Friday, April 12, 2013

I'm done

Sometimes, you just know. For me it was the end of February 2013. I was sitting at the attorney's table in Judge DeVitto's court room in the Eloy Detention Center. My client was a 68-year old man with arthritis who had lived in Arizona since 1971. He had been in Eloy before and was then granted voluntary departure. He was escorted to the border and returned a few weeks later in the summer of 2002. Now he had had another DUI and he was back in Eloy.

His wife and daughter had come to my office a few weeks earlier. They talked to me through an interpreter on the phone. The wife was crippled and in a wheelchair, the daughter was mentally handicapped.

From what they told me, it didn't seem right that this man was being held again and that he hadn't been granted status the last time he was in Eloy (in 2002). I thought I could get him out on bond and then sort out the rest. One DUI did not mean mandatory detention.

Boy, was I wrong. At the bond hearing, ICE brought in the entire criminal record and DeVitto refused to set bond, because he considered my client a danger and based on the criminal record he also didn't believe my client had a chance to win his case. What was that criminal record? Two possession of marijuana charges from May 4 and May 10, 1982 (the conviction from 1992 is silent as to whether my client is convicted of two separate charges - the record is unclear) and  a couple of DUIs from the 1990's and 2002.

Filing an appeal on the bond decision could take months and when we went back to court a few weeks later, DeVitto looked at me as if I was some kind of moron. He had this look of disdain on his face, while I was trying to make something out of nothing. I knew we were dead in the water with the two possession charges, if ICE could prove they were separate offenses. However, as I stated, the record was vague and no additional evidence was available from 1992. The ICE attorney, young and healthy, had nothing but arrogance in his body. There was no intelligence there, just righteousness. He pulled the new trump card that the 9th circuit had just given the government: Young v Holder. The case that has put everything upside down, the case that is putting a witch hunt to shame.

Young v. Holder! The decision by the 9th circuit that has ended fairness and justice in the immigration court proceedings. The decision that is the scratcher ticket that makes ICE an instant winner. With Young v Holder the government cannot lose. In the conclusion of Young v Holder, the 9th circuit states that when the record is inconclusive "it is possible that Petitioner’s prior conviction constitutes an aggravated felony; it is also possible that it does not". In other words, if it is unclear that you've done something, you'll have to prove that you didn't do it. If the record is inconclusive as to whether you're a witch, you'll have to prove that you're not. The court believes this to be a correct interpretation, because a Respondent in the court room has the burden of proof eligibility for relief. However, it is the world upside down, since it is in most cases impossible to prove a negative when the evidence is not available. OK, I may have understood the court's position with regard to an aggravated felony. However ICE and the Judges now use it for any possible bar to eligibility for relief. In this case two possible possession charges from 1982 (please note that the convictions are vague).

The Judge looked at me again and said "Mister Asser". I was silent. I felt my blood pressure, I needed to breath, my gut hurt, I clenched my ass, I wanted to fart and run. I looked down and literally hung my head. I don't know if anybody noticed, it happened within a few seconds, but then I answered "nothing further, your honor", thinking "go fuck yourself". That's when I realized. I was done. I will never set foot in Eloy again. If they need Young v Holder to win, if the government is being handed the authority by the 9th circuit to conduct a witch hunt, there's nothing more I can do. I give. I wish you well, but I don't want to have any part in this charade. I'm done.

Friday, January 4, 2013

10 Facts About the New Provisional Waiver Process

USCIS finally published the much-awaited rule on the unlawful presence waiver (I-601A), which will take effect on March 4, 2013. 

The new waiver process will allow the immediate relatives of U.S. citizens to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. Under the old rule, applicants who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant visa and unlawful presence waiver abroad. The current process involved a long wait and a lot of uncertainty as the applicant had to prove extreme hardship to U.S. citizen parent or spouse in order to win a waiver for unlawful presence to get back to the United States. The new process is intended to reduce the reluctance of non-citizens who may wish to obtain a green card through their marriage to U.S. citizens or relationship to a U.S. citizen parent, because the applicant would no longer be deterred by lengthy separation and uncertainty of success imposed by the process.

Under the new rule, an applicant must meet all of these requirements to qualify for the waiver:

Applicant must be present in the U.S. at the time they file for the waiver;
Applicant must prove hardship to U.S. citizen spouse or parent;
Applicant must be barred from readmission based only on unlawful presence in the U.S. and have no other grounds of inadmissibility;
Applicant must be a beneficiary of an approved immediate relative petition;
Applicant must have a case pending with the Department of State based on the approved immediate relative petition and paid the immigrant visa processing fee;
Applicant must depart from the United States to obtain the immediate relative immigrant visa; and
Applicant must be able to prove extreme hardship to her or his U.S. citizen spouse or parent.
After reading through the 148-page rule, here are a few things you should know about the new process:

The provisional waiver is limited to immediate relatives of U.S. citizens who can prove extreme hardship to the U.S. citizen:
Applicants for the waiver must be able to prove extreme hardship to a U.S. citizen spouse or parent. The extreme hardship to a U.S. citizen spouse or parent is a discretionary determination based on a totality of circumstances.

Many commentators argued for the provisional unlawful presence waiver to apply to certain additional family and employment based visa preferences. After all, the I-601 waiver is not limited to immediate relatives of U.S. citizens. However, DHS justifies limiting the provisional waiver process to immediate relatives of U.S. citizens because immigrant visas are always available for this category as opposed to preference categories. The DHS also hopes that the new rule would also encourage long-term LPRs to naturalize, so that their spouses, parents and children under the age of 21 can become immediate relatives and also benefit from the process.

The waiver is limited to waiver for unlawful presence, and not other grounds of inadmissibility:
Non-citizens who have other grounds of inadmissibility besides unlawful presence are not eligible for this new process but may nonetheless be eligible for the waiver and ultimately, an immigrant visa, through the existing process.

The waiver is available to non-citizens in removal proceedings who have their proceedings administratively closed or terminated:
Non-citizens in removal proceedings should have their proceedings administratively closed or terminated and apply directly to the USCIS for the waiver. For cases that have been administratively closed, the non-citizen should seek termination AND receive termination before departure from the U.S. to avoid triggering other bars of inadmissibility. The waiver is unavailable to applicants who have received deferred action but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal should seek to have their proceedings reopened and then administratively closed, in order to apply for the waiver with USCIS.

Interviews still scheduled abroad:
Under the new process, immediate relatives who have already departed the United States must pursue their waiver from abroad. Also, immediate relatives who are still in the U.S. must still depart the U.S. for the consular immigrant visa process. However, the immediate relatives who are in the U.S. can apply for the provisional waiver from within the United States and wait until it has been approved to depart the country so that they do not face lengthy separation from their families.

Non-citizens who have already been scheduled for their immigrant visa interviews at consulates abroad are ineligible for the provisional unlawful waiver process. However, if the DOS scheduled the immigrant visa interview after the publication of the final rule, the non-citizen can apply for a provisional unlawful presence waiver. An individual can also qualify for the waiver process in the U.S. if she or he has a new immigrant visa cases because DOS terminated the immigrant visa registration associated with the previous interview and they have a new immediate relative petition filed by a different petitioner.

The waiver is not limited to first-time filers:
The filing of the provisional unlawful presence waiver is not limited to those filing for the first time as DHS agrees that the one-time filing limitation that was initially proposed was too restrictive. Rather, when an applicant’s waiver has been denied or withdrawn, the applicant can file a new waiver with the appropriate fees. This is especially pertinent to cases where circumstances have changed since the first filing or the first filing was done through notarios or ineffective assistance of counsel.

Who is not eligible?
USCIS has specifically stated that the following non-citizens would be ineligible for a waiver:

Applicants under the age of 17
Applicants subject to other grounds of inadmissibility
Applicants who have already scheduled an immigrant visa interview abroad before the publication of this rule
Applicants who do not have an immigrant visa pending with the Department of State, based on the approved immediate relative petition and have not paid the immigrant visa processing fee
Applicants in removal proceedings, unless the proceedings are administratively closed
Applicants subject to final orders of removal
Applicants with pending applications to USCIS for adjustment of status
No non-removability clause:
For individuals who are denied a waiver, DHS will follow the NTA issuance policy in effect at the time of adjudication This means that individuals whose waiver request is denied or who withdraw before final adjudication will only be referred to ICE for removal proceedings if he or she is considered a removal priority by the agency, such as having a criminal history, engaging in fraud, misrepresentation, national security or public safety threat.

No appeal process:
There is no appeal for denial of an I-601A waiver. However, in the event of denial, there are several alternate avenues such as filing a new form I-601A with the required fees or filing a form I-601 after attending the immigrant visa interview abroad and after the department of State determines that the individual is inadmissible. The I-601 can be appealed to the Administrative Appeals Office of CIS.

No right to employment authorization or parole upon the filing of a waiver:
A pending or approved provisional waiver does not create lawful immigration status, extend an authorized period of stay or protect non citizens from removal or grant any other immigrant benefit such as employment authorization or advance parole.

Filing fees for the process will be $585, plus a biometrics fee.
There are no fee waivers available for the process.

The new procedure does not take effect until March 4, 2013. Before filing any waiver application, it is advisable that you consult with an immigration lawyer.