OC Immigration Attorney

One of our Los Angeles clients’ had his I-751 approved and the conditions removed from his permanent resident status. We filed his I-751 in May 2010 after his previous attorney failed to file on time. When we were hired, our client was already in immigration court in Los Angeles and he was trying to avoid deportation.

We advised the judge that we would be filing the I-751 late, but that the untimeliness did not make my client ineligible for retaining his permanent resident status. We filed the I-751 arguing that although my client was divorced from his ex-wife (a US citizen), their marriage was entered into in good faith. We provided hundreds of pages of documents evidencing the bona fides of their marriage including written statements from friends, bills, apartment leases and even a written statement from the ex-wife explaining why she believed the marriage did not last.

In December 2010, we received a Request for Evidence asking for further documentation. We provided that as well. Then we waited. In 2011, we were interviewed by a USCIS officer in Los Angeles. The interview went well, but the officer was not willing to approve the case on the spot. She said she needed more time to review the case. Since then, I have followed up with USCIS every few months, often driving to Los Angeles to speak with an infopass officer in person about the status. Additionally, my client and I have attended immigration court hearings every few months for status reports to the judge.

Finally, after three years of waiting, we just found out that my client’s case was approved and he received his green card. He will be eligible for naturalization immediately because he as been a permanent resident for over five years. Our next court hearing is in early June, and we intend to inform the court that the I-751 was approved and the case should be terminated.

If you are in removal proceedings or filing an I-751, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you.

At the moment, a bipartisan group of senators is working through its fifth full day of “markup” on the immigration reform bill. As Yahoo News reports, they plan to address some of the more controversial elements of the bill, from including the number of visas for high-skilled immigrants, to the question of whether to allow people in same-sex marriages to apply for green cards for their spouses.

All of this, of course, has been lost in the obsession over scandals — both real and imagined. What’s also been lost is the extent to which the ongoing fight over immigration reform is dividing the Republican Party between its more pragmatic, pro-reform members — conservatives like Marco Rubio or Arizona’s Jeff Flake — and it’s more doctrinaire, anti-reform ones, like Alabama Senator Jeff Sessions. So far, the fight has favored the former. Conservative proponents of comprehensive immigration reform have the largest platform — on account of their role in crafting the Senate bill — and recently scored a victory after the Heritage Foundation fell on its face following the release of its study on the “costs” of reform, which was widely-panned, as well as connected to racist ideas about the intelligence of Hispanic immigrants.

But anti-immigration conservatives haven’t given up the fight. This morning, a coalition of 150 conservatives — which includes Rich Lowry of the National Review, Phyllis Schlafly of Eagle Forum, Redstate.com editor Eric Erickson, and former Florida Representative Alan West — issued a letter declaring their absolute opposition to the comprehensive immigration bill, and urging Senate Republicans to scrap the entire project.

A bipartisan group of senators begins a fifth full day of debating changes to the immigration reform bill Tuesday. So far, the so-called mark-up process has left the sweeping overhaul of the nation’s immigration laws—which would legalize most of the country’s 11 million undocumented immigrants—largely untouched.

On Tuesday, the senators will address some of the final controversial changes to the bill, including increasing the number of visas for the high tech industry and whether to allow people in same-sex marriages to apply for green cards for their spouses. A final vote is expected by the end of the week.

Republicans are outnumbered on the 18-member Senate Judiciary Committee, and two of them—Sens. Jeff Flake and Lindsey Graham—helped draft the original bipartisan bill in the first place. Nonetheless, Republican senators have been able to push through a few amendments that they say will strengthen the enforcement portion of the bill.

On Monday, Sen. Orrin Hatch, R-Utah, introduced an amendment that would require officials at 30 major airports to take the fingerprints of departing foreign visitors as a way to better keep track of which people on temporary visas had left the country when they were supposed to. Graham, meanwhile, passed an amendment that would prevent people applying for asylum from returning to their home countries to visit unless they showed there was good cause to do so. Sen. Chuck Grassley, R-Iowa, also passed an amendment that would bar unauthorized immigrants with three drunken driving convictions from legalizing.

In November 2012, I attended an interview in the San Diego office of USCIS with my client from Oceanside. She is originally from Great Britain and married a US Citizen, who was also an active duty Marine. The couple had a young child. My client initially entered the United States under the visa waiver program in the 1990s. She overstayed and remained in the US without authorization for over a decade.

Standard USCIS policy is that visa waiver overstays are eligible to adjust status like any other legal entrants to the United States. However, the San Diego office takes a different approach – the San Diego office posits that visa waiver overstays are not eligible to adjust status. Further, because visa waiver entrants forego their right to a removal trial as a condition of being admitted on the visa waiver program, they cannot argue to an immigration judge that they should be admitted as lawful permanent residents.

In the present case, we filed for adjustment of status in San Diego despite the visa waiver entry. We intended to argue that our client’s husband was an active duty Marine and she should be considered for military parole in place as a result. Military parole in place allows the spouses of active duty service members to adjust status despite illegal entry into the United States. The policy is meant to benefit service members who risk their lives for the United States.

At the interview in November, everything went well. The officer seemed sympathetic to our case and even remarked that he was in the Marines and worked on the same vessel that my client’s husband works on. He told us that he needed to get his supervisors approval for visa waiver entrant cases, but he did not think that would be a problem. A few weeks later, we received an approval notice for the I-130 visa petition, but nothing regarding the I-485 application to adjust status.

Shortly after the holidays, we received a denial of the I-485. We immediately prepared an appeal. Additionally, we filed a motion to reopen and sent a letter to the USCIS director in charge of San Diego pointing out that even if my client entered the US illegally she would remain eligible to adjust status under military parole in place. For several months, we did not hear anything. My client was nervous that she might be forced to return to Great Britain and separate from her husband and child. She was terrified at the prospect.

Just a few days ago we received the approval notice stating that the case was reopened, the denial was reversed and my client would receive her green card. The client was thrilled and relieved. She knows she can stay in the United States with her family indefinitely. If you are considering the marriage based green card process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and any issues that might arise.

I attended a removal hearing for one of our clients from Aliso Viejo. The client entered the United States on an F-1 visa, and he and his family changed status to E-2 treaty investor visa. In late 2012, USCIS issued a notice to appear in immigration court in Los Angeles. The notice to appear alleged that my client had fallen out of status and remained in the United States without authorization. United States Immigration and Customs Enforcement wanted to deport him back to the Philippines.

If an individual remains in the US after their lawful immigration status has expired, they are eligible for removal. In this case, my client was approved for an extension of his E-2 status early this year. We made sure that he never fell out of status; however, ICE was unaware of the renewed E-2 status.

At the hearing, I notified the government attorney and immigration judge that my client was still in valid E-2 status. I provided approval notices showing that his renewed E-2 status would not expire until 2015. Additionally, I advised the court that my client was married to a US citizen and intended to adjust his status to lawful permanent resident status. I moved to terminate the removal proceedings and the government attorney did not object. Immigration judge Lattimore agreed and terminated the deportation case.

If you are in deportation proceedings in Los Angeles or San Diego, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you during a confidential consultation to help you better understand your options and how we might help.

We just received an approval notice for a joint I-751 petition for our clients in Irvine. The case was approved without an interview.

Unlike the marriage-based green card process which requires an interview with an USCIS officer, the interview in the I-751 process is discretionary. If the USCIS officer is satisfied that enough evidence exists to prove good faith marriage, the officer can approve the case without an interview. In years past it seemed that USCIS would call for an interview in most cases, but I’ve noticed recently that USCIS has been approving our cases without interviews.

In this case, we included a great deal of evidence to show that the couple was living together and conducting themselves as a married couple. We represented the couple with the initial green card application, so we were familiar with their family history. We included over 150 pages of evidence with our packet. The client was excited to hear the news. He was happy that he would not have to attend an interview, because, although his marriage is legitimate and was entered into in good faith, any interview with USCIS is bound to cause stress even if the couple has nothing to hide.

If you are preparing to file the I-751 joint petition with USCIS, contact The Nunez Firm to schedule a consultation. We help countless couples each year with the I-751 process, many of whom we represented in the I-485 process and wanted us to represent them again.

We just received approvals for a husband and wife from Santa Ana. The couple last entered the United States in 1995 and have lived here ever since. In early 2001, the husband’s employer filed a labor certification application for him before the sunset date of April 30, 2001. This made him eligible for INA 245i. The couple’s eldest daughter was born in the United States, and, after she turned 21 years old, the couple approached me about adjusting their status based on being the parent of a US citizen daughter.

We filed the I-130 visa petitions with the daughter as the petitioner and the parents as the beneficiaries. Along with the visa petition we filed the I-485 applications and all the other necessary forms. The interview as originally scheduled on a day that I was in court in Los Angeles, so we rescheduled for a later date.

The only issue that seemed potentially problematic was that the husband was in the United States prior to 1995. He was caught by INS and forced to return to Mexico. He was worried that this would count as a prior deportation which might complicate his case. I explained to the officer that the prior visit to the United States and my client’s subsequent return to Mexico was not a removal or deportation because my client never saw an immigration judge. Prior to IRRIRA, legacy INS did not have the expeditious removal authority it has today. Before IRRIRA, an alien could only be removed if he was ordered deported by an immigration judge. The unlawful presence bars of INA 212(a)(9) did not take effect until April 1, 1997.

In Matter of Rodarte, the BIA held that Congress did not intend for section 301(b) of IRRIRA to apply retroactively. A Department of Homeland Security Memo stated that INA 212(a)(9)(C) does not apply to re-entries that pre-date April 1997.

In the interview the issue did not even come up and the interview went smoothly. The client was very happy to become a lawful permanent resident after over 15 years of waiting. He and his wife were excited and plan to pursue naturalization in five years when they become eligible.

If you are considering the green card process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you.

In 1986, lawmakers decided the problem of illegal immigration had to be dealt with. More than 3 million people were living in the United States after crossing the border illegally or overstaying their visas.

A new law signed by President Ronald Reagan gave legal status and a path to citizenship to most of those unauthorized residents — helping many secure a slice of the American dream but also giving fuel to critics who sought to turn “amnesty” into a pejorative.

Less than 30 years later, the number of immigrants living in the country illegally is thought to have nearly quadrupled, and the freighted baggage of amnesty looms over new efforts to reform the nation’s immigration laws.

With four times as many people potentially eligible, today’s mass legalization would occur on a much larger scale. The specifics of the current proposal are different, the global economy is different, and the immigrants themselves are different, hailing from South Korea as well as Mexico and fanning out from traditional enclaves like Los Angeles to populate small towns across America.

Still, the reams of post-1986 studies offer an indication of what might happen if millions of immigrants receive legal status. And there is broad agreement on one thing: The flow of illegal immigration must somehow be stanched, so there is never a need for an amnesty again. In that respect, 1986 was an utter failure.

With the Gang of Eight’s immigration measure coming under the legislative magnifying glass this week, senators on a key committee are sharpening their red pencils in preparation to edit the 844-page bill.

The 18 members of the Senate Judiciary Committee have proposed 300 amendments to the legislation, ranging from protections for gay couples, to border-security fixes, to efforts to dismantle the bill’s central goal of creating a path to citizenship for undocumented immigrants.

Friends and foes of the reform effort will push their proposals starting Thursday, when the committee begins marking up the legislation. While observers do not expect that the bill will undergo dramatic changes in the committee process — with bipartisan proponents of reform on the panel likely to stick together to resist substantial changes to their core legislation –  the high-profile debate is sure to elevate the often-dull “markup” process to must-see TV for anyone with a dog in the immigration fight.

While Republicans proposed the lion’s share of the changes — 194 in total from the GOP side — some Democratic amendments will be controversial as well.

As expected, Democratic Sen. Patrick Leahy, the panel’s chairman, proposed changes that would make the foreign-born same-sex partners of U.S. citizens eligible to apply for green cards. Many Republicans — including key Gang of Eight author Sen. Marco Rubio — have resisted the change, which some suggest would torpedo the entire bill by angering religious organizations and other social conservatives who have otherwise expressed support for the reform legislation.

RUIZ-VIDAL v. Gonzales

Issue Presented

Whether the Department of Homeland Security has met its burden of proving that the petitioner is removable from the United States as an alien convicted of a law relating to a controlled substance?

Facts

Jose Ruiz-Vidal is a 49 year-old Mexican national who legally immigrated to the United States in August 1976. On October 26, 1998, Ruiz-Vidal pleaded nolo contendere in California Superior Court to one count of criminal possession of methamphetamine, in violation of Cal. Health & Safety Code § 11377(a) (the “1998 conviction”). Thereafter, the government sought to have Ruiz-Vidal removed from the United States on the basis of this conviction.

On February 10, 2003, Ruiz-Vidal was charged in California Superior Court with one count of violating Cal. Health & Safety Code § 11378 (possession of a controlled substance for purpose of sale) and one count of violating Cal. Health & Safety Code § 11379(a) (transportation of a controlled substance).

The Department of Homeland Security (“DHS”) commenced removal proceedings against Ruiz-Vidal on December 16, 2003 with the issuance of a Notice to Appear, alleging that he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). That section renders removable an alien convicted of an aggravated felony as defined in 8 U.S.C.§ 1101(a)(43)(B), an offense relating to the illicit trafficking in a controlled substance, as described in Section 102 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 802.

On March 11, 2004. The IJ determined that the convictions involved methamphetamine. Accordingly, the IJ ordered that Ruiz-Vidal be removed to Mexico.

Ruiz-Vidal appealed the decision of the IJ to the Board of Immigration Appeals (“BIA” or “Board”). On July 22, 2004, the BIA affirmed without opinion the IJ’s order that Ruiz-Vidal be removed from the United States to Mexico. Thereafter, Ruiz-Vidal filed a “Motion to Reconsider” with the BIA. Ruiz-Vidal filed a timely petition for review to this court.

Rule

The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true. [The underlying controlled substance (conviction) under Cal. Health & Safety Code § 11377(a)]

Analysis

The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true.” Gameros-Hernandez v. INS, 883
F.2d 839, 841 (9th Cir. 1989). In this case, Ruiz-Vidal was charged with removability on the basis of his conviction of a controlled substance offense. 8 U.S.C. § 1227(a)(2)(B)(i).

The plain language of the statute requires the government to prove that the substance underlying an alien’s state law conviction for possession is one that is covered by Section
102 of the CSA.

Thus, in order to prove removability, the court considered whether Ruiz-Vidal’s 2003 conviction may serve as the predicate offense for his removal as an alien convicted of a law relating to a controlled substance? The court quickly answered no because Ruiz-Vidal previously was found removable on the basis of the conviction, but was granted cancellation of removal. 8 U.S.C. § 1229b. Thus, the government may not use the conviction again as a predicate removal offense.

Next, the court looked at the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime?

In undertaking an analysis of the record of conviction, the court “may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime.” United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002). In reviewing the administrative record in this case, the court looked to the only two documents relating to Ruiz-Vidal’s 2003 conviction. The first, charged Ruiz-Vidal with two crimes: (1) a violation of Cal. Health & Safety Code § 11378 (possession for purpose of sale); and (2) a violation of Cal. Health & Safety Code § 11379(a) (unlawful transportation). In both counts, the charging document lists the controlled substance underlying the conviction as methamphetamine. The other document in the record is an abstract of judgment which states that Ruiz-Vidal pleaded nolo contendere to a single charge of violating Cal. Health & Safety Code § 11377(a). The crime is described as “Possess Controlled Substance.”

The court concluded that there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code § 11377(a) by relying on an analogous case; Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005). In Martinez-Perez, only three documents were before the court: (1) an information charging the defendant with second-degree robbery in violation of § 211 of the California Penal Code; (2) a minute order memorializing a probation violation hearing; and (3) an abstract of judgment documenting the defendant’s plea to a violation of § 487(c) of the California Penal Code. Id. at 1028-29. The court held that based upon those documents, it was not possible to determine whether the defendant had pleaded guilty to all elements of a theft offense, as generically defined. The court reasoned that because the defendant had pleaded guilty to an offense different from the one charged in the information, “the information . . . is not the sort of ‘generically limited charging document’ indicating that the plea necessarily rested on the fact identifying the burglary as a generic theft offense.”

Here, similar to Martinez-Perez, Ruiz-Vidal did not plead guilty to an offense that was charged in the information. Here also, the administrative record contains no plea agreement, plea colloquy, or any other document that would reveal the factual basis for Ruiz-Vidal’s 2003 conviction. Applying Martinez-Perez, the court concluded “there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code§ 11377(a).”

Thus, the court was only left only to speculate as to the nature of the substance. Stating that “speculation is not enough, the court, therefore, conclude that DHS has failed to establish unequivocally that the particular substance which Ruiz-Vidal was convicted of possessing in 2003 is a controlled substance as defined in section 102 of the Controlled Substances Act.

Holding

Department of Homeland Security failed to establish unequivocally that the particular substance, which Ruiz-Vidal was convicted of possessing in 2003, is a controlled substance as defined in section 102 of the Controlled Substances Act.

Conclusion

Thus, because the judicially noticeable documents in this case fail to support the BIA’s determination that Ruiz-Vidal is removable as an alien convicted of a law related to a controlled substances offense, the court reversed the order of removal.