Archive for June, 2011

What if he was a foreigner?

Tuesday, June 28th, 2011

Martin Lawrence

Martin Lawrence was born in Germany, but is a U.S. citizen by derivation. He apparently was convicted after he was caught in the Burbank Airport while attempting to board an airplane with a 9 mm. Beretta in his carry-on. He got two years probation for this according to media reports. Firearms offenses are deportable offenses. INA § 237(a)(2)(C). News reports note a long criminal record yet no other convictions are noted in the media despite allegations of domestic violence and drug use, which are also deportable offenses. There are also reports of sexual battery, which under certain circumstances could render a person deportable on its own. Admitting to sexual battery, even with no conviction, could bar admission to the United States. Similarly, admission to drug use, also even with no conviction, is also a ground of inadmissibility. (more…)

The INA § 212(a)(9)(C) ‘permanent bar’ becomes even broader and harsher

Sunday, June 26th, 2011

In changes to the immigration laws in 1996, called The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),  a new concept was introduced in immigration law called “unlawful presence.” The concept came into force on April 1, 1997, when the reforms came into effect – or so we thought. We thought unlawful presence before April 1, 1997, would not have immigration consequences. For the immigration agencies to figure out what it meant – Congress did not define it – took years, much confusion, and many policy memos. Unlawful presence was not the same as being in status or lawful status or lawful nonimmigrant status, or here with the authorization of the government or …. It is not a common sense concept. A person can be out of status and not unlawfully present. A person can have unlawful presence but be allowed to work. Differentiating between these concepts is something that Alabama, Arizona, and Georgian police must now know all about because state laws criminalize being out of some or other of these. When they figure it all out, they can then clarify it for the rest of us – and the courts, which do not agree on the meaning and impact of these concepts, as discussed here.

The effect of unlawful presence is harsh. If an alien accrues 180 days of unlawful presence and departs the United States, he or she cannot come back for three years. If the person accrues one year of unlawful presence and departs the United States, he or she cannot come back for ten years. The bars, found at INA § 212(a)(9)(B), affectionately called the 3 and 10 year bars,  respectively, cause all kinds of hardship for people who must leave the country to get visas, as their departing to get their visas results in their inadmissibility. There is a waiver based on extreme hardship to a citizen or permanent resident spouse or parent, but without the qualifying relative or if the requisite hardship is not found, the person who left to get the visa faces a bar to re-entry to the United States for three or ten years. Ironically, it is departing the United States which creates the bar. It is ironic because the law creates a disincentive to departing and you would think immigration laws would encourage the undocumented to depart the country, not to stay here. (more…)

FOIA Schizophrenia

Tuesday, June 21st, 2011

I have it heard it said that the way to induce schizophrenia in people is to tell them things and assert them as true that are objectively and obviously not true. The USCIS website  is posting the following information about how long it takes to fulfill a Freedom of Information Act request which allows a person to see their government file:

Current Average FOIA Request Processing Times (All times in business days)

USCIS uses a three-track system to process FOIA requests.

Track One (47 days): Simple requests;

Track Two (76 days): Complex inquiries that normally necessitate additional search and review time; and

Track Three (53 days): Requests by individuals scheduled for a hearing before an immigration judge. (more…)

More Morton Memos Mean More Mystery

Sunday, June 19th, 2011

Hurray! Another memo from ICE on Prosecutorial Discretion. Another Morton Memo by John Morton, the Director of ICE! The first big change in the memo – Mr. Morton identifies himself as ICE Director instead of an assistant secretary in the Department of Homeland Security. As they would say on the Island, Mazal Tov on your new stationery.

A million journalists are filing stories going through the details of the new memo, the big news of which is that ICE may empower its local attorneys with more authority to choose who to prosecute for removal in immigration court. The memo lists a myriad of factors to consider in exercising the discretion. (more…)