OC Immigration Attorney

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 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 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.

We recently received an approval for a marriage-based green card. Our client married a US citizen several years ago. He entered legally when he was a teenager, and, although he has been eligible to adjust status based on his marriage to a US citizen, the couple wanted to wait until they had the financial resources to hire an attorney.

When we filed the visa petition and adjustment of status application, we included documentation to prove good faith marriage including apartment leases, car insurance, health insurance, photos with family, wedding photos, car registration, utility bills, statements from friends, etc.

The interview went smoothly. The client had been convicted of a DUI, so we brought the court records to show that the case had been resolved and that the client was eligible for lawful permanent residency. Because the couple’s marriage was more than two years old when we filed, they will not need to deal with the I-751 process. His green card will be valid for ten years. He will be eligible to naturalize as a US citizen within three years.

If you are considering the adjustment of status process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and whether it is right for you.

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.

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.

We just returned from an interview in the USCIS Santa Ana office. Our client, the wife of a lawful permanent resident, adjusted status to permanent resident based on INA 245i. She lives in Lake Forest with her family, and she has been waiting for over ten years to become a permanent resident. The husband filed a visa petition for her in 2000. She entered the US from Mexico in 1999 and has lived here ever since. Because she entered the US prior to December 21, 2000, and the I-130 was filed before April 2001, she was grandfathered in under 245i.

We filed the I-485 adjustment of status packet in 2012 and included evidence of the couple’s marriage, proof that she entered prior to December 2000 and evidence that she has lived in the US ever since. The USCIS officer was thorough, professional and fair during the interview. The Orange County USCIS officers, in general, are a wonderful group of people to work with. They take their job seriously, remain informed on new developments with relevant laws, and understand that the people in their offices are more than just cases.

The client was well-prepared for the interview as we had discussed the purpose of the interview and what to expect. Although she was nervous, she answered the questions properly and was respectful of the process. We used a translator, one of my assistants, and everything went smoothly. At the end of the interview, the officer informed us that she was approving the case. The client and her husband were pleased with the result and they look forward to being able to finally visit family members in Mexico once her green card arrives.

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 and help you better understand the options available to you.

We just received great news that one of our clients from Garden Grove was approved for a conditional resident card through adjustment of status. She married her husband last year after the couple knew each other for many years. Everything about the case was fairly standard except one issue – whether she was admitted into the United States.

In general, in order to adjust status to permanent resident through marriage to a US citizen, the couple must prove many things such as good faith marriage and joint asset ownership among others. The alien is permitted to adjust status (subject to the discretion of USCIS) if the alien was inspected and admitted into the United States. In most cases, the alien will have an I-94 arrival record to prove lawful admission. A stamp in the alien’s passport is helpful evidence as well.

In 2010, the Board of Immigration Appeals decided the case of Matter of Quilantan. In Quilantan, the BIA held that an alien who physically presents herself for questioning and makes no knowing false claim to citizenship is inspected even though she volunteers no information and is asked no questions by the immigration authorities, and that such an alien has satisfied the inspected and admitted requirement of INA 245(a). In Quilantan, the alien was a citizen of Mexico. She did not have a visa or border crossing card when she approached the border as a passenger in a car driven by her US citizen friend. The immigration officer asked the driver if he was an American citizen and the driver confirmed that he was. The officer did not ask Ms. Quilantan any questions before waving the car through to the United States. The BIA held that Ms. Quilantan had been admitted to the US as required in order to adjust status to permanent residency. The BIA held that Ms. Quilantan’s entry had been procedurally proper because she underwent an inspection by an immigration officer, who subsequently admitted the alien. DHS argued that Ms. Quilantan’s entry was not procedurally proper because she had not shown that she was admitted in a particular immigrant or non-immigrant status. DHS argued that Ms. Quilantan was required to present herself before an immigration officer as an alien. The BIA disagreed.

In our case, the facts were remarkably similar. Our client was a young child when she was placed in a car with her relatives. There were five individuals in the car. All were either US citizens or lawful permanent residents other than my client. The officer at the border asked for the driver’s green card, but did not ask for anyone else’s proof of admissibility. The officer waved the car through.

Because Quilantan is a relatively new case, we provided USCIS with a legal brief explaining why our client was eligible for adjustment of status. During the interview, the officer asked many questions about my client’s entry into the United States. My client answered the questions honestly and to the officer’s satisfaction. The officer took the case under review and a few weeks after the interview the case was approved.

Because my client’s marriage is less than two years old, she will be required to file an I-751 in two years to remove the conditions on her residency. I advised her that she should collect evidence of living together and conducting themselves as a married couple for the next two years.

If you are considering adjustment of status based on marriage to a US citizen, 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 the options available to you.