On August 29, 2011, USCIS announced a "Business Transformation Regulation." It essentially heralds a government initiative to become more modernized. Over the next couple of years, USCIS will slowly be moving from a paper-based filing system to a computer based one, where customers will have unique account numbers which will allow them to not only e file documents, but also respond to Requests for Evidence, check case status, etc. I suppose this is a positive trend, as our society is so heavily computer based. However, I can't help but worry about the large immigrant population of our society who are elderly and not computer saavy. There are also privacy issues, which in this day and age of the internet, is always a concern because it seems like every couple of months some computer database is compromised by hackers or worse, cyber-terrorists. Technology is without a doubt, a great benefit to our society, but it does bring with it a whole host of different problems....
A very interesting decision came down recently regarding lawful permanent residence and what constitutes abandonment. The case is Khoshfahm v. Holder. Although this is a 9th Circuit Case, it is nevertheless illuminating, and provides a good discussion of what the government must prove to establish than an individual has abandoned his or her lawful permanent residence. In this particular case, the Petitioner Mr. Khoshfahm was a permanent resident who left the US as a minor with his parents in 2001 to travel to Iran. Unfortunately, due to 9/11 and some personal health issues regarding his father, Mr. Khoshfahm was not able to return to the US on his own as an adult until 2007, at which point he was placed into proceedings. The 9th Circuit disagreed with the Immigration Judge and BIA who held that the Petitioner's parents' action constituted abandonment and could be lawfully imputed to Mr. Khoshfahm. The Court went on to hold that Mr. Khoshfahm's actions as an adult in fact demonstrate that he did not intend to lose his permanent residence and accordingly reversed the BIA.
On August 12, USCIS announced a new protocol to expedite the handling of N-400 Applications for Naturalization for certain Non-citizens who are receiving Supplemental Security Income (or SSI) from the government. Although it is only taking about roughly three to four months these days to be scheduled for an interview--at least in New Jersey--this is a welcome addition to a panoply of programs being pushed out there by USCIS to counterbalance its enforcement agenda. The new policy will essentially fast track N-400 citizenship applications for those non-citizens whose SSI benefits will expire within one year: it provides that once the N-400 application has been pending for at least four months, USCIS will prioritize the case and ensure that it is scheduled for disposition in a timely manner. Therefore, at least for those individuals who are currently on SSI and are aware that their benefits will be expiring within one year, they have some official assurance that their interviews will be scheduled within a reasonable time frame.
Keeping USCIS informed of your address is critically important. Not only is it actually required for most aliens (see INA §265), most people are unaware that there are criminal penalties for failing to report a change of address. See INA §266. While violations are rarely enforced, the consequences of failing to update your address with USCIS can have disastrous consequences. It is not uncommon these days for USCIS to issue a Request for Evidence (RFE) while adjudicating a case. Sometimes these RFEs can come many months, if not years, after a case is filed. If, however, you moved from New Jersey to New York during the pendency of the case and did not change your address with immigration, you may not receive the RFE and, consequently, the case might end up getting denied.
Citizens or nationals of Haiti under a grant of Temporary Protected Status, or TPS, are required to re-register during the applicable re-registration period in order to maintain their protected status. The Re-registration period for Haitians is August 23, 2011! (Those applying for initial registration have until November 15, 2011.) Those wishing to re-register must file Form I-821 and I-765 with the applicable filing fees. For those who have not re-registered, they might want to consider e filing in order to register before the deadline closes. While TPS does not confer permanent residence, it does protect applicants from removal proceedings and detainment, in addition to allowing them to work and in some cases, travel.
Readers should be aware of a very disturbing decision issued by the Board of Immigration Appeals (BIA) last week. The case is Matter of E-R-M-F & A-S-M, 25 I&N Dec. 580 (BIA 2011). The case essentially stands for the proposition that the ICE officers do not have to advise aliens of their right to counsel unless and until a Notice to Appear is issued. The danger, as what happened in the cases decided, is that statements made by aliens during interrogations prior to issuance of NTAs are admissible and may be used in court. Only after subjects have been placed into formal proceedings do they have to be advised of their right to a lawyer and that their statements may be used against them. Practically speaking, by then, it may very well be too late. The case has many ramifications, some of which are too complex for a blog entry, and which may be more appropriate for an article in the future. One notion that is particularly troublesome, though, is that aliens have fewer rights than individuals charged with criminal offenses. Whereas a criminal defendant has the right to be "Mirandized" (advised of the right to remain silent and the right to an attorney), aliens apparently have no such right when they are detained by government officials who are trying elicit incriminating statements from them. They only get told of their "rights" after they have been "formally" charged with an immigration violation.
People interested in or who have applied for the Diversity Lottery Visas should be aware that there has been a "notable increase" in fraudulent emails from scammers attempting to deceive unknowing victims into remitting visa fees for "winning" a visa under the program. I can confirm this because I myself have recently seen a fraudulent email forwarded to me by a client. Readers interested in learning more should definitely consult the Department of State, which has put out an informative FAQ on how to recognize whether an email is legitimate. In short, any email from the government would come from a website with ".gov" at the end. Moreover, applicants for the 2012 Diversity Lottery will not receive a letter or email confirming that they have won; applicants are expected to directly check the status of their applications online. Therefore, if you or someone you know has received an email or letter regarding the 2012 Lottery, they should be wary of government imposters.
In an arresting and chilling development, ICE announced last Friday that it has determined that it does need permission from states to activate or run its Secure Communities Program. As a result, it has terminated all existing MOAs, or Memorandums of Agreements, that it may have with states, and plans to implement Secure Communities nationwide by 2013. In other words, the government has come out and signaled to states that participation is no longer optional; participation is now mandatory, which makes Memorandums of Agreements no longer necessary. As discussed earlier in our New Jersey Immigration Lawyers Blog, the Secure Communities Program is a tool that promotes information sharing between the FBI and ICE; after individuals are booked into jail and fingerprinted, those fingerprints are sent out to the FBI, which in turn, runs the prints through its expansive database to determine a person's criminal history. Under the Secure Communities Program, the FBI shares that information with the Department of Homeland Security, which runs those same prints through its own immigration database. If a "hit" is generated, ICE will then have the necessary information to initiate enforcement.
Last week, NJ Senator Frank Lautenberg sent a letter to the director of ICE regarding claims of improper influence during the bidding process for a new detention facility in Essex County. Apparently, according to the Continue reading New Immigration Detention Facility in Newark, New Jersey?...
Continue reading New Immigration Detention Facility in Newark, New Jersey?...