On October 3, 2018, USCIS issued a public bulletin regarding the incorporation of digital tablets into the naturalization reading and writing process. Our office began seeing implementation of tablets a few months back, and this announcement not only confirms that this practice is here to stay but that technology will assume an even greater role in the process than ever before. Previously, citizen applicants were asked to review and digitally sign their applications on iPad or ipad-like devices. Now under this expansion, the use of pen and paper is essentially being phased out and discontinued. Pen and paper may be used "on a case-by-case basis," but by and large, both the reading and writing components of the N-400 examination will now be conducted on digital tablets:
USCIS Will Begin Placing People Into Deportation Court If Application Is Denied
On September 26, 2018, USCIS quietly announced that it will be implementing the June 28 updated guidance on issuance of Notice to Appears (NTAs). This will be an incremental roll out, with the new memo being applied to different types of cases at different stages. Effective October 1, 2018, the memo will be applied to "status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status." According to the bulletin, the new guidance will not be implemented with respect to employment-based and humanitarian applications and petitions at this time. The announcement also makes clear that USCIS will continue its current practice for NTAs regarding applicants with criminal records or where there are fraud or national security concerns.
Section 8 Housing, SNAP, and Medicare Part D May Disqualify Immigrants for Green Card
On September 22, the Department of Homeland Security promulgated new rules regarding the public charge ground of inadmissibility that may have a tremendous impact on immigrants who have accepted public benefits. Under our immigration law, most applicants for permanent residence must demonstrate that they will not become a "public charge"-that is, someone who is likely to become "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense." If the proposed rule is finalized without any alterations, the final rule will reach beyond cash assistance and long-term care to include health, nutrition, and housing programs as well. Some programs implicated include:
New Ruling Curbs Immigration Court's Power to Dismiss or Terminate Deportation Cases
On September 18, 2018, Attorney General Jeff Sessions issued Matter of S-O-G & F-D-B, 27 I & N Dec. 462 (A.G. 2018), the latest in a trifecta of cases curtailing the authority of immigration judges. Under this new ruling, judges are strictly prohibited from terminating or dismissing cases "for reasons other than those expressly set out in the relevant regulations or where DHS has failed to sustain the charges of removability." As it stands, the regulations set out only a limited number of circumstances under which the court may dismiss proceedings. On motion by DHS government counsel, a judge may dismiss proceedings where
NJSA 2C:29-9 Contempt of Court | Restraining Order Immigration Consequences
The Board of Immigration Appeals recently issued an important decision that should be of interest to any individual charged with domestic violence, contempt of court, and violating a restraining order in NJ. One common New Jersey statute implicated includes NJSA 2C:29-9b. In Matter of Medina-Jimenez, 27 I & N Dec. 399 (BIA 2018), the court held that the categorical approach does not apply when considering whether violating a restraining order disqualifies a person from applying for cancellation of removal, one of the most sought-after forms of relief in immigration court. Instead, an Immigration Judge is allowed to consider any probative and reliable evidence in connection with what the prosecuting authority has found about the individual's violation. The court must only find two things: one, that the offense resulted in a conviction under INA 101(a)(48)(A); and two, whether the State court that heard the matter determined that "the alien engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection ordered was issued." In short, the court need not engage in a strict categorical analysis to determine whether the elements of the offense in question match the federal rubric under INA 240A(b)(1)(C). As long as the immigration court is reasonably satisfied that there was a finding or admission of guilt along with some measure of punishment, and the "conviction" was based on conduct that violated a restraining order, the individual will not be eligible for cancellation of removal. What the court is essentially saying is that since the deportability section regarding restraining orders does not require a conviction, it would not make sense to require a conviction for cancellation of removal purposes.
Notice to Appear Not Defective If Notice of Hearing Later Issued | Pereira Motion Update
Over the Labor Day weekend, the Board of Immigration Appeals (BIA) quietly released an important decision that has a significant impact on individuals hoping to file "Pereira motions." In Matter of Bermudez-Cota, 27 I & N Dec. 441 (BIA 2018), the court held that a Notice to Appear that does not specify the time and place of a person's initial removal hearing does not divest an Immigration Judge of jurisdiction so long as a Notice of Hearing specifying this information is later sent to the individual. In the case at hand, the respondent filed a Motion to Terminate arguing that his case should be dismissed in light of the Supreme Court's decision in Pereira v. Sessions, in which the highest court in the land declared that a Notice to Appear lacking the required information (as to date, time, and place) does not stop the clock for purposes of calculating physical presence eligibility for cancellation of removal. After the decision came out, many attorneys also extrapolated from the Court's clear language that such Notices to Appear were, in effect, not only defective for cancellation of removal purposes but defective per se. This gave birth to "Pereira motions" which have seen mixed results in New Jersey, with some judges granting and others, denying.
Cheating and US Citizenship | Reasons for N-400 Denial
Most people are aware that a criminal record may complicate and sometimes pose a bar to citizenship. However, having a clean record does not necessarily ensure that a naturalization application will be approved. Interestingly, there are several types of acts or conduct that USCIS may consider conditional bars to citizenship if they occur within the "statutory period" under evaluation (five years prior to the N-400 application, for most applicants). Under the Immigration and Nationality Act ("INA") and Code of Federal Regulations ("CFR"), officers are entitled to evaluate and determine whether certain specified acts, offenses, activities, or circumstances reflect poorly on or militate against an applicant's "good moral character," which is a fundamental requirement for citizenship.
Immigration Judges No Longer Allowed To Postpone Cases Without "Good Cause"
Following on the heels of Castro-Tum, the Attorney General has issued another ruling that erodes the judicial independence of our immigration judiciary and further mechanizes the courtroom into an assembly line. In Matter of L-A-B-R, 27 I & N Dec. 405 (A.G. 2018), AG Sessions ruled that continuances may only be granted for "good cause." Instead of allowing judges to exercise their own discretion, the ruling constrains them to push cases forward, prioritizing administrative efficiency over due process and substantive relief.
Federal Judge Orders Government To Restore DACA Program | DACA Update
In a previous post, we discussed an important US District Court ruling that held the government's rescission of the DACA program to be unlawful. When the Court issued its ruling on April 24, 2018, it stayed its order to restore DACA for ninety days in order to provide the government with an opportunity to better explain its reasons for terminating the program. Just this month, on August 3, to be exact, the Court reaffirmed its order to fully reinstate DACA. The order is currently on hold for a period of 20 days, which will expire August 23, 2018. Up until that time, the government may seek appeal the Court's ruling and ask for a stay pending the appeal. Obviously, this is a very significant development for "dreamers," individuals who were brought to the US at a young age and have lived the majority of their lives here without blemish. If the Court's order goes into effect, not only will the government have to accept renewal applications-which it is currently doing now, under certain conditions-but it will also have to accept new initial applications. In other words, people who originally qualified for the DACA program but for some reason, never applied and subsequently missed out, may soon have a second chance to apply. While DACA does not confer or graduate into permanent residence, it is one of the few legal safe havens left for those without lawful status, especially now that all forms of humanitarian relief are being gutted. For those who qualify, DACA will at least insulate them from the threat of deportation while also enabling them to work with authorization.
What Kind of Issues/Factors Point to Fraud in a Marriage Interview? | I-130 Questions
A few years ago, an internal USCIS fraud referral sheet was leaked online that provides incredibly useful insight into the adjudicatory process and just what types of factors officers are looking at. While the document appears to have been last updated in 2004, it references fraud "indicators" that are timelessly problematic. While the presence of one or more of these factors does not conclusively establish fraud, they are triggers that will likely expose a couple to heightened scrutiny, which can potentially evolve into a "Stokes Interview," site visit, investigation and possible prosecution. A married couple anticipating filing a case should be alert as to whether any of the following red flags applies to their situation. For I-130 family based petitions, the sheet references the following:
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