OC Immigration Attorney

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.

In re Ignacio CAMPOS-TORRES, Respondent

Issue Presented

The issue in this case is whether, under the rule stated in section 240A(d)(1) of the Act, an offense that is not “referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), will stop the further accrual of continuous residence in the United States, which is required to establish eligibility for cancellation of removal.

FACTS

The respondent, a native and citizen of Mexico, was admitted to the United States as a temporary resident on May 4, 1988, and adjusted his status to that of a lawful permanent resident on December 13, 1990. It is uncontested that on September 23, 1993, the respondent was convicted in the Circuit Court of Cook County, Illinois, of a single offense of unlawful use of a weapon, in violation of chapter 38, section 24-1(a)(7) of the Illinois Compiled Statutes Annotated. The respondent was sentenced to 18 months’ probation. On June 25, 1997, the Immigration and Naturalization Service issued and served a Notice to Appear (Form I-862), commencing these removal proceedings and charging the respondent with removability under section 237(a)(2)(C) of the Act.

Rule

A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

Analysis

The plain language of section 240A(d)(1) states that, as a prerequisite, an offense must be “referred to in section 212(a)(2)” of the Act in order to stop accrual of time. The phrase “referred to in section 212(a)(2),” the court stated, “could not be more clear, and we will apply its plain meaning.” The court reasoned that they are unaware of any legislative history that would overcome the strong presumption that these words mean what they say. The court would not interpret the statue the way the Service wanted, which was any offense in sections 212(a)(2), 237(a)(2), or 237(a)(4) would operate to cut off time. Furthermore, the court reasoned that its task “is not to improve on the statute or to question the wisdom of it, but rather to interpret the language that was enacted as law.”

Another important rule of statutory construction the court used to determine the issue was the “plain meaning” of the statute. Thus, in construing the language of section 240A(d)(1) of the Act, the court must also consider the language in section 240A as a whole. The court further noted that Congress referred to grounds of inadmissibility and deportability several times throughout section 240A of the Act. For instance, section 240A(b)(1)(C) refers to sections 212(a)(2), 237(a)(2), and 237(a)(3) of the Act, stating that nonpermanent residents who have been convicted of an offense under any of these provisions are ineligible for cancellation of removal. Similarly, in delineating special rules of eligibility for battered spouses or children, section 240A(b)(2)(D) specifically states that these rules apply only to aliens who are not inadmissible under sections 212(a)(2) or (3), or deportable under section 237(a)(1)(G) or sections 237(a)(2), (3), or (4) of the Act. Thus, under sections 240A(b)(2)(D) and 240A(c)(4), any alien who is deportable under section 237(a)(4) of the Act is categorically barred from a grant of cancellation of removal. Consequently, the inclusion of this ground of deportability within section 240A(d)(1) is merely an additional reference.

Simply put, the court said, “ it would be irrelevant whether a charge of deportability under section 237(a)(4) terminates an alien’s period of continuous residence or physical presence because deportability under that charge automatically renders an alien statutorily ineligible for cancellation of removal pursuant to sections 240A(b)(2)(D) or (c)(4) of the Act.” Thus, ignoring the duplicative reference to section 237(a)(4) in section 240A(d)(1) has no impact on section 240A as a whole, because the presence or absence of that language in section 240A(d)(1) has no effect on eligibility for cancellation of removal.

Holding

Accordingly, the court found that because the respondent’s firearms offense, which rendered him deportable under section 237(a)(2)(C) of the Act, is not referred to in section 212(a)(2) of the Act, it did not “stop time” under section 240A(d)(1).

The respondent’s period of continuous residence began when he was admitted as a temporary resident on May 4, 1988.  Therefore, the respondent has satisfied the continuous residence requirement of section 240A(a)(2).

Conclusion

The court sustained the respondent’s appeal and remand the record to the Immigration Judge for a hearing on the merits of the respondent’s application for cancellation of removal.

In re Greg Fabian AZURIN, Respondent

Issue Presented

Whether an alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c)?

Facts

The respondent was convicted on March 12, 1990, of shooting at an occupied motor vehicle in violation of California law. On the basis of this conviction, he was charged in 1998 with removability as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §1227(a)(2)(A)(iii) (Supp. IV 1998). Subsequently, a charge was lodged that he was also removable under section 237(a)(2)(C) because his conviction was for a firearms offense as well. Neither of these grounds of removability has a corresponding ground of inadmissibility. The respondent is the beneficiary of an approved visa petition filed by his United States citizen spouse. In his decision, the Immigration Judge implied that the respondent was ineligible for a waiver under former section 212(c) of the Act because his conviction was for an offense that rendered him removable on grounds that lacked a comparable ground of inadmissibility.

Rule

An alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c) relief. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993)

Analysis

A conviction for an offense that rendered the alien deportable did not preclude a showing of admissibility for purposes of an application for adjustment of status where there was no corresponding ground of inadmissibility for the crime in the statute. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992), Therefore, the court concluded that respondent does not need section 212(c) relief to waive either the firearms or aggravated felony charges in order to adjust his status. Nevertheless, because section 212(c) requires a waiver in conjunction with the adjustment application, respondent would need to seek a waiver as his offense also constitutes a crime involving moral turpitude, which would render him inadmissible.

Note: As an initial matter the court ruled that because SCOTUS in  INS v. St. Cyr, 533 U.S. 289 (2001),  determined that restrictions on the availability of section 212(c) relief do not apply retroactively to aliens who pled guilty prior to the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996, and because the respondent pled guilty and was convicted prior to the enactment of that statute, the respondent is not ineligible for a waiver as a result of the AEDPA amendments.

Furthermore, the court held that respondent is ineligible for section 212(c) relief on the basis of the newly promulgated regulations addressing such relief. See: Executive Office for Immigration Review; Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57,826 (Sept. 28, 2004) (codified at 8 C.F.R. § 1212.3) (effective Oct. 28, 2004). The purpose of the new regulation, the court stated, “appears simply to be to codify the holdings in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (A.G. 1991; BIA 1990), and Matter of Granados, 16 I&N Dec. 726 (BIA 1979).

Section 212(c) relief is not available to waive a ground of deportability or removability that has no analogous ground of inadmissibility in section 212(a) of the Act. Matter of Gabryelsky, 20 I&N Dec. 750, 753-54 (BIA 1993). Thus, Matter of Gabryelsky is entirely consistent with the case law underpinning the new regulation.

Consequently, the court held that the new regulation does not make the respondent ineligible for section 212(c) relief to the extent that he seeks a waiver, in conjunction with an application for adjustment of status, for an offense that would render him inadmissible under section 212(a).

Lastly, the court rejected the Immigration Judge’s suggestion that as a result of other regulatory changes, the respondent can no longer rely on Matter of Gabryelsky, in applying for adjustment of status in conjunction with a waiver of inadmissibility under former section 212(c) of the Act because the regulatory change(s) does not preclude the respondent from combining the section 212(c) waiver with an adjustment application. The court stated the “regulation clearly indicates that the various waivers of inadmissibility are intended to accompany an adjustment application.”

Accordingly, the court held that Matter of Gabryelsky, had not been overruled as a result of the alteration of 8 C.F.R. § 245.1(f), and reaffirm its decision in that case.

Holding

The court held that the new regulation does not make the respondent ineligible for section 212(c) relief to the extent that he seeks a waiver, in conjunction with an application for adjustment of status, for an offense that would render him inadmissible under section 212(a).

Conclusion

The respondent is permitted to submit his section 212(c) waiver request with his application for adjustment of status.

In re Jose Abraham DEANDA-ROMO, Respondent

Issue Presented

The issue in this case is whether an alien who has committed two crimes involving moral turpitude is precluded by the provisions of section 240A(d)(1)(B) of the Act from establishing the requisite 7 years of continuous residence for cancellation of removal under section 240A(a)(2), where his first crime was a petty offense that was committed within the 7-year period and the second crime was committed more than 7 years after the alien’s admission to the United States.

 Facts

The respondent is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on January 8, 1992, and he remained in that status since that time. On September 21, 1999, he was convicted in Texas of two misdemeanor offenses of assault with bodily injury to his spouse, one occurring on October 30, 1998, and the other on June 20, 1999. His sentence for the first offense ultimately included a fine and 180 days in prison, which was suspended to 2 years of probation on the condition that he serves 30 days in jail.

The sentence for the second offense was similar except that a term of 300 days in prison was suspended. At his hearing, the respondent conceded removability and applied for cancellation of removal for lawful permanent residents under section 240A(a) of the Act. The Immigration Judge pretermitted the respondent’s application, finding that he was ineligible for relief under the “stop-time” provisions of section 240A(d)(1) because his first crime occurred within 7 years of his admission. In reaching that conclusion, the Immigration Judge rejected the respondent’s argument that he should not be precluded from establishing the requisite 7 years of continuous residence on the basis of his first crime because it was a “petty offense” under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2000), and therefore did not render him  inadmissible.

Rule

A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

  Analysis

 An alien who has committed only one crime involving moral turpitude that qualifies as a petty offense is not subject to the grounds of inadmissibility under section 212(a)(2) of the Act. However, if the alien commits another crime involving moral turpitude, he is thereafter ineligible for the “petty offense” exception and becomes inadmissible on the basis of his criminal activity. Therefore, when the respondent committed his second crime in June 1999, he was subject to inadmissibility under the provisions of section 212(a)(2) because he was no longer eligible for the “petty offense” exception. The question before the court was therefore, whether the respondent can establish that he has accrued the 7 years of continuous residence required for cancellation of removal under section 240A(a)(2) of the Act?

Section 240A(d)(1) states that an alien’s continuous residence is “deemed to end” when he has committed an offense that “renders [him] inadmissible to the United States under section 212(a)(2).” In this case, the respondent was not inadmissible on the basis of his first crime because of the “petty offense” exception, and his continuous residence was only deemed to end when he committed his second crime in June 1999. However, by the time he committed that offense, which only at that point rendered him inadmissible, he had already accrued the necessary 7 years of continuous residence. Therefore, the court held that the subsequent commission of a crime involving moral turpitude had no effect on respondent’s admissibility during the 7-year period during which he was required to establish continuous residence. Therefore, the court concluded that the respondent is not ineligible to apply for cancellation of removal under section 240A(a) by virtue of his convictions.

Holding

The respondent, who was convicted of two misdemeanor crimes involving moral turpitude, is not precluded by the provisions of section 240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), from establishing the requisite 7 years of continuous Residence for cancellation of removal under section 240A(a)(2), because his first crime, which qualifies as a petty offense, did not render him inadmissible, and he had accrued the requisite 7 years of continuous residence before the second offense was committed.

 Conclusion

The court concluded that the respondent is not ineligible to apply for cancellation of removal under section 240A(a) by virtue of his convictions.

The new processing times report for the California Service Center was released recently.

See Link.

Earlier today the House of Representatives passed, with broad bipartisan support, Senate bill 47, the Violence Against Women Reauthorization Act. First, the House had to vote down the bad House substitute bill, which they did on a vote of 257 ayes to 166 nays before moving onto the original Senate bill.

The bipartisan nature of support for the Senate version of the bill, which includes important protections for immigrants that the House bill lacked, may be a good sign for any potential upcoming votes on immigration reform. Buzzfeed reports that “in a House led by a Republican conference at odds with itself, which includes a sizable ideologically motivated bloc inclined to oppose almost any major legislation, this dynamic might be the new normal.” That still remains to be seen, but today we saw an important step forward in protecting all victims of violence.

FACTUAL AND PROCEDURAL BACKGROUND

Manuel Oliveira was a permanent resident alien who was ordered removed to Portugal after his 1998 conviction in California state court for possession of methamphetamine. Oliveira is a native and citizen of Portugal who was admitted to the United States in 1966, at age eleven, as a lawful permanent resident alien. Both of his children are United States citizens, and his parents and siblings are either United States citizens or permanent resident aliens.

In August 1994, Oliveira pled guilty in Wyoming state court to three misdemeanors: driving with a suspended license, carrying a concealed weapon, and possession of marijuana.

In May 1998, Oliveira pleaded guilty to possession of a controlled substance, methamphetamine, in violation of California Health and Safety Code § 11377(a). The statute provided that offenders “shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison.” Cal. Health & Safety Code § 11377(a) (1998). The court sentenced Oliveira to four months in the county jail and three years’ probation.

After Oliveira had finished serving his jail sentence, the Immigration and Naturalization Service (“INS”) placed him in a detention facility in Eloy, Arizona, and initiated removal proceedings against him.

Oliveira then filed a habeas petition. The district court denied Oliveira’s habeas petition because under our cases interpreting the federal sentencing guidelines, an offense is an aggravated felony if it (1) is prohibited under the federal Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904, and (2) is punishable by more than one year of imprisonment under federal or state law. The court found that possession of methamphetamine is prohibited under 21 U.S.C. § 844(a), and that under California law the crime is punishable by more than one year’s imprisonment. The district court therefore concluded that Oliveira’s 1998 conviction for possession of methamphetamine was an aggravated felony.

Issue

The issue on appeal was whether the district court erred in concluding that a violation of California Health and Safety Code § 11377 is an aggravated felony.

Rule

A state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of “drug trafficking crime,” or is a crime involving a trafficking element.

Holding

1) Manuel Oliveira’s California conviction for methamphetamine possession would not be punishable as felony under Controlled Substances Act (CSA);
2) such conviction did not contain trafficking element; and
3) even if such conviction would be punishable as felony under CSA or had trafficking element, it still would not be aggravated felony, since it was for “wobbler” offense and Mr. Oliveira was sentenced to county jail.

Reasoning

In the criminal sentencing context, the court held that a drug offense is an aggravated felony if it (1) is punishable under the CSA, and (2) is a felony. To determine whether an offense is a felony, the court examines whether the crime is punishable by more than one year imprisonment under applicable federal or state law. Id. at 903-04. A state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of “drug trafficking crime,” or is a crime involving a trafficking element.

In determining whether Oliveira’s 1998 state drug offense is an aggravated felony, therefore, the court asked whether Oliveira’s conviction for possession of a controlled substance would be punishable as a felony under the CSA. A violation of California Health and Safety Code § 11377 would not be a felony because under the CSA, the maximum penalty for possession of a generic controlled substance is one year. 21 U.S.C. § 844(a).  And, because Mr. Oliveira’s 1998 drug offense carried a maximum penalty of one year, it could not be considered a felony.
Next, the court determined that Mr. Oliveira’s conviction for possession of a controlled substance did not contain a trafficking element. See Cal. Health & Safety Code § 11377. Thus, the district court erred in holding that Oliveira had committed an aggravated felony.

The court also noted that even if “we were to consider whether a violation of § 11377 is punishable by more than one year’s imprisonment under California law,” Oliveira’s 1998 conviction would still not constitute an aggravated felony because the statute provides that offenders “shall be punished by imprisonment in a county jail or state prison,” the California Penal Code provides that “[w]hen a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes,” if a state prison term is not imposed. Cal.Penal Code § 17(b)(1). See also: Cal. Health & Safety Code § 11377(a). Thus, § 11377 is a “wobbler” offense that the court may sentence as a misdemeanor. Once the state court sentenced Oliveira to a county jail term rather than a term in the state prison, the offense automatically converted from a felony into a misdemeanor for all purposes.

CONCLUSION

Oliveira’s 1998 conviction does not constitute an aggravated felony under federal law, and he was therefore eligible for cancellation of removal under 8 U.S.C. § 1229b(a). Although Oliveira has already been removed to Portugal, he was never allowed the opportunity to apply for cancellation of removal, an opportunity he would have had had he not been erroneously classified as an aggravated felon. Therefore, we remand to the district court with instructions to grant Oliveira’s petition for a writ of habeas corpus directing that the BIA consider on the merits his application for cancellation of removal, which, if successful, will enable him to return to the United States.

Senators Leahy (D-VT), Coons (D-DE), Blumenthal (D-CT) and Hirono (D-HI) wrote a “Dear Colleague Letter” calling for reforms to immigration enforcement laws that are grounded in civil and human rights, and that ensure due process, equal treatment and fairness. The letter states that the US spends $18 billion annually on immigration enforcement.

The four Senators call for the following changes to immigration enforcement laws and principles:

1. To the greatest extent possible, the US should strive for a process that includes a fair hearing before a judge, a bond hearing, federal court review, and access to counsel.

2. Provides for humane treatment for detainees and ensures that no one is deprived of liberty except as a last resort.

3. Reduces the impact of enforcement on children and families.

4. Clarifies that immigration enforcement is a federal responsibility and that it should be administered uniformly across the country.

5. Explicitly rejects discrimination and racial profiling.

6. Ensures that all agencies charged with enforcement operate with accountability and transparency.

Starting Friday, Feb. 1, those who receive an immigrant visa package from a U.S. consulate or embassy abroad will be required to pay a new $165 immigrant fee.

According to USCIS, the fee is necessary to cover the costs of producing and delivering permanent resident cards.

Important Points to Remember:

• Starting on Feb. 1, 2013, applicants must pay both the Department of State (DOS) application fee and the USCIS Immigrant Fee.
• To simplify and centralize the collection of this new fee, we will require immigrants to pay online through the USCIS website.
• Applicants must submit their payment online after they receive their visa package from DOS and before they depart for the United States.

Children who enter the United States under the Orphan or Hague adoption programs, Iraqi and Afghan special immigrants, returning residents (SB-1s), and those issued K visas  are the only immigrant visa cases exempt from paying the new fee.

If you are considering the green card process, either through adjustment of status or consular processing, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand the immigration system and the options available to you.