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Conditional Permanent Resident Status Approved for Wife of US Citizen in Newport Beach

July 20th, 2013 No comments
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One of my French clients living in Newport Beach was approved for lawful permanent resident status based on her marriage to her husband, a US citizen. The couple started dating four years ago. She often visited the US under the Visa Waiver Program to spend time with him. In October 2011, she visited and he proposed to her. They moved to Newport Beach, California together, and they married in December 2011. I began representing them with the adjustment process in late 2012. We filed the I-485 application for adjustment of status and I-130 visa petition a few months later.

The couple is young and the husband’s income was insufficient to qualify him as the sole sponsor. His father acted as the joint sponsor. Applicants for adjustment of status based on marriage must show that they have sufficient financial support and they are not likely to become a public financial charge. The sponsor, or in this case joint sponsor, must earn at least 125% of the federal poverty guidelines. The husband’s father easily met this requirement, and the USCIS officer did not view my client as likely to become a public charge. The officer reviewed the evidence of good faith marriage and asked many questions about how the couple met, started dating, and decided to get married. Then, he approved the case.

Because the couple has been married for less than two years, she will be a conditional permanent resident for the next two years. During the three month period prior to the expiration of her conditional permanent resident status, the couple will need to file the I-751 petition to remove conditions, so that she can remain a lawful permanent resident. I advised the couple that they will not receive a reminder from USCIS regarding the expiration date of the CPR status.

For now, the young couple is excited to have this step behind them. The wife looks forward to finding a job and they’ve mentioned possibly starting a family in the next year or two. Possibly, they’ll adopt a puppy they said.

If you are considering the adjustment of status process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you during a confidential consultation and help you determine if adjustment of status is right for you.

Green Card Approved for Brother of US Citizen After Twelve Year Wait – 245i case

July 16th, 2013 No comments
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We received an approval for an I-485 we filed in 2010. The husband and wife are originally from Indonesia. They arrived in the United States in 2000 in valid B-1/B-2 status.The husband’s sister filed an I-130 visa petition before the sunset date for INA 245i. As the brother of a US citizen, the wait time for the priority date to become current was almost a decade.

By the time the interview was scheduled in Spring 2011, the priority date had retrogressed and my clients were no longer current. An additional issue came up at the interview – because my clients’ entry into the US involved misrepresentation, we were forced to file an I-601 waiver to prove extreme hardship to the husband’s mother (a naturalized citizen). We included evidence to show that the mother had medical problems and required her son’s assistance. The officer was satisfied that the mother would experience extreme hardship if the son was not allowed to stay in the US as a permanent resident. The officer approved the I-601, but could not approve the I-485 until the priority date became current again.For the past two years we waited for the priority date to become current and it finally did.

Now, the husband’s green card is approved. The next step will be to file the I-485 for the wife along with an I-601 waiver due to the misrepresentation issue. The couple is excited that the husband’s green card was approved and we can move forward with the wife’s case.

If you are considering the adjustment of status 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.

I-94 Cards Will No Longer Be Given at Airports – Arriving Aliens Must Print Out I-94

July 4th, 2013 No comments
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Today, U.S. Customs and Border Protection (CBP) started implementing the automated version of Form I-94, Arrival/Departure Record, at air and sea ports of entry and will by week’s end include Charlotte Douglas International Airport in North Carolina, Orlando International Airport in Florida, McCarran International Airport in Las Vegas, Chicago O’Hare International Airport, Miami International Airport and George Bush Intercontinental Airport in Houston. Implementation will continue across the nation through May 21, to include air and sea ports of entry that support international arrivals. For more information on the implementation schedule, please see CBP’s Travel Advisory.

Foreign travelers entering the United States at air or sea ports of entry will be able to access their electronic Form I-94 by visiting this site. Upon inspection at the point of entry, CBP will give foreign travelers a tear sheet with instructions on how to look up their electronic Form I-94 on CBP’s website. From this website, they can print out their Form I-94 in paper format. Foreign travelers may need their Form I-94 when requesting certain USCIS benefits, or when applying for public benefits from other government agencies.

This new policy changes/complicates things quite a bit. Arriving aliens must print out their I-94 cards online, and they should do so immediately upon arrival. Some have reported difficulties in using the Customs and Border Protection website to print out the I-94 cards. In some instances, the website cannot locate the card. If an arriving non-US citizen has difficulty finding the I-94 on the CBP website, they can go to Deferred Inspection and ask an officer to help them obtain the I-94.

It will be interesting to see how this new policy affects marriage-based adjustments and other immigration processing. In adjustment cases, it is imperative that the foreign-born individual provide proof of a lawful admission to the US, and, the I-94 is the best evidence.

Green Card Approved for Mother of US Citizen in Lake Forest

July 2nd, 2013 No comments
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We received an approval notice for one of our Orange County clients in Lake Forest. She’s the mother of a US citizen son who turned 21 years old recently. A US citizen child may petition for his foreign born parent once the child becomes 21 years of age. In this case, the mother had a petition filed for her by her US citizen sister prior to April 2001; therefore, she was eligible to adjust status to lawful permanent residency despite her unlawful entry into the United States.

INA 245i states that a foreign born individual (with a qualifying familial relationship) may adjust status to permanent resident despite an unlawful entry to the United States, if the foreign born individual can prove that s/he was present in the United States on December 2000 and has not left the United States since then. Additionally, a visa petition or labor certification must have been filed prior to April 2001.

In this case, our client’s sister filed a visa petition in early 2001. The wait time for the sibling of a US citizen is extremely long, and, in some cases, could take up to 20 years. However, because our client’s son was a 21 year old US citizen, she became immediately eligible to process her green card. She paid the processing fees ($2490 for INA 245i), and the interview went smoothly.

We were not approved at the interview because the USCIS officer informed us that there were missing documents that USCIS failed to consolidate prior to the interview. The officer informed us that this was not our fault, but she would need to wait until she obtained the missing documents. She said she intended to approve the case, but we must wait. A few weeks later, we received the approval notice.

My client was very happy. She has lived in the United States since 1987, and she can finally have peace of mind knowing that, as long as she stays out of trouble, she will be able to live in this country for the rest of her life. She said she looks forward to naturalizing as a US citizen in five years when she becomes eligible. She wants to vote and participate in the democratic process.

If you are considering the adjustment of status process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you understand the options available to you.

Comprehensive Immigration Reform Passes Key Senate Test

June 25th, 2013 No comments
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Yesterday, the Senate signaled its support for a bipartisan measure strengthening border security in the comprehensive “Gang of Eight” immigration reform bill, a sweeping blueprint that promises to overhaul America’s immigration policies for the first time since 1986.

The 67-to-27 vote was considered a key test of support for the bill as a whole, as the measure also includes language echoing most other parts of the legislation.

The Senate kept the vote open for a significant amount of time for lawmakers who experienced travel delays due to bad weather in Washington. Some senators did not make it in time.

Supporters needed at least 60 votes to move forward with the revised border security provisions, which were drafted partly to boost GOP support for the overall package.

Backers of the bill were hoping to win about 70 votes to demonstrate growing bipartisan momentum for the larger proposal as it nears final passage in the Democratic-controlled Senate and heads to the GOP-controlled House of Representatives.

Senate leaders are currently on track to hold a final vote on the bill itself before Congress breaks for its July 4 recess at the end of the week.

If enacted, the bill would create a pathway to citizenship for roughly 11 million undocumented immigrants.

“When the immigration bill passes, (GOP Speaker John Boehner) should bring it up for a vote in the House of Representatives quickly,” said Senate Majority Leader Harry Reid, D-Nevada.

Immigration Reform Bill Largely Unaltered After Five Days of Judiciary Committee Debates

May 21st, 2013 No comments
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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.

Case Brief: Ruiz-Vidal v. Gonzales (9th Circuit)

May 12th, 2013 No comments
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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.

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.

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 – Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991)

January 15th, 2013 No comments
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Facts:
In Matter of Stockwell, a 46-year-old male, native and citizen of the United Kingdom, entered the U.S. in 1987 as a visitor. He married a U.S. citizen in 1987 and was granted permanent resident status on a conditional basis. They divorced in 1988, and he married a second U.S. citizen on July 6, 1989. His new wife filed a visa petition on his behalf that was approved on September 19, 1989. He was placed in deportation hearing on July 14, 1989 because his conditional permanent residency terminated. IJ found that Stockwell was deportable since his conditional permanent resident status had been terminated. He granted his application for adjustment of status.

Procedural Posture:
IJ found that Stockwell was deportable since his conditional permanent resident status had been terminated. He granted his application for adjustment of status.
The USCIS appealed on the ground that the Congressional intent of 245(d) was to exclude aliens who have had their conditional status terminated as well as those continuing to hold conditional status.

Issue:
Whether section 245(d) of the INA (“Act”) prohibits an alien whose conditional permanent resident status has been terminated from adjusting status under section 245(a) of the Act.

Holding:
No. Affirmed IJ’s holding that Stockwell be granted to adjust status based on his second marriage to a U.S.C. wife.

Rule:
An alien holding conditional permanent resident status is prohibited by section 245(d) of the Immigration and Nationality Act, 8 U.S.C. Section 1255(d)(1988), from adjusting his status under section 245(a), but Section 245(d) of INA does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

Reasoning:
The Board focused on the congressional intent of 245(d), which was to prevent aliens from circumventing the immigration legal system through fraudulent marriages. By barring adjustment of status during the 2-year conditional period, Congress sought to prevent aliens from acquiring conditional permanent residency through marriage only to adjust status on another basis. This way, they might have tried to bypass the requirements for removing the conditions of residence. Therefore, the Board reasoned that section 245(d) of the Act was not intended to prohibit an alien whose conditional permanent resident status had been terminated from adjusting status under 245(a).

If your I-751 has been denied by USCIS and your case has been transferred to the immigration court, 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.

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