Lee & Garasia, LLC
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Edison Immigration & Naturalization Law Blog

Supreme Court Case on Acquisition of US Citizenship For Children Born Out-of-Wedlock

The Supreme Court of the United States just recently issued an important decision regarding the acquisition of US Citizenship by children born abroad. In Sessions v. Morales-Santana, the high court ruled that the disparity in criteria applicable to those claiming US citizenship through an unwed citizen father as opposed to an unwed citizen mother was unconstitutional and violated the 5th Amendment's right to equal protection under the law. While recognizing the historical and gender-based notions that undergirded the different rules at the time, the Court held that no important governmental interest was served by perpetuating antiquated laws based on stereotypical notions that unwed fathers are less likely to assume responsibility for children born out of wedlock, thereby, as the obsolescent view goes, vitiating the connection between the foreign-born child and the US. As a consequence, the Court did not find a justifiable reason to continue allowing those claiming US citizenship through an unwed mother to show only one year of her continuous physical presence in the US, but those asserting citizenship through an unwed father to demonstrate, as per the general rule, ten years physical presence of the father in the US, at least five of which were after the age of reaching the age of 14. (The current physical presence rule, applicable to children born on or after November 14, 1986, is five years, two of which need to be after the age of 14.) In the case at hand, Mr. Morales-Santana's claim of acquisition through his unwed father had been denied because his foreign national father left the US without having lived here for five years after turning 14: in fact, he left only 20 days short of his 19th birthday, a fact that disqualifies him under 8 USC 1409(a) but would not under section 1409(c) which is the statutory exception that applies only to out-of-wedlock children born to unwed mothers.

Update on Immigration Interpreters| Can My Family Member Translate for Me?

In the middle of January 2017, USCIS released a Policy Memorandum concerning "The Role and Use of Interpreters in Domestic Field Office Interviews." The new memo (PM-602-0125.1) standardizes guidance on the use of interpreters agency wide in order to ensure that the rules are applied uniformly and fairly. It should be of particular importance to those summoned to appear at USCIS interviews who are not fluent in or able to communicate competently in English. (The policy does not apply to the following scenarios or situations, which have their own protocols: asylum interviews; credible fear screening interviews; NACARA related interviews; refugee interviews; interviews conducted at a USCIS overseas office; and interviews for which USCIS provides an interpreter.)

How To Get Bond or Secure Release From Immigration Detention in NJ

One of the most pressing questions and concerns that a foreign national and concerned family members or friends have after a non-US Citizen is picked up by Immigration and Customs Enforcement ("ICE") is how to secure that person's release. Some are understandably terrified that the individual will just be shipped back to his/her native country; others are afraid that the person may languish in detention indefinitely while immigration court proceedings are pending. Therefore, the foremost consideration is how to get that person released from detention.

Accommodations for Deaf, Blind and Disabled Citizenship Applicants | Lawyer for Citizenship

The naturalization examination for US Citizenship can be an extraordinary intimidating process. Born US citizens take it for granted, but the idea of driving to an immigration office and appearing for an examination before a government officer is the cause of many night sweats and palpitations, especially for those who are elderly and those not fluent in English. The process can be even more daunting for those who suffer from disabilities, whether they are hard of hearing, partially blind, or unable to walk. Some of these people are discouraged to apply because they assume that they will not be able to perform competently. Fortunately, the government does recognize these types of situations and does provide accommodations for people with valid physical handicaps.

What If I am Illegal and Stopped Driving in New Jersey Without A License?

One of the most pressing and urgent concerns that undocumented individuals have is what will happen to them if they are stopped for driving without a license. Given the increase in enforcement under the Trump Administration, these fears are not unjustified. In New Jersey, driving without a license is a traffic offense punishable under Title 39:3-10 and often referred to as "Unlicensed Driver." The statute provides for two distinct penalties depending on whether the defendant was ever licensed elsewhere:

USCIS Releases Guidance For B-2 Visitors Who Want To Become F-1 Foreign Students

In April of 2017, USCIS released special instructions for B-1/B-2 visitors looking to enroll in school. The bulletin clarifies that unless and until a change of status application (Form I-539) has been approved, it is not permissible for a foreign national to enroll in school while in B1/B2 status. In contrast to coming to the United States directly as an F-1 or M-1 student, the process of transitioning from visitor to student while already inside can be convoluted and formidable. Being accepted into a school and receiving an I-20 is only the first step in changing one's status. The prospective student must also prudently plan and coordinate one's anticipated start date with the end date of one's initial authorized stay. If, for example, a visitor's stay is due to expire more than thirty days prior to the I-20 start date, USCIS will likely deny the change of status application. USCIS recommends that applicants in this type of situation consider filing another I-539 to extend one's visitor's status while the initial I-539 awaits adjudication; alternatively, the applicant might leave before his/her stay is up and apply for the student visa abroad.

Update on NJ Shoplifting Immigration Consequences: Can A Conditional Dismissal Help?

On September 6, 2013, Governor Chris Christie signed a new law into effect that implemented the Conditional Dismissal program in New Jersey's municipal courts. Up until 2014, many first time offenders whose cases were heard in municipal court were not able to avail themselves of any formal pre-trial diversionary program like that in Superior Court. As a result, some people ironically found themselves in a legal quandary that similar offenders in Superior Court did not have to address: whether to go to trial or accept a plea to a lesser offense, whereas those in Superior Court who qualified for Pre-Trial Intervention ("PTI") would have the benefit of having the charge(s) dismissed after successfully completing probation. Now that there is a municipal court counterpart to PTI, there appears to be more parity amongst the two venues, with only the gravity and potential penalty of the offense determining jurisdiction. But appearances can be deceiving, and like anything in the law, you have to read the fine print. Certainly, it is generally preferable to have a case heard in municipal rather than Superior Court. However, as we have repeatedly stressed on a number of occasions, the collateral consequences of municipal court offenses can still be very significant, especially for those who are not US Citizens. The Conditional Dismissal mechanism, unfortunately, does very little in the way of vitiating the immigration consequences of some deportable offenses. Shoplifting is a perfect illustration of this.

Sometimes, Extreme Hardship Is Not Enough | I-601 Waiver Practice Tips

While proving extreme hardship is often the most critical part of getting a waiver case approved, it is important to remember that it is not the only part. It is easy to get so focused on proving hardship that one forgets or neglects to address the notion of discretion. In order to demonstrate that one qualifies for a waiver, an applicant must not only prove the requisite hardship to the appropriate qualifying relative, he or she must also make the case that a favorable exercise of discretion is warranted. As the USCIS policy manual lays out, "a finding of extreme hardship permits but never compels a favorable exercise of discretion." As a result, the adjudication of a waiver actually goes through a two-step process. First, the officer must determine whether hardship exists: if the hardship does not rise to the level required, the inquiry ends. However, if there is hardship, then the officer proceeds to step two, which is determining whether the applicant merits a grant. In making this determination, the officer must weigh both positive and negative factors.

Can I Be Arrested At Court By ICE? | Superior and Municipal Criminal Court

Late last week, Chief Justice Stuart Rabner of the New Jersey Supreme Court urged in a letter to Secretary of Homeland Security John Kelly that courthouses be added to the list of "sensitive locations." A sensitive location, according to ICE and CBP policies, is a place where immigration agents are generally supposed to avoid while carrying out enforcement operations. Recognized locations currently include:

Can I be Deported for Leaving the Scene of an Accident in NJ | Hit and Run

As this blog has increasingly stressed, the immigration consequences of traffic violations in municipal court for foreign nationals should not be underestimated, especially during the Trump Administration. While most routine moving violations under Title 39 do not generally trigger deportability, there are some more serious infractions that carry what the courts call a "consequence of magnitude"-meaning, to put it bluntly, substantial fines and the risk of imprisonment. Anytime a non-US citizen is exposed to jail, it would be prudent to have the charge evaluated by an immigration attorney. While the internet is a wonderful source of information, there is a lot of outdated information out there, and the reality is that we are living in a new age with new rules. What was true or the common practice before-even as late as last year-is not necessarily true now.

PROFESSIONAL RECOGNITION

    • The National Advocates | Top 100 Lawyers
    • Rated by Super Lawyers | Angie Garasia | 5 Years
    • Avvo Rating 10.0 | Superb
    • Client Distinction Award martindale.com | 2016 Martindale-Hubbell Client Distinction Award
    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
    • Nationaly Recognized | Newsweek Nationwide Showcase | Top Attorneys 2013
    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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Lee & Garasia, LLC
190 State Route 27
Edison, NJ 08820

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