Deferred Action for Childhood Arrivals Approved for Hacienda Heights Client

April 4th, 2013 No comments
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We just received an approval notice for the I-821d and I-765 of a DACA client from Hacienda Heights. We filed the case in late November 2012 and USCIS approved it after four months. USCIS was satisfied that we met all the requirements for Deferred Action and did not issue a Request for Evidence. We provided evidence that the client entered the United States before his sixteenth birthday and was under the age of 31 on June 15, 2012. Further, we provided evidence that he has lived in the US for the last five years without breaking his residency. He has never been in trouble with the law. We provided school records to show he is currently in school. We provided high school transcripts to show that he was physically present in the US on June 15, 2012.

The client was excited to hear the good news. He plans to start looking for a job as soon as school ends in a couple months. If you are considering the DACA process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to answer your questions and help you better understand the process.

New Processing Time Report for California Service Center of USCIS

April 3rd, 2013 No comments
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The new processing times report for the California Service Center was released recently.

See Link.

VAWA Approved for Victim of Domestic Violence in Westminster

April 1st, 2013 No comments
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We recently received an approval notice for the Form I-360 for an Orange County client living in Westminster. We filed the case one year ago with the Vermont Service Center of USCIS. In order to be approved under the Violence Against Women Act (“VAWA”), the self-petitioner must show that 1) she entered into a good faith marriage to a US citizen or lawful permanent resident; 2) she resided with the spouse in the US; 3) she is of good moral character; and 4) she has been battered by or subjected to extreme cruelty by the spouse during marriage.

In this case, our client married her US citizen husband over a decade ago. The couple had two children together and we provided USCIS with the children’s birth certificates. We provided joint tax returns and joint bank account statements to proved shared residence. We sent the results of a criminal background check to USCIS to show that our client had good moral character and no criminal convictions or arrests. We provided arrest reports for the husband showing he was arrested by the police for attacking his wife. We provided conviction documents to show that he was convicted of domestic violence battery as well.

We believed from the very start that this was a strong VAWA case. We had our client draft a written statement describing how she met her husband, started dating and got married. We asked her to describe the violence and when it began. We helped her develop the written statement by telling her what to focus on and helping her draw out the details that USCIS would find relevant. As always, the drafting of the written statement is an ongoing and cooperative process that can be emotionally intense for the client. She is asked to recall memories and incidents she would likely want to leave in the past. Our client did a great job, and the case was approved without the issuance of a Request for Evidence.

The client was very happy when she learned of the approval. Now, we will wait for USCIS to process the I-485 application to adjust status to permanent resident. If you are the victim of domestic violence and would like to better understand the immigration options available to you, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you confidentially and help you understand the process.

Deferred Action for Childhood Arrivals I-821D Approved for Dana Point Client

March 27th, 2013 No comments
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We just received an approval notice for DACA for one of our Orange County clients living in Dana Point. In order to obtain deferred action through DACA, which was announced on June 15, 2012, the applicant must meet several requirements. She must have arrived in the US before the age of sixteen. She must have resided in the US continuously for the five years preceding June 15, 2012.  She must have been present in the US on June 15, 2012. She must be in school currently or graduated high school or obtained the GED. She must be under the age of 31 years old. She cannot have a significant criminal record.

In this case, our client entered the US legally when she was four years old. We provided the I-94 to prove entry. Additionally, we provided school records and other evidence to show that she has lived in the US since that time. We provided a California Department of Justice report showing no convictions whatsoever.

We filed the case in October, and, five months later, USCIS sent the approval notice. From our experience, most DACA cases are being adjudicated within 3-5 months. The client was very happy to finally have work authorization. She plans to obtain her driver’s license and find a job as soon as possible. If you are considering the Deferred Action process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you on a confidential basis and help you better understand the process.

 

DACA Approved for Client in Orange County

March 25th, 2013 No comments
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We recently received an approval notice for Deferred Action for Childhood Arrivals for one of our Anaheim clients. She first entered the US when she was eight years old. We provided junior high and high school transcripts to prove that she arrived in the US prior to her sixteenth birthday.

Additionally, we provided evidence that she has lived in the US for the last five years without interruption and she has no criminal convictions. We provided evidence that she graduated high school and is currently attending junior college classes. We filed the DACA case in mid-November, and USCIS processed the case within four months.

Our client received her work authorization card and she already went to the Social Security Administration to obtain a valid social security number. She will be asking the Department of Motor Vehicles for a driver’s license soon.

If you are considering the deferred action process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand whether DACA is appropriate for you.

 

Provisional Unlawful Presence Waiver Process Begins Today, March 4, 2013

March 4th, 2013 No comments
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A new immigration rule takes effect today, March 4, 2013. It will allow immigrants to reduce the amount of time they are separated from their families when applying for their lawful permanent resident card (“green card”).

This is only for applicants with United States Citizen spouses and/or United States Citizen parents. The new I-601A waiver is going to mean a lot to families, especially families with young children or aging parents who are not in the best of health and who need the help of their alien spouse or alien child. I-601A applicants will be able to wait in the United States for their waiver applications to be decided, rather than waiting months outside the U.S. If the waiver is approved, families will only need to spend a few days or a week apart while the alien applicant attends a medical exam and interview at the U.S. consulate abroad.

The new rule is called “Provisional Unlawful Presence Waiver.” The law requires anyone who entered without inspection and is an immediate relative of a US citizen spouse or parent to leave the U.S. to attend the consular interview; however, with the provisional waiver already approved, the wait time outside the U.S. should be minimal.

Beginning March 4, 2013, the foreign national can wait in the US for a waiver decision, instead of waiting up to one year in their home country.

Once the waiver is approved, the person returns to the home country to apply for their immigrant visa. The wait will be approximately one to two weeks instead of one year as required under the old rule.

The unlawful presence waiver remains a difficult process, and potential applicants should strongly consider hiring a competent immigration attorney. The goal with preparing a successful waiver packet is to show the examining officer how the US citizen spouse or parent would suffer extreme hardship if the alien relative is not allowed to live in the United States. We need to keep in mind that the examining officer will never meet with us before making the decision to approve or deny. The officer probably handles several waiver cases each day, so we need to paint the picture clearly and persuasively. Unlike the I-601 process, I-601A applicants can only apply once. If the I-601A is denied, the applicant does not have another chance to apply for relief. We need to pull at the examining officer’s heart strings based solely on the paper evidence we provide.

Form I-601A, Application for a Provisional Unlawful Presence Waiver , will be available for official use beginning March 4, 2013. If you are considering the I-601A process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will help you better understand the process and the strength of your potential case.

Case Brief: In Re Garcia-Hernandez, 23 I&N Dec. 590 (BIA)

March 3rd, 2013 No comments
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FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who entered the United States without inspection or parole. The respondent was served a Notice to Appear on May 14, 1997, and in due course applied for cancellation of removal for nonpermanent residents and, in the alternative, for voluntary departure.

In 1997 the respondent was convicted for corporal injury to a spouse in violation of § 273.5 of the California Penal Code, for which he was sentenced to probation on the condition that he serve 90 days in custody. The IJ determined that the conviction was for a crime involving moral turpitude. The IJ further determined that the respondent was not eligible for the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), because he had not been convicted of “only one crime.” The IJ based this finding on the respondent’s 1994 conviction for battery under § 242 of Cal. Pen. Code. A crime not involving moral turpitude. The Immigration Judge accordingly found that the respondent was ineligible for cancellation of removal because he had been convicted of an offense under section 212(a)(2).

The IJ further found that the respondent could not meet the good moral character requisite under 240A(b)(1)(B) of the Act because of his 1997 conviction.

ISSUES

(1)    Whether an alien is ineligible for cancellation of removal under section 240A(b)(1) of the Act if he committed a crime involving moral turpitude that falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II); and, if not

(2)    Whether the commission of another offense that is not a crime involving moral turpitude renders the “petty offense” exception inapplicable.

RULE

1) An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude.

2) An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal.

3) An alien who commits a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal.

HOLDING

1. An alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (Supp. IV 1998), because he “has not been convicted of an offense under section 212(a)(2)” of the Act.

2. An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under section 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3) (Supp. IV 1998).

3.  An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude.

4. The respondent, who was convicted of a crime involving moral turpitude that qualifies as a petty offense, was not rendered ineligible for cancellation of removal under section 240A(b)(1) of Act by either his conviction or his commission of another offense that is not a crime involving moral turpitude.

REASONING

A. Applicability of the “Petty Offense” Exception to Cancellation of Removal Eligibility

The court concluded that respondent’s 1997 conviction for spousal injury did not render him ineligible for cancellation of removal under section 240A(b)(1)(C), or sections 240A(b)(1)(B) and 101(f)(3) of the Act, because the conviction, considered alone, clearly qualifies for the “petty offense” exception. The court reasoned that because the respondent was convicted under a misdemeanor statute that carried a maximum sentence of no more than 1 year in prison and he received a sentence of less than 6 months. Thus, the court concluded that the respondent would not be inadmissible on the basis of this offense.

The Court further found that the conviction, standing alone, does not render the respondent ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, which requires an applicant to show that he “has not been convicted of an offense under section 212(a)(2).” The court reasoned that a “petty offense” exception also applies when determining eligibility for cancellation of removal.

Furthermore, the court concluded that on the basis of his 1997 conviction alone, that respondent was not an alien “described in” section 212(a)(2)(A) of the Act for purposes of the good moral character definition in section 101(f)(3) because an alien is not within the class of aliens described in section 212(a)(2)(A) if the “petty offense” exception applies to his or her crime.

B. “Only one crime” exception to 212(a)(2)(A)(ii) of the Act.

The court further construed the “only one crime” proviso as referring to “only one such crime,” meaning it had to involve a crime of moral turpitude. The court reasoned that while the IJ view would mean that the commission of any offense—even one of a very minor nature, such as a driving infraction—would preclude application of the “petty offense” exception the court believed that the far more sensible construction is to read the word “crime” in the context of offenses that are the subject matter of section 212(a)(2)(A). Viewed in this fashion, the court stated, the word “crime” refers most logically to a crime involving moral turpitude.

C. Voluntary Departure

For the above mentioned reasons, the court concluded that the conviction does not bar respondent from this form of relief on statutory grounds.

CONCLUSION: The respondent’s appeal is sustained.

If you are currently in immigration court proceedings, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the options available to you in order to avoid deportation.

Violence Against Women Reauthorization Act (“VAWA”) Passes House of Representatives

February 28th, 2013 No comments
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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.

CASE BRIEF: Ferreira v. Ashcroft (9th Cir. 2004) 382 F.3d 1045

February 28th, 2013 No comments
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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.

Trident Technical College Changes Stance and Allows DACA Students to Enroll

February 27th, 2013 No comments
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NORTH CHARLESTON, S.C. (WCIV) – Trident Technical College has decided to allow students covered under the Deferred Action for Childhood Arrivals Act to enroll in the school.

The school said Tuesday it has received clarification from the state that will allow it to accept DACA recipients. The announcement comes after several people protested when the school would not grant admission to several people covered under the act.

“It’s a time to be awoken by every state. we’re known to be one of the worst states next to Alabama, Georgia and I think it’s going to open a lot of eyes, a lot of hearts. And again education is for all our children, all the adults who want to get educated,” said Diana Salazar with the Latino Association of Charleston.

If you are considering the DACA process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand the new provisions and whether you can benefit from them.

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