Julie Kruger is an Attorney and Partner at Richards & Kruger, with a practice limited to Immigration Law. She is admitted to practice in New York State, and is a member of the American Immigration Lawyers Association, New York State Bar Association, and Erie County Bar Association.

Richards & Kruger Immigration Law
2731 South Park Avenue
Lackawanna, NY 14218
Phone: 716-832-2222
Fax: 866-941-6703

Friday, May 25, 2012

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.

Wednesday, May 23, 2012

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.

Thursday, May 17, 2012

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." 

Wednesday, May 16, 2012

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.