Visa Waiver Program e-Passport Requirement in Effect as of April 1, 2016

Visa Waiver Program e-Passport Requirement Now in Effect

U.S. Customs and Border Protection (CBP) issued a reminder that as of April 1, 2016, all citizens of Visa Waiver Program (VWP)1 countries must possess an electronic passport (e-Passport) to travel to the U.S. under the VWP. An e-Passport is an enhanced secure passport with an embedded electronic chip, and a unique international symbol on the cover. Travelers not in possession of an e-Passport must have a valid nonimmigrant visa to travel to the U.S.

Department of Homeland Security (DHS) Secretary Jeh Johnson issued the following statement on April 1, 2016:

Effective today we will begin to require the use of more electronic passports, or e-Passports, by all travelers coming to the United States from the 38 countries that participate in our Visa Waiver Program.2

An e-Passport contains the security feature of an electronic chip, which holds all of a passenger’s [sic] including name, date of birth and other biographical information. This not only protects privacy and prevents identity theft, but also helps to safely identify a passenger, making travel safer and faster.

Last August, I announced that the Department of Homeland Security and the Department of State would introduce additional or revised security criteria for countries in our Visa Waiver Program,3 including the use of e-Passports for all travelers coming to the U.S. With the passage late last year of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act,4 Congress has mandated that, effective today, all travelers from Visa Waiver countries to the U.S. must have an e-Passport. Travelers who do not have an e-Passport from a Visa Waiver country must obtain a visa to come the U.S.

Our Visa Waiver Program remains a valuable program for lawful trade and travel with our Nation’s most trusted partners, and I am committed to ensuring that it is a secure program as well. The required use of e-Passports is the latest in a series of recent actions that we have taken to strengthen the security of the Program. In the last two years, we have also increased the data collected from travelers from Visa Waiver countries for vetting purposes, and have required increased terrorism and criminal information sharing and increased cooperation on the screening of refugees and asylum seekers with countries in the Visa Waiver Program.

Note: As of March 15, 2016, Canada requires visa-exempt foreign nationals who fly to or transit through Canada to have an Electronic Travel Authorization (eTA). Exceptions include U.S. citizens, and travelers with a valid Canadian visa. During a leniency period from March 15, 2016 until fall 2016, travelers who do not have an eTA will be allowed to board their flight, as long as they have appropriate travel documents, such as a valid passport. Entry requirements for other methods of travel (land or sea) have not changed.

Footnotes
1. Eligible citizens, nationals, and passport holders from designated VWP countries may apply for admission to the U.S. as visitors for business or pleasure for a period of 90 days or less without first obtaining a nonimmigrant visa.
2. The 38 designated countries are Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.
3. On August 6, 2015, Department of Homeland Security (DHS or Department) Secretary Jeh C. Johnson announced security enhancements to the Visa Waiver Program (VWP).17 DHS and the Department of State, along with certain other federal agencies, will begin introducing a number of additional or revised security criteria for all participants in the VWP (both new and current members). The new security requirements include:

  • use of e-passports for all VWP travelers coming to the U.S.
  • use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a Visa Waiver country’s borders
  • permission for the expanded use of U.S. federal air marshals on international flights from Visa Waiver countries to the U.S.

Secretary Johnson pointed out that these security enhancements build on changes DHS made last fall, when it added additional data fields of information in the application (known as the Electronic System for Travel Authorization, or ESTA) of those seeking to travel to the U.S. with Visa Waiver passports. Eligible citizens, nationals, and passport holders from designated VWP countries may apply for admission to the U.S. as visitors for business or pleasure for a period of 90 days or less without first obtaining a nonimmigrant visa. Current designated countries are Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom (England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man). See 8 CFR § 217.2.
4. Pub. L. No. 114-113, Div. O, Title II, 129 Stat. 2242 (Dec. 18, 2015). See “DOS and DHS Announce Changes to Visa Waiver Program Affecting Dual Nationals of Iran, Iraq, Sudan, or Syria As Well As Persons Who Have Traveled to Those Countries.

Posted in e-Passport Requirement, Visa Waiver Program (VWP) | Leave a comment

Visa Bulletin For May 2016

IMMIGRANT VISA PREFERENCE NUMBERS FOR MAY 2016

Number 92
Volume IX
Washington, D.C

View as Printer Friendly PDF

 

A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during May for: “Application Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the USCIS website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security must use the “Application Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the "Dates for Filing Visa Applications" charts in this Bulletin. Applicants for adjustment of status may refer to USCIS for additional information by visiting www.uscis.gov/visabulletininfo.

1.  Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by April 12th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: 

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

A.  APPLICATION FINAL ACTION DATES FOR
     FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Family-
Sponsored 
All Chargeability 
Areas Except
Those Listed
CHINA-mainland 
born
INDIA MEXICO PHILIPPINES 
F1 22NOV08 22NOV08 22NOV08  08FEB95 01OCT04
F2A 01NOV14 01NOV14 01NOV14 15AUG14  01NOV14
F2B 01SEP09 01SEP09 01SEP09 08SEP95 01MAY05
F3 01DEC04 01DEC04 01DEC04 08OCT94 22JAN94
F4 22JUL03 22JUL03 22JUL03 08APR97 01OCT92

*NOTE: For May, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 15AUG14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15AUG14 and earlier than 01NOV14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

B.  DATES FOR FILING FAMILY-SPONSORED
     VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS. 

Family-
Sponsored 
All Chargeability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA MEXICO PHILIPPINES 
F1 01OCT09 01OCT09 01OCT09 01APR95 01SEP05
F2A 15JUN15 15JUN15 15JUN15 15JUN15 15JUN15
F2B 15DEC10 15DEC10 15DEC10 01APR96 01MAY05
F3 01AUG05 01AUG05 01AUG05 01MAY95 01AUG95
F4 01MAY04 01MAY04 01MAY04 01JUN98 01JAN93

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A.  APPLICATION FINAL ACTION DATES FOR
     EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Employ-
ment
based
All Charge-
ability 
Areas Except
Those Listed
CHINA-
mainland 
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 01SEP12 C 22NOV08 C C
3rd 15FEB16 15AUG13 15FEB16 01SEP04 15FEB16 08AUG08
Other Workers 15FEB16 22APR07 15FEB16 01SEP04 15FEB16 08AUG08
4th C C 01JAN10 C C C
Certain Religious Workers C C 01JAN10 C C C
5th
Non-Regional
Center
(C5 and T5)
C 08FEB14 C C C C
5th
Regional
Center
(I5 and R5)
C 08FEB14 C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B.  DATES FOR FILING OF EMPLOYMENT-BASED
     VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. 
 

Employment- 
based
All Chargeability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA MEXICO PHILIPPINES 
1st C C C C C
2nd C 01JUN13 01JUL09 C C
3rd C 01MAY15 01JUL05 C 01JAN10
Other Workers C 01APR08 01JUL05 C 01JAN10
4th C C C C C
Certain Religious Workers C C C C C
5th
Non-Regional
Center
(C5 and T5)
C 01MAY15 C C C
5th
Regional
Center
(I5 and R5)
C 01MAY15 C C C

6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF MAY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2016 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For May, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 28,300  
ASIA 6,850

Except:
Nepal:      5,525

EUROPE 28,000  
NORTH AMERICA (BAHAMAS)  6  
OCEANIA 1,050  
SOUTH AMERICA,
and the CARIBBEAN
1,020  

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2016 program ends as of September 30, 2016. DV visas may not be issued to DV-2016 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2016 principals are only entitled to derivative DV status until September 30, 2016. DV visa availability through the very end of FY-2016 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN JUNE

For June, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
 

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 34,400  
ASIA 8,000 Except:
Nepal:      6,200
EUROPE 34,000  
NORTH AMERICA (BAHAMAS)  10  
OCEANIA 1,100  
SOUTH AMERICA,
and the CARIBBEAN
1,175  

D.  VISA AVAILABILITY DURING THE COMING MONTHS

FAMILY-SPONSORED:

CHINA F4:  The level of applicant demand being received has begun to increase.  Should this pattern continue, it will be necessary to either hold or retrogress this final action date in late summer.  That action would be necessary to hold number use within the overall China Family-sponsored annual limit. 

INDIA F4:  The amount of demand being reported for applicants with priority dates which are significantly earlier than the established cut-off date has increased dramatically in recent months.  As a result, it is likely that this final action date will be retrogressed, possibly as early as June.  This action would be necessary to hold number use within the overall India Family-sponsored annual limit. 

EMPLOYMENT-BASED:

CHINA E3:  There has been an extremely large increase in Employment Third preference applicant demand in recent weeks.  This is likely due to the “downgrading” of status by applicants who had originally filed in the Employment Second preference.  This has resulted in the Third preference final action date being held for the month of May.  Continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY-2016 annual limit.
 

During the past month, there have been extremely high levels of Employment-based demand in most categories for cases filed with U.S. Citizenship and Immigration Services for adjustment of status.  If this sudden and unanticipated change in the demand pattern continues, it could impact final action dates in the coming months and possibly require corrective action in some.

E.  OVERSUBSCRIPTION OF THE EL SALVADOR, GUATEMALA, AND
     HONDURAS EMPLOYMENT-BASED FOURTH (E4) AND CERTAIN
     RELIGIOUS WORKERS (SR) PREFERENCE CATEGORIES

There is currently extremely high demand in the E4 and SR categories for applicants from El Salvador, Guatemala, and Honduras.  This demand is primarily for Juvenile Court Dependent cases filed with U.S. Citizenship and Immigration Services for adjustment of status. Pursuant to the Immigration and Nationality Act, this requires implementing E4 and SR Application Final Action Dates for these countries, which will allow the Department to hold worldwide number use within the maximum allowed under the FY-2016 annual limits.  Any forward movement during the remainder of FY-2016 is unlikely although no specific prediction is possible.

A determination as to whether these countries will remain subject to E4 and SR final application dates under the FY-2017 annual numerical limitation will be made in early September.  Future visa availability will depend on a combination of demand for numbers being reported each month, and the extent to which otherwise unused numbers become available.

It is extremely likely that the India and Mexico Employment Fourth Preference categories will also become oversubscribed at some point during the summer months.

F.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa final action dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:   April 12, 2016

   

_________________________

IMMIGRANT VISA PREFERENCE NUMBERS FOR MAY 2016

(Based on State Dept. information released on April 12, 2016)

APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

All Chargeability Areas

CHINA-

mainland born

INDIA

MEXICO

PHILIPPINES

1st

22NOV08

22NOV08

22NOV08

08FEB95

01OCT04

2A*

01NOV14

01NOV14

01NOV14

15AUG14

01NOV14

2B

01SEP09

01SEP09

01SEP09

08SEP95

01MAY05

3rd

01DEC04

01DEC04

01DEC04

08OCT94

22JAN94

4th

22JUL03

22JUL03

22JUL03

08APR97

01OCT92

*For May, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15AUG14. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all

countries EXCEPT MEXICO with priority dates beginning 15AUG14and earlier than 01NOV14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

All Chargeability Areas

CHINA-

mainland born

INDIA

MEXICO

PHILIPPINES

1st

01OCT09

01OCT09

01OCT09

01APR95

01SEP05

2A

15JUN15

15JUN15

15JUN15

15JUN15

15JUN15

2B

15DEC10

15DEC10

15DEC10

01APR96

01MAY05

3rd

01AUG05

01AUG05

01AUG05

01MAY95

01AUG95

4th

01MAY04

01MAY04

01MAY04

01JUN98

01JAN93

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

All Chargeability Areas

CHINA-

mainland born

EL SALVADOR GUATEMALA HONDURAS

INDIA

MEXICO

PHILIPPINES

1st

C

C

C

C

C

C

2nd

C

01SEP12

C

22NOV08

C

C

3rd

15FEB16

15AUG13

15FEB16

01SEP04

15FEB16

08AUG08

Other Workers

15FEB16

22APR07

15FEB16

01SEP04

15FEB16

08AUG08

4th

C

C

01JAN10

C

C

C

Certain Religious Workers

C

C

01JAN10

C

C

C

5th Non-Regional Center (C5 and T5)

C

08FEB14

C

C

C

C

5th Regional Center (I5 and R5)

C

08FEB14

C

C

C

C

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

All Chargeability Areas

CHINA-

mainland born

INDIA

MEXICO

PHILIPPINES

1st

C

C

C

C

C

2nd

C

01JUN13

01JUL09

C

C

3rd

C

01MAY15

01JUL05

C

01JAN10

Other Workers

C

01APR08

01JUL05

C

01JAN10

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th Non-Regional Center (C5 and T5)

C

01MAY15

C

C

C

5th Regional Center (I5 and R5)

C

01MAY15

C

C

C

DIVERSITY IMMIGRANT (DV) CATEGORY

For May, immigrant visa numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions and eligible countries as follows (visas are available only for applicants with DV lottery rank numbers below the cut-off number): Africa: 28,300; Asia: 6,850, except Nepal: 5,525; Europe: 28,000; North America (Bahamas): 6; Oceania: 1,050; South America and the Caribbean: 1,020.

For June, immigrant visa numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions and eligible countries as follows (visas are available only for applicants with DV lottery rank numbers below the cut-off number): Africa: 34,400; Asia: 8,000, except Nepal: 6,200; Europe: 34,000; North America (Bahamas): 10; Oceania: 1,100; South America and the Caribbean: 1,175.

Posted in Visa Bulletin, Visa Bulletin For May 2016 | Leave a comment

CA7 finds conviction for felon in possession of a firearm qualifies as an aggravated felony for purposes of removal

Hernandez and his mother entered the U.S. unlawfully when he was a small child. They adjusted their status to that of lawful permanent residents in 1989, when Hernandez was seven. His mother became a naturalized citizen when he was 16, but her naturalization did not confer citizenship on him automatically. Both of his parents would have had to naturalize before he turned 18, or they would have had to legally separate. Neither happened. Over the next 15 years, Hernandez was convicted for three controlled-substance violations, two retail thefts, and as a felon-in-possession of a firearm. In 2015 the government instituted removal proceedings based on his criminal history, under 8 U.S.C. 1227(a)(2)(B)(i); (A)(iii); (C); and (A)(ii), At his hearing, the IJ informed Hernandez of his right to representation and asked whether he wanted a continuance. Hernandez did not respond, but explained that he thought he was a citizen. The IJ determined that Hernandez never obtained citizenship and asked Hernandez whether he feared being harmed if he were returned to Mexico, offering to continue the case to allow him to apply for asylum. Hernandez again declined. After the IJ entered an order of removal, Hernandez obtained counsel. The BIA affirmed. The Seventh Circuit denied his petition for review, rejecting an argument that Hernandez was denied representation by counsel.

Held: 1. Due Process as to counsel is satisfied by giving the alien the opportunity to obtain counsel. 2. His adjustment of status in 1989 was an admission because his original entry was EWI, and therefore he was subject to 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony after admission; and 3. His state conviction as a felon in possession of firearm was an aggravated felony.

_____________________

JULIO ESTRADA-HERNANDEZ, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.

No. 15-2336.
United States Court of Appeals, Seventh Circuit.

Argued March 2, 2016.
Decided March 17, 2016.
RE-ISSUED AS OPINION ON APRIL 8, 2016

Before DIANE P. WOOD, Chief Judge, WILLIAM J. BAUER, Circuit Judge, MICHAEL S. KANNE, Circuit Judge.

Julio Estrada-Hernandez is a 34-year-old Mexican citizen who has been removed from the United States as an alien convicted of controlled-substance offenses, a firearm offense (an aggravated felony), and crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2). First an immigration judge and then the Board of Immigration Appeals rejected his efforts to avoid removal, and so he has now turned to this court for relief. We find no reason to upset the BIA’s decision, however, and so we deny his petition for review.

I

Estrada-Hernandez and his mother entered the United States unlawfully when he was a small child. They adjusted their status to that of lawful permanent residents (LPRs) in 1989, when Estrada-Hernandez was seven. His mother became a naturalized citizen when he was 16, but a quirk of immigration law prevented her naturalization from conferring citizenship on him automatically. His parents were married, though apparently not happily so. He could have become a citizen in one of two ways: either both of his parents would have had to naturalize before he turned 18, or they would have had to become legally separated. See Citizenship through parents, https://www.uscis.gov/us-citizenship/citizenship-through-parents (last visited Mar. 9, 2016). Neither of those things happened, however.

Over the next 15 years, Estrada-Hernandez was convicted of several state crimes, including three controlled-substance violations, two retail theft convictions, and one charge of felon-in-possession of a firearm. Eventually the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) section became aware of his criminal record and his LPR status. ICE instituted removal proceedings against him in January 2015, charging him with being removable as an alien who after admission to the United States was convicted of three controlled-substance crimes, 8 U.S.C. § 1227(a)(2)(B)(i), and one aggravated felony conviction stemming from a firearm violation, id. § 1227(a)(2)(A)(iii). Estrada-Hernandez was later charged with two additional grounds of removal—one for a firearm violation, id. § 1227(a)(2)(C), arising out of the same conviction as the aggravated felony charge, and one based on convictions for two or more crimes involving moral turpitude, id. § 1227(a)(2)(A)(ii), stemming from two shoplifting incidents.

At Estrada-Hernandez’s removal hearing, the IJ informed him of his right to representation at no cost to the government and asked whether he wished to have the case continued in order to secure counsel. Estrada-Hernandez did not respond; instead, he asked why he was being detained and explained that he thought he had become a citizen when his mother naturalized. The IJ explored the issue and determined that Estrada-Hernandez had never obtained citizenship because his parents had remained legally married. The following colloquy then took place:

IJ: Well, it does not appear to me, sir, you are a citizen of the United States . . . Do you want me to continue your case to give you more time to get a lawyer?
Estrada-Hernandez (E-H): No.
IJ: Do you wish then to represent yourself?
E-H: Yes, I mean what other choices do I have?
IJ: Well, I’m willing to continue the case to give you time to contact the lawyers on that list that you received or any other lawyer that you might wish to contact.
E-H: I’ve tried to—I’m sorry.
IJ: Or any other lawyer that you might wish—
E-H: I’ve already contacted them.
IJ: If you wish to represent yourself today, it’s your right to do so. It includes your right to speak on your own behalf and to present witnesses and evidence in court. You have the right to inspect evidence that the Government presents against you and you may object to such evidence by asking that the Court not consider it. You have the right to question any witness who testifies in your case and if this Court rules against you, you would have the right to appeal to a higher court which is known as the Board of Immigration Appeals. Do you understand these rights?
E-H: Yes, sir.
The IJ then proceeded with the hearing, in the course of which Estrada-Hernandez admitted that he had been convicted of three state controlled-substance offenses (all involving possession of cocaine), retail theft, and possessing a firearm as a felon. Estrada-Hernandez could not remember the other theft that was the basis for the charge of removability as an alien “convicted of two or more crimes involving moral turpitude,” 8 U.S.C. § 1227(a)(2)(A)(ii), but the government offered proof of that conviction by submitting court documents from Cook County. The IJ asked Estrada-Hernandez whether he feared being harmed if he were returned to Mexico, even offering to continue the case to give him more time to consider whether he wished to apply for asylum. Estrada-Hernandez once again declined the IJ’s offer of a continuance. The IJ then pronounced that he was removable on all four grounds charged by the government and entered an order of removal.

Only then did Estrada-Hernandez finally obtain counsel. He appealed to the Board of Immigration Appeals, arguing that remand was warranted to allow him to withdraw the admissions he had made while unrepresented. He asked the Board to “issue a published decision requiring immigration judges to enter a contested plea to all charges in the notice to appear when a noncitizen is appearing in pro per regardless of the reason why he appears without counsel.” Due process requires such a rule, he asserted, because asking uncounseled aliens to admit or deny the allegations against them has the effect of shifting the burden of proof, rather than requiring the agency to prove charges by clear and convincing evidence. Estrada-Hernandez also argued that he was not subject to removal for the aggravated felony conviction because his adjustment of status does not qualify as an admission to the United States and thus § 1227(a)(2)(A)(iii)—which provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable” (emphasis added)—does not apply to him. Finally he argued that the IJ erred in finding that his conviction for possessing a firearm as a felon qualified as an aggravated felony because the state crime that was the predicate for that conviction—possessing cocaine, 720 ILCS 570/402(c)—is punishable by imprisonment for “one year or more,” rather than a term of more than one year, and therefore the state crime “does not squarely `fit in’ within the express statutory language of the federal definition.”

The Board rejected all of Estrada-Hernandez’s arguments and upheld the removal order. It concluded that Estrada-Hernandez was afforded due process because the IJ fully complied with the statutory requirement to inform him of his right to obtain counsel, 8 U.S.C. § 1229a(b)(4), and offered repeatedly to continue the case to allow Estrada-Hernandez to obtain representation. The Board dismissed any suggestion that the IJ shifted the burden of proof regarding the charges set forth in the Notice to Appear; the government properly supported its charges with evidence of each conviction. As for the question whether Estrada-Hernandez’s firearms conviction was an aggravated felony for immigration purposes, the Board observed that this court already had resolved the question in the government’s favor. Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008). The Board rejected Estrada-Hernandez’s contention that he was not removable under 8 U.S.C. § 1227(a)(2)(iii) because he was never “admitted” at a border; it held that Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005), establishes that adjustment of status qualifies as an admission for purposes of § 1227(a)(2)(A)(iii).

II

Estrada-Hernandez pins his hopes in this petition on his effort to persuade us that the alleged “denial of the right to counsel,” which “includes the substantial interference with that right,” amounted to “a denial of due process under the Fifth Amendment.” He contends that the IJ “coerced and discouraged him from pursuing legal representation” by informing him that he did not derive citizenship through his mother and then by accepting admissions he made in the absence of counsel. And, he asserts, the IJ “excus[ed] the Department from carrying on its own burden of proof” by finding him removable based on his own admissions.

The suggestion of coercion is baseless. The IJ repeatedly offered to continue the case so that Estrada-Hernandez could try to contact a lawyer, but Estrada-Hernandez explicitly declined those offers, confirmed his wish to proceed pro se, and stated that he already had contacted the pro bono attorneys on the list he had been provided. Moreover, it would be impossible for Estrada-Hernandez to show prejudice from counsel’s absence, because the government presented evidence to support each conviction. Although 8 U.S.C. §1229a(b)(4) confers a statutory right to hire one’s own lawyer in an immigration hearing, that right is not derived from the Sixth Amendment right to counsel in a criminal proceeding. The latter right does not apply to removal proceedings, which are regarded as civil in nature. See Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005); Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001); Leslie v. Att’y Gen. of the United States, 611 F.3d 171, 180-81 (3d Cir. 2010). Due process protections do apply in all civil proceedings, including removal hearings, Stroe, 256 F.3d at 500, but we presume that any removal proceeding satisfies due process when it is conducted in accordance with 8 U.S.C. §1229a(b)(4). That statute requires only that a noncitizen be given an opportunity to hire a lawyer. Apouviepseakoda v. Gonzales, 475 F.3d 881, 884-85 (7th Cir. 2007). The IJ made it clear to Estrada-Hernandez that he had this right.

Although Estrada-Hernandez represented at one point that the sole issue on appeal was his complaint about the supposed denial of counsel, he raises two other arguments as well, both of which the Board rejected. First, without addressing the Board’s contrary conclusion, he contends that he is not removable under § 1227(a)(2)(A)(iii), which applies only to aliens who have committed an aggravated felony after admission. His theory is that his adjustment of status, which occurred after he had entered the United States unlawfully, does not qualify as an “admission” under 8 U.S.C. § 1101(a)(13)(A). Ergo, he reasons, he committed no felonies, aggravated or otherwise, after admission because he was never “admitted.” He bases this argument on Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005), which he calls the “seminal case” holding that an alien who is not inspected by an immigration officer at entry has never been admitted and is not subject to removal under § 1227. Abdelqadar, Estrada says, has been “consistently followed [in the Seventh Circuit], as it must, by a series of published decisions with full unconditional approval.”

That is not what Abdelqadar holds. Indeed, it is distinctly unhelpful for Estrada-Hernandez. Citing Matter of Rosas-Ramirez, 22 I. & N. 616 (BIA 1999) (en banc), the Abdelqadar court endorsed the Board’s interpretation that, for an alien who had entered the United States illegally, an adjustment of status is an “admission” for purpose of § 1227(a)(2)(A)(iii) because the adjustment of status is the first point at which that individual is lawfully in the United States. Abdelqadar, 413 F.3d at 672-73. Otherwise, illegal entrants would be exempt from removal and would, paradoxically, enjoy greater rights than lawful immigrants. Id. at 673; see also Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35 (9th Cir. 2001) (rejecting argument that alien who adjusted to lawful status after illegal entry was never admitted for purposes of § 1227(a)(2)(A)(iii)). Estrada-Hernandez mistakenly relies on an inapposite passage from Abdelqadar, in which we rejected the Board’s view that the word “admission” in another part of the statute, § 1227(a)(2)(A)(i), referred to the most recent, rather than the initial, entry. 413 F.3d at 673-74. Indeed, we cautioned in Abdelqadar that “the whole point of contextual reading is that context matters—and the context of the word `admission’ in [one part of the statute] differs substantially from its context in [another].” Id. at 674. See Lemus-Losa v. Holder, 576 F.3d 752, 757 (7th Cir. 2009).

Estrada-Hernandez argues finally that the Board erred by concluding that his state conviction under 720 ILCS § 5/24-1.1(a) for being a felon in possession of a firearm qualifies as an aggravated felony for purposes of removal. See 8 U.S.C. § 1227(a)(2)(A)(iii). The state crime does not “squarely fit [ ] with the express statutory language of [the analogous federal offense, 18 U.S.C. § 922(g)(1)],” he contends, because his predicate state felony conviction for possession of cocaine is punishable by imprisonment of not less than one year, while federal law defines a felony as a crime punishable by a sentence of more than one year. But as the government correctly points out, the relevant inquiry is whether the Illinois felon-in-possession offense (of which Estrada-Hernandez was convicted) qualifies as an aggravated felony, and this court has already concluded that it does. See Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 500-02 (7th Cir. 2008).

Finally, it is worth noting that Estrada-Hernandez challenges only the IJ’s finding that he is subject to removal based on an aggravated felony conviction. He has not challenged the IJ’s ruling that he was also subject to removal based on convictions for two or more crimes involving moral turpitude, three controlled substance convictions, and a conviction for a firearm offense. Given our finding that the removal proceedings were not tainted by any due process violation and the ample support the government furnished, we DENY the petition for review.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Adjustment of Status, Adjustment of status is an admission, Aggravated felony, Due process right to counsel, possession of firearm | Leave a comment

CA7 affirmed denial of I-130 of bona fide marriage on basis of prior fraudulent marriage to another woman

Mohit and Ankush Seghal filed an I-130 petition seeking lawful permanent resident status for Mohit, who is a citizen of India, as the husband of Ankush, who is a U.S. citizen. The petition was denied as Mohit had tried years earlier to gain lawful residence in the U.S. by a fraudulent marriage to another woman, making him ineligible for relief even though his marriage to Ankush is legitimate, 8 U.S.C. 1154(c). The decision to grant or deny an I-130 petition is not a matter of agency discretion, and Mohit is not subject to a removal order, so he properly challenged the denial in the district court under the Administrative Procedure Act. The district court found that substantial evidence supported the agency’s finding of marriage fraud and thus granted summary judgment against the Seghals. The Seventh Circuit affirmed. Although the agency’s handling of the case involved procedural errors, the decision was legally sound. Substantial evidence, including Mohit’s own written admission, supported the agency’s finding that Mohit’s earlier marriage was fraudulent. Sehgal v. Lynch, No. 15-2334 (7th Cir. 2016)

___________________________

In the United States Court of Appeals For the Seventh Circuit No. 15-2334

ANKUSH SEHGAL and MOHIT SEHGAL

Plaintiffs-Appellants,

v.

LORETTA E. LYNCH, Attorney General of the United States, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 13 C 8576 — John Robert Blakey, Judge.

ARGUED DECEMBER 15, 2015 — DECIDED FEBRUARY 22, 2016

Before BAUER, POSNER, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. This appeal arises from an unusual immigration case that was filed properly in the district court. Plaintiffs Mohit and Ankush Seghal filed an “I-130” petition seeking lawful permanent resident status for Mohit, who is a citizen of India, as the husband of Ankush, who is a citizen of the United States. Immigration authorities denied their petition on the ground that Mohit had tried years earlier to gain lawful residence in the United States by a fraudulent marriage to another woman. That made him ineligible for relief even though his marriage to Ankush is legitimate. See 8 U.S.C. § 1154(c).

The decision to grant or deny an I-130 petition is not a matter of agency discretion, and Mohit is not subject to a removal order. The proper means to challenge the denial is therefore a suit in the district court under the Administrative Procedure Act, 5 U.S.C. §§ 702 & 703. See Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009); Ruiz v. Mukasey, 552 F.3d 269, 274-76 (7th Cir. 2009). The Seghals sued under the APA.

The district court found that substantial evidence supported the agency’s finding of marriage fraud and thus granted summary judgment against the Seghals. We affirm. Although the agency’s handling of this case has involved procedural errors that are difficult to understand, the bottom-line decision was legally sound. Substantial evidence, including Mohit’s own written admission, supports the agency’s finding that Mohit’s earlier marriage was fraudulent, so the denial of Ankush’s I-130 petition on his behalf was correct.

We begin with the story of Mohit’s earlier marriage to Renee Miller. Mohit Sehgal entered the United States lawful- ly on a visitor’s visa in September 2000 but overstayed his visa. Three years later, in June 2003, he married Renee Miller, a United States citizen. She then submitted on Mohit’s behalf a Form I-130, called a Petition for Alien Relative, to have him recognized as an immediate relative for immigration purposes. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). At the same time, Mohit filed a Form I-485 application to adjust his status to lawful permanent resident based on his claimed family relationship to U.S. citizen Miller. See 8 U.S.C. § 1255(a).

Immigration authorities investigated the marriage be- tween Mohit and Miller and concluded that it was not a good faith marriage. During a 2005 interview concerning Miller’s I-130 petition, Mohit and Miller asserted that they lived together at the home of Mohit’s mother. An immigration agent had telephoned Mohit’s mother in March 2005 and was told that she had “no idea” where to find Miller and had no means of contacting her. Based on that conversation and the lack of evidence of a “joint marital union,” Miller’s petition was denied in November 2005 by United States Citizenship and Im- migration Services (“USCIS”).

Miller responded by submitting additional evidence to bolster the claim of a legitimate marriage. She included bank statements from a joint account, rent receipts purportedly from Mohit’s mother, and two sworn statements in the mother’s name saying that Miller and Mohit had lived with her since June 2003. Almost a year after receiving those documents, in December 2006, USCIS reopened the proceedings on Miller’s I-130 petition.

By then, however, the marriage between Miller and Mohit had ended. Miller gave birth in 2007, and USCIS received a letter apparently signed by Mohit admitting that he was not the child’s father. Miller later obtained a court order of protection against Mohit. In July 2008, an Illinois court entered a default judgment dissolving the marriage. The judgment noted that the parties had separated around October 2003, just four months after they married. Afterward, in December 2008, Miller and Mohit both failed to appear for a scheduled interview with USCIS. In March 2011 the agency denied the reopened I-130 petition on the ground that there no longer was a marital relationship.

In the meantime, in September 2009, agents working for Immigration and Customs Enforcement (“ICE”) had arrested Mohit while investigating the woman who had prepared Miller’s I-130 petition for brokering fraudulent marriages. Her name was Teresita Zarrabian, and she eventually pled guilty to conspiring to defraud the United States under 18 U.S.C. § 371. She was sentenced to three years in prison. United States v. Zarrabian, No. 13-cr-00106-1 (N.D. Ill. July 1, 2015).

Mohit gave the ICE agents a sworn confession admitting that he had paid Zarrabian and Miller for help in obtaining permanent residency by marrying Miller. Zarrabian had introduced him to Miller, he said, and arranged the marriage in exchange for $18,000 to be shared by the two women. Mohit’s confession concluded by saying that his union with Miller “was not a real marriage” and was done so that he could obtain “permanent status” in the United States. Mohit initialed the three pages of text and swore that he had read each page of the confession and had given it “freely and voluntarily.”

In March 2011, Miller gave ICE agents a written statement corroborating Mohit’s earlier confession that their marriage had been a sham. That handwritten statement, which was not shared with Mohit until the district court proceedings, explained that Miller was promised $5,000 to marry him. The couple had intended to divorce, the statement continued, after Mohit received a “green card.” Although the agent who faxed Miller’s statement wrote on the transmittal page that it was sworn, no language in the statement itself shows that Miller had signed it under penalty of perjury.

Mohit’s confession of the earlier marriage fraud and the corroborating 2011 statement by Miller suffice to support the finding of fraud. See Ogbolumani v. Napolitano, 557 F.3d 729, 733–34 (7th Cir. 2009) (concluding that USCIS did not err in basing denial of petition on admission of marriage fraud); Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008) (admissions that marriage was entered into in exchange for money and access to apartment and vehicle provided “substantial evidence” that marriage was fraudulent); Ghaly v. INS, 48 F.3d 1426, 1431 (7th Cir. 1995) (upholding denial of petition based on sworn statement admitting marriage fraud); Matter of Isber, 20 I. & N. Dec. 676, 679 (BIA 1993) (explaining that spouse’s admission that she married alien as favor to help him obtain permanent residency shows that they “did not intend to establish a life together as husband and wife when they married”). Moreover, Mohit’s story contains numerous inconsistencies, including the dates he allegedly lived with and separated from Miller. See Reynoso v. Holder, 711 F.3d 199, 207 (1st Cir. 2013) (explaining that record did not compel conclusion of bona fide marriage when oral and written statements were inconsistent).

On appeal, the Seghals attempt to undermine this evidence of marriage fraud by attacking both Miller’s handwritten statement and Mohit’s September 2009 sworn confession to ICE agents.

Miller’s Statement: First, the Sehgals contend, Miller’s statement should be disregarded as unreliable hearsay. Hearsay is admissible in immigration proceedings as long as it is probative and its use is not fundamentally unfair. See Ogbolumani, 557 F.3d at 734; Olowo v. Ashcroft, 368 F.3d 692, 699 (7th Cir.2004).

Miller’s handwritten statement details the scheme between Miller, Mohit Sehgal, and Zarragian to commit mar- riage fraud. It is highly probative as to whether Mohit entered into a marriage to gain an immigration benefit. And the Sehgals give no reason to question the statement’s reliability other than the fact that it is unsworn. Their speculation about Miller’s motive for writing the statement and the “chain of custody” is insufficient to undermine the evidence. See Ogbolumani, 557 F.3d at 734; Doumbia v. Gonzales, 472 F.3d 957, 962–63 (7th Cir. 2007).

But we also now know that USCIS and the Board did mis- characterize Miller’s statement as “sworn.” Twice in its brief to this court the government referred to Miller’s statement as “sworn,” despite the assertion in the Seghals’ brief that it was not. The government’s brief would not be cause for concern if it were accurate, but elsewhere in the same brief (and when pressed at oral argument) the author of the brief conceded that Miller’s statement was not sworn.

It is difficult to understand how the government could take both positions. It seems from the record that the government was content to continue mischaracterizing Miller’s state- ment as sworn until after a copy finally was shown to the Sehgals during the proceedings in the district court. The time to have set the record straight was immediately after USCIS mischaracterized Miller’s statement as sworn, not more than four years later after that same mistake was made in submissions to the BIA, the district court, and now this court. The label matters. As the Sehgals correctly argue, Miller’s state- ment may have been weighed more heavily than it should have been if it had been known to be unsworn. See Yu Yun Zhang v. Holder, 702 F.3d 878, 881–82 (6th Cir. 2012) (recognizing that affidavits often are given more weight than unsworn statements); Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008) (same).

Still, although we are disappointed by the government’s sloppiness, this error by USCIS and the Board was harmless. Miller’s handwritten statement is corroborated in large part by Mohit’s September 2009 confession. That confession was sworn and came from Mohit himself, and it was clearly an ad- mission against interest. See 5 U.S.C. § 706 (instructing reviewing court to take “due account” of “rule of prejudicial error”); People of the State of Ill. v. I.C.C., 722 F.2d 1341, 1348 (7th Cir. 1983) (recognizing harmless error as exception to Chenery doctrine). And given Mohit’s confession, Miller’s statement was not necessary to the finding of marriage fraud.

Mohit Seghal’s Confession: We now turn to the Seghals’ attack on Mohit’s own confession of marriage fraud. Recall that Mohit had made that confession in writing in 2009 after he was arrested by ICE agents. Mohit was released without charges and four months later married Ankush, who filed a new I-130 petition on Mohit’s behalf. The Seghals argue that Mohit’s confession was coerced, is not reliable, and thus does not provide substantial evidence of fraud.

The exclusionary rule does not ordinarily apply in immigration proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). Suppression may be justified, however, if evidence was obtained under circumstances involving “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Lopez-Martinez, 468 U.S. at 1050–51; see Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010); Martinez-Camargo, 282 F.3d at 492; Matter of Toro, 17 I. & N. Dec. 340, 343 (1980).

An alien claiming coercion by government officials “must come forward with proof establishing a prima facie case be- fore the Service will be called on to assume the burden of justifying the manner in which it obtained the evidence.” In re Burgos, 15 I. & N. Dec. 278, 279 (BIA 1975); see Luevano v.Holder, 660 F.3d 1207, 1212 (10th Cir. 2011).

Mohit first asserted coercion on March 15, 2011, when he and Ankush were interviewed in connection with her I-130 petition. Mohit asserted that he had not been given a copy of the 2009 written confession. He claimed that while he was in ICE custody, he had been “handcuffed despite being in a cast,” “almost tortured,” and “kept in a dark room and then in a stinking bathroom in the dark.” According to Mohit’s new account, which again was sworn, he had married Miller with the “honest perception” that he “would live a life with her.”

Days later the director of a USCIS field office issued a notice of intent to deny Ankush’s I-130 petition on the ground that Mohit’s marriage to Miller had been fraudulent. Al- though Mohit and Miller had submitted “significant evidence of marital union,” the notice explained, that evidence was “impossible to reconcile” with the admissions of marriage fraud from both. The notice quoted in full Miller’s hand-written statement (which the agency characterized as sworn). The notice also acknowledged but rejected Mohit’s repudiation of his confession. USCIS invited the Sehgals to submit additional evidence to prove that Mohit’s marriage to Miller had been bona fide.

Mohit submitted an affidavit swearing that the marriage had been “real” and elaborating on his confession to the ICE agents. His admission of fraud, he attested, was given under duress:

I was in the custody of immigration officials who were threatening me with all kinds of things. They had me sign a statement without letting me read it first. They told me I had to sign it. In addition, I was in an accident shortly before I was taken into custody, and was on medication and had my hand in a cast. Despite the fact that I told the immigration officers both of these facts, they still kept me handcuffed, on my casted hand, and made me sign a statement without reading it.

The affidavit said nothing about torture or being held in a dark “stinking bathroom,” as Mohit had claimed during his March 2011 interview. Mohit submitted medical records showing that he had gone to a hospital emergency room complaining of pain from kidney stones five days before he was arrested and confessed. Also, Ankush submitted a letter offering her own assessment that Mohit would not commit fraud and had “genuine” intentions in marrying Miller.

Mohit’s allegations of coercion are too vague and inconsistent to undermine his confession of fraud. See Matter of Is- ber, 20 I. & N. Dec. at 679 (explaining that spouse’s “general claim of duress is insufficient to retract her detailed admissions as to the fraudulent nature of her marriage”). His two statements claiming coercion, made only weeks apart, were not even consistent with each other. In the first Mohit said he was “almost tortured,” but in the second he asserted only that

he was handcuffed despite his arm being in a cast. Mohit did not say how agents threatened him or say what the agents said during his interview. The agents could have “threatened” to do something entirely lawful. See Rajah v. Mukasey, 544 F.3d 427, 445 (2d Cir. 2008) (explaining that “threat of criminal sanctions for willfully failing to provide required regulatory information does not make providing the information coercive”).

Mohit submitted medical records showing he was in pain around the time of the interview. He has never disclosed what medication he was taking, nor did he submit an affidavit from his doctor or other medical evidence suggesting that the med- ication would have undermined the voluntariness of his confession. And Mohit’s remaining assertions are not the kind of “egregious” actions calling for suppression of evidence. See Gutierrez-Berdin, 618 F.3d at 652–53 (explaining that “self-serving affidavit” alleging “very minor physical abuse coupled with aggressive questioning” did not warrant suppression); Oliva-Ramos v. Attorney Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012) (listing factors relevant to egregiousness inquiry, including whether agents resorted to unreasonable shows of force or physical abuse).

Accordingly, the Seghals have not shown sufficient reason to discount either Mohit’s own confession of marriage fraud or Miller’s written corroboration. They have not shown that the agency decision was made without substantial sup- porting evidence.

The Sehgals also raise procedural objections to the agen- cy’s decision. They argue that USCIS violated one of its own regulations by not providing them with a copy of Miller’s handwritten letter during the administrative proceedings.

The regulation, 8 C.F.R. § 103.2(b)(16)(ii), prohibits the agency from basing a determination of statutory eligibility on in- formation that has not been disclosed to the applicant or petitioner. We have stressed before that “the better procedure” is for agencies to “produce the statement in question,” Ghaly, 48 F.3d at 1435, and we are puzzled by USCIS’s continued failure to do so. See id. at 1437 (Posner, J., concurring) (describing refusal to provide statement as “inexplicable, offensive, and absurd, as well as contrary to the INS’s regulations”).

This point is especially relevant where, as in this case, the government has mischaracterized evidence with an error that would have been caught much earlier if the Sehgals had been allowed to see the evidence. But we also have recognized that a summary can suffice, see id. at 1434–35, and here USCIS provided more than the summary that we found in Ghaly was ad- equate. The notice USCIS sent to the couple repeated Miller’s handwritten statement verbatim, though as noted it did not show that her statement was not sworn.

Finally, the Sehgals contend that the Board erroneously ignored “egregious conduct” by USCIS. The agency had told the Sehgals that it forwarded their appeal to the Board when in fact it had not done so (and did not do so for another year after making that representation). This error and delay were also unfortunate, yet the Sehgals do not identify any regulation that USCIS violated, nor do they say how they were harmed by the agency’s error. Delay alone, we have explained, “does not constitute ‘affirmative misconduct’ on the part of the government.” Mudric v. Attorney Gen. of U.S., 469 F.3d 94, 99 (3d Cir. 2006); see INS v. Miranda, 459 U.S. 14, 19 (1982) (explaining that government’s failure to process appli- cation promptly “falls far short” of affirmative misconduct);see also Rajah, 544 F.3d at 445 (characterizing “[i]mpoliteness and slow service” as “unfortunate, but not uncommon, characteristics of many ordinary interactions with government agencies”).

To conclude, the agency had substantial evidence, in the form of Muhit Sehgal’s and Miller’s written confessions to marriage fraud, as well as the inconsistencies found in the original investigation of their marriage, to support the finding that Muhit had engaged in marriage fraud. He is therefore in- eligible for relief under the I-130 petition that Ankush filed on his behalf. The judgment of the district court is

AFFIRMED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, I-130 petition, I-485 Application to Register Permanent Residence or to Adjust Status, Marriage Fraud | Leave a comment

CA7 upholds finding of marriage fraud making adjustment applicant inadmissible and ineligible for adjustment of status

Zyapkov, a Bulgarian citizen, entered the U.S. in 2002 with a visitor’s visa. His daughter had entered two years earlier and eventually obtained citizenship through the “diversity lottery,” 8 U.S.C. 1153(c). Three months after Zyapkov’s arrival, he married Gregory, a U.S. citizen. Gregory and, later, Zyapkov’s daughter filed Form I‐130 “immediate relative” petitions on his behalf. Gregory’s petition was pending in 2008 when DHS initiated removal proceedings accusing Zyapkov of overstaying his visa and working as a truck driver without authorization. USCIS denied Gregory’s petition based on a conclusion that the marriage to was a sham. Zyapkov unsuccessfully sought a continuance. The finding of marriage fraud would make Zyapkov inadmissible, 8 U.S.C. 1182(a)(6)(C)(i), and ineligible for permanent residency regardless of his daughter’s pending petition. The Board dismissed his appeal of the removal order. The following month, with his daughter’s approved I‐130 petition approved, Zyapkov successfully asked the Board to reopen. He sought to adjust his status to permanent resident. On remand the IJ conducted hearings, denied Zyapkov’s application to adjust his status, and denied relief from removal, based on inconsistencies in testimony about the marriage. The Board and the Seventh Circuit affirmed. Since Zyapkov is inadmissible, he is ineligible for adjustment of status; even assuming eligibility, there was no legal or constitutional error in the IJ’s exercise of discretion. Zyapkov v. Lynch, No. 15-2063 (7th Cir. 2016)

___________________
ZYAPKOV v. Lynch, Court of Appeals, 7th Circuit 2016
NIKOLAY ZYAPKOV, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2063

United States Court of Appeals, Seventh Circuit.
Argued December 16, 2015.
Decided March 29, 2016.

Before MANION, KANNE, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

Nikolay Zyapkov, a Bulgarian citizen, applied to become a lawful permanent resident based on his marriage to a U.S. citizen. An immigration judge denied that application in a decision upheld by the Board of Immigration Appeals. Zyapkov petitions for review of the Board’s decision, but we conclude that his challenges to that decision are without merit.

I. Background.

Zyapkov entered the United States in 2002 with a six-month visitor’s visa. His daughter and ex-wife had come to the United States two years earlier, and both eventually obtained citizenship through the “diversity lottery,” which allows randomly selected entrants from countries with low immigration rates to apply for permanent residency. See, generally, 8 U.S.C. § 1153(c); Nyaga v. Ashcroft, 323 F.3d 906, 907-09 (11th Cir. 2003). Three months after Zyapkov’s arrival, he married Juanita Gregory, a U.S. citizen.

From that point Zyapkov’s efforts to remain in the United States became tangled, as both Gregory and later his daughter (after becoming a citizen in February 2010) filed Form I-130 petitions on his behalf. An approved I-130 petition would have verified Zyapkov to be an immediate relative of Gregory or his daughter, see 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1), and thus allowed him to apply for permanent residency using a Form I-485, see 8 U.S.C. § 1255(a). Gregory’s I-130 petition was still pending in 2008 when the Department of Homeland Security served Zyapkov with a Notice to Appear in removal proceedings accusing him of overstaying his visitor’s visa and working as a long-haul truck driver without authorization. See 8 U.S.C. § 1227(a)(1)(B), (a)(1)(C)(i). Soon after that, Gregory’s I-130 petition was denied by United States Citizenship and Immigration Services (“USCIS”) because that agency’s investigators had concluded that Gregory’s marriage to Zyapkov was a sham intended to gain him immigration benefits. See id. § 1154(c)(2). Later, though, in September 2010, USCIS approved the daughter’s I-130 petition.

USCIS’s finding of marriage fraud relied heavily on its conclusion that Gregory was in a relationship, and sharing an apartment, with another woman while purportedly married to Zyapkov. Neighbors, as well as the woman’s brother, had confirmed the relationship to investigators, and the names of both women were on the mailbox at the apartment. Gregory also had contradicted herself about her marital status, first telling USCIS investigators that she and Zyapkov were separated and later saying in a written statement that the couple remained married but she stayed with the other woman when Zyapkov was on the road. Investigators had visited the address on Gregory’s state-issued identification card, where an owner of the house claimed that he was letting Zyapkov and Gregory live for free in several rooms because they were poor. Yet a neighbor who was shown photographs identified the woman seen at the house with Zyapkov as his ex-wife, not Gregory. And the investigators had noted that the rooms purportedly made available to Zyapkov and Gregory were being renovated and appeared to be unoccupied, e.g., the refrigerator and kitchen cabinets were empty, as were the bedroom closets.

After USCIS denied Gregory’s I-130 petition, Zyapkov sought a continuance of the removal proceedings in order to challenge that decision. His daughter’s I-130 petition had not yet been granted, and without an approved I-130 petition he could not take the next step of applying to adjust his status to permanent resident. More significantly, the finding of marriage fraud, if left unchallenged, would make Zyapkov statutorily inadmissible, see 8 U.S.C. § 1182(a)(6)(C)(i), and thus ineligible for permanent residency whether or not his daughter’s I-130 petition should be approved.

The immigration judge (“IJ”) denied the requested continuance and ordered Zyapkov removed. The Board dismissed his appeal in August 2010, which, by leaving the finding of marriage fraud undisturbed, might appear to have ended the matter. But the following month, with his daughter’s approved I-130 petition now in hand, Zyapkov asked the Board to reopen the removal proceedings and also filed a Form I-485 seeking to adjust his status to permanent resident. In December 2010 the Board granted the motion to reopen and instructed the IJ to determine Zyapkov’s “statutory eligibility and discretionary worthiness” to remain in the United States. The Board reasoned that the daughter’s approved I-130 petition appeared to make Zyapkov eligible for adjustment of status, though it said nothing about the finding of marriage fraud or the resulting bar to admissibility.

On remand the IJ conducted five hearings from December 2010 to January 2013 on Zyapkov’s application for adjustment of status. In opposing that application, the government relied on USCIS’s conclusion that Zyapkov had tried to gain immigration benefits by entering into a sham marriage with Gregory. Zyapkov countered with his own testimony that the marriage was genuine. Gregory is not a lesbian, he insisted, nor had they ever been separated. They lived together, Zyapkov explained, although working as a truck driver takes him out of town for long stretches. He and Gregory share bank accounts and credit cards, said Zyapkov, though mostly they pay for expenses in cash.

Gregory also testified, but she contradicted Zyapkov. She said they were separated from 2006 to 2008. She also explained that, when they first had met, she and Zyapkov communicated by using a computer to translate between English and Bulgarian. Because of his job, though, she sometimes would see him only two or three times a month. She denied being in a lesbian relationship.

Zyapkov’s daughter was available to testify, but instead his lawyer proffered that the daughter stood by her I-130 petition. The IJ questioned, though, how USCIS could have granted the daughter’s petition, except unwittingly, after denying Gregory’s I-130 petition because of marriage fraud.

The IJ denied Zyapkov’s application to adjust his status to permanent resident and also denied relief from removal. The IJ first pointed out the inconsistencies in Zyapkov’s and Gregory’s accounts about where they had lived and whether they had separated. The IJ acknowledged Zyapkov’s assertion that these inconsistencies could be explained by his frequent work-related absences, but the IJ found that explanation neither “convincing” nor “persuasive.” The IJ opined that Zyapkov had not explained “how he supports his wife and even where he keeps his income from his business” because the couple’s joint accounts showed minimal deposits. Based on the evidence, the IJ agreed with USCIS’s finding that Gregory’s marriage to Zyapkov was a sham. And that sham marriage coupled with Zyapkov’s false testimony, the IJ reasoned, meant that Zyapkov was inadmissible under § 1182(a)(6)(C)(i) and therefore ineligible to adjust his status.[1] As an alternative basis for denying relief, the IJ concluded that Zyapkov did not merit a favorable exercise of discretion even if eligible.

Zyapkov, through counsel, appealed the IJ’s decision but did not submit a brief. His notice of appeal to the Board says only that the IJ did not “adequately consider the basis” for adjustment of status because, in his view, the IJ put too much weight on his marriage and “unfairly punished” him for “an allegation of prior marriage fraud, without the examination of any of the Government’s witnesses who claimed knowledge of an alleged fraud.”

The Board dismissed the appeal, giving this explanation:

We will assume for purposes of the appeal that the Immigration Judge erred in finding marriage fraud pursuant to section 204(c) of the Act, 8 U.S.C. § 1154(c), and in deeming the respondent inadmissible under section 212(a)(6)(C)(i) of the Act [8 U.S.C. § 1182(a)(6)(C)(i)], and we will assume for purposes of the appeal that the respondent is statutorily eligible to adjust his status under section 245(a) of the Act [8 U.S.C. § 1255(a)]. We agree, however, with the Immigration Judge’s denial of the respondent’s applications for both adjustment of status and voluntary departure in the exercise of discretion.

Zyapkov’s removability—which he conceded because he overstayed his visitor’s visa as charged in the NTA—is separate from his burden to prove eligibility for an adjustment of status. See Matovski v. Gonzales, 492 F.3d 722, 737-39 (6th Cir. 2007).

The Board noted that it “weigh[ed] heavily against” Zyapkov “that his marriage has been deemed not bona fide” and concluded that he had “not presented sufficient positive equities” to outweigh that finding.

II. Analysis.

Zyapkov has petitioned for review, and the parties are in agreement that we review the IJ’s decision as supplemented by the Board. See Pawlowska v. Holder, 623 F.3d 1138, 1141 (7th Cir. 2010); Ssali v. Gonzales, 424 F.3d 556, 561 (7th Cir. 2005). On that understanding, we conclude that the Board, although skipping without explanation the question of Zyapkov’s eligibility to adjust status, left intact the IJ’s finding of inadmissibility under § 1182(a)(6)(C)(i)). The parties’ positions are vague but appear to be in line with our reading of the Board’s decision: The government says that the Board simply assumed that Zyapkov was eligible for adjustment of status, while Zyapkov directly challenges the IJ’s finding of ineligibility. We start with that question.

A. Zyapkov was ineligible for adjustment of status.

Section 1255(a) of Title 8 provides that an alien is eligible to seek adjustment of status only if admissible into the United States, but Zyapkov’s misrepresentations about his marriage would have made him inadmissible under § 1182(a)(6)(C)(i). Only after an alien has established eligibility to adjust his status does an IJ have discretion to grant that relief. Munoz-Avila v. Holder, 716 F.3d 976, 977-78 (7th Cir. 2013); Kimani v. Holder, 695 F.3d 666, 668 (7th Cir. 2012). The question of admissibility is important for Zyapkov, not only as it relates to his present eligibility to adjust his status, but also because a determination of inadmissibility under § 1182(a)(6)(C)(i) will permanently bar Zyapkov from readmission to the United States. See Nguyen v. Mukasey, 522 F.3d 853, 855 (8th Cir. 2008); Singh v. Gonzales, 451 F.3d 400, 402-03 (6th Cir. 2006); Ymeri v. Ashcroft, 387 F.3d 12, 18 (1st Cir. 2004).

In most circumstances, it might be appropriate to bypass the question of admissibility—as the Board seems to have done here—and address only whether the IJ committed legal or constitutional error in exercising discretion to deny adjustment of status. See Jankovic v. Lynch, 811 F.3d 265, 266 (7th Cir. 2016); Darif v. Holder, 739 F.3d 329, 337 (7th Cir. 2014); Alsagladi v. Gonzales, 450 F.3d 700, 701 (7th Cir. 2006). But given the permanent bar to admission we address Zyapkov’s argument that his marriage to Gregory was not fraudulent. See I.N.S. v. Bagamasbad, 429 U.S. 24, 26-27 (1976); Patel v. I.N.S., 811 F.2d 377, 381 (7th Cir. 1987); Kirong v. Mukasey, 529 F.3d 800, 803 (8th Cir. 2008). And the IJ’s finding that Zyapkov is statutorily ineligible for adjustment is fully reviewable. See Hussain v. Mukasey, 518 F.3d 534, 536 (7th Cir. 2008); Parlak v. Holder, 578 F.3d 457, 462-63 (6th Cir. 2009).

Zyapkov argues that the IJ failed to make an independent determination based on the record and, instead, accepted the government’s version of events while ignoring his evidence that the marriage was bona fide. We disagree. The IJ permissibly accepted USCIS’s denial of Gregory’s I-130 petition as evidence that the couple’s marriage was fraudulent. See Antia-Perea v. Holder, 768 F.3d 647, 656-58 (7th Cir. 2014) (explaining that to be admissible evidence must be at least probative and reliable); Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013); Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). What’s more, the results of USCIS’s investigation was not the only evidence before the IJ: Both Zyapkov and Gregory testified, and the IJ pointed out that they could not agree about where they had lived and whether they had separated. Zyapkov ignores that the IJ found him not credible, and concluded that prolonged absences because of his work as a truck driver did not explain these inconsistencies, and further that Zyapkov had not explained how he supports his wife financially or where he deposits his income. Thus, substantial evidence supports the IJ’s finding that Zyapkov committed marriage fraud. See Surganova v. Holder, 612 F.3d 901, 903-04 (7th Cir. 2010) (explaining that finding of marriage fraud must be supported by record evidence that is reasonable, substantial, and probative); Vladimirov v. Lynch, 805 F.3d 955, 960-62 (10th Cir. 2015) (denying petition for review where substantial evidence of marriage fraud included inconsistent statements about relationship).

B. The IJ committed no legal error in denying adjustment of status.

Since Zyapkov is inadmissible, he is ineligible for adjustment of status. But even assuming eligibility, as the Board did, there was no legal or constitutional error in the IJ’s exercise of discretion. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Sokolov v. Gonzales, 442 F.3d 566, 569-70 (7th Cir. 2006); Mele v. Lynch, 798 F.3d 30, 31-33 (1st Cir. 2015). Zyakpkov argues that he was denied due process because, in his view, the IJ “accorded an over-abundance of weight to the Government’s claims based on an alleged on-sight investigation.”

But there is no due process right to discretionary relief. Instead we review the legal sufficiency of the removal proceeding. See Darif, 739 F.3d at 335-36; Delgado v. Holder, 674 F.3d 759, 765-66 (7th Cir. 2012). Zyapkov contends that the proceeding was inadequate because the government did not call the investigators to testify about their determination that he committed marriage fraud. Thus, he says, he didn’t have opportunity to cross-examine the investigators and refute their conclusion. Yet Zyapkov was free to, but did not, seek approval from the IJ to subpoena the investigators himself. See 8 U.S.C. § 1229a(b)(1); 8 C.F.R. § 1003.35(b)(1), (2). And he points to no regulation requiring the government to call its investigators to testify. The burden was on Zyapkov to prove himself admissible and eligible for discretionary relief, as well as to present positive equities that would warrant a favorable exercise of discretion. See 8 C.F.R. § 1240.8(d); Dakura v. Holder, 772 F.3d 994, 998 (4th Cir. 2014) (alien carries burden for showing admissibility and eligibility); Matovski, 492 F.3d at 739 (alien carries burden of presenting positive equities). Zyapkov had multiple opportunities over two years to present evidence of his truthfulness— including six hearings before the IJ—but his evidence and testimony were unconvincing. See Ortiz-Estrada v. Holder, 757 F.3d 677, 679 (7th Cir. 2014) (explaining that alien challenging legality of removal hearing must show he was denied a reasonable opportunity to present evidence and that he was prejudiced); Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007) (same).

Accordingly, we DENY the petition for review.

[1] Although Zyapkov was not charged in the Notice to Appear with fraud under § 1182(a)(6)(C)(i), the IJ could rely on fraud as a ground of inadmissibility, and thus ineligibility to adjust status, because the question of

Posted in 7th Circuit, 7th Circuit Cases- Aliens, I-130 petition, Immigration Marriage Fraud Amendments Act of 1986, Marriage Fraud | Leave a comment