The recent execution of Troy Davis last week, despite considerable proof that he may not have committed the murder he was convicted of--including recantations by primary eyewitnesses of their testimony and a lack of direct physical evidence linking him to the crime--reminded me of John Grisham's excellent and eerily prescient fiction novel The Confession. Only this was much scarier because this was real life, and a man may actually have died at the hands of an imperfect justice system that refused to grant him a new trial despite overwhelming doubt of his guilt. If innocent men can become victims of and lose their lives at the hands of what is supposedly the best justice system in the world, what chances do undocumented and out-of-status aliens have? It is a sad but unfortunate fact that immigration proceedings are civil in nature and believe it not, someone accused of a criminal offense has more rights in this country than someone who may be "illegal" even though he/she has not been accused of breaking any criminal laws and may have innocently run afoul of an immigration law that is stretched across and regulated by a multitude of arcane statutes, regulations, court decisions, and policies that sometimes conflict!
A recent Board of Immigration Appeals (BIA) decision from June may help many people whose adjustment of status applications were wrongly denied on the basis that they had "aged out." The decision is Matter of Le, 25 I & N Dec. 541 (BIA 2011), and it specifically pertains to the eligibility of someone who enters on a K-2 to adjust status here in the US even after turning 21. Those who are potentially affected should definitely take a look at the case. The Board ruled that Mr. Le, who entered the US on a K-2 visa as a derivative of his mom's K-1 visa at the age of 19, did not "age out" as a "child" for purposes of adjustment even though he was over the age of 21. In fact, visa eligibility and availability for a K-2 to adjust are determined by looking at the age of the individual at the time of admission. The Board essentially clarified that if K-2 visa holder enters the United States before the age of 21, and other conditions are established (ie., his/her parent marries the petitioner within 90 days, and he/she is otherwise eligible), that individual is not disqualified from filing an adjustment of status as a derivative even if he/she may be over 21 at the time of the adjustment of status application.
On July 26 of this year, the Supreme Court of New Jersey signed an Order effectively staying all Post-Conviction Relief Applications regarding claims of ineffective assistance of counsel due to failure to properly advise of immigration consequences. All such petitions are currently on hold now pending the outcome of a case called State v. Gaitan. Oral arguments on the case had been scheduled for this month. However, the New Jersey Supreme Court has just advised that the hearing will be postponed to November of 2011 so that the Gaitan may be consolidated with another case involving similar issues, State v. Rohan Goulbourne.
The next Naturalization Information Sessions will be conducted in Warren County this week. They will be held this coming Tuesday and Thursday in Phillipsburg, New Jersey. The first one is scheduled at 11:00am at NORWESCAP main building located at 350 Marshall Street. The one on Thursday is being held at Catholic Charities Diocese of Metuchen at 11:00am. As we have written about earlier, these meetings are an outreach organized by USCIS to educate the public on general eligibility for citizenship as well to distribute educational materials for the test. Permanent residents who are interested in becoming naturalized citizens of the United States are definitely encouraged to check out these sessions. The last thing one wants to do is to file an application, pay $680, only to later learn at the interview that the eligibility requirements have not been satisfied, or that one does not qualify to take the test in his or her native language. Securing accurate information from the government or an immigration attorney can go a long way in saving one money, time, and in some cases, grief....
Newark, located in Essex County, has the distinction of being New Jersey's largest city. As such, it boasts some of the most ethnically diverse immigrant populations anywhere. Additionally, the USCIS Main District Office is located in Newark. The address is 970 Broad Street, Newark, New Jersey 07102. The District Director is John E. Thompson. There is, however, a new Field Office Director. Her name is Randi C. Borgen.
One of the most common traffic violations which undocumented aliens are charged with in our state is that of being an "unlicensed driver." Any alleged violation of this charge must be taken seriously. This is not a matter of just paying a fine, and some municipal courts around this State have been known to impose incarceration under certain circumstances. The provisions of the statute can be found at NJSA 39:3-10. The law provides that:
Jersey City is one of the largest and most popular cities in New Jersey. With its close proximity to New York, it is not only of the most bustling centers of commerce, it is not surprisingly also one of the most ethnically diverse cities in our state. There are large concentrations of Indian, Cuban, Polish, Dominican, and African residents who call this vibrant city their home. Not surprisingly, there will be a march tomorrow to draw attention to some of the immigration issues affecting our society. Called the "March for Immigrant Rights," the event will begin at McGinley Square and showcase a unified opposition to the 287(g) and Secure Communities, two I.C.E. programs currently in use. We have discussed both of these programs previously in our blog. Many local organizations plan to participate in the event and it is certainly something that might be worth checking out if you happen to be in the area.
USCIS recently released a new policy memorandum last week affecting I-360 applications. It clarifies and adds revisions to the Adjudicator's Field Manual to reflect that stepparents and adoptive parents of U.S. Citizens may potentially file self-petitions for protection and deferred status as an "abused parent." Interested parties should consult the August 30, 2011 Memo or the Adjudicator's Field Manual. However, one of the highlights is that a stepparent of an abusive US Citizen son or daughter may file a VAWA (Violence Against Women and Department of Justice Reauthorization Act of 2005) self petition so long as three conditions are met:
1) the abusive US Citizen son or daughter had not reached the age of eighteen at the time of the marriage which created the step-parent relationship
2) the step-parent relationship existed, by law, at the time of the abuse; and
3) the step-relationship existed by law, or as a matter of fact, at the time of filing of the VAWA self petition.
See Section 21.5 of the Adjudicator's Field Manual (AFM).
Having grown up in Monmouth County, Freehold holds a special place in my heart. Not only did I use to work there at the Monmouth County Prosecutor's Office, I also had a satellite office on Broad Street there for many years. Freehold is also home to many "illegal" aliens from Mexico. It is city whose undocumented population would obviously benefit from some sort of 245i type of legislative reform given that many people from Mexico cross over and enter without inspection, thereby rendering them ineligible to adjust under Section 245(a) of the Immigration and Nationality Act. The way things are moving, that type of legislation may still be far off. In the meantime, however, the new Morton Memo and the government's putative agenda of prioritizing targets for removal may be good news. The new "policy" is certainly not a "backdoor amnesty"; however, it does signal a shift in ICE's posture vis a vis non-criminal aliens who have been here for years and pose no danger to society other than being "illegal." Prosecutorial discretion may be exercised favorably when considering people who have no criminal records; pose no threat to national security, or public safety; have been here for quite a while; and have US Citizen or LPR spouse, children, or parents. Some other categories that warrant consideration are those whose spouses are pregnant or nursing, and those who serve as primary caretakers of relatives suffering from serious illnesses or handicaps. There are, in fact, many factors laid out that fall within the ambit of prosecutorial discretion. Again, it cannot be overemphasized that this does not mean illegal aliens are in the clear. However, it does mean that under the appropriate circumstances, DHS may choose not to place "non-priority" aliens into removal proceedings.