Operations at Denver Immigration Court Still in Flux

Contributed by Kim Tremblay, Associate Attorney  

Two immigration court judges in Denver had been conducting hearings for detainees in Dilley, Texas via video conference since December.  Their regular dockets were cancelled and cases were taken off the calendar indefinitely on a rolling basis, about three weeks in advance.  Now, the Denver immigration court is set to stop hearing cases from Dilley on May 1, 2015.  However, the court will not resume all of its regular operations.  The judges assigned to the Dilley docket will be hearing cases at the Aurora detention center immigration court several days per week.  Thus, some of their individual hearings set for the summer of 2015 will be rescheduled until November 19, 2019 for now.  Notices will be sent out four to six weeks in advance.  The master calendar docket at the downtown court for these judges should not be impacted. 

In addition, one of the judges will leave the court sometime in the next months for a new assignment.  There is no indication yet how that judge’s docket will be affected.

If you have a hearing scheduled with the immigration court during the summer, you should look out for correspondence from our office regarding a possible change in your scheduled hearing date.  Please contact our office if you have any questions.

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Traveling with Advance Parole

Contributed by Manuel Ceballos, Paralegal and Jennaweh Hondrogiannis, Associate Attorney 

Deferred Action for Childhood Arrivals (DACA) is a program that provides an opportunity for certain undocumented youth who entered the United States as children to obtain temporary permission to remain in the United States. Applicants whose DACA applications are approved are granted work authorization for a two-year period, which to date, can be renewed. In addition, applicants whose cases are deferred have the opportunity to apply for Advance Parole, which is permission to travel outside of the United States.

Not everyone whose DACA application has been approved will qualify for Advance Parole, however. U.S. Citizenship and Immigration Services (USCIS) will only grant Advance Parole if the applicant’s travel abroad will be in furtherance of one of the following:

·         Humanitarian Purposes – This includes traveling to obtain medical treatment abroad, attending a funeral for a family member, or visiting an ailing relative;

·         Educational Purposes – This includes semester-abroad programs and trips for academic research;

·         Employment Purposes – This includes overseas assignments, job interviews, international conferences, training, or meetings with foreign clients.

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In addition to demonstrating to USCIS that the applicant’s reason for travelling is in furtherance of one of the above-named purposes, it is important to understand the possible risks of travelling abroad. The risks are especially significant if the applicant has ever been in removal proceedings, and/or has been deported in the past. 

The opportunity to travel outside of the United States is momentous, especially for those who have been unable to see family members for many years. However, before travelling with advance parole, it is important to seek legal advice regarding the risks.

Manuel Ceballos, a valued paralegal at Joseph Law Firm, P.C., recently travelled to his hometown in Mexico with Advance Parole.  Read about his experience in his blog below:

It had been over 15 years since I last visited my home town in Mexico. In 2011, my parents were deported, causing a difficult separation for my siblings and I. While in Mexico, my father suffered two strokes and became very ill. Talking to my mother over the phone and listening to the hardships she and my father face on a daily basis worried me and intensified my desire to visit them, but because I am not a legal permanent resident (LPR), I was not able to travel back to Mexico. However, due to current changes in immigration policy, I was able to apply for deferred action (DACA) and later apply for Advanced Parole to finally see my parents.

After spending a week with my parents in my home town, my partner and I traveled by bus to come back home to the U.S.  We decided the easiest way to come back to the U.S. was through El Paso, Texas. After over 20 hours of travel from my home town to the border, we decided to purchase tickets to cross the border from Ciudad Juarez to El Paso on a Transborde bus (a small bus that takes you across the border for a small fee). As we were approaching the border, I became very nervous and the only thing that kept going through my mind was, “What if I don’t get allowed into the U.S.?” After waiting in traffic for about an hour on the busy bridge to reach the checkpoint, we were told to get off the Transborde at the Customs and Border Protection (CBP) checkpoint in El Paso and make our way across the border on foot. I immediately noticed how busy the border checkpoint was with long lines of tourists and workers making their way into the U.S.. As I entered the checkpoint, I entered the line for people crossing on the Transborde. The line seemed to move fast and after about 15 minutes I was waiting in front of a CBP officer. I was told to move forward by the CBP officer and I handed the officer my passport and my I-512L, Authorization for Parole. The officer seemed confused and did not recognize the document I had presented to him and told me he had to speak to his supervisor. After a few minutes, the officer came back and told me I needed to proceed to secondary inspection. I followed the officer who led me through several doors before finally entering a waiting room with several chairs with handcuffs. I was told to sit down and wait until my name was called.

As I was sitting in the waiting area, I was able to hear what other people who had gotten there before me were being asked. I tried to stay calm, but the overwhelming feelings and doubts of not being able to cross back into the United States continued to cross my mind. What if I am not allowed back to the US? Where will I go? How will I get home? How will I notify my family? I tried to call my partner, but was not able to reach him.  I kept seeing more people being brought into secondary, children, women, men, and elderly people. After a while, I finally heard my name and an officer approached me. The officer spoke to me in Spanish, but I decided to respond in English. He asked me where I was going and why I had been in Mexico. After responding, the officer took my picture and my fingerprints. At this point, I was still very nervous and did not understand why the officer was taking my picture and fingerprints. The officer then took me to his desk and began asking me more questions. I was asked for my father’s information, my mother’s information, my address, my employment information, my social security number, and where I was born.

After about two hours of questioning and waiting for the officer to check with his supervisor, I was told I was free to go. The officer led me out the same doors I had walked through and told me I needed to have my luggage inspected. I walked out of the checkpoint to meet my partner, who had been waiting for me for over two hours with no knowledge of what was going on. I was so relieved to be back in the U.S.

Despite the nerve-wracking experience at the border checkpoint, I feel extremely fortunate that I was able to visit my parents and spend a few days with them. This experience was life changing and I realized how much I take for granted and am reminded of how fortunate I am to be in the U.S. Despite the daunting experience of going through secondary at the border checkpoint, I would go through it all over again a million times if it means I get to see my parents. I hope to spread the word of my experience to encourage other DACA recipients about the possibility of Advanced Parole so that they will also have the ability to travel back to their countries of origin; a possibility that I am sure they probably could have never imagined.

To speak with an experienced immigration attorney about your eligibility for either DACA or Advance Parole, please call Joseph Law Firm, P.C. at 303-297-9171.

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Jeff Joseph Participates in AILA's National Day of Action

Senior Partner, Jeff Joseph returned from Washington D.C. on April 17^th after having visited Congressional offices for 8 out of the 9 Congressional representatives for the State of Colorado. Representative Scott Tipton declined requests for a visit.

The visit included personal meetings with Representative DeGette and Representative Buck and meetings with the immigration staffers from the other offices.  The purpose of the meetings was to make the case for a much-needed overhaul of the nation’s immigration system.

“As part of the American Immigration Lawyers Association’s National Day of Action, I advocated on Capitol Hill for real reform to America’s broken immigration system.  I visited both House and Senate offices to educate and inform members of Congress and their staff about what inaction means for our communities and my clients.  I was glad to take part in this unique opportunity to join with colleagues, clients, coalition partners, and other AILA members, to ask Congress to advance concrete proposals that will fix our dysfunctional immigration system.”  Jeff said.

“In each meeting, I laid out the facts regarding immigrants in Colorado and the critical function they play in all sectors of the Colorado economy from resort workers, to dairy farms, from high tech companies to universities, from research to oil and gas.  The need for these workers increases every year because our nation has failed to find a workable solution to the problems faced by immigrants, businesses, employers, and state and local governments.  I also reminded Congress people that while border security is important, our border keeps illegal immigrants locked in the country as well as out of the country and that border security must be coupled with a legal immigration system that replaces the illegal flow of immigration with a sensible legal channel for workers to enter the United States to fill vacuums in our economy.”  Jeff continued.

“We saw the Senate step up in 2013 with S. 7444, and we’ve heard from members on both sides of the aisle about reform being necessary, so now is the time.  We need a bill that includes a roadmap to lawful permanent resident status for those currently undocumented living and working in the U.S., and major reforms to the legal immigration system to help businesses to grow, families to reunite and bring fairness and due process to immigration enforcement.  While I finished the Hill visits for this trip, my work will not be complete until a comprehensive immigration reform bill is signed by the President.”  Jeff concluded.

In addition to his lobby efforts, Jeff also appeared on a “Hot Topics Open Forum” panel with Riah Ramlogan, Acting Principal Legal Advisor for Immigration and Customs Enforcement at the Department of Homeland Security and Philip Miller, Assistant Director for Enforcement and Removal Operations at Immigration and Customs Enforcement. 

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Attorney General Withdraws Matter of Silva-Trevino, Strict Categorical Approach to Apply in CIMT Analysis

Contributed by Aaron Hall, Partner

The Upshot

Last week, Attorney General Eric Holder withdrew the decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  This means that immigration adjudicators should no longer be able to reference police reports or other extraneous evidence when deciding whether a conviction constitutes a crime involving moral turpitude (CIMT).  Instead, they will once again be strictly limited to review of the record of conviction.  This is great news for foreign nationals and for immigration courts that have struggled to give fair application to the now-withdrawn three-step approach from Silva-Trevino.

A Little Background

In 2008, Attorney General Michael Mukasey issued an opinion in Matter of Silva-Trevino which set up a new framework for immigration adjudicators to analyze whether a conviction constitutes a CIMT for immigration purposes.  Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  The decision allowed adjudicator to look beyond the record of conviction in certain circumstances “if doing so is necessary and appropriate” to ensure proper application of the statutes moral turpitude provisions.  Id. at 699.  Under Silva-Trevino, immigration judges were able to review “any additional evidence the adjudicator determines is necessary or appropriate.”  Id. at 704.

In practice, this meant that immigration judges would often resort to police reports and be forced to conduct Silva-Trevino hearings where they would try to determine facts surrounding past convictions—sometimes decades old—through witness testimony and other disputed evidence outside the record of conviction.  Immigration courts, where the rules of evidence do not strictly apply, are particularly ill-suited for this kind of fact finding around past events.  The resulting hearings often bordered on the absurd, with immigration judges forced to try to determine facts such as whether a crime committed ten years prior was done “recklessly” or “knowingly.”

The respondent in the Silva-Trevino case, following a remand to the immigration judge and a subsequent appeal to the Board of Immigration Appeals, filed a petition for review with the Fifth Circuit Court of Appeals. On January 30, 2014, the Fifth Circuit rejected the Attorney General’s approach in Silva-Trevino as contrary to the plain language of the statute.  Silva-Trevino v. Holder, 742 F.3d 197, 200-06 (5th Cir. 2014).  The Fifth Circuit became the fifth circuit to reject the Silva-Trevino three-step approach to analyzing CIMTs.  See Olivas-Motta v. Holder, 746 F.3d 907, 911-16 (9th Cir. 2013)(amended opinion); Prudencio v. Holder, 669 F.3d 472, 480-84 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1307-11 (11th Cir. 2011); Jean-Louis v. Att’y Gen., 582 F.3d 462, 472-82 (3d Cir. 2009).

Because of the five circuits having rejected the Silva-Trevino approach and because the Supreme Court in Moncrieffe v. Holder, 133 S. Ct. 1678, 1690-92 (2013), made clear that where a negative consequence hinges on “convicted” conduct the categorical approach must apply, Attorney General Eric Holder vacated the Silva-Trevino decision on April, 10, 2015.

What’s Next?

The Board of Immigration Appeals will likely address what the withdrawal of Silva-Trevino means for the analysis of CIMTs in future published decisions, but what this should mean is that the days of holding mini-evidentiary hearings on old convictions and referencing disputed police reports to decide if a foreign national was convicted of a CIMT are over.

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USCIS Has Reached the H-1B Cap for Fiscal Year 2016

Contributed by Kim Tremblay, Associate Attorney

As expected, USCIS announced today that it had reached the 65,000 visa cap on H-1B petitions for the upcoming fiscal year.  The 20,000 visa cap for the advanced degree exemption for applicants with a United States Master’s degree or higher was also reached. 

USCIS will finish the intake of the petitions it has received thus far and will then conduct a lottery to determine which petitions the agency will accept and review.  The petitions that are accepted will still need to satisfy the legal requirements for H-1B petitions.  USCIS will first conduct the lottery for the advanced degree exemption petitions and then include the petitions that were not selected in the general lottery for the 65,000 regular H-1B petitions.  USCIS has not yet announced when the lottery will be conducted.

USCIS will return petitions that the agency does not select in the lottery, along with their filing fees.  No date has been set for the lottery. 

Petitions that are cap-exempt can still be filed.

For more information, see: http://www.uscis.gov/news/news-releases/uscis-reaches-fy-2016-h-1b-cap.

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Fifth Circuit Court of Appeals Upholds DACA

Contributed by Aaron Hall, Partner

The Fifth Circuit Court of Appeals has rejected a challenge to the 2012 version of the Deferred Action for Childhood Arrivals (DACA) program by the State of Mississippi and individual Immigration and Customs Enforcement (ICE) agents.

In an April 7, 2015, opinion in Crane v. Johnson, the Fifth Circuit Court of Appeals upheld the 2012 version of the Deferred Action for Childhood Arrivals (DACA) program, holding that the plaintiffs had failed to demonstrate that they would suffer any injury from the DACA program.

This is a different case than Texas v. United States, the case where a group of states are challenging portions of President Obama’s 2014 executive actions including the expansion of DACA and the Deferred Action for Parental Accountability (DAPA) program.  Importantly, the court in Crane found that the State of Mississippi lacked standing based on the sparse evidentiary record in that case.  The states in the Texas case will undoubtedly hope to bolster their chances of having the court strike down DACA 2014 and DAPA by introducing studies on the costs to the states that they allege come from the deferred action programs.

Still, the Crane decision is from the Fifth Circuit, the same circuit where courts are considering the Texas v. United States.  The Fifth Circuit’s rejection of the challenge to the 2012 version of DACA is therefore very positive news for the prospects of the 2014 version of DACA and DAPA.

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