Time to Cross the Line

Once again states are spearheading the path to comprehensive immigration reform.  However, instead of expanding federal law, this time states are offering up bipartisan solutions.  On December 9, 2012, a bipartisan group of Colorado leaders signed The Colorado Compact which presents a “common sense” approach to immigration reform.  Supporters of the Compact included not only democrats, such as Senator Michael Bennet and Governor John Hickenlooper, but republicans, including former Governor Richard Lamm and Senator Bennet’s campaign opponent, Weld County District Attorney Ken Buck. 

Colorado was not the first state to sign such a compact.  Three other states, including Utah, Indiana, and Maine, have also published compacts on immigration reform.  A fifth state, Iowa, has drafted an immigration compact, but has yet to sign it.  The Utah Compact was signed in November 2010, under the direction of Attorney General Mark Shurtleff.  Upon the signing of The Colorado Compact, Attorney General Shurtleff remarked, “As more states and regions adhere to the principles . . . ultimately that will support brave members in Congress on each side by doing the right thing.”

This is also not the first time that Colorado leaders have come together to develop and publish suggestions on immigration reform.  In 2009, the University of Denver formed the Strategic Issues Panel on Immigration which collected information and opinions from leaders in government, business, labor, law enforcement, and education among many industries to develop a list of 25 recommendations for reform “grounded in creating economic and social benefits to the nation as a whole while maintaining national security.”  The six principles presented in The Colorado Compact is a “bipartisan and rational solution” to fix our “broken” immigration system.

The message is clear that citizens, regardless of political standings, want Congress to act now and pass comprehensive immigration reform.  Action will require that both sides cross the proverbial line in the sand.  Utah’s Attorney General Mark Shurtleff observed that the Republicans who “had to stick their neck out” and “stood up and fought for comprehensive reform were all reelected” despite the backlash they received at the time.  The “Gang of Eight” in the senate is a manifestation of the lessons learned in the last election regarding immigration reform.  Consisting of both democrats and republicans, including Senator Bennet and Republic Senator Mike Lee of Utah, the Gang of Eight began meeting to discuss immigration reform in 2013 in December 2012.

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Immigrants Should Not “Break Out the Cheetos and Goldfish”

By Kim Tremblay, Associate Attorney

On November 6, 2012, Colorado voters approved amendment 64, a ballot measure that decriminalizes marijuana possession of one ounce or less for adults over 21 and regulates the cultivation and sale of marijuana.  However, it remains unclear how the amendment will work out in practice; the state must still issue regulations.  Currently, some jurisdictions in the state are continuing to criminally prosecute individuals for marijuana possession while others are not.  Federal law still considers marijuana a controlled substance and makes it a crime to possess it or to engage in its production or distribution.  Federal officials have yet to indicate what actions they will take to enforce federal controlled substance laws related to marijuana in Colorado. 

Of specific concern to immigrants is that immigration matters are regulated by federal law, which has not changed.   Under immigration law, there are many areas related to controlled substances that could be problematic for marijuana users, producers, and distributors.  

For immigrants applying for status, these areas can render a person inadmissible to the United States, which in turn makes obtaining immigration benefits either impossible or more difficult.  Merely admitting to marijuana possession could make a person inadmissible; a conviction is not strictly necessary.   A conviction for marijuana possession makes a person inadmissible.  In addition, a person who is a suspected drug trafficker or participant in drug trafficking is inadmissible.  Finally, drug abusers and addicts are inadmissible to the United States.  Again, discovery of any of these grounds of inadmissibility during the immigration process could be extremely problematic.

Moreover, immigration law contains consequences for immigrants with permanent residency status if they are involved with marijuana.  Permanent residents could have their status revoked and be deported from the United States for a marijuana possession conviction of over 30 grams, for any other conviction related to marijuana, or if they are considered drug abusers or addicts.  

Presumably, immigrants in Colorado possessing less than one ounce of marijuana for their personal consumption and legally involved with the production and distribution of marijuana will not be charged with a crime by Colorado law enforcement once amendment 64 is implemented.  Thus, the lack of marijuana related convictions makes it less likely that they will face immigration problems in the future.  However, the lack of a conviction is not necessarily determinative; immigrants involved in some form of immigration processing determined to be drug addicts or abusers or otherwise involved with marijuana could face difficulties.   Moreover, immigrants could still be prosecuted by federal law enforcement officials for marijuana related crimes and then face immigration problems.  As marijuana consumption, possession, production, and distribution are still federal crimes and related to grounds of inadmissibility and deportation, it is best to heed Governor Hickenlooper’s advice not to “break out the Cheetos and Goldfish.”

 

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Same-Sex Family Units Recognized

Contributed by Bryon Large

By now, most practitioners and immigration advocates are aware of the June 15, 2011 Morton Memoranda regarding the exercise of prosecutorial discretion to persons in removal proceedings in accordance with ICE’s removal priorities.  While there were was vague language regarding family relationships in ICE’s guidance, and while assurances were made that same-sex couples would be recognized in the guidance, no official word came from the Department or ICE in writing.  Advocates for LGBT immigration issues received assurances that the vague language did not require a couple to be married, nor even of opposite sex, when ICE was evaluating a case for prosecutorial discretion.  However, in practice application of the Morton Prosecutorial Discretion Memos was inconsistent throughout the country.  While leadership in Washington seemed to envision inclusion of all couples, regardless of marital status or sexual orientation, the boots on the ground seemed to be looking more for a marriage certificate.

 

On Thursday, September 27, 2012, Secretary Napolitano answered a letter from some Members of Congress requesting clarification on the issue.  Specifically, in her response, Secretary Napolitano clarified that the term “familial relationships” specifically would include long-term, same-sex partners.  She also specified that she has directed ICE to disseminate written guidance to the field clarifying the issue.  Advocates expect ICE guidance in the very near future on this issue.

 

Given the DOMA litigation, the pending Uniting American Families Act which would recognize same-sex relationships for immigration purposes, and the wave of marriage recognition across the country, this forthcoming guidance from ICE at the Secretary’s direction is a large advance for the LGBT community in immigration issues.

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States Seek to Deny Driver’s Licences to New Category of Deferred Action Cases

Contributed by Aaron Hall, Attorney

On August 15, 2012, the Department of Homeland Secretary (DHS) began accepting applications for Deferred Action for Childhood Arrivals (DACA).  The procedures for DACA are now in place and the first applicants have already received their receipt notices and biometrics notices from USCIS.

The new DACA program is designed to allow qualifying applicants who entered the U.S. as children to be temporarily safe from being deported and would allow them to seek employment authorization while they are here.  Such employment authorization would ordinarily allow them to apply for a driver’s license from their state DMVs.  But Governors Jan Brewer of Arizona and Dave Heineman of Nebraska have declared that despite the REAL ID Act of 2005 listing deferred action grantees as eligible for driver’s licenses, their states will refuse to issue such licenses to those who are granted deferred action through DACA.

 

Their decision to deny driver’s license to those with DACA is certain to lead to litigation on the matter but at this point it is unclear how many other states may join Arizona and Nebraska in keeping work-authorized DACA grantees from getting their licenses.

 

Further Reading:

-Christian Science Monitor article on states refusing to issue driver’s licenses for deferred action

-USCIS Frequently Asked Questions on DACA

-JLF DACA Site at http://www.dreamtoimmigrate.com

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The Changing State of LGBT Immigration Issues

Contributed by Bryon Large, Senior Attorney

 

 

On August 28, 2012, Senior Attorney Bryon M. Large presented a Continuing Legal Education program to immigration practitioners regarding the current status of immigration law for LGBT persons and the current impact of the Defense of Marriage Act (DOMA) on immigration cases.  The course was offered by the Colorado Bar Association’s Immigration Law Section, of which Bryon is the Chair.  He spent time discussing the many challenges LGBT people face in the absence of protections for same-sex partners under the Immigration and Nationality Act.  Bryon also spent time discussing how the current DOMA litigation awaiting a hearing decision by the Supreme Court would impact people.  Bryon is frequently involved in issues related to the intersection of Immigration Law and LGBT issues and recently attended the National LGBT Bar Association’s Lavender Law annual conference in Washington, D.C.  He is an active member of the Colorado GLBT Bar Association, the National LGBT Bar Association, and is a member of AILA National’s LGBT Working Group.

 

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Back to School

By Kim Tremblay, Associate Attorney

 

As summer comes to a close, millions of students across the United States are returning to school. In the current popular and political discourse, foreign students lawfully present in the United States to pursue their studies are rarely mentioned. Last year, the Department of State issued about half a million F-1 student visas to students coming to the United States from abroad. This number does not include scholars and students coming to the United States on J-1 exchange visitor visas. Students migrate from every corner of the globe to study in our schools; the majority, over 150,000 students, are Chinese nationals.

 

These students gain many benefits from studying in the United States, such as a good education or a different cultural or educational perspective. However, Americans are the true beneficiaries of these foreign students’ presence in our schools. Foreign students bring a global perspective to the classroom and expose local students to new ideas. They pay out-of-state tuition, helping maintain programs at Universities, many of which face increasing financial struggles.

 

Surely surprising to many people, these students inject billions of dollars annually into the U.S. economy. According to NAFSA, an association of international educators, they spend over 20 billion dollars every year. They pay tuition and fees to Universities, but they and their families also contribute to local economies through their living expenses. For example, during the 2010-2011 school year, there were 7,688 foreign students living in Colorado. They spent over $235,000,000 in Colorado that year alone in contributions to both their schools and adopted communities.

 

The above-mentioned facts, along with the issue of retaining foreign talent after graduation, represent yet another topic that should be considered in our national dialogue regarding immigration reform.

 

See http://www.nafsa.org/_/File/_/eis2011/Colorado.pdf

See http://travel.state.gov/visa/statistics/graphs/graphs_4399.html

See http://www.travel.state.gov/pdf/FY11AnnualReport-Table%20XVII.pdf

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DREAM Economics

By Amber L. Blasingame, Associate Attorney

Immigration reform, such as the DREAM Act, may not be the ultimate solution to our economic woes, but it could be a starting point.  Whether it increases our national revenue or we break even, the economic benefit of the DREAM Act and similar legislation far outweigh the alternatives.

 

In January 2012, the Immigration and Customs Enforcement Deputy Director, Kumar Kibble, informed the House Judiciary Subcommittee that deportation costs the government $12,500 per person.  This includes the arrest, detention, litigation, and removal of an immigrant.  A majority of these costs are paid from tax revenue.  The Department of Homeland Security memo published on June 15, 2012, granting deferred action to individuals who entered without status as children, estimated that 800,000 undocumented aliens could be eligible for the new benefit.  Since June 15, 2012, the government has revised the number of potentially eligible beneficiaries to 1.4 million.  Removing all 1.4 million individuals could, therefore, cost the government as much as $175 million according to Deputy Director Kibble’s report.

 

Legislation such as the DREAM Act requires that the immigrant “pay into the system.”  Even the memo offering deferred action to potential DREAMers would require that the undocumented immigrant pay processing fees at every stage and provide evidence of eligibility for the benefit.  Instead of the US taxpayer supporting an undocumented immigrant through the process, the undocumented immigrant supports herself through the process and contributes to the greater economy.  A recent White House blog cited a report from the Congressional Budget Office that the 2010 version of the DREAM Act could reduce the deficit “by $2.2 billion over ten years because of increased tax revenues.” 

 

DREAMers epitomize our hope for the future of this country.  The DREAM Act as previously written required that the undocumented immigrant enroll in post-secondary school at her expense or enlist in the military.  The new memo requires that the beneficiary be enrolled in school, have graduated at least from high school, or be a veteran of the armed forces.  At present the Census Bureau reports that “only 16 percent of the resident population holding a bachelor’s degree or higher” are immigrants, but immigrants account for “33 percent of engineers, 27 percent of mathematicians, statisticians, and computer scientist, and 24 percent of physical scientists,” in the United States, as cited by the White House.  Given the chance, potential DREAMers could increase those numbers substantially, which would increase revenue for both private and public schools nationwide.  At present many undocumented individuals who entered as children and earned their education through US schools are unable to enroll in postsecondary institutions because they lack proof of lawful status or are unable to pay non-resident tuition rates.  Immigrants benefiting from the DREAM Act would not only “pay into the system,” but would be required to positively contribute to the future of our communities and our nation’s welfare.

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Procedures for Deferred Action for Childhood Arrivals

Contributed by Melanie Corrin

The United States Citizenship & Immigration Service (CIS) announced a portion of its procedures for Deferred Action for Childhood Arrivals (DACA) program; commonly known as deferred action for DREAMers.  Through this procedure, as of August 15, 2012 eligible applicants who meet the following criteria can apply for Deferred Action:

1.       Under the age of 31 as of June 15, 2012

2.       Came to the US before reaching 16^th birthday

3.       Continuous physical presence June 14, 2007 – June 15, 2012

4.       Present in the US on June 15, 2012

5.       Entered without a visa or their visa expired as of June 15, 2012

6.       Currently enrolled in school/GED program or have obtained high school diploma/GED or be United States Military veteran with honorable discharge

7.       No felony convictions, No significant misdemeanor conviction, Cannot have 3 or more misdemeanor convictions

Portion of this program have very specific definitions and requirements, including what defines a felony, a serious misdemeanor and a misdemeanor.  It is important to speak with an attorney prior to determining eligibility, potential relief and potential pitfalls to ensure you are not putting yourself at risk. 

DACA is temporary, and if granted, is approved in two year increments.  USCIS has not published the form, and will not do so until August 15, 2012; the first day individuals are eligible to apply.  The filing fee will be a total of $465.00 and will include biometrics collection, background checks and the application for employment authorization.   

If you are interested in DACA or think you may be eligible, contact us to discuss your case.

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30 year-olds Don’t Despair, Deferred Action Still Within Reach

Contributed by Aaron Hall

When Department of Homeland Secretary (DHS) Napolitano announced the new deferred action program on June 15, 2012, it was announced that one of the requirements for eligibility would be that applicants “are not above the age of thirty” as of June 15, 2012.

 

The initial assumption was that this requirement would disqualify a potential applicant who was 30 years and two months old at the time of the announcement.  Fortunately, DHS has now clarified that potential applicants will meet the age requirement so long as they were under 31 years old on June 15, 2012.  Therefore, many people who were 30 at the time of the announcement will qualify for the new deferred action program.

 

For further information on the eligibility requirements, go to our website dedicated to deferred action at http://www.dreamtoimmigrate.com/. 

 

Further Reading:

6/15/12 DHS Announcement

USCIS on Consideration of Deferred Action for Childhood Arrivals Process

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Department of Homeland Security Announces Deferred Action for Eligible DREAMers

By Kim Tremblay & Amber L. Blasingame, Associate Attorneys

On June 15, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), announced that the government will offer indefinite relief from deportation for young immigrants brought to the United States as minors.  Young immigrants, between the ages of 15 and 30 years old as of June 15, 2012, not in deportation proceedings will also be eligible to apply for deferred action. 

Although this is not the DREAM legislation (Development, Relief, and Education for Alien Minors Act) that many have been pushing Congress to enact for years, it is a step in the right direction.  It will allow many young immigrants to come out of the shadows, support themselves, and use the skills they acquired in American schools in the workplace.  The DHS initiative will also provide more opportunities for young immigrants to apply and attend college or university, since many US post-secondary institutes require evidence of legal status for admission.  The department estimates that the new policy may benefit as many as 800,000 potential DREAMers.  However, many questions remain unanswered as both USCIS and ICE have 60 days to implement policies and procedures for filing deferred action requests.

Based on the results of DHS’s prior prosecutorial discretion initiative, it also remains to be seen whether this new policy will be any more successful for young immigrants in deportation proceedings.  The August 2011 DHS memo initiated a policy based on priorities to reduce the immigration court’s overbooked docket.  Under the prosecutorial discretion policy , DHS reviewed all 350,000 pending deportation cases nationwide and offered to administratively close about two percent of cases that were not priorities for DHS to pursue.  This was a much lower number than anticipated.  Thus, for young immigrants already in removal proceedings, it remains unclear whether this new policy will bring about much change. 

More positive outcomes are expected for young immigrants who are not in deportation proceedings.  Applications for individuals who are not in deportation proceedings cannot be filed until USCIS implements a filing procedure.  In the meantime, however, potential DREAMers should consult attorneys to determine their eligibility for the program and start gathering documents to show that they meet the requirements. They should beware of individuals or agencies who claim they can help but who are not licensed to represent and assist individuals in this legal process. 

Potential DREAMers physically present in the United States should also get documentation to show they are here from today and until deferred action is granted.  They should also hold on to anything to show they were present on June 15, 2012.   

Individuals must meet the following requirements to be considered for deferred action:

• Entered the United States before age 16 and not be above 30 years of age;
• Have continuously resided in the U.S. for 5 years as of June 15, 2012;
• Were physically present in the U.S. on June 15, 2012;
• Are currently in school, have graduated from high school or earned a GED, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
• Have not been convicted of a serious crime or multiple minor crimes that pose a threat to the national security or public safety.

Those who meet the criteria will be qualified to obtain deferred action for two years, subject to renewal for an indefinite period of time, and will be eligible to apply for work authorization if they can show financial need.



Related Articles:
http://immigrationimpact.com/2012/06/15/president-obama-to-halt-removal-of-dreamers/
http://aila.org/content/default.aspx?docid=40173
http://aila.org/content/default.aspx?docid=40171
http://aila.org/content/default.aspx?docid=40168
http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm

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MAVNI Reinstated: Recruitment of Non-Resident Aliens for Military Service Resumes

The Department of Defense (DOD) reinstated the Military Accessions Vital to National Interest pilot program (MAVNI) on May 16, 2012.  The reinstatement will extend recruiting of certain non-resident aliens for vital personnel positions for another two years.

In 2009, the DOD initiated the MAVNI program to meet a growing demand for selective health care and linguistic professionals in the military services.  The program was extended in 2010, but expired on December 31, 2011.  The DOD did not resume recruiting under the program until May 16, 2012.

MAVNI allows different branches of the military to recruit a certain number of non-resident aliens based on need until either the program expires or until the need is fulfilled.  The Marine Corps and Air Force currently have a need of 125 Health Care Professionals or Enlisted with Language/Culture), while the Army may recruit up to 1,000 non-resident aliens under MAVNI.  The type of health care professionals being considered for recruitment depends on current shortfalls in each of the service branches.  Needed language and cultural expertise is limited to a certain list of languages and cultures.

Non-resident aliens eligible to enlist pursuant to MAVNI include the following:  Asylee, refugee, Temporary Protected Status, or nonimmigrant categories such as E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V.  A non-resident alien “must have been in valid status in one of those categories for at least the 2 years immediately prior to the enlistment date.”  While an alien who has been in more than one of the listed categories in the last 2 years is eligible, the alien may not have been outside of the United States for more than 90 days within the last 2 years immediately preceding enlistment.  A non-resident alien may also be eligible even if she has an adjustment of status to permanent residence (green card) pending with the Department of Homeland Security.  On a case-by-case basis, a non-resident alien previously in H status with a pending adjustment, who has lost such status since the adjustment application was filed, may also be considered for enlistment under MAVNI.

Non-resident aliens enlisted under the MAVNI program may qualify for a streamlined citizenship process.  During times of national need, enlisted non-resident aliens may apply for expedited citizenship.  "Since September 11, 2001, nearly 43,000 members of the Armed Forces have attained their citizenship while serving this nation."

The MAVNI program arises from a tradition of non-citizens serving the United States since the Revolutionary War.  Different congressional acts and agreements in times of national need over the last 100 years, such as the Lodge Act of 1950 and the Military Bases Agreement of 1947, have provided opportunities for a limited number of non-citizen and non-resident aliens to obtain early citizenship through service to the United States.

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Temporary Protected Status Registration for Syrian Nationals Began March 29, 2012

Initial registration for Syrian nationals to apply for Temporary Protected Status opened on March 29, 2012.  The US Citizenship and Immigration Services (USCIS) will accept applications for Temporary Protected Status for Syrian nationals until September 25, 2012.  If granted, applicants will receive Temporary Protected Status valid until September 30, 2013.

                                                                                                    

USCIS notes that an error appeared in the Federal Register regarding the registration period.  The Federal Register announced that registration would be open until September 25, “2013.”  A correction to the Federal Register will be posted soon.  USCIS emphasizes that applications will not be accepted after September 25, 2012.

Applicants must provide evidence of certain criteria to qualify for Temporary Protected Status.  Such evidence includes documentation confirming Syrian nationality or last habitual residence in Syria, continuous residence and physical presence in the United States since March 29, 2012, and admissibility for purposes of temporary protected status.  An applicant’s criminal history may also render him inadmissible including felonies or two or more misdemeanor convictions.  More details on the process and requirements for application are available at www.uscis.gov/tps.

Applicants for Temporary Protected Status who want assistance with the process should consult with a reputable immigration attorney.

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Temporary Protected Status for Syrian Nationals in the US

On March 23, 2012, the Department of Homeland Security (DHS) announced an intention to extend Temporary Protected Status to Syrian nationals.  In her announcement, the Secretary of Homeland Security, Janet Napolitano, stated that DHS recognizes “the deteriorating conditions in Syria,” due to the unrest which began in March 2011.  DHS is concerned that Syrian nationals currently in the U.S. who attempt to return home “would face serious threats to their personal safety.”

However, DHS has not yet posted registration dates for Syrian’s to apply for Temporary Protected Status.  Any applications sent in before the designated registration period will be rejected.  According to the announcement, DHS plans to post procedures and requirements for registration early next week (the week starting March 26, 2012).  Our firm will post updates regarding the registration period at http://www.immigrationissues.com/, but interested applicants may also look for updates at www.uscis.gov/tps.

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Will Shoplifting Charges Impact Getting a Green Card Through Marriage?

Perhaps. All crimes involving moral turpitude are inadmissible offenses under INA section 212(a)(2)(A)(i)(I). However, there is a petty offense exception if the maximum POTENTIAL penalty for the offense does not exceed imprisonment for one year and any actual sentence received does not exceed imprisonment for 180 days (even if that sentence was suspended). Based on your fact pattern, it appears that the offense might meet the petty offense exception which would mean that you would be admissible. If you have more than one criminal incident in your past, you will not qualify for the petty offense exception. It only applies to a single criminal incident. If it does not meet the petty offense exception, you can still seek admission based on the marriage but you will need a waiver of the crime under INA section 212(h). To avoid Deportation Colorado and obtain such a waiver you must demonstrate that it would cause extreme hardship to a U.S. citizen or lawful permanent resident spouse, parent or child if you do not receive the waiver.

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