Deep Screening for Immigration Relief Immigration Law Unit

Deep Screening for Immigration Relief Immigration Law Unit The Legal Aid Society

Overview n n n n n Entry/Status Criminal History Citizenship Family-Based 245(i); I-601 A VAWA, SIJS, T&U Visas Asylum NACARA, HRIFA Cancellation of Removal The Legal Aid Society © 2018

Entry/Status n n Inspected by Customs and Border Protection Waved through q q q n Paroled in q n Fonseca Haro, A 097 -369 -036 (BIA 2014) Quilantan, 25 I&N Dec. 285 (BIA 2010) Arguellin, 17 I&N Dec. 308 (BIA 1980) Military parole-in-place Advance parole, travel and return q Arabally Yerrabelly, 25 I&N Dec 771 (BIA 2012) The Legal Aid Society © 2018

Entry/Status (cont. ) n n I-94 download FOIA q q q USCIS/ICE/CBP EOIR OBIM n n n Voluntary return vs expedited removal Fugitive disentitlement doctrine Risks q q Notice to Appear Reinstatement; prosecution for illegal re-entry The Legal Aid Society © 2018

Criminal History n n NYS rap sheet FBI record NYPD Good Conduct certificate If previously notified by ICE of removal, DCJS may have added “deported alien” banner to NYS rap sheet q If then fingerprinted again in NYS, DCJS will notify ICE The Legal Aid Society © 2018

Criminal History (cont. ) n n n If any prior criminal history, consult with crim-imm specialist Even minor charges can have serious consequences No statute of limitations for immigration consequences Post-conviction relief Change in law, e. g. Harbin v Sessions The Legal Aid Society © 2018

Acquisition of citizenship n n Birth abroad Parent (or maybe grandparent) was USC Born in or out of wedlock? How long, and at what ages, did USC (grand)parent(s) live in US before going abroad? q n n n USC residence could have been before natz Consular Report of Birth Abroad US Passport N-600 The Legal Aid Society © 2018

Derivation of citizenship Rule as of 2 -27 -2001: n Under 18 yo n Have LPR status n Live with biological or adoptive parent n Parent is or becomes USC n If out of wedlock, father must have legitimated before child 18 yo The Legal Aid Society © 2018

INA § 322 citizenship for children n Requirements for non-LPR child: q q q at least one parent is/became USC parent (or grandparent) lived total of 5 years in US (2 years after age 14); child is under 18 and unmarried; resides outside US in legal and physical custody of USC parent; and child is temporarily in the US and remains in lawful status until naturalization is complete The Legal Aid Society © 2018

Family-Based Immigration n Step 1: Petitioner establishes qualifying relationship q n Form I-130 Step 2: Beneficiary submits application to adjust status or consular process q Form I-485 or DS-260 The Legal Aid Society © 2018

Relatives: Immediate versus n Immediate relatives Preference q q q n Spouses of USC children of USC (unmarried and under 21) parents of USC (21 or older) Preference relatives q q q 1 st = sons & daughters of USC (21 or older, unmarried) 2 A = spouses and children (under 21, unmarried) of LPR 2 B= sons & daughters of LPR (21 or older, unmarried) 3 rd = sons & daughters of USC (any age, married) 4 th = siblings of USC The Legal Aid Society © 2018

Issues to watch for n n n Manner of entry In spousal case, child born during marriage, but with one non-spousal parent Did beneficiary have prior marriage-based petition? q n Did beneficiary enter: q q q n Screen for marriage fraud finding (INA § 204(c)) with a fiancé visa? as a conditional resident? with a J-1 visa? Petitioner convicted of crime against a minor? q Adam Walsh Child Protection and Safety Act The Legal Aid Society © 2018

Applying for Permanent Residence n Is the visa petition still valid q q q n n petitioner-beneficiary relationship still exists petitioner still has the required immigration status, and petition has not been terminated by USCIS or rejected by Department of State Is immigrant visa now available Is beneficiary/applicant admissible q if not, is a waiver available The Legal Aid Society © 2018

INA § 245(i) n Waives various grounds of inadmissibility and ineligibility q q q n n Entry without inspection Violation of visa Unauthorized employment Employment-based adjustment, not in status Alien crewmember S visa Adjust status here, without leaving U. S. Super fee $1, 000 The Legal Aid Society © 2018

INA § 245(i) (cont. ) n Family petition or employment petition n “Approvable when filed” Filed on or before April 30, 2001 n n n I-130, I-360, labor certification, I-140 Yates Memo 04 -26 -01, filing grace period Filed Jan 15, 1998 to April 30, 2001, show presence on Dec 21, 2000 Grandfathering n Yates Memo 03 -09 -05, grandfathering & derivatives The Legal Aid Society © 2018

INA § 245(i) (cont. ) The Legal Aid Society © 2018

I-601 A Provisional Waiver n n If consular processing, because ineligible to adjust Trigger 3 - or 10 -year bar upon departing Seek waiver before departing Extreme hardship to qualifying relative q n USC or LPR spouse or parent High standard to prove hardship The Legal Aid Society © 2018

I-601 A Provisional Waiver (cont. ) n n n n Approved I-130, current priority date Pay National Visa Center (NVC) fees Notify NVC of intent to file I-601 A File I-601 A with proof of payment of IV fee File consular processing documents with NVC with I-601 A pending Upon approval of I-601 A, notify NVC Travel abroad for interview The Legal Aid Society © 2018

Widow(er)s of U. S. citizens n n Was late spouse USC? Did spouse die within the past 2 years? Legally separated from USC spouse at the time of his or her death? Remarried? The Legal Aid Society © 2018

VAWA Self Petition n n Abusive USC or LPR spouse, parent, or child Battery or extreme cruelty Good moral character If spousal: q q Good faith marriage Co-residence The Legal Aid Society © 2018

Asylum n n n Credible fear of persecution in home country due to race, religion, national origin, membership in a particular social group, or political opinion Apply within one year of coming to U. S. Change in circumstances q q n Ending of TPS? Fear still credible, after so many years? Extraordinary circumstances The Legal Aid Society © 2018

U Visa n n n n Victim of certain crimes Suffered Physical and mental abuse Helped law enforcement (police, District Attorney, Family Court judge, ACS, etc) investigate or prosecute the perpetrator Valid for 4 years Work authorization Apply for green card after 3 years Derivative family members The Legal Aid Society © 2018

T Visa n n n Physically present in US on account of trafficking Suffered severe form of trafficking Cooperation with law enforcement q q n Unless under 18 yo or Waiver due to physical/psychological trauma Extreme hardship if removed The Legal Aid Society © 2018

Special Immigrant Juvenile Status n n n Under 21 yo Abused, neglected, or abandoned by one or both parents Subject of state court proceeding (guardianship, foster care, or adoption) Judge says not in child’s best interest to be returned to home country Must be unmarried Must not have certain criminal convictions The Legal Aid Society © 2018

NACARA Section 203 n Nicaraguans / Cubans q n Salvadorans q q n Entered prior to 12/1/95, and applied for asylum prior to 4/1/00 Entered prior to 9/19/90, registered for ABC/TPS by 10/31/1991 and not detained at entry after 12/19/1990 or applied for asylum prior to April 1, 1990 Guatemalans q q Entered prior to 10/1/1990, registered for ABC prior to 12/31/1991 and not detained at entry after 12/19/1991 or applied for asylum prior to April 1, 1990 The Legal Aid Society © 2018

NACARA Section 203 (cont. ) n Eastern Europeans q q n Entered prior to 1/1/91, and applied for asylum prior to 12/31/91 Soviet Union (or its former republics), Russia, Latvia, Lithuania, Albania, Bulgaria, Czechoslovakia, East Germany, Hungary, Poland, Romania, Yugoslavia (or its former states) May be able to renew NACARA adjustment in proceedings q If denied earlier by USCIS/INS The Legal Aid Society © 2018

NACARA Section 203 (cont. ) NACARA family members: n Spouse, children who were under 21 n Relationship existed at time of principal’s NACARA approval n Have 7 years of continuous presence in US q Even if children have since aged out or married The Legal Aid Society © 2018

HRIFA - Haitians n Adjustment if: q q Physically present as of 12/31/95, and either Applied for asylum before 12/31/95 or Paroled into US before 12/31/95 or “Child” (unmarried, under 21 yo) both when arrived in US and on 12/31/95, and either n n arrived without parents and remained without parents, or Became orphaned after arrival, or Were abandoned before 4/1/98 and remained abandoned Adjustment filed by 3/31/00 q Renew in proceedings, if denied by USCIS/INS The Legal Aid Society © 2018

Cancellation of Removal for Non. Lawful Permanent Residents n In U. S. continuously for 10 years q All DACA and most TPS registrants have 10 years Good moral character n Certain crimes make you ineligible n Demonstrate exceptional and extremely unusual hardship to USC or LPR spouse, parent, or child **Available only in removal proceedings n The Legal Aid Society © 2018

VAWA Cancellation of Removal n Relief for: q q q n Abused spouse or former spouse of USC/LPR Son or daughter of USC/LPR Non-abusive parent of abused child of USC/LPR Higher standard than self-petition q Extreme hardship 3 years continuous residence **Available only in removal proceedings n The Legal Aid Society © 2018

NACARA Cancellation of Removal n NACARA special rule cancellation (suspension of deportation) q q Guatemala, El Salvador, and former Soviet Bloc countries 7 years presence immediately prior to application Good moral character Extreme hardship **Available only in removal proceedings The Legal Aid Society © 2018

Administrative Closure n Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) q q q reason administrative closure is sought; basis for any opposition to administrative closure; likelihood respondent will succeed on applications outside of proceedings anticipated duration of closure; either party’s responsibility for delay ultimate outcome of removal proceedings upon recalendaring before IJ or reinstatement of appeal by BIA The Legal Aid Society © 2018

Administrative Closure (cont. ) n Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) q Primary consideration is whether party opposing admin closure has provided persuasive reason for case to proceed and be resolved on merits The Legal Aid Society © 2018

Administrative Closure (cont. ) n Matter of Castro-Tum, 27 I&N Dec. 187 (A. G. 2018) q q IJ/BIA have authority for admin closure? Avetisyan/W-Y-U articulate appropriate standard? If IJ/BIA lack authority, should AG delegate to them? Can continuance, dismissal w/o prejudice, or termination w/o prejudice be used instead? If IJ/BIA lack, and power is unwarranted/ unavailable, what about currently admin closed cases? The Legal Aid Society © 2018

Administrative Closure (cont. ) n TPS admin closed cases – common relief: q Adjustment through immediate relative n n Admitted Paroled, including TPS-based advance parole q n q q Adjustment before USCIS, as arriving alien TPS-as-admission (see Flores v. USCIS, 718 F. 3 d 548 (6 th Cir. 2013); Ramirez v. Brown, 852 F. 3 d 954 (9 th Cir. 2017)) Provisional waiver and consular processing U visas Non-LPR cancellation of removal Asylum/Withholding/Convention Against Torture The Legal Aid Society © 2018

Questions? The Legal Aid Society © 2018

Immigration Law Unit Legal Aid Society 199 Water Street, 3 rd Floor New York, NY 10038 (212) 577 -3330 The Legal Aid Society © 2018