California Immigration Lawyer Blog

Requirements for Cancellation of Removal for Permanent Residents

Sat, 05 May 2012 16:42:27 -0800

I am currently working on a cancellation case for an individual from San Francisco. As I work on the case, I am going to write posts on different aspects of this form of relief. This post will discuss the basic statutory requirements for cancellation of removal for permanent residents. (There is another form of relief of cancellation of removal for non-permanent residents but I will not be discussing it in this post.)

Cancellation of Removal is a discretionary form of relief that is available to individuals who are placed into removal proceedings due to criminal and/or immigration violations. The idea is that if they can show that they have been present in the United States for a certain period of time and meet other requirements discussed further below, their removal will be cancelled. In effect what they receive is a second chance to remain in the United States.

The statute that provides for Cancellation of Removal for permanent residents is Immigration and Nationality Act ("INA") 240A(a). This statute allows an Immigration Judge to cancel the removal of an individual if he or she:

has been lawfully admitted for permanent residence for not less than five years,
has resided in the United States continuously for 7 years after having been admitted in any status, and
has not been convicted of any aggravated felony.

In addition, the applicant has to show that he or she has not

been found by a judge to be a spy, terrorist, threat to national security, persecutor, torturer, to have committed genocide or extrajudicial killing, or severe violations of religious freedom, and
been previously granted cancellation, or suspension of deportation.

Permanent resident status for five years

The five years starts (is counted from) when the individual has been admitted into the United States as a lawful permanent resident. Time in another status does not count toward this requirement; all five years must be as a permanent resident. If the applicant obtained his or her green card by fraud or mistake, the applicant is not considered to be a permanent resident. Moreover, an applicant generally cannot use his or her parent's permanent resident status to count toward the five year requirement. However, this interpretation may depend upon the circuit in which the applicant is located. In the 9th Circuit, the Court of Appeals ruled in Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) that a minor child may rely on his or her parent's lawful permanent resident status to meet the five year requirement.

Seven years of continuous residence

The time when an individual begins to accrue continuous residence begins when an individual is admitted to the United States in any status. Thus, an admission as a tourist or with a temporary business visa may count. The seven year period must be continuous. There is a great deal of case law on what continuous means but basically it means that an individual must be present in the United States without frequent interruptions.

The seven year period may end if one of the following events occurs:

1. The Department of Homeland Security serves the individual with a "Notice to Appear." This is the document which lists the charges rendering an applicant removable and is filed in the Immigration Court.

2. The individual commits an offense that renders him or her removable or inadmissible.

If either of these events occur, the individual stops accruing the seven years of continuous residence necessary to apply for cancellation of removal.

No conviction for an aggravated felony

If an individual has been convicted of an aggravated felony, he or she is ineligible for cancellation. A list of crimes that constitute aggravated felonies is found in INA Section 101(a)(43). There is a great deal of case law about what constitutes an aggravated felony. An individual should consult with an immigration attorney and seek post-conviction relief if necessary in order to avoid having a conviction constitute the definition of an aggravated felony.

Cancellation of removal is discretionary

Even if an applicant meets the statutory requirements discussed above, the applicant still needs to show that he or she merits the relief. The Immigration Judge will weigh both the favorable and unfavorable factors in making a decision. My next blog post on cancellation of removal will discuss discretion in more detail.

"Like" USCIS on Facebook

Thu, 03 May 2012 16:51:53 -0800

I thought I had heard it all but now USCIS has a page on Facebook. Yes, you can now "like" U.S. Citizenship and Immigration Services ("USCIS") on Facebook. To their credit, it is a nice page. It has pictures and posts on a variety of topics such as citizenship, openings of new offices and filing procedures. It also is easy to navigate. It is great to see USCIS reaching out to a place where the public may easily find them.

I am not so sure though that they are going to like what they see. Plenty of the comments are critical. One person responded that TPS (Temporary Protected Status) for Syria came too late. Another individual is advertising his services in assisting with immigration. Yet another criticized the opening of the quota for the H-1B program. I suppose USCIS will have to take the bad with the good.

Overall, if it helps people find the information they need, I think the Facebook page is useful. It seems a lot of people are finding it interesting. They already have 4,331 "likes."

What if you had to cross a border to get across campus?

Fri, 27 Apr 2012 23:30:13 -0800

I recently learned of an event to raise awareness about the plight of immigrants that was conducted at St. Mary's College in Moraga. Volunteer students from various student organizations took yellow caution tape and draped it over themselves. They then created check points along a makeshift border of portable fencing. The "guards" stopped people at the checkpoints and requested to see their documents. In this case, faculty, students and staff had to show their St. Mary's Identification card. Those that had their cards were allowed to pass through. Those that did not had to take a more circuitous route to their destination.

Sister Jodi Min, an organizer of the event, stated that the purpose was to "raise awareness of immigration issues and the barriers societies create to separate "others" from ourselves" On a larger scale, this is what people face every day in other countries around the world.

The border crossing event was one of a series of events about immigration rights and borders held at the St. Mary's campus. To read more about the day and see pictures, you may read an article posted on St. Mary's website, "Suprise Border Crossing Draws Attention to Issues on Immigration Rights."

What a creative idea! I wish I had thought of it. I think a real live experience of being stopped at the "border" did more to educate that day than listening to a lecture would have done. I wish we could repeat their event in cities nationwide. It might educate our politicians. It might make them think twice about requiring ID for others when they cannot produce their own ID.

The last day of voluntary departure when deadline falls on weekend

Tue, 11 Oct 2011 22:19:55 -0800

Hasn't that already been decided? That was my reaction when I read the 9th Circuit's decision issued today in Meza-Vallejos vs. Holder. In this case, the issue before the court was whether Meza -Vallejos was in violation of his order of voluntary departure when the last day fell on a Sunday, and on a Monday, he filed a Motion to Reopen.

Mr. Meza-Vallejos is a citizen of Peru. He applied for asylum and had a hearing in front of an Immigration Judge. The Judge denied asylum but granted voluntary departure. He appealed to the Board of Immigration Appeals ("BIA") and the BIA affirmed the Judge's denial of asylum. The BIA, however, renewed Mr. Meza-Vallejos' request for voluntary departure and granted him until July 16, 2005 - a Saturday, to depart the United States.

Mr. Meza-Vallejos did not appeal the BIA's decision. Instead, on Monday, July 18, 2005, he filed a motion to reopen with the BIA with a request for an extension of his period of voluntary departure. He indicated in his motion that he had married a U.S. citizen two weeks previously and she had immediately filed an immigrant petition for him. The BIA denied his Motion to Reopen because although it was timely filed for the purpose of filing a Motion to Reopen, it was two days after his voluntary departure period had ended. They denied it because Mr. Meza-Vallejos had overstayed his voluntary departure. Various appeals followed until the case reached the 9th Circuit.

Governor Brown signs California Dream Act into law

Mon, 10 Oct 2011 22:29:13 -0800

On October 8, 2011, Governor Jerry Brown signed the second of two bills which together comprise what is now known as the California Dream Act. Current law allows undocumented students to attend California community colleges and California state universities if they have attended high school in California for three years (or the equivalent).

Now these students may be eligible to obtain some financial aid. The first bill (AB 130) effective January 1, 2012, permits students to receive a scholarship from non-state funds - from private funds. This bill does not cost the California tax payer any money as California funds are not being used. Students at all California state colleges and universities including the University of California, may apply.

The second bill, AB 131, also effective January 1, 2012, will allow students to be considered for all student financial aid programs administered by the State of California. Eligible students are those who have attended high school (or the equivalent) in California for three years.

The new law does not enable students to apply for federal financial aid and does not confer any kind of legal status upon students.

The California Dream Act helps those who are truly motivated to learn. While the Act has come under criticism as giving for "giving money away to illegal aliens," the money is not being "given away." All students must apply and be found financially eligible. Despite whatever your opinion is on illegal immigration, the truth is that we have a population of teenagers who are here illegally. They are not leaving. In my opinion our society will pay more in increased crime and health care costs if we do not help them with education than we will if we help them obtain an education. The California Dream Act is a step in the right direction.

For a student's perspective on the Dream Act and discussion of the financial costs, check out a recent article in the Daily Bruin, Gov. Jerry Brown signs Dream Act, qualifying undocumented students for financial aid.

USCIS permits abused or battered parents of US citizen parents to self petition

Tue, 06 Sep 2011 22:18:53 -0800

United States and Citizenship Services ("USCIS") recently released a Policy Memorandum
that provides guidance to USCIS officers regarding recent amendments to the Immigration and Nationality Act ("INA") that extend the ability to self petition to battered or abused parents of US citizens.

The authority for filing a self petition as a battered or abused parent of a US citizen is found in INA Section 204(a)(1)(A) of the Act. It provides that a parent who was subjected to battery or extreme cruelty by their U.S. Citizen son or daughter may self petition.

Who is eligible to apply?

Any parent, step-parent or adoptive parent may self petition.

The following parent/child relationships qualify:

1. The parent of a U.S. citizen son or daughter who is at least 21 when the petition is filed; or

2. The parent of a former U.S. citizen son or daughter who lost or renounced citizenship within the two years prior to filing the self petition as a result of an incident of domestic violence. At the time of loss of status, the son or daughter must have been at least 21 years of age; or

3. The parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within the two years prior to filing the self petition.

In order for a step parent to file, that step-parent must prove:

1. The abusive U.S. citizen son or daughter had not reached the age of eighteen years at the time the marriage creating the step-relationship occurred;
2. The step-relationship existed, by law, at the time of the abuse; and
3. The step-relationship existed by law, or as a matter of fact, at the time of filing the VAWA self-petition. If at the time of filing, the step-relationship had been terminated due to death of the natural parent, legal separation, or divorce, the self-petitioning stepparent will remain eligible to file provided that, as a matter of fact, the step-relationship was ongoing. The relationship need not continue after filing.

Who may petition for an 0-1?

Sat, 13 Aug 2011 23:59:07 -0800

I previously wrote about the qualifications necessary for an 0-1 visa. I am now going to discuss who can be a petitioner/sponsor of an 0-1.

Given the entreprenereurial spirit that exists in Silicon Valley, the question often comes up as to whether an individual may self petition for an 0-1 visa. The answer is, "no." The 0-1 petition is not a self petition. An 0-1 must be sponsored. An O petition may be filed by : 1) a U.S. employer, 2) a U.S. agent, or 3) a foreign employer through a U.S. agent. These are the only recognized employers/sponsors.

United States and Citizenship Services ("USCIS") has addressed the question as to whether a foreign employer may be a corporation owned by the beneficiary. The answer is, "yes, " an employer may be a corporation owned by the beneficiary but the employer must use a U.S. agent to file the petition. You can see a more detailed explanation of this answer on the USCIS website on a page of questions and answers about 0 visas.

I will continue this series on 0-1 visas in another post by discussing the documentation that must be filed with the petition.

Australian gay man in same sex relationship must leave the U.S. - a test case?

Thu, 11 Aug 2011 23:31:22 -0800

It has been all over the news the last few days; an Australian gay man, caring for his American citizen husband, is about to be "deported." You can see an example of one such story in the San Francisco Chronicle, "S.F. Gay Married Couple Loses Immigration Battle."

The couple themselves had to have expected this. They filed Form I-130, Petition for Alien Relative. It cannot be a surprise that it was denied. The federal government does not yet recognize same sex marriages. It is the position of the United States Citizenship and Immigration Services ("USCIS"), that they will not approve such petitions until the Defense of Marriage Act ("DOMA") is held to be unconstitutional and/or Congress repeals it. The San Francisco couple was testing the law.

It is a bit of sensationalist journalism to say that the Australian man is going to be deported. USCIS is not deporting him. They have given him a date by which he needs to leave. He may leave voluntarily. He has not been placed into deportation proceedings. I suppose though, proceedings could be the next step if he does not leave.

What I am curious about is what the couple plans to do when the deadline to depart comes. They purposefully tested the law and placed their relationship in jeopardy. It takes great courage to do this. The Australian citizen may receive a reprieve or be allowed to stay for a temporary period of time. Yet, this is not what they want. They want the law to be changed. I do not think the filing of their petition is going to do it, but it has brought some attention to the law. Hopefully they will be able to take advantage of the law when it does change. Until then, I think they unfortunately have a bit of a wait. Let's hope it is not too long.

O-1 visa - What do I need to qualify

Sat, 06 Aug 2011 22:45:07 -0800

When analyzing options for non-immigrants, we tend to think of other visas before thinking of an O-1. Yet, it remains a viable alternative. In fact, in 2009 (the latest year in which statistics are available), 58,566 people entered on O visas. (See page 4, Nonimmigrant Admission to the United States, 2009.) That is a large group of extraordinary people.

An O-1 visa is a visa for an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

This post will be the first of many posts on O-1 visas. In this post, I will describe the evidentiary requirements for obtaining an O-1 visa.

Trends in Naturalization with a Focus on California

Fri, 05 Aug 2011 22:53:15 -0800

Using material available to the public from the Department of Homeland Security Office of Immigration Statistics, Migration Information Source "MIS" published an online article about trends in naturalization in the United States. I am going to report three of the California trends.

According to MIS:

Of all Mexican immigrants naturalized in 2010, nearly 70 percent resided in California, Texas, Illinois, and Arizona.

Half of all foreign born who naturalized in 2010 lived in four states: California, New York, Florida, and Texas.

The New York, Los Angeles, Miami, and Chicago metropolitan areas were home to more than one-third of all immigrants who naturalized in 2010. Here is the breakdown: Around 15 percent of all those who naturalized in 2010 lived in the greater New York metropolitan area (91,257), 8.4 percent resided in the greater Los Angeles metropolitan area (51,977), and 6.8 percent lived in the greater Miami metropolitan area (42,220). These metropolitan areas, together with the metropolitan areas of Chicago (4.0 percent), Washington (4.0 percent), San Francisco (3.4 percent), Houston (3.0 percent), Boston (2.7 percent), and Dallas (2.7 percent), were home to roughly half (49.8 percent) of all new US citizens in 2010.

This report shows that California has a very major population that is naturalizing. It is therefore no surprise that the San Francisco and San Jose USCIS offices are busy. Yet, apparently they are not as busy as they once were. According to MIS, the number of naturalizations decreased by 40.8 percent between 2008 and 2010, nationwide. MIS attributes this to changes in our laws. A more obvious reason not addressed in their report is that the economy was and is in a recession. In my opinion, people are not able to pay the filing fees.

For a list of all the statistics, have a look at MIS's website.

Statistics of approval and denial rates by Immigration Judges in San Francisco

Tue, 02 Aug 2011 23:24:27 -0800

It is funny; I was recently at a Social Security Disability hearing at the office in San Rafael. Prior to my hearing, the judge asked if I had seen TRAC. Trac, the acronym, stands for, "Transactional Records Access Clearinghouse. TRAC produces a number of reports on various federal government agencies: immigration, FBI, IRS, terrorism and Social Security.. TRAC obtains their data by filing Freedom of Information (FOIA) requests and then compiling the data. I had not seen the website until today although according to their website, they have existed for a number of years. Although I will eventually look at the Social Security reports, I am more intrigued by the immigration reports because there are so many of them.

I decided to find out the statistics of asylum approval and denial rates with a judge I have a hearing with in a few weeks. It is amazing how easy the website is to navigate and how you can focus your search. I decided to search for asylum approval/denial rates with one judge in San Francisco. In order to search, I chose the city, San Francisco, the judge by the last name and then requested the latest report. I received very specific data pursuant to this request. I can tell how many cases this judge approved and denied. The report also tells me the ranking of this judge with other judges across the United States. Finally, the report tells me the nationalities of the people who were in this judge's courtroom.

While no two cases are alike, it is helpful to have these reports to better estimate your chances in Immigration Court.

When may I apply for citizenship if I am married to a U.S. citizen?

Mon, 01 Aug 2011 00:00:04 -0800

I just had an interesting issue arise at my San Francisco office. I received an inquiry from a potential client who wanted to know when she could apply for citizenship if she is married to a U.S. Citizen. The general rule is that when you are married to a U.S. citizen, you may apply in three years instead of waiting the usual five years. And because you are allowed to apply 90 days prior to the third year anniversary date, you may actually apply two years and nine months (approximately) after the anniversary date. See INA Section 334

But there is more than meets the eye when applying on the basis of your marriage. In order to succeed with your application, you must show that you meet the following requirements prior to filing your application with USCIS:

1. You are a permanent resident of the United States;
2. You have lived continuously in the United States for three years (minus 90 days);
3. You have lived in "marital union" (living together) with your U.S. Citizen spouse for three years ;
4. Your spouse has been a U.S. Citizen for the entire three years.

See INA Section 319(a)

In order to file under this section, it is not necessary that you obtained your green card through your marriage. For instance, you might have obtained it through an employment-based sponsorship. Nevertheless, you may still apply on the basis of your marriage if you meet all of the requirements listed above.

The interesting issue in the inquiry I received is that I found a conflict between the statute and USCIS regulations. Although the statute requires that an applicant meet all requirements prior to the filing date; USCIS' internal regulations do not. 8 C.F.R. Section 319.1 requires that the applicant show she has been living in marital union with the U.S. Citizen three years preceding the date of examination on the application and that the spouse was a U.S. citizen during the duration of that period.

So, in the potential client's case, she was deemed ineligible based on the wording of the statute, but USCIS did not appear to examine their own regulations. She had filed two weeks early, according to USCIS because she was two weeks shy of being married for three years. But, if USCIS would have looked at their own regulations, the examiner would have come to a different conclusion. By the time she appeared for the interview in this case, the date of examination, the US citizen and his wife would have exceeded the three year requirement.

What do you do? If you find yourself in this situation, you can try to argue that the regulation is correct. The best course of action though is to wait a full three years from the date of your marriage and then file the application. Be prepared to document everything. You will ultimately save yourself time and money if you wait the extra three months.

Update on opt out of "Secure Communities" bill in California legislature

Sat, 09 Jul 2011 23:41:09 -0800

A few months ago I wrote a post on a bill pending in the California State Assembly (AB 101) which would permit California counties to opt out of the federal enforcement program known as "Secure Communities."

There has been some action taken on the bill since I last wrote. The Assembly passed the bill on May 26, 2011. It was then referred to Senate Appropriations Committee. You may follow the status of the bill by clicking on the link below.

It is interesting to note that all California counties are currently participating in the Secure Communities initiative. Solano County was one of the first counties to join in and San Francisco a little later. Immigration Customs and Enforcement ("ICE") has published a booklet showing all states and their participation levels with Secured Communities. I have attached the page for California. While there has been talk in San Francisco of opting out, Solano county officials have thus far remained silent about their position. I will update the blog again when the Senate committee takes action.

Am I allowed to be a dual citizen of Australia and the United States

Tue, 31 May 2011 10:20:37 -0800

I recently received a question from an individual living in Daly City as to whether she could be both a citizen of Australia and the United States if she became a U.S. citizen.

The answer is yes. Australia allows its citizens to become a citizen of another country, if the other country allows it. You can read more about the Australian law on the Australian government's website for their Department of Immigration and Citizenship.

U.S. law does not mention dual nationality or require a person to choose one nationality over another. Thus, U.S. law permits it as long as the other country permits it. Along with perhaps acquiring more rights as a dual national, you acquire more responsibility. As the State Department website on dual nationality further explains, dual nationals owe allegiance to both countries and must obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there. You are therefore not exempt from observing a law, such as the payment of taxes, simply because you are a citizen of another country.

Free assistance with naturalization applications in San Francisco

Fri, 29 Apr 2011 22:49:32 -0800

The Northern California Chapter of the American Immigration Lawyer's Association is sponsoring a "Citizenship Day" on Saturday, April 30, from 10:00 a.m. - 2:00 p.m. Volunteer attorneys will assist eligible applicants for free in preparing citizenship applications.

The event will take place at UC Hastings College of the Law, Mayer Lounge, 198 McAllister Street, San Francisco. The location is accessible by BART and Muni - the closest station is Civic Center.

For more information about eligibility and what you need to bring, please see the Citizenship Day Flyer.