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.
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.
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:
In a family-based context, the I-130 is the foundation of any permanent residence case. Whether a person is applying for adjustment of status domestically or an immigrant visa abroad, there must be an underlying approved petition for family member to support the file. Conversely, if an I-130 is denied, any application that is predicated upon its approval will be denied. So, for example, if USCIS denies an I-130 filed by a US Citizen for a foreign national spouse, the I-485 application will also be denied. What is less known is that an approved I-130 does not always stay approved. In other words, there are circumstances and situations under which a relative petition may be automatically revoked.