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Asking Leniency in Immigration Enforcement

Part of the President’s executive actions announced on November 20, 2014 included a shift in enforcement policies which are set forth in detail in the memorandum, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.”

The memo issued by Department of Homeland Security (DHS) Secretary Jeh Johnson identifies three deportation priorities, namely, priority 1 or individuals who pose threats to “national security, public safety, and border security,” priority 2 or individuals convicted of three or more misdemeanor offenses or a “significant misdemeanor” and recent immigration violators, and priority 3 or individuals who have been issued a final order of removal on or after January 1, 2014.

The memo also provides guidance as to which cases meet the standards and further directs that limited enforcement resources be dedicated to the removal of aliens identified as priorities for enforcement.

It also requires DHS personnel to exercise prosecutorial discretion based on individual circumstances. Factors in exercising prosecutorial discretion include extenuating circumstances involving the offense of conviction, extended length of time since the offense of conviction, length of time in the U.S., military service, status as a victim, compelling humanitarian factors such as poor health, among others.

When the President announced his enforcement priorities he explained, “That’s why over the past six years, deportations of criminals are up 80 percent. And that’s why we’re going to keep focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids. We’ll prioritize, just like law enforcement does every day.”

With President Obama’s enforcement policies in place, the U.S. Immigration and Customs Enforcement (ICE) Office recently released FAQs in connection with enforcement priorities and prosecutorial discretion.

The FAQs provide information as to what a person should do if he is detained in ICE custody or placed in removal proceedings, and he believes that he is not an enforcement priority or otherwise merits an exercise of prosecutorial discretion.

If the person is in ICE custody, he should follow the detainee-staff communication procedures for the facility to contact their Deportation Officer. The procedure is found in the orientation handbook provided to detainees when they are booked into ICE custody.

To make a request for prosecutorial discretion, the person may also call the ICE Enforcement and Removal Operations (ERO) Detention Reporting and Information Line (DRIL), toll-free at 1(888)351-4024.
If the person is in removal proceedings, the person should submit his request for prosecutorial discretion in advance of immigration court hearings. The request should be submitted to the prosecutorial email box of the ICE Office of Chief Counsel that is handling his case before the Executive Office for Immigration Review (EOIR).

Also, ICE’s Office of the Principal Legal Advisor (OPLA) has issued guidance to its attorneys regarding persons who do not fall under the DHS enforcement priority. The OPLA attorneys are to review the cases at the earliest possible time.

Falling under priority 3 are persons whose prior removals were reinstated on or after January 1, 2014, or those whose voluntary departure expired on or after that date, or those whose appeals were denied after that date. The FAQs clarify that the ICE Field Office Director will evaluate these persons on a case-by-cases basis whether removal would serve important federal interests.

The FAQs also note that whether a driving under the influence (DUI) conviction is considered a significant misdemeanor falling under priority 2 will depend on the elements of applicable state law. The DUI conviction is a significant misdemeanor if the state statute of conviction (1) constitutes a misdemeanor as defined by federal law, (2) requires the operation of a motor vehicle and (3) requires as an element of the offense either a finding of impairment or a blood alcohol content of .08 or higher.

Also, even if a person with a DUI conviction falls under priority 2, senior-level officials can still make a determination that such person is not an enforcement priority when there are factors indicating that he is not a threat to national security, border security or public safety.

The FAQs further clarify, among others, that an adjudication of juvenile delinquency is not treated as a conviction and will not, on its own, make an alien an enforcement priority.

Philippine EB-3 Visa Preference Unavailable for July

Every fiscal year a limited number of immigrant visas are made available for each preference category. If the visa demand for a particular category is excessive and could not be satisfied by the number of visas allotted each year, the category is oversubscribed.

The cut-off date indicated in the visa bulletin released by the Department of State each month is the priority date of the first visa applicant who could not be reached within the limit. A visa number is immediately available to an applicant whose priority date is before the cut-off date.

The cut-off date for a particular category may advance, remain unchanged, retrogress and even be listed as unavailable depending on the visa demand.

The July 2015 visa bulletin shows that the U.S. Department of State did not assign a priority date for the Philippine employment-based third preference (EB-3) for skilled workers, professionals and other workers, and instead listed it as “unavailable.”

In the past two months, the priority date for the Philippine EB-3 has significantly retrogressed, rolling back seven years and three months in May, and moving back another two years and six months in June. Despite the roll back, the visa demand under this category remained high. The Department of State therefore made this category “unavailable” to keep the visa use within the annual limit.

“Unavailable” means that the quota for the Philippine EB-3 has been used. It is of course possible that the EB-2 category may have some unused visa numbers that may be available for September use. If not, then visa numbers under this category will become available on October 1, 2015, the start of the new fiscal year.
The EB-3 cut-off date for all other countries except China and India will move forward by one month and seventeen days, to April 1, 2015.

The cut-off date for China’s employment-based third preference for skilled workers and professionals will remain at September 1, 2011 and other workers will also remain at January 1, 2006. Meanwhile, EB-3 cut-off date for India will move by ten days to February 1, 2004.

The employment-based second preference (EB-2) will remain current for all countries except China and India. China’s second preference cut-off date will move by four months to October 1, 2013 while India’s cut-off date will remain at October 1, 2008.

Also, the employment-based fifth preference (EB-5) will remain current for all countries except China. The EB-5 cut-off date for China will move by four months to September 1, 2013. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 (unmarried sons and daughters of U.S. citizens) – October 1, 2007; F-2A(spouses and children of permanent residents) – November 8, 2013; F-2B (adult unmarried sons and daughters of permanent residents) – October 15, 2008; F-3 (married son and daughters of U.S citizens) – March 15, 2004 and F-4 (brothers and sisters of U.S. citizens) – October 22, 2002.

The Philippine cut-off dates are: F-1 – March 15, 2000; F-2A – November 8, 2013; F-2B – May 15, 2004; F-3 – August 22, 1993 and F-4 – December 8, 1991.

Overcoming Finding of Prior Marriage Fraud

U.S. citizens may petition for their immediate relatives to join them in the U.S. Qualified immediate relatives of a U.S. citizen include the spouse, minor unmarried children under 21, and parents as long as the petitioning US citizen child is at least 21.

A visa number is immediately available to the immediate relative of a U.S. citizen. This means that qualified relatives who are already in the U.S. may adjust status right away. Those who are living outside the U.S. will have to apply for an immigrant visa at a U.S. consulate abroad.

The process of sponsoring a relative for a green card is initiated by filing a Form I-130 petition with the USCIS. To sponsor a “spouse”, there must be a valid and subsisting marriage between the petitioner and the beneficiary.

U.S. immigration laws will not accept as valid polygamous or incestuous marriages. Common-law spouses may benefit depending on the laws of the country where the common-law marriage takes place. Same-sex marriage is also recognized. The validity of a marriage for immigration benefits is determined by the law of the place where the marriage took place and not the place of domicile.

The parties must have entered into the marriage with the intent of establishing a life together as husband and wife. If the USCIS finds that the marriage was entered into solely for immigration benefits, the marriage is considered fraudulent and will not be recognized for immigration purposes.

Section 204(c) of the Immigration and Nationality Act (INA) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a U.S. citizen or LPR and the prior marriage was found to be a sham.

In a recent case, the Board of Immigration Appeals (BIA) set aside the decision of the Field Office Director of the USCIS revoking the approval of a visa petition on the ground of prior marriage fraud.

In that case, the BIA pointed out that visa petitions on behalf of aliens who have attempted or conspired to enter into marriage solely for the purpose of evading immigration laws cannot be approved. However, there must be “substantial and probative” evidence that the prior marriage was fraudulent.

The BIA noted that the USCIS officer issued the Notice of Intent to Revoke (NOIR) based on the fact that the beneficiary and the petitioner gave “radically different versions regarding their activities on the evening prior to their separate sworn testimony before an officer of the USCIS.”

However, upon review, the BIA found that the NOIR and the denial notice made no reference to any inconsistencies between their testimonies during the interview.

The record also showed that the Immigration Judge denied the beneficiary’s request for continuance of the removal proceedings pending the adjudication of her appeal of the denied petition, based in part, on the conclusion that the marriage between the beneficiary and the petitioner was not bona fide. The Immigration Judge separately asked the couple concerning their activities the night before the hearing and both provided different answers.

The BIA noted that the “radically different” testimonies were not made before a USCIS officer as alleged in the NOIR but before the Immigration Judge. It also pointed out that the evidence is insufficient to establish by clear and convincing evidence that the prior marriage of the beneficiary to the petitioner was not bona fide. A determination that the beneficiary’s prior marriage was fraudulent, according to the BIA, requires a higher standard of proof.

The BIA therefore sustained the appeal absent substantial and probative evidence of prior marriage fraud and remanded the case to the USCIS for further consideration of the visa petition.

Court Ruling Further Delays Obama’s Executive Actions

President Obama’s executive actions on immigration face yet another setback as the U.S. Court of Appeals for the 5th Circuit refused to grant the government’s motion for an “emergency stay” of the court order which temporarily placed on hold the President’s deferred action program announced on November 20, 2014.

According to the Department of Justice, it will not bring the emergency request to the U.S. Supreme Court. Instead, they will be focusing on their appeal of U.S. District Judge Andrew Hanen’s decision. The appeal will also be heard by the 5th Circuit Court of Appeals on July 10.

Judge Hanen issued the temporary injunction against the President’s Deferred Action for Parental Accountability (DAPA) program and Deferred Action for Childhood Arrivals (DACA) program on February 20, 2015 which effectively stopped the programs until the case is resolved. He has yet to rule on the merits of the case. Texas leads 25 other states in the lawsuit against President Obama’s executive actions.
The DAPA program extends eligibility for deferred action to certain parents of U.S. citizens and lawful permanent residents. The expanded DACA program eliminated the age cap of 31 years under the original program and moved the eligibility cut-off date for continuous residence in the U.S. from June 15, 2007 to January 1, 2010.

In their motion for an “emergency stay”, the government argued that the President’s executive actions are well-within his constitutional authority and that the states had no standing to sue because enforcement of immigration laws is the sole power of the federal government.

The 5th Circuit Court of Appeals, in a 2-1 decision, denied the government’s emergency request to lift Judge Hanen’s injunction.

Judge Smith who wrote the decision stated that the injunction should not be lifted because the states were able to establish that President Obama’s programs would cause them to suffer harm. Requiring states to issue driver’s licenses to beneficiaries of the program would cause them to incur financial burden.

He also wrote that President Obama’s executive actions “is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens.”

Judge Jerry Smith was joined by Judge Jennifer Elrod. Both were appointed by Republican presidents.

Judge Stephen Higginson dissented, indicating the “political nature of this dispute”. He also stated that enforcement priorities “must be decided, presently is being decided, and always has been decided, by the federal political branches.”

It is not yet known whether the same judges will hear the federal government’s appeal scheduled to be heard this July.

The decision comes as a big disappointment to immigrant rights advocates as some five million immigrants expecting to benefit from the program will now have to wait while the government appeals Judge Hanen’s decision.

This latest decision may have delayed further the implementation of President Obama’s programs, however, this has not doused the immigrant community’s hope.

As Erika Andiola, Co-director of the Dream Coalition Erika Andiola pointed out, “Republicans strategically chose this conservative judge [Hanen] whom they knew would delay implementation and try to intimidate our community. We, however, were the ones who pressured the president, knowing it is a constitutional move, and we continue to be confident that we will win at the end.”

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