Returning LPRs - Are They Applicants for Admission?

When a Lawful Permanent Resident (LPR) departs the United States and subsequently seeks to re-enter the United States, he or she will not be regarded as an applicant for admission.  INA § 101(a)(13)(C).  However, there are (of course) exceptions to that rule. 

One of those exceptions is where an LPR "has engaged in illegal actvity after having departed the United States."  This language, found in the statute, is somewhat vague and raises two interesting questions: 1) what constitutes "illegal activity"? and, 2) where an LPR is attempting to engage in illegal activity on both sides of the border, at what point does the LPR re-enter the United States?  This second question is a critical one, because if the LPR is regarded as seeking admission to the United States, he will be charged as inadmissible to the United States.  If, however, the LPR is not regarded as an applicant for admission, he will be charged as removable from the United States, and the burden of proof to remove the LPR will be much higher on the government.

The Board of Immigration Appeals (BIA) recently took up this second question in its decision in Matter of Guzman Martinez, 25 I. & N. Dec. 845 (BIA 2012).  In that case, the Respondent was a native and citizen of Mexico, and an LPR of the United States.  He departed the United States and entered Mexico, and later presented himself for inspection at the San Ysidro, California port of entry.  During inspection, the Department of Homeland Security alleged that he was attempting to smuggle in an undocumented alien.  DHS issued a Notice to Appear, and charged him with being inadmissible to the United States (not removable as a returning LPR). 

The Respondent argued before the Immigration Court, and the Immigration Judge agreed, that he was improperly charged as being inadmissible, and that he should have been charged as being removable, because his illegal activity occurred as he was "crossing the border" back into the United States.  The Immigration Judge dismissed the charges of inadmissibility and terminated the proceedings against the Responsent.  DHS appealed the Immigration Judge's decision to the BIA.

The BIA found that "[w]hen a lawful permanent resident voluntarily leaves the United States, he remains outside this country for immigration purposes until he completes the inspection process upon return.  An alien does not meaningfully 'enter' the United States simply by setting foot in a port of entry."  Therefore, the Respondent was properly charged as being inadmissible to the United States, and the BIA remanded the case back to the Immigration Judge for further proceedings.  

Stay of Removal Granted in 8 Days!

My client is a citizen of the People's Republic of China.  He was inspected and paroled into the United States over 15 years ago, however, the following year he was ordered removed to China by an Immigration Judge.  He never departed the United States.  He has no criminal record, and his wife and children are all Lawful Permanent Residents of the United States.  He is elderly, and has a medical condition.

My client was recently encountered by USICE and taken into custody, at which point I was retained.  Because of the old removal order, USICE was prepared to remove my client from the United States immediately.  I prepared an Application for a Stay of Removal, and gathered documentation to support the Application, showing that my client merited the exercise of prosecutorial discretion because of his long residence in the United States, his lack of a criminal record, his family in the United States, and his medical condition.  I then filed the request with USICE, and eight days later received a call that the Stay of Removal was approved. My client was released from custody approximately two hours later, and was reunited with his family!

Order of Removal Reopened & Terminated, Client Now Eligible to Apply for Green Card

My client is a native of Ukraine and citizen of Israel.  He was lawfully inspected and admitted to the United States, but unfortunately overstayed his status.  He has no criminal involvement.  He was placed into removal proceedings, however because he never received notice of the hearing before the Immigration Judge, he did not appear before the Court on the day of his hearing.  The Immigration Judge ordered him removed to Israel in absentia (in his absence). 

My client then hired an attorney to reopen his proceeding.  Unfortunately the motion prepared by the previous attorney did not advise the Court of any new facts, of any relief available, and was not accompanied by any applications seeking relief.  The Department of Homeland Security opposed the motion, and the Immigration Judge denied the motion.  The attorney then filed a motion to reconsider, which was again deficient, and was again opposed and denied.  The attorney did not file an appeal with the Board of Immigration Appeals.

My client then met and fell in love with a United States citizen, and after an appropriate courtship period, they were married.  The couple consulted with yet another attorney, who advised them that nothing could be done in this case.

The couple then consulted with and retained me.  I prepared and filed a Form I-130, Petition for Alien Relative, on their behalf, which was filed with USCIS and approved.  I then worked with the Office of Chief Counsel on a Joint Motion to Rescind and Reopen the removal order, along with a Joint Motion to Terminate the removal order.  I prepared a legal brief in support of the Joint Motions, supported by a voluminous exhibits package.  The two Joint Motions were filed with the

Immigration Court

, and one week later, we received a decision from the Immigration Judge granting both motions.  The removal order has now been terminated, and the client is eligible to apply for a green card!

Waiver of Inadmissibility: Crimes Involving Moral Turpitude

If a person has been convicted of a crime at any time in his or her past, that person may be "inadmissible" to the United States.  "Inadmissible" means that he or she may not be admitted to the United States under current law.  One of the grounds of inadmissibility to the United States applies to persons who have been convicted of a crime involving moral turpitude.


Crimes involving moral turpitude may include (depending on the facts of the case, the statute, and the elements of the statute), assault, sexual assualt/rape, manslaughter/murder convictions, arson, theft, forgery, perjury, prostitution, fraud, and others.  A crime involving moral turpitude refers generally to "conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”  Matter of Franklin, 20 I. & N. Dec. 867, 878 (BIA 1994). 


Because of the wide range of convictions that may constitute crimes involving moral turpitude, if you have a criminal conviction, you should consult with an immigration attorney to determine whether it renders you inadmissible to the United States.  If you are inadmissible to the United States because of a crime involving moral turpitude, you may be eligible for a nonimmigrant waiver of inadmissibility, which is granted by the U.S. Department of Homeland Security upon application by the individual.   The Department of Homeland Security will carefully review the application and supporting documentation, and will consider the following factors:  1) the risk of harm to society if the applicant is admitted; 2) the seriousness of the applicant’s criminal law violation; and 3) the nature of the applicant’s reasons for wishing to enter the United States. 


If you have a criminal conviction, and would like to discuss applying for a waiver of inadmissibility, please contact me at (716) 854-1541 for a consultation. 

Eighth Circuit on Crimes Involving Moral Turpitude

The United States Court of Appeals for the Eighth Circuit recently issued a new decision analyzing the methodology used to determine whether a conviction is a crime involving moral turpitude.  Bobadilla v. Holder, 11-1590 (8th Cir. May 29, 2012). 


A crime involving moral turpitude refers generally to "conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general . . . an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.”  Matter of Franklin, 20 I. & N. Dec. 867, 878 (BIA 1994). 


In this case, the Petitioner was convicted in Minnesota of giving a false name to a police officer.  The Immigration Judge found that he was convicted of a crime involving moral turpitude, because fraud was "an element of the offense."  The Board of Immigration Appeals affirmed, relying on Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). 


In Silva-Trevino, the Attorney General set forth a three step framework for the analysis of whether a crime is one that involves moral turpitude.  A court "should engage in a categorial inquiry and look first to the statute of conviction rather than to the specific facts of the alien’s crime."  Id. at 688.  The Attorney General adopted a "realistic probability" standard: "It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime."  Id. at 697.  Where there is a realistic possibility that the crime could be applied to conduct that does not involve moral turpitude, judges “should proceed with a ‘modified categorical’ inquiry," examining "whether the alien’s record of conviction – including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea and the plea transcript – evidences a crime that in fact involved moral turpitude."  If the modified categorical approach is still inconclusive, "judges may, to the extent they deem it necessary and appropriate, consider evidence beyond the formal record of conviction.”  Id. at 690.

The Eighth Circuit found that the Attorney General's analysis in Silva-Trevino is a reasonable construction of the statute, and must be given deference.  The Court found that the BIA failed to follow the methodology set forth in Silva-Trevino, and remanded for further proceedings. 

Supreme Court Issues Decision on Cancellation of Removal

This week, the United States Supreme Court issued its decision in Holder v. Martinez Gutierrez, which considered the issue of whether a parent's years of continuous residence or LPR status may be imputed to his or her child for cancellation of removal purposes.  Cancellation of removal is a form of relief eligible to aliens in removal proceedings who have been lawfully admitted for permanent residence for not less than five years, have resided in the United States continuously for seven years after having been admitted in any status, and have not been convicted of any aggravated felony.

This case arose out of two consolidated cases from the Ninth Circuit. In the named case, Carlos Martinez Gutierrez's family brought him illegally to this country in 1989, when he was five years old. His father was admitted as an LPR two years later, but he was not admitted as an LPR until 2003. Two years after his admission, he was convicted of alien smuggling, and placed into removal proceedings. He sought cancellation of removal, even though he had not been admitted as an LPR for five years, nor did he have seven years of continuous residence after having been admitted.  The Immigration Judge granted cancellation, imputing Martinez Gutierrez's father's immigration history to him. The government appealed.

The Board of Immigration Appeals found that each alien must satisfy the requirements for cancellation of removal on his or her own.  On certiorari to the Ninth Circuit, the Supreme Court found that the BIA's intepretation was a reasonable construction of the statute, and reversed the judgement of the Ninth Circuit.   The Supreme Court found that imputation of the parent's status to the child is not required by the statute.  The Court further found that although imputation was allowed under the old cancellation of removal statute, Congress did not ratify that interpretation when it amended the statute and removed the term 'domicile.' The Court reasoned that although much of the INA focuses on family unity, that is not its exlcusive focus.  The Court examined the BIA's reasoning: that the BIA will impute matters involving an alien's state of mind but not objective conditions or characteristics, and that the BIA's decision "expressed the BIA's view, based on its experience implementing the INA, that statutory text, administrative practice, and regulatory policy all pointed in one direction: toward disallowing imputation." 

This decision limits the availability of cancellation of removal for many aliens who were brought to this illegally country by their parents, through no fault of their own.  It means that some aliens will be removed to countries they may not remember, where they may not speak they language, may not have any relatives or support system, and may not have any way to support themelves.  It means that some properties may be vacated, and some families may be torn apart.

Work Authorization for H-4 Visa Holders

The Department of Homeland Security recently announced several "DHS Reforms to Attract and Retain Highly Skilled Immigrants."  One of those reforms included a change to current regulations to "allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated."  Under the current rule, spouses of H-1B visa holders may be granted an H-4 visa, allowing them to accompany their spouse to the United States, but cannot obtain employment authorization.

This proposed change would certainly be a step forward in policy, and is long overdue.  Spouses accompanying visa holders in other non-immigrant visa classifications, such as Ls, are entitled to employment authorization.  H-4 spouses may have an economic necessity to work.  They may wish to avoid a gap in their employment history that would make it more difficult to later re-enter the workforce.  They may wish to work for career advancement, or personal fulfillment.  The may simply want to meet new people and experience another aspect of American culture.  Their lack of ability to work forces them to be economically dependent on their spouse.  Estimates suggest that H-1B holders are largely male, meaning that this prohibition disproportionately affects women. 

However, the proposed rule is extremely limited in scope.  Not all H-4 spouses are eligible for work authorization, rather, only those "H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident (LPR) status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)." 

DHS's stated reason for this proposed change is to "help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy."  Allowing all H-4 spouses to obtain employment authorization, rather than the limited numbers affected by this rule, would be true reform and may actually accomplish DHS's goal.

You can sign a petition to President Obama to allow H-4 visa holders to obtain employment authorization here, and check out the Official White House response on the petition here.

Justice for Unlawfully Removed Aliens

This week, the Board of Immigration Appeals (BIA) issued a new decision, finding that it had jurisdiction over the appeal of an alien who had been removed from the United States "in error" by the Department of Homeland Security.  This is an important ruling for any alien who has been erroneously removed either during the time allowed for filing an appeal or while an appeal is pending.

The alien in this case was a native and citizen of Mexico with criminal convictions for robbery and residential burglary.  He was ordered deported by the Immigration Judge, and appealed his case to the BIA.  At some point, either before he appealed, or while the appeal was pending, he was erroneously removed to Mexico by DHS, despite the fact that the regulations state that a removal order cannot be executed during this time.   This was a problem because the regulations also state that a person's departure from the United States constitutes a withdrawal of their appeal.  That is, if a person has been ordered removed, files an appeal with the BIA, but then departs the United States, that appeal is considered to be withdrawn, the BIA will not make a decision, and the order of removal becomes final. 

In this decision, the BIA considered for the first time whether the regulations stating that a departure constitutes withdrawal applies to aliens who have been erroneously removed.  The BIA found that such a removal does not constitute a withdrawal of the appeal, and that it has jurisdiction over the case.  The BIA stated, "Fundamental fairness dictates that an unlawful act by the DHS should not serve to deprive us of jurisdiction to review an alien's appeal."  The BIA cited Nken v. Holder, 556 U.C. 418, 436 (2009), pointing out that "there is a public interest in preventing aliens from being wrongfully removed." 

AAO Precedent Decision on P-3 Visas

The Administrative Appeals of Office (AAO) of USCIS has just issued a new, precedent decision on P-3 Nonimmigrant Visa Petitions, examining for the first time what the term "culturally unique" means.  P-3 status may be granted to nonimmigrant artists or entertainers, either individually or as a group, who are coming to the United States to develop, interpret, represent, coach, or teach a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation.  The event the artist or entertainer is participating in must further the understanding or development of his or her art form, and the performance must be "culturally unique." 

In this case, the Skirball Cultural Center, a museum and cultural center, petitioned to have the Orquestra Kef classified as P-3 nonimmigrants for a period of six weeks.  According to the decision, the Orquestra Kef is an ensemble of seven musicians from Argentina "whose music blends klezmer (Jewish music of Eastern Europe) with [L]atin and South American influences."  Initially, USCIS denied their petition, finding that the Skirball Cultural Center failed to establish that the performance would be culturally unique, because it was a "hybrid or fusion style of music" which "cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons."  Because it was a complicated case, USCIS certified its decision to the AAO. 

The AAO found that the P-3 classification can apply to artists and entertainers "whose unique artistic expression crosses regional, ethic, or other boundaries," and that "the idea of 'culture' is not static and must allow for adaptation or transformation over time and across geographic boundaries."  The AAO examined the documents that the petitioner submitted to show that the performance would be culturally unique, including three letters from experts in music, two newspaper articles written about the Orquestra Kef, and a review of the group's 2004 alburm.  The AAO found that "the modern South American klezmer music performed by the beneficiary group is representative of the Jewish culture of the beneficiaries' home country of Argentina," and that "the group's musical performance falls within the regulatory definition of culturally unique."  Because they found that the performance would be culturally unique, the AAO withrew the decision denying the petition, and approved the petition. 

The AAO's decision was the right one, and hopefully will allow more unique and interesting artists and entertainers to perform in the United States.