Archive for May, 2012

Foreign VAWA beneficiaries and special treatment.

Sunday, May 20th, 2012

While immigration is often in the news, the nitty gritty of immigration law, which I write about in this blog, is not. Now, the nitty gritty is in the news with the raging debate about VAWA (Violence Against Women Act). The Republican House of Representatives seeks to modify the current version of VAWA, or the package of laws and amendments that make up the protections for battered people (VAWA does not just apply to women, but to all battered spouses or putative spouses). House Republicans state that they are opposed to special treatment of certain people, such as aliens, in the current version of the law.

Just what special treatment Republicans are talking about in VAWA is not much discussed. What about VAWA provides unique benefits to aliens? More specifically, what do alien VAWA beneficiaries enjoy that other aliens do not?  (more…)

Wouldn’t you like to be a parolee too?

Sunday, May 13th, 2012

The usual outcry from people concerned about “illegal aliens” in the United States benefitting from legislation such as a DREAM-like Act, amnesty, or comprehensive immigration reform is that those that benefit from such legislation will end up going to the head of the line to the detriment of those who played by the rules. The fallacy of the argument is that illegal aliens face severe penalties that not only force them to the end of the line but create situations where there is no line at all. Instead of illegal aliens being able to be absorbed legally into the population through normal routes of immigration, they become unable to legalize their statuses either in the United States or by leaving the United States and immigrating from abroad. I have written about this problem several times including here  and here and even made a movie about parts of the problem. 

A significant barrier to aliens being absorbed under current laws is that to become a permanent resident in the United States, i.e, adjust status, say through marriage to a United States citizen, the petition of an adult child, or through a petition filed by a close relative that becomes current is that to adjust status, an alien must have been admitted or paroled into the United States. INA § 245(a). If an alien entered the United States without going through a port of entry, he has not been admitted and thus cannot adjust status. Leaving the country to obtain a visa as an alternative to adjusting status is not possible because departing triggers bars to return, the three and ten year bars, which are often not waivable or the waiver is not given. INA § 212(a)(9)(B). Thus the alien cannot become a permanent resident in the United States or abroad. There is no line for him to get to the end of regardless of his family relationships and the availability of a visa through an approved and current petition. 

Aware of this problem, USCIS considered a solution http://abcnews.go.com/images/Politics/memo-on-alternatives-to-comprehensive-immigration-reform.pdf – widespread use of “parole in place” whereby an alien is magically transformed from a person in the United States without admission or parole to a person paroled into the United States. This trial balloon was shot down immediately after it was “leaked.” I wrote about it here. Parole in place is still available, but chiefly for military families. 

A new solution for some may have emerged. On April 17, 2012, the Board of Immigration Appeals issued a decision, Matter of Arrabally and Yerrabelly, an important new case and not, as the wonderful case name suggests, a vintage soda commercial

The case stands for the proposition that if an alien is in the United States and departs, but returns with an advance parole, the alien did not trigger a three or ten year bar upon departure. If he returns with the advance parole, he can continue with his adjustment of status. Advance parole is the mechanism wherein a person who has applied to adjust status can depart and reenter the United States while his adjustment of status application is pending.

Who may benefit? Chiefly aliens who assert they have been admitted but there is not evidence of an admission. This can occur when an alien was waived in by an officer at the border. Waiving in, which occurred routinely before 9-11 and also after 9-11, occurred when an officer let an alien in without ensuring the person had the right to enter. Before rules required everyone to always have an entry document such as a visa and/or a passport (including U.S. citizens), officers allowed U.S. citizens to enter just by claiming citizenship and would allow students to enter based on flashing their student ID’s. Kids in general were waived in based on the assurances of their parents or the drivers of cars they were in. The Board of Immigration Appeals has ruled that waive ins count as admissions for adjustment purposes.  It is these kids who are now adults and seek adjustment of status through their United States citizen spouses or other petitioning relatives and are precluded from adjusting because they cannot prove to USCIS’s satisfaction that they were waived in. 

If these people apply for adjustment of status and receive advance paroles and use them to travel abroad and then return, which, granted, is easier for a person living in San Diego than it is for a person living in Kansas, the person is now present in the United States as a parolee and should be able to adjust status regardless of whether anyone believes them about their prior waive-in admission.

Inquiring readers may wonder about people who were not waived in at all. Could they not also apply to adjust status, obtain advance paroles, use them and be paroled into the United States and then be eligible to adjust status? I see two problems with this. First, USCIS may not process an adjustment application and approve an advance parole request unless there is proof of an admission or parole as such a person would not be eligible to adjust status at all. It is not even clear at this point if USCIS will issue an advance parole document for an alien who asserts he was admitted as a waive-in.  Second, it is likely unethical and possibly illegal (if the applicant asserted he was admitted or paroled when he was not) to apply for adjustment of status and for an advance parole when not eligible to adjust because of failure to have been admitted or paroled. See INA § 274C(a)(5).

As noted, it is not clear if USCIS will approve advance parole applications for waive ins. Also, some caution is noted. If a person is abroad and his adjustment of status application is denied or the advance parole is revoked, he might not be allowed back into the United States after his trip.  See articles here  and here. Further, immigration law is very dynamic, so while Matter of Arrabally and Yerrabelly is good law today, tomorrow is another day. And finally, while an advance parole is a parole and should count as a parole for purposes of eligibility for adjustment of status, because of its very nature as a document issued when an adjustment of status application is pending, there is no case law that says that an advance-parole-based-parole can itself qualify one for adjustment of status. So while logically an advance parole should be considered a parole for adjustment purposes, we are talking about law, not logic. (Remember, Matter of Arrabally and Yerrabelly holds that a departure with advance parole is not a departure, an example that in law, words don’t always mean what you think they mean.)  I invite readers with insight into this to share their views.  Posted May 12, 2012.

Ninth Circuit takes Oshodi v. Holder en banc

Friday, May 4th, 2012

On January 29, 2012, I wrote about a Ninth Circuit decision, Oshodi v. Holder, decided by a three-judge panel consisting of Judges Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and  Robert E. Cowen (a senior circuit judge in the Third Circuit), and written by Judge Rawlinson. In the January 29, 2012, posting, I discussed and gave some analysis of the case. My concern was the change in the law the case made regarding providing corroborating evidence in asylum cases.

On May 3, 2012, the Court of Appeals issued this order, “Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.” “En banc oral argument will take place during the week of September 17, 2012, in San Francisco, California.”

Remarkable about the order is that unlike the usual situation where the losing party to the litigation files a motion for rehearing with a suggestion for rehearing en banc, in this case, on April 2, 2012, according to the court docket, “A judge of this court has requested a vote on whether to rehear the case en banc.” Because the decision by the panel in Oshodi was unanimous, apparently the requester was a judge who did not take part in the proceedings.

At the immigration court level, immigration judges have already applied Oshodi, admonishing asylum applicants at the beginning of their cases that their applications for asylum must include corroborating evidence and would be denied if the court felt that there should have been corroborating evidence and it was not provided before the hearing. Before Oshodi, at least in the Ninth Circuit, the rule was that if the immigration judge felt that corroboration was needed, the applicant got warning of the area where corroboration was needed at his hearing and then had the opportunity to provide it or explain why it was not possible to get it. Posted May 4, 2012.