused to lift a temporary injunction that a district judge in Texas had imposed on the expanded DACA and DAPA. The Government had asked the court to temporarily block the injunction but the 5th Circuit Court refused. This denial was not unexpected though it is, of course, disappointing. However, it is likely that eventually, the provisions of DAPA will go through as there is little doubt that the President has the authority to implement DAPA through executive order.
Even though the federal judge in Brownsville rejected President Obama’s request that the Stay be lifted regarding implementation of the expanded DACA and new DAPA programs, it is of little consequence. The Federal District Court (different judge) is set to hear arguments next week on the DAPA implementation. Hopefully, the Federal Court will lift the stay and DAPA can be implemented in the following weeks. Stayed tuned for updates.
On the eve of the expansion of DACA, which was supposed to go into effect today, a federal judge in Texas enjoined the implementation of the DACA expansion. The Government said that it will appeal this ruling. I think this is just a minor setback in the implementation of the DACA expansion and DAPA (in May). So stayed tune and I will update this blog once we have more information.
The department of State and DHS just announced that the U.S. is establishing an in-country refugee/parole program in El Salvador, Guatemala, and Honduras for minors who’s parents legally reside in the United States. This means that a parent lawfully present in the United States may be able to be reunited with their children who still reside in Central America. The process will be done with a designated resettlement agency and the forms required for this application will NOT be available to the public. If you think that you may qualify for this program, do not hesitate to contact me.
I have been receiving many calls and emails from past clients and relatives of clients asking me whether they qualify “for the new law.” I have to explain to them that it is not a “new law” but merely a temporary executive action from the President. The next thing I tell them is that I am not certain whether they qualify or not because we still only have limited information about the requirements that are going to be needed. However, we all know a summary of some of the requirements:
- The applicant will probably need to have a clean criminal history;
- The applicant will need a US citizen or Legal Permanent Resident relative (such as a son or daughter);
- The applicant will probably have to document an extended period of living in the United States (such as 5 years).
I am telling my clients that even though we can apply for this “Deferred Action”- – we can still start the case by gathering the documents that we THINK will be needed. That’s my suggestion to you: if you think you might qualify start now and be ready with all your documents for next year.
It may not be a commonly known fact but there are only 4000 available visas available for people who apply for cancellation of removal for non-permanent residents (referred to here as “42B cancellation”) per fiscal year. 42B Cancellation cases are among the most difficult to present and are not granted very often by immigration judges. The reason is the very high”extreme hardship” that needs to be established in order to win the case. In fact, it’s not really “extreme hardship” at all that needs to be established but “exceptional and extremely unusual hardship.” Isn’t that a mouthful l? Well, it’s hard to think of anything that is “extremely unusual” unless we come across a Dodo Bird, which goes to show just how strident the standard is. That being said, apparently the immigration judges found enough Dodo Birds to grant this relief 4000 times this year.
So what happens if the cap is reached? The Immigration Judges are supposed to “reserve their decision” until a visa number is available. This means that the next fiscal year, all “reserved decision” cases get in line until a visa is available. This may take quite a while but for any of you who have their cases “reserved” should know that your case hasn’t been officially “granted” but as long as you don’t get into any legal trouble, you’re just waiting until a visa is available.
Many of the Lawful Permanent Residents (i.e., green card holders) who get placed in removal/deportation proceedings end up there because they have a prior criminal offense in their record where they were sentenced to a year or more. And that little detail right there– getting sentenced to one year or more– can make the difference between a person being able to fight their possible deportation and not being able to do so. Many of the Immigration grounds of removal require that a sentence of “one year or more” be handed down to an alien before that criminal offense can be used to deport someone. Worse, sometimes getting a year or more as the sentence will turn a minor misdemeanor into an “Aggravated Felony” which usually means an automatic deportation. Luckily, the California governor signed a new law on July 22 of this year which reduced all misdemeanor sentences from 365 days (a year) to 364 days. This small change will mean less Lawful Permanent Residents with misdemeanor convictions will end up in Removal.
There are some prior immigration cases (Matter of Quilantan) that have held that if someone has creditable proof that they were properly “waved through” at the port of entry, that this can be held to be a proper legal “admission” into the country. Based on some recent decisions by immigration judges, either they are ignorant of this case law or they have decided to ignore it. However, a recent unpublished decision arising out of the El Paso immigration court case reaffirms that Matter of Quilantan is still good law. What does this mean to some of you? Well, if the last time you entered the country was through a port of entry and the customs officer merely “waved” you through (as some of you may recall- this was quite common “back in the day” then you might be eligible to adjust status (assuming such a petition has been filed for you). Just something to keep in mind.
In the past several years, there have been new federal cases that developed a requirement that criminal defense attorneys owed a duty to their clients to advise them of the immigration consequences of certain guilty pleas. The U.S. Supreme Court issued the Padilla vs. Kentucky ruling in 2010, which set this doctrine out. However, the issue then became whether this ruling was retroactive. In other words, could an individual try to reopen an old 1989 criminal case by alleging that his criminal defense public defender didn’t tell him that pleading guilty would land him in deportation proceedings? Well, that issue was resolved by the Supreme Court in a follow-up case (the Chaidez case). The Court held that the Padilla doctrine was not retroactive. So, in my example, the individual could not have his 1989 criminal case reopened since he had not constitutional right to be advised of the immigration consequences.
So, jump to the most recent ruling by the New Mexico Supreme court which essentially rejected the Chaidez ruling and held that in state court criminal cases, Padilla is retroactive so old cases might be collaterally attacked on the advisement issue. We’ll see if other states begin doing the same thing.