Archive for April, 2011

Even if Trump is right, he’s wrong.

Sunday, April 24th, 2011

Donald Trump, among others, is raising the issue again. President Obama is not entitled to be President because he was not born in the United States. Not because Hawaii was not a state yet, as Hawaii was admitted to the Union on August 21, 1959, and Barack Obama was born on August 4, 1961, but because President Obama was actually born abroad. Not that there is any proof he was born abroad, but because of some concerns about the availability of his Hawaiian birth certificate, reliance on a portion of a grandmother’s audio clip, and because of a mistaken belief that he lacks a childhood history. (more…)

What a difference a day makes.

Saturday, April 23rd, 2011

Creating a minor buzz is a recent development in the State of Washington. On April 15, 2011, the governor of Washington, Christine Gregoire, signed a bill which reduces the maximum sentence for a gross misdemeanor to 364 days.  The punditry has commented that this is an important law for aliens because it stops many crimes from being classified as aggravated felonies. This is an important effect of the law, but not the most important one. More important is that it prevents many newly-hatched permanent residents from being deportable for one minor offense. It also highlights what appears to be a scrivener’s error in the Immigration and Nationality Act which the Washington State legislature fixed because the U.S. Congress never has.

The idea behind the fact that this statute prevents many aliens from being considered aggravated felons is that some crimes, such as crimes of violence (INA § 101(a)(43)(F)), theft offenses (INA § 101(a)(43)(G), offenses related to commercial bribery, counterfeiting, forgery, or trafficking in vehicle identification numbers (INA § 101(a)(43)(R)), and obstruction of justice, perjury, or bribery of a witness (INA § 101(a)(43)(S)) become aggravated felonies if a person is sentenced to 365 days or more for the offense. Being an aggravated felon renders a non-citizen deportable and bars permanent residents from the most common form of relief available to them, Cancellation of Removal for Certain Permanent Residents. Aggravated felons also cannot ever come back if they are deported (INA § 212(a)(9)(A)) and face stiffer punishments than other deportees if they come back without permission (INA § 276(b)(2)). By making it impossible to receive a 365 day sentence for gross misdemeanors, these crimes can never on their own render one an aggravated felon based on the sentence alone – there is nothing to say that some gross misdemeanors could be considered aggravated felonies for other reasons. Before this law took affect, lawyers in Washington had to makes sure their clients did not get the maximum sentence, 365 days, but rather a maximum of 364 days. As this was not uncommon, clients properly represented could avoid the bleak consequence of being considered an aggravated felon by seeking a 364 day or less sentence. (more…)

Posada Carriles prosecution an example of a USCIS interview being part of a criminal investigation.

Sunday, April 17th, 2011

When America decides it doesn’t want a foreigner around anymore, it has a few ways of getting rid of him. First, and easiest, is to get rid of the ones without papers. Some may recall the NSEERS program  of the early 2000’s, where citizens of some Muslim nations had to turn themselves in for inspection and those without lawful status were arrested to remove them. Two, arrest and charge the person with crimes, punish him for his crimes, and then deport them. If the charges are right, the conviction could preclude most relief from removal, and help insure detention for the foreigner while his removal case progresses should he seek relief.

The problem with these tactics is that they are not completely foolproof. Sometimes the “undesirable” alien wins his case in immigration court or on appeal and is allowed to stay. So if “America” is determined to get rid of someone, it needs more bites of the apple. One way the government gets the extra bites is by charging the foreigner with crimes when he applies for subsequent immigration benefits. (more…)

USCIS’s latest on Visa Waiver Adjustments leaves many questions unanswered.

Friday, April 8th, 2011

In the ongoing saga about those seeking adjustment of status as immediate relatives under the visa waiver program, U.S. Citizenship and Immigration Services (USCIS), through the American Immigration Lawyers Association (AILA) [USCIS’s peculiar way of announcing policy], on April 7, 2011, announced the following policy advisory:

All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM (Adjudicator’s Field Manual) update on this topic we expect to issue soon. (more…)