Archive for February, 2013

When brothers don’t talk

Saturday, February 16th, 2013

Senator Joseph Lieberman’s great legacy, besides giving Jon Stewart years of material, is his efforts to create the gargantuan Department of Homeland Security (DHS) and split the former Immigration and Naturalization Service into three separate agencies, Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE).

The breakdown in the agencies’ missions, simply put, is USCIS adjudicates benefits like temporary and permanent residence statuses and citizenship determinations, CBP polices the borders and internal checkpoints, and ICE enforces immigration law inside the United States (except for the internal checkpoints). The reality is that the missions of the organizations overlap and because they are separately run agencies, albeit part of the same department (DHS), their interactions are far from harmonious, causing all kinds of problems within DHS and for people whose need to deal with the agencies. (more…)

Circuits continue to rule in visa waiver adjustment cases while USCIS remains silent.

Sunday, February 10th, 2013

Despite promising two years ago that it would announce a policy regarding whether a person can file for adjustment of status after his period of authorized stay as a visa waiver applicant ended, USCIS has not announced a uniform policy. Some USCIS districts are adjudicating visa waiver adjustments for those who file after their 90-day period of stay ended as routine cases and others, like the San Diego district, are making “case by case determinations” as to whether to allow the adjustment adjudication to go forward. Some circuit courts, namely the Seventh and Ninth, have decided that there is no right to adjust status if one files for adjustment after the 90 day period of stay. Others have ruled only that once a late-filed adjustment is denied, there is no right to administrative or judicial review of the decision but have not questioned the right to file for adjustment of status after the 90 day period. All this was discussed here. (more…)

Axiomatic assumptions that went away.

Sunday, February 3rd, 2013

An argument often raised in favor of a non-specialist appellate body reviewing immigration decisions is that the fresh eyes of an outsider will see things that those deeply involved immigration law don’t. Practitioners and judges deeply involved in immigration just don’t sit down and challenge the way the law works in certain areas because it is the way they have always worked. An example of a fallen axiom is our ideas about what happens when an alien’s U.S. citizen petitioning spouse dies. The old axiom was that to be able to adjust status based on a petition of a deceased U.S. citizen petitioner, the couple had to have been married for two years before the petitioning U.S. citizen died. The axiom came from the definition of “immediate relative” found at INA § 201(b)(2)(A)(I): (more…)