Estimates of the Size and Characteristics of the Resident Nonimmigrant Population in the United States: January 2011

Posted on November 18, 2012 by Mike Baker

This report provides estimates on the resident nonimmigrant population by category of  admission, country of citizenship, state of destination, age and gender.

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Estimates of the Size and Characteristics of the Resident Nonimmigrant Population in the United States: January 2011  
November 2012 (PDF, 8 Pages, 460 KB)

Office of Immigration Statistics POLICY DIRECTORATE

BRYAN BAKER

INTRODUCTION

This report presents estimates of the size and characteristics of the resident nonimmigrant population in the United States. The estimates are daily averages for the 12-month period centered on January 1, 2011. The term resident nonimmigrant as used in this report refers to foreign nationals who are legally admitted into the United States for specific, temporary purposes and whose classes of admission are associated with residency (e.g., students and temporary workers, as opposed to tourists and business travelers). The characteristics analyzed include category of admission, country of citizenship, age, sex, and destination state. The estimates are derived from U.S. Department of Homeland Security (DHS) administrative records of nonimmigrant arrivals and departures.

The size of the resident nonimmigrant population was about 1.9 million on average during July 1, 2010–June 30, 2011. Approximately 45 percent of the population were temporary workers and their families, nearly 40 percent were students and their families, half were from Asian countries, and over 80 percent were ages 18 through 44.

DATA AND METHOD

Overview

The population size was estimated in three steps using arrival and departure data from nonimmigrant visits. In the first step, visit-length frequency tables were tabulated from nonimmigrant visit records that had been reconstructed by matching arrival records with departure records. In the second step, expected days of residence in the U.S. were calculated for each visit using the arrival date on the arrival record and the visit-length distributions calculated in the first step. Only days of residence that would have occurred during the 12-month period were counted. In the third step, the average daily expected population size was calculated by adding the expected days of residence together across all visits from the second step and then dividing the total by 365.1

Arrival and departure records were used because there are no national census or survey data that identify non-immigrants separately from other foreign-born persons. The population was estimated, as opposed to measured, because departure records were not available for all visits. For example, some visits were ongoing, while others ended without generating a departure record. Presence in (or absence from) the U.S. could not be determined in the absence of a departure record. The data and methods are described in further detail in the following sections.

1 The method could also be used to estimate the population size on January 1, but because of seasonal fluctuation, the average population size of the course of the year was found to be a more meaningful concept.

Data

Nonimmigrant arrival and departure data were obtained from DHS Form I-94 Nonimmigrant Arrival/Departure Record and provided by U.S. Customs and Border Protection (CBP). Information collected on Form I-94 includes arrival date, departure date, port of entry, class of admission, country of citizenship, state of destination, age, and sex. Data were available for arrivals from October 1, 2001 through June 30, 2011 and for departures from October 1, 2004 through June 30, 2011.

The arrival and departure sections of form I-94 are submitted separately and come pre-printed with identical tracking numbers. During the admission process, a CBP officer either collects the arrival section of the I-94 or updates a preexisting, electronic I-94 record to reflect a repeat arrival during the previously authorized admission period. The departure data, on the other hand, are less reliably collected and may be absent for a variety of reasons. For example, some visits might not have ended by the date the data are compiled, the nonimmigrant might adjust to LPR sta-tus, or the nonimmigrant might depart without submitting the departure section of the I-94. Based on recent trends, departure records are eventually collected for 75-80 percent of all resident nonimmigrant visits, but fewer than 50 percent are collected in the same year as the arrival.

Whenever possible, the arrival and departure sections were matched together to reconstruct the visit history. An arrival record was considered to be a match with a departure record if the preprinted tracking number, first initial of last name, and date of birth were identical on both sections. About 97 percent of departure records are successfully matched to an arrival record each year. Visit length was calculated from the arrival and departure dates for each of the reconstructed visit records.

Analysis was restricted to resident nonimmigrant classes of admission, i.e., classes characterized by visits lasting 2 months or longer on average.2 The 2-month duration was chosen in order to be consistent with the residence definitions used in the U.S. Census Bureau’s American Community Survey and DHS estimates of the size and characteristics of the unauthorized immigrant population (Hoefer et al, 2012). Because admission under a residence class does not guarantee residence in the U.S. for every individual admitted under that class, data were further restricted by omitting records clearly exhibiting commuter behavior (i.e., 7 or more visits in the same year).

2 See Appendix I for a list of resident nonimmigrant classes of admission.

Method

The population size was estimated by taking the average of the expected number of days of presence during the 12-month period, July 1, 2010–June 30, 2011. The expected days of presence were calculated for each visit using the actual arrival date and the visit-length distribution estimated for the given class of admission and country of citizenship. Only days of presence that would have occurred during the 12-month period were counted toward the total.

Step 1—Reconstruct Visit Records and Estimate Visit-length Distributions. Visit records were reconstructed by matching arrival records with departure records. An arrival record was found to be a match with a departure record if the pre-printed tracking number, first initial of last name, and date of birth were identical on both records. Visit length, or the number of days between arrival and departure, was calculated from the arrival and departure dates for each of the reconstructed visit records.

Next, visit-length frequency tables for each class of admission and country of citizenship were tabulated from the reconstructed visit records. Only visits with a departure during the 12-month period were included in the tabulations. The frequency tables were then converted into probability distributions by dividing by the number of visits.

The visits used for the frequency tables were limited to those with departures during the 12-month period in order to avoid selection bias. Without such a restriction, longer visits would be

dis proportionately excluded because they are less likely to have ended by the date on which the data were compiled. The resulting visit-length distributions were assumed to be representative of all visits, but were not representative of either the matched or unmatched visits alone. As a result, days of presence had to be estimated for all arrivals, not just those without matching departure records.

Step 2—Calculate the Expected Number of Days of Presence during the 12-month Period for Each Visit. In the second step, the expected number of days of presence in the U.S. during the 12-month period is calculated for each visit by applying the visit-length distribution (estimated in Step 1 for each class of admission and country of citizenship) to the actual arrival date on the arrival section of the I-94. The cal-culation is performed by taking the sum across all possible visit lengths (D = 1 day, 2 days, 3 days, …, max) of the product of the number of days that would have occurred during the 12-month period if the visit lasted D days and the probability that the visit lasted D days.

Step 3—Calculate Total and Convert to Daily Average. The average daily expected number of days of presence (i.e., the estimated population size) is calculated taking the sum of all of the expected days of presence from Step 2 (overall or within a specific group) and dividing the total by 365.

LIMITATIONS

The accuracy and precision of the population estimates depend on how well the reconstructed visits with a departure during the 12-month period represent all visits within each class of admission and country of citizenship. Some of the more apparent or important limitations are discussed below.

Adjustment to LPR status

Limited departure data are available for nonimmigrants who adjust to legal permanent resident status. The impact on estimated visit-length and nonimmigrant population size is expected to be small, in general, because relatively few visits result in adjustment to LPR status. For example, fewer than 250,000 resident nonimmigrants adjusted to LPR status in fiscal year 2010, despite more than 5.4 million resident nonimmigrant admissions. The impact may be greater among classes and countries with higher adjustment rates. For example, the number of adjustments per admission in FY 2010 was 1 in 5 for H4 dependents, 1 in 9 for H-1B work-ers, and only 1 in 60 for seasonal workers. Results are presented only for broad categories of classes because of the clustering of adjustments.

Effect of visit length on probability of Form I-94 loss or damage

If the probability that a nonimmigrant will lose the departure stub prior to departure increases with visit length, then longer visits may be underrepresented in the observed visit-length probability distributions, and the population size may be underestimated as a result.

Choice of classification variables

Visit length is known to vary with class of admission and country of citizenship, but may also change with additional classification

variables within some subgroups. For example, student visits that begin with the start of the fall semester may be more likely to end after 9 months than student visits that start in January. Similarly, Canadian workers in Texas may tend to take fewer trips home than Canadian workers in Michigan. Restricting the method to the two primary classification variables limited complexity and ensured that many data points were available at most levels, but did so at the possible expense of a more robust model.

Increasing arrival volume

The observed visit-length distributions are based on completed visits with an arrival between Oct. 1, 2000 and June 30, 2011 and a departure recorded between July 1, 2010 and June 30, 2011. Because arrival flow tends to increase slightly each year, departures in the most recent year disproportionately reflect more recent arrivals. Therefore the visit-length distributions, and the resulting population estimates, are likely to be slightly biased downwards.

Stability of visit length across time

It is implicitly assumed that the visit length distribution is constant across time. This assumption is supported by data showing little variation in average visit lengths and distributions of arrival dates from 2007 through 2010.

RESULTS

Category of admission

There were approximately 1.9 million nonimmigrants residing in the U.S. during the 12-month period centered on January 1, 2011. Temporary workers3 and students comprised the largest admission categories, making up 45 and 38 percent of the total, respectively (see Table 1). Exchange visitors made up another 13 percent, fol-lowed by diplomats and other representatives (5 percent). Estimates for students and exchange visitor principals are consistent with counts of “active” students from the DHS Student and Exchange Visitor Information System (SEVIS) (see Appendix 2).

3 Each category of admission includes both principal nonimmigrants and dependent (non-principal) family members.

Table 1. Resident Nonimmigrant Population by Category of Admission: January 2011

Category of admission Number Percent
Total ……………………………… 1,910,000 100
Temporary workers and families …………….. 850,000 45
Students and families. . . . . . . . . . . . . . . . . . . . . . . . . 720,000 38
Exchange visitors and families ……………… 250,000 13
Diplomats,other representatives, and families ……. 90,000 5

Note: Detail may not sum to totals because of rounding.Source: U.S. Department of Homeland Security.

Region and country of citizenship

About half of the resident nonimmigrants (946,000) were citizens of Asian countries, including India (22 percent), China (9 percent), South Korea (8 percent), Japan (5 percent), and Taiwan (2 percent) (see Table 2). Europe and North America comprised another 29 percent, led by Canada (8 percent) and Mexico (6 percent). The five leading countries accounted for over 50 percent of the total.

Temporary workers made up much larger portions of the nonimmigrant populations from India (73 percent) and Mexico (72 percent) than from all countries (45 percent) (see Table 3). Nonimmigrants from Canada also tended to be temporary workers (55 percent). Nonimmigrants from China and Korea, on the other hand, were more likely to be in the U.S. on student visas (70 and 68 percent, respectively, as compared to the average of 38 percent).

Table 2. Resident Nonimmigrant Population by Region and Country of Citizenship: January 2011

Region Number Percent
Total …………………………… 1,910,000 100
Asia ……………………………. 950,000 50
India ………………………….. 420,000 22
China ………………………….. 180,000 9
Korea, South ……………………… 150,000 8
Japan ………………………….. 90,000 5
Taiwan …………………………. 40,000 2
All others ……………………….. 80,000 4
North America ……………………… 300,000 16
Canada ………………………… 150,000 8
Mexico …………………………. 110,000 6
All others ……………………….. 40,000 2
Europe ………………………….. 260,000 14
United Kingdom …………………… 60,000 3
Germany ………………………… 50,000 2
France …………………………. 40,000 2
All others ……………………….. 120,000 6
South America ……………………… 100,000 5
All others …………………………. 310,000 16

Note: Detail may not sum to totals because of rounding.Source: U.S. Department of Homeland Security.

State of destination

California was the leading destination state, making up 14 percent of the total population of resident nonimmigrants (see Table 4). The next leading destination states were New York (12 percent), Texas (8 percent), Florida (5 percent), and New Jersey (5 percent). The top 5 destination states accounted for 44 percent of the total, and the top 10 accounted for more than 60 percent.

The state rankings varied by country of citizenship and category of admission. Disproportionately many Indians went to New Jersey (11 percent), disproportionately many Koreans went to California (21 percent), and Canadians were more likely to reside in New York (17 percent). Twenty-six percent of Mexicans went to Texas, 8 percent went to California, and 6 percent went to Florida.

Diplomats and other representatives were concentrated in New York (22 percent) and Virginia (13 percent) (see Table 5). Compared to the general population, students and exchange visitors were more likely to reside in Massachusetts and less likely to reside in New Jersey or Texas.

Table 3. Resident Nonimmigrant Population by Category of Admission and Country of Citizenship: January 2011

Category of admission Number Percent
Total India China Korea Canada Mexico All others
Total ………………………………. 1,910,000 100 100 100 100 100 100 100
Temporary workers and families ……………… 850,000 45 73 14 19 55 72 36
Students and families. . . . . . . . . . . . . . . . . . . . . . . . . . 720,000 38 24 70 68 32 17 37
Exchange visitors and families ………………. 250,000 13 2 14 12 9 8 19
Diplomats, other representatives, and families …….. 90,000 5 — — — 4 — 8

— Represents less than 5,000.Note: Detail may not sum to totals because of rounding.Source: U.S. Department of Homeland Security.

Table 4. Resident Nonimmigrant Population by State of Destination and Country of Citizenship: January 2011 (Ranked by state of destination)

State of destination Total India China Korea Canada Mexico All other countries
Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent
Total …….. 1,910,000 100 420,000 100 180,000 100 150,000 100 150,000 100 110,000 100 900,000 100
California …… 270,000 14 70,000 16 30,000 17 30,000 21 20,000 11 10,000 8 120,000 13
New York …… 230,000 12 30,000 7 20,000 10 20,000 11 20,000 17 — — 130,000 15
Texas …….. 150,000 8 40,000 9 10,000 4 10,000 5 10,000 6 30,000 26 60,000 6
Florida …….. 100,000 5 10,000 3 — — — — 10,000 4 10,000 6 70,000 7
New Jersey …. 90,000 5 50,000 11 — — 10,000 5 — — — — 30,000 3
Massachusetts . 90,000 5 20,000 4 10,000 5 10,000 5 10,000 5 — — 50,000 5
Illinois …….. 70,000 4 30,000 6 10,000 4 10,000 4 — — — — 30,000 3
Pennsylvania
 60,000 3 20,000 4 10,000 4 10,000 4 10,000 3 — — 30,000 3
Virginia ……. 60,000 3 10,000 3 — — — — — — — — 30,000 3
Michigan …… 60,000 3 10,000 3 10,000 4 — — 10,000 6 — — 20,000 2
All other states . 730,000 38 150,000 35 80,000 44 50,000 37 60,000 40 50,000 45 340,000 38

— Represents less than 5,000.Note: Detail may not sum to totals because of rounding.Source: U.S. Department of Homeland Security.

Table 5. Resident Nonimmigrant Population by State of Destination and Category of Admission: January 2011 (Ranked by state of destination)

State of destination Total Temporary workers Students and families Exchange visitors Diplomats andother representatives
Number Percent Number Percent Number Percent Number Percent Number Percent
Total ……… 1,910,000 100 850,000 100 720,000 100 250,000 100 90,000 100
California ……. 270,000 14 130,000 15 110,000 15 30,000 12 — —
New York ……. 230,000 12 90,000 11 90,000 12 30,000 11 20,000 22
Texas ……… 150,000 8 90,000 10 50,000 6 10,000 4 — —
Florida ……… 100,000 5 50,000 6 30,000 5 10,000 4 — —
New Jersey
 90,000 5 60,000 7 20,000 3 10,000 4 — —
Massachusetts
 90,000 5 30,000 3 50,000 6 20,000 7 — —
Illinois ……… 70,000 4 40,000 4 30,000 4 10,000 3 — —
Pennsylvania
 60,000 3 20,000 3 30,000 4 10,000 4 — —
Virginia …….. 60,000 3 20,000 3 20,000 2 10,000 3 10,000 13
Michigan ……. 60,000 3 30,000 3 20,000 3 10,000 3 — —
All other states .. 730,000 38 300,000 35 280,000 39 110,000 44 40,000 46

— Represents less than 5,000.Note: Detail may not sum to totals because of rounding. Categories include both principals and dependents.Source: U.S. Department of Homeland Security.

Age and sex

One third of the population was under the age of 25, 40 percent was 25-34, and 27 percent was 35 or older, but there was considerable variation among the top 5 countries (see Table 6 and Figure 1). For example, 65 percent of Indian nationals were 25-34, Chinese and Korean nationals tended to be younger (54 and 44 percent under 25), and Canadians and Mexicans tended to be older (42 and 39 percent were 35 and older, as compared to 27 percent overall). Although the age distributions for males and females closely resembled the overall age distribution, males tended to be older; 31 percent were 35 or older, as compared to 22 percent of females (see Figure 2).

Slightly more than half of the total population was male (55 percent) (see Table 7). The percentages that were male were higher for nationals of India, Canada, and Mexico (58, 56, and 73 percent) and lower than 50 percent for nationals of China and Korea. Temporary workers and diplomats were disproportionately likely to be male (60 and 62 percent), 54 percent of students were male, and fewer than half of exchange visitors were male (48 percent) (See Figure 3).

Table 6. Resident Nonimmigrant Population by Age and Country of Citizenship: January 2011

Age Total India China Korea Canada Mexico All other countries
Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent
Total …….. 1,910,000 100 420,000 100 180,000 100 150,000 100 150,000 100 110,000 100 900,000 100
0–17 years …. 170,000 9 30,000 8 10,000 5 20,000 16 10,000 8 10,000 8 80,000 9
18–24 years … 450,000 24 50,000 11 90,000 49 40,000 28 20,000 16 20,000 18 240,000 26
25–34 years … 770,000 40 280,000 65 60,000 32 40,000 30 50,000 34 40,000 34 300,000 34
35–44 years … 320,000 17 60,000 14 20,000 10 30,000 18 30,000 22 30,000 25 160,000 18
45–54 years … 130,000 7 10,000 2 — — 10,000 6 20,000 13 10,000 11 80,000 8
55 years and over 60,000 3 — — — — — — 10,000 7 — — 40,000 4

— Represents less than 5,000.Note: Detail may not sum to totals because of rounding or exclusion of unknown values; age is unknown for 10,000.Source: U.S. Department of Homeland Security.

Table 7. Resident Nonimmigrant Population by Sex and Country of Citizenship: January 2011

Sex Total India China Korea Canada Mexico All other countries
Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent
Total …….. 1,910,000 100 420,000 100 180,000 100 150,000 100 150,000 100 110,000 100 900,000 100
Male ……… 1,050,000 55 250,000 58 80,000 47 70,000 48 80,000 56 80,000 73 480,000 54
Female ……. 820,000 43 170,000 39 90,000 51 70,000 50 60,000 42 30,000 25 390,000 44

Note: Detail may not sum to totals because of rounding or exclusion of unknown values; sex is unknown for 40,000 persons.Source: U.S. Department of Homeland Security.

FOR MORE INFORMATION

For more information about immigration and immigration statistics, visit the Office of Immigration Statistics Web site at www.dhs.gov/immigrationstatistics.

APPENDIX 1

Table A1Nonimmigrant Classes of Admission Associated with Residency

Class Description
Temporary workers and families
Temporary workers and trainees
H1B …….. Workers in specialty occupations
H1B1 ……. Chile and Singapore Free Trade Agreement aliens
H1C …….. Registered nurses participating in the Nursing Relief for Disadvantaged Areas
H2A …….. Seasonal agricultural workers
H2B …….. Seasonal nonagricultural workers
H2R …….. Returning H2B workers
H3 ……… Trainees
H4 ……… Spouses and children of H1, H2, or H3
O1 ……… Workers with extraordinary ability or achievement
O2 ……… Workers accompanying and assisting in performance of O1 workers
O3 ……… Spouses and children of O1 and O2
P1 ………. Internationally recognized athletes or entertainers
P2 ………. Artists or entertainers in reciprocal exchange programs
P3 ………. Artists or entertainers in culturally unique programs
P4 ………. Spouses and children of P1, P2, or P3
Q1 ……… Workers in international cultural exchange programs
R1 ……… Workers in religious occupations
R2 ……… Spouses and children of R1
TN ………. North American Free Trade Agreement (NAFTA) professional workers
TD ………. Spouses and children of TN
Intracompany transferees
L1 ………. Intracompany transferees
L2 ………. Spouses and children of L1
Treaty traders and investors
E1 ………. Treaty traders and their spouses and children
E2 ………. Treaty investors and their spouses and children
E3 ………. Australian Free Trade Agreement principals, spouses and children
Representatives of foreign information media
I1 ………. Representatives of foreign information media and spouses and children
Students
F1 ………. Academic students
F2 ………. Spouses and children of F1
M1 ……… Vocational students
M2 ……… Spouses and children of M1
Exchange visitors
J1 ………. Exchange visitors
J2 ………. Spouses and children of J1
Diplomats and other representatives
A1 ………. Ambassadors, public ministers, career diplomatic or consular officers and their families
A2 ………. Other foreign government officials or employees and their families
A3 ………. Attendants, servants, or personal employees of A1 and A2 and their families
G1 ……… Principals of recognized foreign governments
G2 ……… Other representatives of recognized foreign governments
G3 ……… Representatives of nonrecognized or nonmember foreign governments
G4 ……… International organization officers or employees
G5 ……… Attendants, servants, or personal employees of representatives
N1 to N7 ….. North Atlantic Treaty Organization (NATO) officials, spouses, and children
Other categories
Q2 ……… Irish Peace Process Cultural and Training Program aliens
Q3 ……… Spouses and children of Q2

Source: U.S. Department of Homeland Security.Note: All class categories include both principals and dependents.

APPENDIX 2

Counts of active students and exchange visitors and estimates of nonimmigrant academic enrollments are available from other sources and are presented here for comparison with the I-94-based estimates of the population residing in the U.S. Average population sizes for active students, exchange visitors, and depen-dents were calculated from quarterly program statistics tabulated from the Student and Exchange Visitor Information System (see SEVIS By the Numbers). Survey-based estimates of academic-year enrollments for international students were obtained from the Institute of International Education (see Open Doors). The alternative estimates differ from the Office of Immigration Statistics (OIS) estimates because they measure types of enrollments as opposed to residence and, in the case of Open Doors, define students differently. Further, because the activity status of dependents in SEVIS is determined by the status of the principal, dependents may be included in the SEVIS counts without presence in, or entry into, the U.S. All differences are smaller than observed for the 2008 estimates (Baker, 2010).

The number of active students estimated from quarterly SEVIS data was 810,000, which exceeds the estimated size of the population in residence by 18 percent; the active student estimate exceeds the size of the residential population because students may retain active status while abroad between semesters. Open Doors estimated 720,000 international student enrollments for the 2010/2011 academic year (see Table A2-1). The enrollment estimate exceeds the residential population size because students may not be enrolled for the entire year or may spend part of the year abroad, and because the estimate includes nonimmigrant visa classes other than students. Open Doors excludes some students because the survey is limited to accredited institutions of higher education.

The number of registered dependents of active students estimated from quarterly SEVIS data was 80,000, which exceeds the estimated residential population size by 66 percent; registered dependents of active students are included in SEVIS counts regard-less of presence in the U.S. Open Doors does not provide estimates of student dependents.

The numbers of active exchange visitors and dependents estimated from quarterly SEVIS data were 190,000 and 50,000 respectively. The estimate for active principals was 6 percent below the estimated residential population size, and the estimate for active dependents exceeded the residents estimate by 24 percent.

Table A2-1Comparison against Alternative Data Sources

Class of admission SEVIS Open Doors OIS
Students Principals ………. 810,000 720,000 670,000
Dependents ……… 80,000 N/A 50,000
Exchange visitors Principals ………. 190,000 N/A 210,000
Dependents ……… 50,000 N/A 40,000

Sources: U.S. Department of Homeland Security; Institute of International Education.Note: Open Doors student estimates are not restricted to nonimmigrants with F-1 or M-1 visas.

Days of presence measured directly from reconstructed visit records

As noted previously, only slightly more than half of departures occur in the same year as the arrival. By definition, those same-year matches exclude visits that last a full year or longer. As a result, visit records reconstructed from matched arrival and departure records account for only a fraction of the total number of days of presence during that year. On the other hand, the population measurable from matched records is useful because the measurements serve as a concrete lower bound for the estimates.

The size of the population with matched arrival and departure records was about 700,000, or 37 percent of the estimated total size when counting all visits. The measurable percentage did not vary greatly across categories of admission but varied substantially between principals and dependents within the student and exchange visitor categories (see Figure A3-1 and Table A3-1).

Table A3-1. Category of Admission of the Resident Nonimmigrant Population: January 2011 Estimates and Measurements

Category of admission Estimates (all visits) Measurements (complete visits only) Proportion measured
Number Percent Number Percent Percent
Total …………………………….. 1,910,000 100 700,000 100 37
Temporary workers and families ……………. 850,000 45 300,000 43 36
Students and families. . . . . . . . . . . . . . . . . . . . . . . . 720,000 38 270,000 38 37
Exchange visitors and families …………….. 250,000 13 100,000 14 40
Diplomats, other representatives, and families …… 90,000 5 30,000 5 38

Note: Detail may not sum to totals because of rounding.Source: U.S. Department of Homeland Security.

REFERENCES

Baker, 2010. “Estimates of the Resident Nonimmigrant Population in the United States: 2008,” Office of Immigration Statistics, Policy Directorate, U.S. Department of Homeland Security, http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ni_pe_2008.pdf

Hoefer, Michael, Nancy Rytina, and Bryan Baker, 2012. “Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011,” Office of Immigration Statistics, Policy Directorate, U.S. Department of Homeland Security, http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf

Institute of International Education. “Open Doors 2011 Fast Facts.” http://www.iie.org/Research-and-Publications/Open-Doors/Data/Fast-Facts

Monger, Randall and MacReadie Barr, 2010. “Nonimmigrant Admissions to the United States: 2009,” Office of Immigration Statistics, Policy Directorate, U.S. Department of Homeland Security, http://www.dhs.gov/xlibrary/assets/statistics/publications/OIS_NI_FR_2009.pdf

U.S. Department of Homeland Security. “SEVIS By the Numbers,” Student and Exchange Visitor Program, Immigration and Customs Enforcement, U.S. DHS, Q3-4 reports from fiscal year 2010 and Q1, Q2, and Q3 reports from fiscal year 2011. http://www.ice.gov/sevis/outreach.htm

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What Is Comprehensive Immigration Reform?

Posted on November 15, 2012 by Mike Baker

Immigration reform could be on new Congress’ agenda.  Latino votes stirring Capitol as sentiments grow for wide reform.

Most comprehensive proposals that have circulated in the past would have increased border security, instituted verification requirements for employers to ensure they are not hiring illegal workers, changed the visa system to bring in more high-skilled workers, and provided a pathway to citizenship for the estimated 11 million illegal immigrants here now.

Under most comprehensive plans, those immigrants would have to pass a background check and prove they can speak or are studying English, among other requirements.

What Is Comprehensive Immigration Reform? Posted: 11/15/2012 10:31 am

This is written by Bill Ong Hing, founder and general counsel of the Immigrant Legal Resource Center and a Professor of Law at the University of San Francisco.

http://www.huffingtonpost.com/bill-ong-hing/what-is-comprehensive- immigration-reform_b_2120368.html

For immigrants and immigrant rights advocates, the post-election news that many Republicans understand that comprehensive immigration reform has to be tackled and that key Senate leaders such as Charles Schumer and Lindsey Graham already are working on a blueprint is splendid. The challenge will be in determining just what should go into that comprehensive package?

In many quarters, the debate over immigration reform boils down to a tug-of-war between those who want more enforcement and those who want legalization (a path to citizenship) for 11 million undocumented immigrants. But comprehensive reform requires addressing far more than these two issues. Most comprehensive proposals in that past several years would have increased border enforcement, instituted verification requirements for employers to ensure they are not hiring unauthorized workers, increased visas for high-skilled workers, and provided legalization for the undocumented immigrants here now. Over the years, narrower legalization proposals have focused on the DREAM Act for undocumented students, AgJobs for farmworkers, and a massive guest worker program that was promoted by President Bush. While I am opposed to enhanced employment verification requirements for employers because the effectiveness of employer sanctions is questionable, and I question the wisdom of a guest worker program given the exploitative circumstances under which those workers would have to operate, I understand why negotiators would want those issues on the table.

However, for many immigrants, their relatives, and their supporters, comprehensive reform entails much more. Consider the family immigration categories. The waitlist for many relative categories, particularly for those from Mexico and the Philippines, can be 10 to 20 years. Providing extra immigrant visas to clear the backlogs would do much to alleviate the pressure for some individuals to enter in violation of immigration laws. In fact, coming up with a different formula for family immigration categories that would alleviate backlogs altogether would be an important innovation.

The immigrant visa system itself is anachronistic. Those who advocate for more high-tech visas will attest to that fact. The country’s outdated immigration policy is incapable of dealing with 21st century immigration patterns and economic realities. No doubt current family immigration and employment categories can be better honed to meet the types of demands of U.S. individuals and employers. However, many families, employers, and individuals need greater flexibility today, given residence and travel needs. That means that flexibility in terms of visa entries and residence requirements should be built into our current system to accommodate those needs. Movement circularity for visa holders is a feature that may accommodate working-class as well as wealthy individuals.

Our immigration enforcement regime is due for legislative reassessment as well. In the past few years, overzealous enforcement programs such as the Immigration and Customs Enforcement Secure Communities program that has swept up victims of crimes, minor offenders, and even crime witnesses have received some attention. Similar concern has been raised by the racial profiling of Muslims, Arabs, and South Asians under the U.S. Patriot Act. However, little attention has been paid to the fact that ever since 1996, lawful immigrants and refugees who have committed an “aggravated felony” are deported without a chance to introduce evidence of rehabilitation, remorse, or hardship to citizen relatives. Part of the tragedy of these laws is that the term aggravated felony includes selling $10 worth of marijuana, “smuggling” a kid sister across the border, and even some crimes like theft, burglary, perjury, and obstruction of justice that a state court has classified as a misdemeanor. There’s a problem when spouses of citizens and parents of citizen children are deported as “aggravated felons” without giving an immigration judge the opportunity to decide whether the deportee deserves a second chance.

Immigration reform should include innovative thinking as well.

Given the demographic changes that have been brought about by immigrant and refugee resettlement across the country, why not promote civic engagement efforts that serve to welcome newcomers? It makes sense to reach out to immigrants and refugees as soon as they arrive so that they, too, might understand the responsibilities of being an American. Although federal, state, and local governments should lead the way, just think of the amazing things that could be accomplished if other vital institutions were to follow the government’s lead and become involved: schools, daycare centers, local businesses, chambers of commerce, churches, recreation clubs, neighborhood groups, senior groups, and youth groups; they would bring rich possibilities to the enterprise.

The out-of-the box thinking on immigration reform may lead us to realize that the real solution to undocumented Mexican migration, for example, might be working more closely with our neighbor and consider making a greater effort to address Mexico’s unemployment and economic needs. The point is that the binary analysis of immigration reform that is classically about greater enforcement versus legalization should only be a start. Cooler, more thoughtful heads can come up with more peaceful, meaningful ideas than militarizing the border.

Comprehensive immigration reform is the opportunity to think innovatively and expansively about the real needs of the country as well as the newcomers.

Follow Bill Ong Hing on Twitter: www.twitter.com/immprof

Posted in Comprehensive Immigration Reform | Tagged | Leave a comment

Immigration courts falling behind despite more judges

Posted on November 7, 2012 by Mike Baker

By Jordy Yager – 11-01-12 03:30 PM ET From The Hill.

The Justice Department’s immigration courts have become less productive despite hiring more judges to handle deportation cases, according to a report released Thursday.

The report, issued by the DOJ’s inspector general (IG), found that the number of cases completed by the Executive Office of Immigration Review’s (EOIR) courts has decreased since 2006 despite the hiring of 27 additional judges

The EOIR has 59 immigration courts and 238 judges who decide which immigrants should be removed from the United States after the Department of Homeland Security (DHS) recommends deportation.

In fiscal 2006, the EOIR’s 211 judges completed 324,040 immigration cases. But in fiscal 2010, the courts’ 238 judges were only able to complete 287,207 out of the 325,326 cases they received, or about 88 percent, according to the IG’s investigation.

The IG’s report found that the backlog in cases was mostly due to the courts’ focus on processing violent or dangerous illegal immigrants whom the DHS has prioritized for removal in its immigration enforcement efforts. The courts anticipate their caseloads will continue to increase as a result of expanded DHS enforcement actions, according to the report.

As a result, many of the illegal immigrants referred to the courts who were not determined to be a violent or dangerous risk to the public, and had not been detained in the lead-up to their removal, have seen their cases significantly delayed.

“For example, cases in our sample for non-detained aliens took on average 17 ½ months to adjudicate, with some cases taking more than five years to complete,” the investigation states.

The 59-page report, completed by DOJ Inspector General Michael Horowitz, made nine, mostly internal and managerial, recommendations for the immigration courts and their judges.

The report reveals that in some instances, a court will categorize the case of an illegal immigrant as “complete” just because it has been transferred out of that particular court and into a different court within EOIR. Similarly, continuances are granted to cases more often than they should be, allowing them to carry on for extended periods of time, the report says.

Horowitz suggests that the courts keep separate records that track a case to completion, even if it goes through other courts before being finalized. And in order to reduce delays, judges in the EOIR should craft guidelines that dictate when it’s OK to grant a continuance in a case.

The IG suggests that the misleading reporting standards make it difficult for DOJ to manage the courts’ resources.

“[It] precludes the Department of Justice from accurately assessing how well these bodies are processing immigration cases and appeals, or identifying needed improvements,” the report states.

EOIR Executive Director Juan Osuna, who was appointed by Attorney General Eric Holder, agrees that the court system should revamp its internal case tracking process, but rejected the IG’s assertion that the current system misleads the public in its efficiency rate.

“The OIG misunderstands the purpose of the management reports,” said Osuna in his response to the report.

“As an initial manner, case completion reports are intended to measure court workload so that the agency can more effectively balance resources among the immigration courts to accomplish its mission. These reports were never intended to promote the agency’s accomplishments to the public but instead were developed as internal tools to provide the courts and EOIR management with critical information about the processing of cases.

The IG also suggested that judges should better track the time they spend on each case, in order to provide a more accurate breakdown of resource allocation.

The EOIR’s fiscal 2012 budget was $302.3 million, which authorized 1,582 staff positions.

Report from The Hill

Posted in Chicago Immigration Court, EOIR, Immigration Judge | Leave a comment

DACA Applicants and Past False Claims to USC (U.S. citizen)

Posted on October 27, 2012 by Mike Baker

What about previous immigration violations – prior removal, EWI multiples times; false claim to USC – will that disqualify someone or be part of the discretionary decision? It underscores an important point:  Exercise of prosecutorial discretion is individual and case by case and depends on the facts; DHS would review the facts under a “totality of the circumstances” lens. Assuming an applicant meets the guidelines, DHS would consider the initial facts of the case through that lens.

Many of the potential DACA applicants (Deferred Action for Childhood Arrivals) that I have screened have made numerous past false claims to being a U.S. citizen.  For DACA purposes these false claims may not matter.  The DACA form I-821D does not ask about false claims, a DACA applicant does not have to be admissible in the first place, and DHS has given no indication that this is something they’re on the look-out for.  Of course, DHS could consider it as a negative factor in their “totality of the circumstances” adjudication of discretion.

If you’ve made a false claim to USC on or after September 30, 1996, it makes you inadmissible for all forms of immigrant and non-immigrant status.  There is no waiver available for this type of inadmissibility for immigrant status under current law.  However, DACA is not an immigrant or non-immigrant status and therefore does not require a person to be admissible.  While a past false claim could be considered as a negative factor by DHS in deciding whether or not to issue discretion in your DACA case, it does not bar you from making the request for DACA.  However, it is currently impossible to say whether or not your past false claim will prevent you from applying for permanent residence through the DREAM Act in the future as the DREAM Act has not been passed by Congress, is not current law, and no one knows if it will ever be passed or what exactly it will look like if it is.

The 1986 legalization program included a waiver for many grounds of inadmissibility, and it would not make sense for Congress to pass a Dream Act that lacked a functional waiver provision.

According to a recent update from AILA, DHS is in the process of changing its policy on minors being charged with making false claims to U.S. citizenship. Details are limited at this time.

We understand that DHS has begun implementation of its new policy, which AILA believe will protect certain minors from a false claim charge, and that written guidance will be forthcoming. The Department of State has indicated that it will follow the new DHS policy. We will continue to monitor this closely and will post additional details as they become available.

A foreign national who falsely represents him– or herself as a US Ciitizen in order to obtain a benefit under Immigration Law or any other federal or state law is inadmissible. There is no waiver available.

However, as with most rules, there are exceptions. For instance, a foreign national is not inadmissible under this provision if his or her parents are USCs; the person permanently resided in the United States before the age of 16; and the person reasonably believed at the time the misrepresentation was made that he or she was a USC.

Additionally, before IIRAIRA law changes, falsely claiming U.S. citizenship did not trigger a separate ground of inadmissibility. Rather, the foreign national was simply inadmissible under the rules regarding misrepresentation, which, as noted above, were waiveable under INA §212(i). Today, false claims made before the effective date of IIRAIRA (September 26, 1996) still may be waived.

If it can be established that the false claim was not made for “any purpose or benefit under INA or any other federal or state law,” then the ground of inadmissibility may not be triggered. Similarly, a foreign national who falsely claims to be a U.S. national rather than a USC, may escape exclusion, thereby eliminating the need for a waiver. Please consult an experienced attorney if you have questions about claim matters.

The new policy may be important also to DACA applicants that are currently facing claim of U.S. Citizenship charges.

CBP encounters issue – they have said they would detain, do a complete investigation and then release; in past they’ve said they would only release with an NTA; they have said the memo does not apply to them because it was only an ICE memo.  What about encounters by CBP and others, will they follow the ICE process, especially where CBP handles local detainers? The Secretary’s memo directs CBP and ICE that individuals who meet guidelines should not be arrested and removed for immigration enforcement violations.

Posted in DACA, Deferred Action Eligibility Screening Tool, Deferred Action for Childhood Arrivals, Deferred Action Process for Young People Who Are Low Enforcement, Deferred Action Status, EWI, False Claims to USC | Leave a comment

30 grams or less of marijuana for his or her own use exception to deportability

Posted on October 24, 2012 by Mike Baker

Matter of Jennifer Adassa DAVEY, 26 I&N Dec. 37 (BIA 2012) ID 3770
Decided October 23, 2012

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act,8 U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less of marijuana” if all the alien’s crimes were closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimes was inherently more serious than simple possession.

FOR RESPONDENT: John M. Pope, Esquire, Phoenix, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Dominique J. Honea, AssistantChief Counsel

BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.

PAULEY, Board Member:

In a decision dated February 3, 2011, an Immigration Judge ordered the respondent released from the custody of the Department of Homeland Security (“DHS”) upon payment of a $2,000 bond.1 The DHS has appealed from that decision, arguing that the Immigration Judge lacked jurisdiction to redetermine the respondent’s custody status. The appeal will be dismissed.

The issue in this case is whether the respondent, a native and citizen of Jamaica, is subject to mandatory detention during the pendency of her ongoing removal proceedings. According to the DHS, the respondent is covered by section 236(c)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c)(1)(B) (2006), which requires the mandatory detention of “any alien who . . . is deportable by reason of having committed any offense covered in section [237(a)(2)(B)].” In support of that assertion, the DHS points out that the respondent was convicted in 2010 of possessing marijuana and drug paraphernalia in violation of sections 13-3405(A)(1) and 13-3415(A) of the Arizona Revised Statutes, respectively. According to the DHS, that conviction renders the respondent deportable under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), as an alien convicted of a violation of State law relating to a controlled substance.

1 The reasons for the Immigration Judge’s decision are set forth in a bond memorandum dated March 28, 2011.

The Immigration Judge disagreed and concluded that the respondent is “not properly included” in the section 236(c)(1)(B) mandatory detention category because the DHS is “substantially unlikely” to prove that her 2010 conviction supports a section 237(a)(2)(B)(i) charge, citing Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), and 8 C.F.R. § 1003.19(h)(2)(ii) (2011). To be precise, the Immigration Judge concluded that the respondent’s 2010 conviction is excepted from deportability under section 237(a)(2)(B)(i) because it was for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.” On appeal, the DHS counters that the respondent’s two offenses—possession of marijuana and possession of drug paraphernalia—cannot constitute a single offense for purposes of the exception. Furthermore, the DHS maintains that the respondent may have been convicted of possessing marijuana for sale rather than for her own use.

Under section 237(a)(2)(B)(i) of the Act, an alien with a drug conviction is excepted from deportability if he or she was convicted of a certain kind of marijuana possession “offense,” namely, a single offense involving possession for one’s own use of 30 grams or less of marijuana. In interpreting this statutory language, we are mindful that “words such as . . . ‘offense’ . . . sometimes refer to a generic crime . . . and sometimes refer to the specific acts in which an offender engaged on a specific occasion.” Nijhawan v. Holder, 557 U.S. 29, 33-34 (2009).

What “offense” means here is important because it determines the type of inquiry an Immigration Judge must conduct when seeking to determine whether an alien is covered by the exception. If the phrase “single offense” denotes a single generic crime, then an alien convicted of more than one statutory offense would be categorically ineligible for the exception, even if the conduct underlying the offenses occurred simultaneously. This is the interpretation favored by the DHS on appeal. Yet if the phrase “single offense” refers to the totality of an alien’s specific acts on a single occasion, then the exception could be available to an alien convicted of more than one statutory offense, provided that each crime “involved” a single incident in which the alien possessed a small amount of marijuana for personal use. This is the interpretation adopted by the Immigration Judge and favored by the respondent.

We have not previously decided which understanding of the phrase “single offense” is more appropriate when applied to section 237(a)(2)(B)(i), but we have construed that phrase as it appears in section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), which provides that “[t]he Attorney General may, in his discretion, waive the application of . . . [section 212(a)(2)(A)(i)(II)] insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana.”2 (Emphasis added.) In Matter of Martinez Espinoza, 25 I&N Dec. 118, 124 (2009), we concluded for a variety of reasons that the term “offense” used in section 212(h) was best understood as “refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.” Thus, we held that an alien convicted of possessing drug paraphernalia (namely, a marijuana pipe) could qualify for a section 212(h) waiver if the Immigration Judge determined that his “criminal conduct bore such a close relationship to the simple possession of a minimal quantity of marijuana that it should be treated with the same degree of forbearance under the immigration laws as the simple possession offense itself.” Id. at 124-25.

The Immigration Judge concluded that the rationale underlying Martinez Espinoza applied with the same force in the context of section 237(a)(2)(B)(i) of the Act. Thus, although the respondent was convicted of two generic offenses with discrete elements (namely, possession of marijuana and possession of drug paraphernalia), the Immigration Judge concluded that those two generic crimes amounted to a “single offense” in the relevant sense because they were constituent parts of a single act of simple marijuana possession. We agree with that interpretation.

The language of the section 237(a)(2)(B)(i) exception is exceedingly narrow and fact-specific. It refers not to a common generic crime but rather to a specific type of conduct (possession for one’s own use) committed on a specific number of occasions (a “single” offense) and involving a specific quantity (30 grams or less) of a specific substance (marijuana). Read in its most natural sense, this narrow language calls for what the Supreme Court has referred to as a “circumstance-specific” inquiry, that is, an inquiry into the nature of the alien’s conduct. Nijhawan v. Holder, 557 U.S. at 34. It does not suggest a focus on the formal elements of generic offenses.

2 Sections 212(h) and 237(a)(2)(B)(i) are not unique. As we have noted elsewhere, the Act contains numerous provisions—most of which use language substantially similar to that at issue here—reflecting Congress’ policy of leniency toward aliens convicted of a single offense involving possession of a personal-use quantity of marijuana. See Matter of Moncada, 24 I&N Dec. 62, 65-66 & n.4 (BIA 2007) (enumerating the relevant provisions).

Furthermore, the plain language of section 237(a)(2)(B)(i) does not limit the availability of the exception to aliens convicted of simple marijuana possession per se. Rather, it makes the exception available to an alien whose conviction was for a single offense “involving” the simple possession of 30 grams or less of marijuana. Had Congress wished to make the exception available only to those convicted of generic marijuana possession, using an expression like “involving” (as opposed to “of,” for instance) would be an unlikely choice of words. Indeed, in analogous contexts, the Federal courts of appeals have construed the term “involving” broadly, to encompass any offense or act that is closely related or closely connected to its object of reference.

For instance, 18 U.S.C. § 924(e)(2)(A)(ii) (2006) defines the term “serious drug offense” to mean, in pertinent part, “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” (Emphasis added.) In deciding whether particular predicate offenses “involved” the distribution of controlled substances under this provision, courts have not required that the offense include distribution as a formal element. Rather, they have required only that the offender’s conduct be closely “related to or connected with” the offending activity. United States v. King, 325 F.3d 110, 113 (2d Cir. 2003); see also, e.g., United States v. Bynum, 669 F.3d 880, 886-87 & n.4 (8th Cir. 2012) (holding that knowingly offering to sell drugs in violation of Minnesota law “involves” distribution under § 924(e)(2)(A)(ii)); United States v. Gibbs, 656 F.3d 180, 184, 189 (3d Cir. 2011) (holding that wearing body armor while committing a felony in violation of Delaware law “involves” distribution under § 924(e)(2)(A)(ii) where the underlying felony was a drug sale);United States v. McKenney, 450 F.3d 39, 43, 45 (1st Cir. 2006) (holding that conspiracy to possess or manufacture a controlled substance for sale in violation of Rhode Island law “involves” drug distribution under § 924(e)(2)(A)(ii)).

Likewise, we conclude that for purposes of section 237(a)(2)(B)(i), a crime “involves” possession of 30 grams or less of marijuana for personal use if the particular acts that led to the alien’s conviction were closely related to such conduct.3 The possession of drug paraphernalia would thus be covered by the exception where the paraphernalia in question was merely an adjunct to the offender’s simple possession or ingestion of 30 grams or less of marijuana. We can conceive of no reason why Congress would except an alien from deportability for actually possessing a small amount of marijuana for personal use, yet deny such leniency simply because, for example, the marijuana was found in a baggie.

3 A crime cannot “involve” simple possession of a personal-use quantity of marijuana unless it bears a direct relationship to that conduct. Furthermore, it would defeat the purpose of the exception to interpret it as encompassing an offense that is inherently more serious than simple possession, such as distributing, manufacturing, transporting, or being under the influence of marijuana, or possessing marijuana in a prison or near a school. See Matter of Moncada, 24 I&N Dec. 62; see also Matter of Martinez Espinoza, 25 I&N Dec. at 125.

The possession of drug paraphernalia would not “involve” simple marijuana possession, however, if the paraphernalia in question was associated with the manufacture, smuggling, or distribution of marijuana or with the possession of a drug other than marijuana. Because the term “drug paraphernalia” covers a broad range of objects, many of which have no relationship to simple drug possession, the inquiry will necessarily be fact intensive. An alien who possessed a marijuana pipe or rolling papers may be covered by the exception; an alien who possessed a drug scale or a hypodermic syringe would not.

Applying the foregoing standards to the present facts, we find no error in the Immigration Judge’s determination that the respondent is covered by the section 237(a)(2)(B)(i) exception. Looking to the respondent’s plea colloquy transcript, the Immigration Judge found that the respondent’s two offenses of conviction were committed simultaneously, that they involved the simple possession of less than 10 grams of marijuana, and that the drug paraphernalia the respondent possessed was a plastic baggie in which the marijuana was contained. Those facts describe a “single offense involving possession for one’s own use of thirty grams or less of marijuana.” Section 237(a)(2)(B)(i) of the Act.

The DHS argues that the respondent’s conviction record contains no clear judicial finding that the respondent possessed the marijuana for personal use, therebyleaving open the possibilitythat the baggie of marijuana was possessed for the purpose of sale. We find that argument unpersuasive. The relevant question in a Joseph hearing is whether the DHS is substantially unlikely to prove a charge that would justify mandatory detention. Matter of Joseph, 22 I&N Dec. at 800. To prove a charge under section 237(a)(2)(B)(i), the DHS bears the burden of proving that the respondent’s conviction does not fall within the “possession for personal use” exception. See Matter of Moncada, 24 I&N Dec. 62, 67 n.5 (BIA 2007). It cannot meet that burden unless the record establishes that the respondent possessed marijuana for some reason other than personal use; an inconclusive record is not sufficient.

In this instance, the Immigration Judge issued his bond order after he had alreadyconsidered the entiretyof the DHS’s evidence at a removal hearing and dismissed the section 237(a)(2)(B)(i) charge on the merits. This is therefore not a case where the Immigration Judge was obliged to assess the DHS’s likelihood of success on the basis of an incomplete record. See Matter of Joseph, 22 I&N Dec. at 806-07 (noting that when the propriety of mandatory detention is being reviewed after a removal charge has been dismissed on the merits, the Immigration Judge is entitled to rely on that merits determination when assessing the DHS’s likelihood of success).

In light of the foregoing, we see no basis to disturb the Immigration Judge’s determination that the DHS is substantially unlikely to prove the respondent’s deportability under section 237(a)(2)(B)(i) of the Act. Thus, the Immigration Judge properly exercised jurisdiction over the respondent’s request for a change in his custody status. Furthermore, the DHS does not challenge the Immigration Judge’s conclusion that a $2,000 bond is reasonably calculated to ensure the respondent’s appearance for future hearings. Accordingly, the DHS’s appeal will be dismissed.

ORDER: The appeal of the Department of Homeland Security is dismissed.

Posted in a single offense involving possession for one’s own use of thirty grams or less of marijuana, BIA, BIA PRECEDENT TABLE, Board of Immigration Appeals, exception to deportability 30 grams or less of marijuana, Marijuana Possession, single offense | Tagged | Leave a comment