Seguritan US Immigration Articles

Conviction For Elderly Abuse is Bar to Deportation Relief

For noncitizens residing here in the US, the commission of certain crimes has immigration consequences. It may render them inadmissible and/ or deportable. There are also certain crimes known as CIMT or crimes involving moral turpitude which may preclude eligibility for deportation relief including cancellation of removal. A CIMT has been defined by the Board of Immigration Appeals (BIA) as a crime that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.”

In one case, an alien entered the US without inspection and without any legal documents. He was later convicted of abuse of an elderly. When he tried to take advantage of the Temporary Protected Status (TPS), his request was denied because of his conviction. On the very same day, he was issued a Notice to Appear by the Department of Homeland Security (DHS), charging him with removability because he was an alien present in the United States without being admitted or paroled under the Immigration and Nationality Act (INA) and he was an alien convicted of a CIMT.

The immigration judge ordered him removed. He appealed to the BIA contending that he qualified for relief from removal. The BIA determined that he did not qualify for relief because of his conviction for CIMT. He filed a petition for review with the US Court of Appeals but his petition was dismissed.

It is worth noting that in Florida, a criminal conviction for abuse of an elderly person or disabled adult is considered a CIMT and will hold an alien ineligible for relief from removal proceedings based on this criminal conviction.

Under Florida laws, a person who knowingly or willingly abuse an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree. For the willful act to be considered an “abuse”, it has to be one of the following three alternative ways: (a) intentional infliction of physical or psychological injury upon an elderly person or disabled adult; (b) an intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or (3) active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.

It is very important for foreign nationals to seek the help of accredited immigration lawyers because CIMTs can affect the immigration status or application for immigration relief. Even those who were initially admitted to the US and travelled to other countries may have difficulty reentering the US because of a CIMT. Those who want to adjust status or become lawful permanent residents may likewise find it challenging if they have a CIMT especially if this happened within five years from admission. Same goes to those who want to apply as US citizens.

Different states have different penal laws as well. Thus, a CIMT in one state may not be a CIMT in another state.

Last year, we successfully represented a Filipino caregiver in her immigration case. She had been convicted of violating the California Penal Code Section 368 (c) for committing the crime of abuse of elder or dependent adult by caretaker. In that case, there was a finding that said caretaker “willfully caused and permitted his ward’s person and health to be injured and willfully caused and permitted the elder victim to be placed in a situation where his person and health have been endangered.”

 

Relief from Deportation

Although president-elect Donald Trump has softened his stance on deporting undocumented immigrants, many are still fearful of what his presidency could do especially to the young immigrants who came out of the shadows and offered their information in exchange for the protection promised by the Deferred Action on Childhood Arrivals (DACA).

Being placed under removal proceedings, otherwise known as deportation, is probably one of the hardest things any immigrant might have to experience. Thankfully, various deportation reliefs are available. Some reliefs will even offer a path to permanent residence which can ultimately lead to citizenship. Therefore, it is best to know what options are available before giving up hope.

Reliefs from deportation include asylum, cancellation of removal, adjustment of status, voluntary departure and deferred action.

Aliens who have a well-founded fear of persecution from their home country on account of their race, religion, nationality, membership in a political group or political opinion can seek asylum here in the US. They can bring their family members to the US, obtain employment authorization and may be eligible to apply for a green card one year after the grant of an asylum.

Cancellation of removal, just like an application for asylum, can also lead to a green card.

To be eligible for cancellation, the alien must prove continuous physical presence in the US of at least 10 years counted from the first physical entry into the country, legally or illegally, and ends upon the service of the notice to appear (NTA) at a removal proceedings. He must also prove his good moral character during the 10-year period and must establish that deportation would result in ‘exceptional and extremely unusual hardship” to a US citizen or a legal permanent resident spouse, parent or child.

For an alien who was admitted and inspected when he came to the US and he is the parent, spouse, widow or child of a US citizen, he may apply to adjust his status to permanent residence even before the immigration judge if removal proceedings have already begun.

Another type of relief that may be available is voluntary departure. This allows an alien who would otherwise be deported to leave the US at his own expense but within the time period ordered by the judge, which can be as long as 120 days if requested at the beginning of the proceedings.

An alien who is ordered removed may be barred from reentering the US for at least several years, but one who voluntarily departs is not subject to the penalties of removal. Voluntary departure may be requested before or at the master calendar hearing, after the individual hearing, or at the conclusion of the proceedings.

Finally, the alien can also request for a deferred action which may be granted for humanitarian reasons. It is a form of relief granted not by the judge but in the exercise of prosecutorial discretion by the district director.

The alien must demonstrate that his removal is not a priority of the government. Some of the factors to be considered include the likelihood of ultimately removing the alien; the presence of sympathetic factors; likelihood of a large amount of adverse publicity because of those sympathetic factors; the alien’s continued presence is desired by law enforcement for an ongoing investigation or review; and whether the alien is a member of a class that is  a high enforcement priority.

 

New Bipartisan Bill To Protect DREAMers from Deportation

DREAMers may have found hope against possible deportation in the coming months as a new bipartisan bill that will protect them is underway.

Called the “Bar Removal of Immigrants who Dream and Grow the Economy” or BRIDGE Act, the new bill introduced by Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Diane Feinstein (D-CA) and Lisa Murkowski (R-AK) would provide DACA-eligible individuals temporary protection from deportation. They will be placed under “provisional protected presence” similar to the one provided by the DACA or the Deferred Action Against Childhood Arrivals. They will also be granted work permits and will be allowed to continue their schooling after paying the required fees and undergoing background checks.

DACA protected the children of immigrants brought here to the US before turning 16 years old and have remained here, gone to school or worked and maintained no criminal records. But because DACA was merely an executive action, that could be repealed by President-elect Donald Trump, having a bill that would safeguard 740,000 young people from deportation is a glimmer of hope.

Although the text of the actual bill is not yet available as this will be reintroduced in January 2017, the provisional protected presence will be for three years. The proponents of the bill are hopeful that within those three years, they would have been able to pass a more comprehensive immigration reform act that would not only stop deportation for these young people but provide a path to citizenship as well.

The Bridge Act will also be made available not only to those who have already been granted DACA but also to those who will apply for the protection for the first time. It will also ensure that any information obtained by the government under DACA or the new provisional protected presence will not be used for immigration enforcement purposes, with exceptions for national security or non-immigration felony investigations.

Despite Republicans questioning DACA because this was done through executive rather than legislative action and the GOP’s immigration platform being anchored in securing the rule of law, both at the borders and at ports of entry, it is interesting to know that there are some Republican lawmakers that are just as willing to protect the young immigrants just as much as their Democrat counterparts. Aside from Senators Graham and Murkowski, Thom Tillis (R-NC) and Jeff Flake (R-AZ) also expressed their support. However Sen. Durbin wants to add people in pairs- one Republican and one Democrat.

The senator is also hopeful that more Republicans will sign on because “most of them feel it’s only fair to take care of these young people.” He is also hopeful that with Trump slowly softening his immigration stance, they would get a more favorable response. Trump recently told Time magazine that these young people “got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”

Meanwhile, the American Immigration Lawyers Association (AILA) welcomed the new bipartisan bill. William A. Stock, AILA President, said “since DACA’s inception, we’ve seen three-quarters of a million DREAMers come forward in order to have a chance to pursue higher education and careers, in the process becoming productive taxpaying members of society. Senators Graham and Durbin recognize that these young adults are a vital part of our communities and an innovative and creative force that should not be stifled.”

AILA’s Executive Director Benjamin Johnson also said that “the bill is illustrative of the widespread bipartisan support for DREAMers and for reform that recognizes the valuable contributions that they and millions other immigrants have made to this country. Keeping DACA going is not only the right thing to do, it is smart business. Studies have shown that revoking DACA for the hundreds of thousands of current grantees would cost America more than $430 billion over ten years.”

 

New Rules to Benefit Immigrant Workers

The USCIS released last November 18 a final rule aimed at improving the processes for certain employment-based immigrant and nonimmigrant visa programs for highly skilled workers. Called, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”, it goes into effect on January 17, 2017.

The new rule is intended to improve the ability of employers to hire and retain highly-skilled workers who are beneficiaries of approved immigrant visa petitions, improve the process of sponsoring nonimmigrant workers for lawful permanent resident (LPR) status and increase the ability of foreign workers to seek better employment opportunities, seek promotions, and change employers, if necessary to further their career.

The changes under the rule conform DHS regulations to existing policies and practices implementing the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The changes would benefit immigrant workers because they clarify and expand when immigrant workers may keep their priority date when applying for adjustment of status. While priority dates cannot be transferred to another alien, it can be retained by an alien for his subsequently filed EB-1, EB-2 or EB-3 petition as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This will help certain workers accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.

For certain workers with approved Form I-140 petitions in the EB-1, EB-2 or EB-3 categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business. The petition will continue to be valid for certain purposes like retention of priority dates, job portability and extension of status.

The job portability provision establishes two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, H-1B and TN classifications including their family members which may be granted to these nonimmigrants at the time of admission or upon approval of an extension of stay or change of status.

A grace period of up to 60 consecutive days is also established for those in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications whose employment has ended prior to the end of the period of validity of their petition so they may be able to find new employment opportunities or extend their nonimmigrant status.

A one-year employment authorization for beneficiaries of an approved EB-1, EB-2 or EB-3 immigrant visa petition is also available if they are currently in the US in E3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status and if an immigrant visa is not yet immediately available to them and they can show compelling reasons for the issuance. Their family members can also obtain employment authorization although this cannot be granted until the principal is granted.

Application to renew employment authorization is also allowed prior to the expiration of the initial grant as long as the alien worker can demonstrate that he continues to face compelling circumstances and he is the principal beneficiary of an approved EB-1, EB-2 or EB-3 petition and either an immigrant visa is not readily available or there is only 1 year or less difference between his priority date and the Final Action Date listed in the visa bulletin for his category and country of chargeability. This eligibility also extends to family members but cannot be granted until the principal is granted.

The new rule also clarifies some policies and procedures pertaining to the H-1B program such as providing H-1B status, beyond the six-year period of admission, determining cap extension, H-1B probability and license requirements.

 

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