Archive for January, 2011

Are visa waiver adjustments prohibited by law or dicta?

Saturday, January 29th, 2011

When last blogging on visa waiver adjustments  I discussed the murky issue of whether a person could adjust status if he or she filed an adjustment of status application after overstaying his or her period of stay, usually 90 days. I indicated that there is argument that because the courts of appeal, when hearing visa waiver removal cases, are considering their jurisdiction, holdings that they cannot review denials of visa waiver adjustments in cases where there is late filing, this does not mean that the aliens cannot adjust status. Holding that adjustment is not allowed may be dicta while holding that there is no review is the law.

The issue became more complicated when in a recent posting to attorneys in San Diego, the local American Immigration Law Association (AILA) indicated that the San Diego district was denying adjustments in its discretion – that under certain circumstances it would adjust someone.

Lamentably, on that thin reed, despite the chaos that the recent spate of visa waiver denials is causing, immigration lawyers are persisting in filing visa waiver adjustments after the alien has overstayed.

The Third Circuit recently espoused its view clearly in Tiandi Jiang v. Attorney General of U.S.:  on January 12, 2011:

We note that the Ninth Circuit subsequently narrowed Freeman  to cover only VWP entrants who petition to adjust their status during their lawful 90-day stay, see Bradley, (citing Momeni v. Chertoff). In Bradley, we joined in this narrower view, holding that an alien was not eligible to apply for adjustment of status after expiration of the 90-day VWP stay, and we noted that this narrower view was shared by six of our other sister Courts of Appeals, see id. at 242 n.7. Jiang’s application to adjust status was filed on June 3, 2009, A.R. 12, almost 8 years after he was paroled into the United States. We thus are not persuaded by his argument that the Board abused its discretion in denying his motion to remand.

Yet, rumors persist that in other California districts and in other states, visa waiver adjustment applications are being granted whether the applicant filed late or not. Please, USCIS Director, Alejandro Mayorkas, tell us what it is – law or dicta.

It is also worth noting that Momeni was decided on March 31, 2008, and was a published decision. Any visa waiver applicant who filed an adjustment application after overstaying his or her period of authorized stay after this date ignored a published precedent telling him or her not to. And it is not like Momeni was a secret. It is a published decision and it has been written about in the immigration media, also found here. Plus, I have been writing about this issue since December 8, 2005.  Posted January 29, 2011.


Naturalization granted but appellate court seems dubious

Sunday, January 23rd, 2011

In this blog, I usually address cases in the Ninth Circuit and do not rummage around in other circuits. However, today I am interested in a case out of the 4th Circuit, which covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina. It sits in Richmond, Virginia, which was the capital of the Confederacy.

The case is Cody v. Caterisano. In the case, Mr. Cody, who is an Irishman, was accepted into the United States Naval Academy. Ordinarily, according to the case, when a foreigner goes to the Naval Academy, he or she has to serve in the armed forces of his or her home country after graduation. In this case, after being admitted, Ireland pulled the plug on funding. Private donors paid Mr. Cody’s way. He went through the academy and graduated. He then wanted to serve as a commissioned officer in the United States Navy but could not because he was not a United States citizen. According to INA § 329, a foreigner can become a United States citizen if he or she served on active duty during a time of military hostilities. As of February 14, 2010, Congress changed the law to allow Selected Reservists and Ready Reservists to naturalize this way too. The United States has been in such a period since September 11, 2001, based on an unrescinded order of President George W. Bush.


What if he was a foreigner?

Thursday, January 20th, 2011

Darrell Issa

Darrell Issa is a Congressman from California’s 49th Congressional District, a district  to the North of the City of San Diego. He has held this seat for the last 10 years. A January 24, 2011, New Yorker Magazine article about Darrel Issa, states:

On March 15, 1972, three months after Issa allegedly stole Jay Bergey’s car and one month after he left the Army for the first time, Ohio police arrested Issa and his older brother, William, and charged them with stealing a red Maserati from a Cleveland showroom. The judge eventually dismissed the case.

While the Maserati case was pending, Issa went to college. Just before 11 P.M. on Friday, December 1, 1972, two police officers on patrol in the small town of Adrian noticed Issa driving a yellow Volkswagen the wrong way down a one-way street. The police pulled him over, and, as Issa retrieved the car registration, an officer saw something peculiar in the glove compartment. He searched it, and, according to the police report, found a .25-calibre Colt automatic inside a box of ammunition, along with a “military pouch” that contained “44 rounds of ammo and a tear gas gun and two rounds of ammo for it.” Issa was arrested for carrying a concealed weapon. The policeman asked why he was armed. “He stated in Ohio you could carry a gun as long as you had a justifiable reason,” the report said. “His justifiable reason was for his car’s protection and his.” Issa pleaded guilty to the lesser charge of possession of an unregistered gun. He paid a small fine and was sentenced to six months’ probation. (more…)

For Visa Waiver Adjustees, it’s now up to Alejandro Mayorkas

Sunday, January 16th, 2011

More and more Visa Waiver adjustment applicants are being denied adjustment and being deported. I mild panic is setting in. Perhaps it is fitting to put it in perspective and in terms the average person can understand.

You’re a young American and you get your big opportunity to spend a summer traveling around Europe. You buy your Eurail pass and pack your backpack and you plan your trip. London, Paris, Nice, Florence …. During your adventure you meet a nice person. You hit it off. You decide to extend your trip. You spend time traveling with your new friend. You fall in love. You visit your friend’s family and then stay with this family. The family is well-established, large, and accepting. Your friend is successful. A professional. A pillar of his community. You decide to stay and work a little to see if there is a future – and to learn the language better. You like it abroad. You’re happy. You get married. Your parents fly out for the wedding. Your friend’s family all comes too.

Then it dawns on you that you better straighten out your immigration situation. It is not all love and family and acculturation. You get the forms and fill them out and send them in. You get a letter to come to a local office to discuss the forms. You and your spouse go to a meeting. You are arrested, handcuffed, thrown in jail, and deported. You learn you cannot come back for ten years. If you want to be with your spouse, it’ll have to be in America. Your spouse has nothing in America, except you. Your spouse’s English is lousy. Your spouse’s professional training and experience is worthless here. Your world is turned upside down. (more…)