Archive for March, 2011

USCIS can decide fast when it wants to, how about with visa waiver adjustments?

Thursday, March 31st, 2011

In recent days immigration law became more exciting because of news about homosexual marriage adjustments of status. To be brief, the President announced that the Justice Department would not defend a statute in the courts that defines marriage as being limited to heterosexuals – one of each gender. Inasmuch as this law has a huge impact in immigration law as U.S. citizens and permanent residents can petition for their spouses to immigrate to the United States, there was much optimism for those that favor it that now USCIS will no longer enforce this anti-gay marriage law and allow for homosexual spouses to be petitioned for. Alas, after a brief period of excitement, USCIS announced that this would not be the case. An article summarizes it all here. USCIS is treading into new territory, at least in San Diego, with its enforcement of a “judge-made law” banning visa waiver overstay adjustments of status. (See numerous postings and links on this blog.) Then USCIS did not correct an immigration lawyers association announcement that USCIS would in fact not follow this “judge-made law” and a memo was imminent. Then local San Diego USCIS officials announced that they know nothing of any change coming. Then local San Diego USCIS officials began carving out exceptions through legal slights of hands for some who were denied adjustments of status – with no explanation of why some and not others (Equal Protection, Due Process anyone?). USCIS headquarters in Washington showed with the gay marriage thing that it can straighten out confusion if it wants to. Why doesn’t it want to in the case of visa waiver adjustments? USCIS, we can’t hear you. In the meantime the arrests keep happening. Posted March 31, 2011.

 

Another nail in the visa waiver coffin

Tuesday, March 29th, 2011

The Ninth Circuit Court of Appeals put another nail in the visa waiver adjustment coffin last week in yet-another case, Bingham v. Holder. This case deals with the legality of the “waiver of rights” provision of the visa waiver program rather than prohibiting adjustment of status to those apply to adjust after their period of admission expires – which is the rule in the San Diego USCIS District but apparently no where else – please correct me if I am wrong. Many of us would welcome a return to the less-than-perfect time when an alien could adjust status despite having overstayed on the visa waiver program even if the alien could not pursue denial in the immigration courts or courts of appeal. Depending on the kindness of strangers was better than nothing. Posted March 29, 2011.

 

212(c) sometimes available for post IRIIRA convictions

Monday, March 28th, 2011

In this posting I would like to discuss an arcane issue – 212(c) and Cancellation of Removal relief. Cancellation of Removal came about on April 1, 1997, after the passage of the Illegal Immigration Reform and Alien Responsibility Act of 1996 (IIRIRA). Because IIRIRA came into effect such a long time ago, by this time most people facing deportation are in post-IIRIRA removal proceedings rather than pre-IIRIRA exclusion or deportation proceedings . In exclusion and deportation proceedings, aliens could seek 212(c) relief for deportable or excludable conduct. After IIRIRA, aliens usually seek Cancellation of Removal. Seeking 212(c) relief will only come about it there are pre-AEDPA and IIRIRA convictions that cannot be forgiven by Cancellation of Removal. For example, suppose an alien became a permanent resident through immigration in 1985 and was convicted of possessing a controlled substance two separate times, once in 1990 and once in 2005. He cannot obtain Cancellation of Removal relief for the 1990 possession crime because he lacks the seven years of continuous residence because of the stop-time rule (INA § 240A(d)), which makes Cancellation of Removal unavailable to an alien who has not had seven years of continuous residence before being sent to immigration court or having been convicted of certain crimes. In this scenario, the conviction stops the alien’s continuous residence at five years. One might expect that he could seek 212(c) relief for the pre-IIRIRA 1990 possession crime and Cancellation of Removal for the 2005 drug possession crime. However this is not the case as the Eighth Circuit  and Ninth Circuit Courts of Appeals  have held that an alien cannot obtain both Cancellation of Removal and 212(c) at the same removal hearing based on a statute (INA § 240A(c)(6)) which states that an alien cannot obtain cancellation of removal relief if he has previously received cancellation of removal, the former suspension of removal relief, or 212(c) relief. (more…)

USCIS leaders still unclear and erratic regarding visa waiver adjustments

Sunday, March 20th, 2011

Last week,  in discussing the issue of the San Diego USCIS’s apparent unique enforcement of of laws about the Visa Waiver Program, I noted that the American Immigration Lawyers Association posted the following on its members-only news page, called InfoNet:

Following reports from AILA chapter USCIS liaisons that a favorable resolution on the question of adjustment eligibility for Visa Waiver Program (VWP) admittees has been reached, AILA Liaision has confirmed that USCIS HQ has instructed the field that USCIS retains jurisdiction to adjust an alien who was admitted under the VWP, whether or not the adjustment application was filed during the alien’s 90-day period of admission. Watch InfoNet for further details.  This week the San Diego USCIS district discussed its position regarding the visa waiver program in a meeting with some immigration lawyers. San Diego USCIS district officials stated the following: (more…)