Maggio + Kattar

What Happens to a DREAM Deferred?

Every year, more than three million young people graduate from high schools across the United States.  Many U.S. high school graduates will go to college and realize their dreams; however, that is not an option for the more than 65,000 young undocumented immigrant students who have lived in the United States for most of their lives.  For these students, their lives come to an abrupt stop after graduation from high school and they are left with few options.

During the past ten years, Members of Congress, Democrats and Republicans alike, have introduced legislation to remedy this devastating problem.  The Development, Relief and Education for Alien Minors (DREAM) Act would provide a path to permanent residence for young men and young women who wish to pursue higher education or military service for the United States.   Despite bi-partisan support for this important issue, benefiting a very sympathetic population of young people, there are still many within Congress on both sides that continue to refuse to act boldly in allowing these children to live their American dream. 

Over the past year, students have been rallying outside political events to show their support for the DREAM Act.  Some political leaders have proposed a compromise, suggesting that young immigrants can obtain green cards if they agree to risk their lives at war but not for the purpose of attending college.  This does not go far enough.  As one young activist, Daniel Rodriguez said, 'That's telling me I'm good enough to die for this country, but I'm not good enough to study for it and to help it through my knowledge."  Rodriguez had come to the United States at the age of six with his mother, who fled domestic violence in Mexico. 

Congressional failure to pass this much-needed and sound legislation makes no sense when considering its significant benefits.  Passage of the DREAM Act is good for the economy.  According to the Congressional Budget Office and the Joint Committee on Taxation, the DREAM Act would reduce deficits by about $ 1.4 billion and increase government revenues by $ 2.3 billion over the next ten years.

Aside from the significant economic benefits of the DREAM Act, passage is simply the right thing to do.  The potential beneficiaries of the DREAM Act were brought to the United States by their parents as children and have grown up here. Their "home" country's culture and language are unfamiliar to them.  They are as American as their fellow students.  Despite their innocence and their potential contribution to the United States, their growth and development abruptly ends upon graduation from high school.

All children should be valued and cherished by their family and the greater community.   Failure to pass the DREAM Act will only result in contributing to the growing number of marginalized communities across our country suffering from the current economic crisis.    The DREAM Act is an important piece of legislation whose passage moves us towards economic growth and success, much needed during these difficult times.  

Does it dry up  

like a raisin in the sun?

Or fester like a sore--  

And then run?

Does it stink like a rotten meat?

Or crust and sugar over --  

like a syrupy sweet?

Maybe it just sags  

like a heavy load.

Or does it explode?

--Langston Hughes

Maggio + Kattar to Honor Immigration Equality at  Fourth Annual Founders Day Event 

Maggio + Kattar is pleased to announce that the non-profit organization,  Immigration Equality, will be the beneficiary of all proceeds of our fourth annual Founders Day event to be held on the evening of Wednesday, March 28th.   Immigration Equality is a national organization whose core mission is fighting for equality for lesbian, gay, bisexual, transgender, and HIV-positive individuals under U.S. immigration law through its advocacy efforts, and legal aid provided by a network of dedicated attorney volunteers.  

Immigration Equality, to date, has been responsible for numerous important policy victories including ending the ban on immigration and travel for people with HIV.  Its two complementary objectives -- providing free legal counsel to thousands of LGBT/HIV-positive immigrants each year, and advocating for policy changes to end the discrimination their clients face -- make Immigration Equality a uniquely qualified and an effective champion for LGBT/HIV-positive immigrants.  We believe that Immigration Equality embodies the same ideals and visions of our founders, the late Michael Maggio and Candace Kattar.  

Since its inception, Immigration Equality has helped hundreds of immigrants win asylum in the United States based on their sexual orientation, transgender identity, and/or HIV-positive status.   Immigration Equality has written a leading publication on preparing sexual orientation-based asylum claims, and have trained hundreds of attorneys, advocates, and Immigration employees on this specialized area of the law.

We invite you to join us as we celebrate our firm's founders, Candace Kattar and the late Michael Maggio, and honor the dedication and commitment of Immigration Equality to advancing the cause of LGBT/HIV positive immigrants and their families.  In addition to remarks by Immigration Equality Director, Rachel Tiven, the evening will feature music performed by internationally renowned harpist, Michaela Trnkova and Lebanese hors d'ouvres.  To RSVP for Founders Day or to donate to Immigration Equality, please visit Immigration Equality's response page.   

Board of Immigration Appeals Finds that Immigration Judges Have the Authority to Administratively Close Removal Proceedings Over Government Opposition

On January 31, 2012, the Board of Immigration Appeals ("BIA") issued a decision in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012).  This decision holds that Immigration Judges, pursuant to their authority delegated by the Attorney General and responsibility to exercise independent judgment and discretion, may administratively close removal proceedings even if one of the parties opposes.   

The decision is significant because it emphasizes that Immigration Judges have independent authority over removal proceedings and that the Department of Homeland Security ("DHS") does not have "absolute veto power" over motions for administrative closure.  The Board's decision in Matter of Avetisyan allows noncitizens to present their cases to an independent adjudicator even when DHS objects to administrative closure.  

"Administrative closure" enables the Immigration Court to temporarily take a case off of its docket until it is appropriate for the case to be recalendared and for proceedings to continue.  It is a tool which saves Courts and both parties significant time and resources by eliminating repeated status hearings and continuance requests.  Once the case can move forward, the relevant party may submit a Motion to Recalendar, and the Court may then place the case back on its docket.

Previously, the BIA held that a case could not be administratively closed if either of the parties opposed.   See Matter of Gutierrez, 21 I&N Dec. 479, 480 (BIA 1996).  This statement has been interpreted as granting a party (usually DHS) an "absolute veto power" over the opposing party's motion for administrative closure.  Based on Matter of Gutierrez, it was common practice of DHS to object to Motions for Administrative Closure and for Immigration Judges to deny these motions due to DHS objection.  

The BIA found this statement and its interpretation troubling.  It directly conflicts with the delegated authority of Immigration Judges and the BIA and their responsibility to exercise independent judgment and discretion in adjudicating cases.  Furthermore, it prevents Immigration Judges and the BIA from taking any and all necessary and appropriate action for the disposition of the case.  This new BIA decision in Matter of Avetisyan attempts to resolve these issues.

Matter of Avetisyan recognizes that during the course of removal proceedings, an Immigration Judge or the BIA "may find it necessary or, in the interests of justice and fairness to the parties, prudent to defer further action for some period of time."  Specifically, unsupported opposition to requests for administrative closure will not carry significant weight, and an Immigration Judge should consider the totality of the circumstances in evaluating all requests for and objections to administrative closure.
 
To determine whether administrative closure is appropriate, the BIA set forth the following factors which should be weighed by the Immigration Judge: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings when the case is recalendared before the Immigration Judge or the appeal is reinstated before the BIA.  

The Board's decision is timely given the current Administration's commitment to prioritizing immigration cases with prosecutorial discretion.  Over the past two years, DHS has issued a number of memoranda providing guidance on potential actions to take within its discretion, including administrative closure, in prioritizing its enforcement objectives.  DHS is currently conducting a review of over 300,000 removal cases pending before the Immigration Courts, Board of Immigration Appeals, and the federal courts.  In many instances, DHS is offering administrative closure in its exercise of its prosecutorial discretion authority.

Immigration Judges are experts in reviewing and considering evidence for a number of forms of relief.  Confirming their independent authority to administratively close cases without the acquiescence of DHS benefits both the Immigration Courts and noncitizens whose cases meet the established DHS criteria for administrative closure.    

U.S. Fourth Circuit Court of Appeals Joins Third, Eighth and Eleventh Circuit Courts in Rejecting the Attorney General's Test for a Criminal Conviction is a Crime of Moral Turpitude 

Certain criminal activities and convictions can result in severe immigration consequences for U.S. nonimmigrants and U.S. lawful permanent residents. A conviction for an aggravated felony or a crime of moral turpitude can result in deportation and exile from the United States, in some cases, for many years depending upon the particular conviction.  The Immigration and Nationality Act ("INA") defines the circumstances under which a crime of moral turpitude will result in removal. Thus, one of the most important steps in assisting defense counsel to determine whether a particular conviction will result in immigration consequences is to analyze whether or not the elements of the offense constitute a qualifying crime.
 
The majority of federal circuit courts apply what are known as the categorical and modified categorical approaches to determine whether a particular conviction constitutes a crime of moral turpitude.   The Attorney General attempted to alter these approaches in Silva-Trevino by finding, if after application of the categorical and modified categorical approaches, a noncitizen's record of conviction is inconclusive, that an immigration judge should consider "any additional evidence the adjudicator determines is necessary or appropriate" to determine whether a noncitizen was convicted of a crime involving moral turpitude.  Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G.).

Under the categorical approach, a judge will look to the statutory definition of the criminal offense to determine if it matches the definition of a crime of moral turpitude under the Immigration and Nationality Act.  If the elements in the criminal statute match the definition, the inquiry ends there and the noncitizen is subject to removal.  However, if the statute is divisible, that is, if it includes conduct that would constitute a crime of moral turpitude and conduct that would not, the judge will follow the modified categorical approach and look to the record of conviction, including the charging document, plea agreement, transcript of the plea colloquy, and any specific factual finding made by the criminal court judge.   If after such an analysis, the court finds that the conviction is not a crime of moral turpitude, the inquiry ends and the conviction does not subject the noncitizen to removal.

The Attorney General created a third step for immigration judges to determine whether a crime constitutes a crime of moral turpitude for removal purposes.  In Matter of Silva-Trevino, the Attorney General authorized immigration judges to consider evidence beyond the record of conviction "if doing so is necessary and appropriate."  However, the Attorney General did not provide guidance on what type of evidence may be considered under the third step.  Instead, the decision stated only that the judge may "consider any additional evidence or fact finding" that the judge "determines is necessary or appropriate to resolve accurately the moral turpitude question."
 
The Fourth Circuit joined the Third, Eighth and the Eleventh Circuit in rejecting the Attorney General's decision in Matter of Silva-Trevino.  In reaching its decision,  it concluded that an adjudicator applying the moral turpitude provision contained in the Immigration and Nationality Act may only consider the noncitizen's prior conviction and not the conduct underlying the conviction.   We applaud these decisions which send a clear message to immigration judges that they cannot and should not conduct a fishing expedition in order to determine whether a particular noncitizen is subject to removal for a conviction for a crime of moral turpitude.   

New Visa Renewal Program In China Makes Life Easier for Returning Students, Tourists, Exchange Visitors, and Business Travelers 

US Ambassador Gary Locke has announced significant changes to visa processing at the U.S. Embassy and Consulates in China.  Under a new pilot program that went into effect on February 13, consular officers posted in China have been given the authority to waive visa interviews for certain qualifying non-immigrant visa applicants who are renewing previously issued visas within 48 months of their expiration.  The new program covers persons who have previously been issued B business/tourist visas, C transit visas, D crewmember visas, F student visas, J exchange visitor visas, M nonacademic student visas, and O extraordinary ability visas.   

The new renewal without interview program in China will operate in a similar manner to those now in effect in other countries such as Mexico and the United Kingdom.  Repeat travelers to the U.S. seeking to renew their visas can use the CITIC Bank Drop-Off visa renewal service by dropping off their visa application and supporting documents at participating CITIC branches in China if they can satisfy the following criteria:

1. They are physically present in China;
    
2. Their previous visa was in one of the above categories and is still valid or has expired within the last 48 months;
    
3. They are reapplying for the same kind of visa and provided all ten fingerprints at their previous interview.  In China, this means that their previous visa would have to have been issued on or after November 14, 2007, which is the date when the 10 fingerprint capture requirement went into effect in China;
    
4. They have not subsequently applied for and been denied any other category of non-immigrant visa.

F-1 student visa applicants renewing visas that contain the annotation "clearance received" and whose visas expired less than three years ago can use the CITIC drop box process to renew their visas as long as they are planning to continue attendance at a U.S. school in which they are already enrolled.  However, applicants who have previously been issued visas that do not  contain the "clearance received" annotation will still be required to schedule visa interviews and appear in person before a U.S. consular officer.

J visa applicants may use the drop box procedure if they are continuing to take part in the same exchange visitor programs for which their earlier visas were issued.
 

The expansion of the drop box procedures for visa renewals in numerous non-immigrant visa categories will improve visa adjudication timelines.  Additionally, Ambassador Locke announced that up to 50 new consular adjudicators will be assigned to China in 2012 and beyond to handle expanding visa caseloads that saw more than 1 million visa applications processed in 2011.  These additional personnel will increase visa processing capacity in China by over 40 percent.   

Persons who reapply using the CITIC renewal program will not automatically be reissued their visas, and consular officers will still run all applicants through the lookout system and reserve the ability to require individual applicants to come to the consular section for personal interviews.  However, the new procedures will make it much easier for the tens of thousands of Chinese students currently studying in the U.S. to have their visas renewed while on holiday back in China, as well as for business travelers and tourists who have successfully traveled to the U.S. and returned.  

Details about the new drop box renewal procedures now operational in China can be found on the U.S. Embassy's website. 

The Department of State Issues Final Rule on Visa Validity Dates for L Visas 

A final rule by the U.S. Department of State, effective February 14, 2012, instructs U.S. consular officers to "delink visa and petition validity periods" and base L-1 visa validity dates on reciprocity tables rather than the validity period of L-1 petitions.  Reciprocity tables for temporary visitors to the U.S. are based on reciprocal treatment of U.S. citizens and residents seeking entry to other countries.  The tables list visa issuance fees by country and visa classification type, and the maximum period of visa validity and number of applications, or entries, that may be authorized.  

In practical terms, this rule will impact foreign nationals from countries for which L-1 visa validity periods extend beyond the maximum three years of time granted, by eliminating the need for frequent L-1 visa renewals at U.S. Consulates abroad. As an example, a citizen of India (whose country's reciprocity table currently lists a 60-month validity period for L-1 visas), may now be issued an L-1 visa valid for five years rather than three. As such, under this new rule, an Indian L-1B specialized knowledge worker may not need more than one L-1 visa throughout their entire five-year period of L-1B status. Under the previous rules, a visa renewal would have been necessary after three-years.  

Note that this rule does not impact DHS rules on L-1 periods of stay, and extension of stay applications may still be necessary in order for the individual to remain in valid L-1 status during the validity period of their L-1 visa.  

M+K Attorneys About Town

Anna Gallagher spoke at a training session on Prosecutorial Discretion hosted by AILA DC, Catholic Charities, Catholic Legal Immigration Network, Maggio & Kattar and Arent Fox on Tuesday, February 28 .