U.S. Supreme Court- Aliens, Immigration and Nationality Law

Posted on September 5, 2007 by Mike Baker

U.S. SUPREME COURT CASES (click on link)

DUI IS NOT A CRIME OF VIOLENCE:
Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

A drunk driving accident is not a “crime of violence” allowing the government to deport a permanent resident, the Supreme Court ruled in Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

The court ruled unanimously in favor of Josue Leocal, a Florida man challenging his deportation to Haiti in 2002 after pleading guilty to a felony charge of drunk driving.

The 11th U.S. Circuit Court of Appeals ruled that the DUI offense was a “crime of violence” under the immigration statute because he had caused injury to others.

The Supreme Court disagreed. It said the plain meaning of the statute suggests that the felony offense must require intent in causing harm – not mere negligence as in Leocal’s case – before immigrants are subject to the drastic consequence of deportation.

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REHNQUIST, C. J., delivered the opinion for a unanimous Court.

Petitioner, a lawful permanent resident of the United States, pleaded guilty to two counts of driving under the influence of alcohol (DUI) and causing serious bodily injury in an accident, in violation of Florida law. While he was serving his prison sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings pursuant to § 237(a) of the Immigration and Nationality Act (INA), which permits deportation of an alien convicted of “an aggravated felony.” INA § 101(a)(43)(F) defines “aggravated felony” to include, inter alia, “a crime of violence [as defined in 18 U.S.C. § 16] for which the term of imprisonment [is] at least one year.” Title 18 U.S.C. § 16(a), in turn, defines “crime of violence” as “an offense that has as an element the use . . . of physical force against the person or property of another,” and § 16(b) defines it as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” An Immigration Judge and the Board of Immigration Appeals (BIA) ordered petitioner’s deportation, and the Eleventh Circuit dismissed his petition for review, relying on its precedent that a conviction under Florida’s DUI statute is a crime of violence under 18 U.S.C. § 16.

Held: State DUI offenses such as Florida’s, which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, are not crimes of violence under 18 U.S.C. § 16. Pp. 4-11.

(a) Section 16 requires this Court to look to the elements and nature of the offense of conviction in determining whether petitioner’s conviction falls within its ambit. Florida’s DUI statute, like similar statutes in many States, requires proof of causation but not of any mental state; and some other States appear to require only proof that a person acted negligently in operating the vehicle. This Court’s analysis begins with § 16’s language. See Bailey v. United States, 516 U.S. 137, 144, 133 L. Ed. 2d 472, 116 S. Ct. 501. Particularly when interpreting a statute featuring as elastic a word as “use,” the Court construes language in its context and in light of the terms surrounding it. See Smith v. United States, 508 U.S. 223, 229, 124 L. Ed. 2d 138, 113 S. Ct. 2050. Section 16(a)’s critical aspect is that a crime of violence involves the “use . . . of physical force against” another’s person or property. That requires active employment. See Bailey, supra, 516 U.S. 137, at 145, 1333 L. Ed. 472, 116 S. Ct. 501. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another by accident. When interpreting a statute, words must be given their “ordinary or natural” meaning, Smith, supra, 508 U.S. 223 at 228, 124 L. Ed. 2d 138, 113 S. Ct. 2050, and § 16(a)’s key phrase most naturally suggests a higher degree of intent than negligent or merely accidental conduct. Petitioner’s DUI offense therefore is not a crime of violence under § 16(a). Pp. 4-8.

(b) Nor is it a crime of violence under § 16(b), which sweeps more broadly than § 16(a), but does not thereby encompass all negligent conduct, such as negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The classic example is burglary, which, by nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Thus, § 16(b) contains the same formulation found to be determinative in § 16(a): the use of physical force against another’s person or property. Accordingly, § 16(b)’s language must be given an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense. Pp. 8-9.

(c) The ordinary meaning of the term “crime of violence,” which is what this Court is ultimately determining, combined with § 16’s emphasis on the use of physical force against another (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. This construction is reinforced by INA § 101(h), which includes as alternative definitions of “serious criminal offense” a “crime of violence, as defined in [§ 16],” § 101(h)(2), and a DUI-causing-injury offense, § 101(h)(3). Interpreting § 16 to include DUI offenses would leave § 101(h)(3) practically void of significance, in contravention of the rule that effect should be given to every word of a statute whenever possible, see Duncan v. Walker, 533 U.S. 167, 174, 150 L. Ed. 2d 251, 121 S. Ct. 2120. Pp. 9-11.

(d) This case does not present the question whether an offense requiring proof of the reckless use of force against another’s person or property qualifies as a crime of violence under § 16. P. 11.

Reversed and remanded
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Demore v. Kim: Mandatory Detention Allowed | Custody & No Bond/Bail: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1) (April 29, 2003)

The US Supreme Court declared that lawful permanent residents with certain criminal convictions can be detained pursuant to INA §236(c) without an individual bond hearing. The Court, however, also held that § 236(e) does not preclude habeas review of challenges to detention under § 236(c) .

The Supreme Court decision in Demore v. Kim applied only to individuals who conceded deportability and explicitly did not address the adequacy of the Matter of Joseph hearing, which allows a person to be released if she or he can demonstrate that the government is “substantially unlikely to prevail” on the charges of removal. To the extent possible, non-citizens should not concede deportability and request a Matter of Joseph hearing. 22 I. & N. Dec. 799 (BIA 1999) http://callyourlawyers.com/pdfcaselaw/matterofjoseph.pdf

The Immigration Judge may make a determination on whether a lawful permanent resident “is not properly included” in a mandatory detention category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before or after the conclusion of the underlying removal case. If this threshold bond decision is made after the Immigration Judge’s resolution of the removal case, the Immigration Judge may rely on that underlying merits determination.

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INS v. St. Cyr: Supreme Court Allows Criminal Aliens to Apply for Waivers under former Section 212(c)

Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition. (2) Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Certiorari to the United States Court of Appeals for the Second Circuit No. 00767. June 25, 2001

HTML: http://supct.law.cornell.edu/supct/html/00-767.ZS.html

PDF: http://callyourlawyers.com/pdfcaselaw/St.Cyr_supct.pdf

Posted in Chicago Immigration Court, Chicago-dui lawyer, Immigration Judge, Removal, Removal hearing | Leave a comment

Continuing Validity of Form I-140 Petition when the alien beneficiary claims eligibility benefits under §106(c) of AC21 due to a change in his or her

Posted on September 5, 2007 by Mike Baker

08/04/03 Memo from William R. Yates /s/ Janis Sposato HQBCIS

MEMORANDUM FOR SERVICE CENTER DIRECTORS, BCIS REGIONAL DIRECTORS, CIS Continuing Validity of Form I-140 Petition in accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)

The purpose of this memorandum is to provide field offices with guidance on processing Form I-485, Application to Register Permanent Residence or Adjust Status, when the beneficiary of an approved Form I-140, Petition for Immigrant Worker, is eligible to change employers under §106(c) of AC21.

On January 29, 2001, the legacy Immigration and Naturalization Service’s (Service) Office of Field Operations issued a memorandum entitled “Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313.” On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled “Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396).” On February 28, 2003, Immigration Services Division issued a memorandum entitled “Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.” These memoranda remain in effect. On July 31, 2002, the Service published an interim rule allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485. Institution of the concurrent filing process, and other issues relating to revocation of approval of Form I-140 petitions, have resulted in questions on how to process adjustment applications when the alien beneficiary claims eligibility benefits under §106(c) of AC21 due to a change in his or her employment.

A. Approved Form I-140 Visa Petitions and Form I-485 Applications

The AC21 §106(c) states:

A petition under subsection (a)(1)(D) [since re-designated section 204(a)(1)(F) of the Act] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed. Accordingly, guidance in the June 19, 2001, memorandum provides that the labor certification or approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if:

(a) A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and

(b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made. This policy is still in effect and has not changed as a result of implementation of the concurrent filing process.

If the Form I-140 (“immigrant petition”) has been approved and the Form I-485 (“adjustment application”) has been filed and remained unadjudicated for 180 days or more (as measured from the Form I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation.1 If the Form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment. B. Provisions in Cases of Revocation of the Approved Form I-140 1AC21 also provides that any underlying labor certification also remains valid if the conditions of §106(c) are satisfied.

As discussed above, if an alien is the beneficiary of an approved Form I-140 and is also the beneficiary of a Form I-485 that has been pending 180 days or longer, then the approved Form I-140 remains valid with respect to a new offer of employment under the flexibility provisions of §106(c) of AC21.

Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has not established that the new offer of employment is in the same or similar occupation, the adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny the Form I-485.

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied. If at any time the BCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the job flexibility provisions of §106(c) of AC21 and the adjudicating officer may, in his or her discretion, deny the attached Form I-485 immediately. In all cases an offer of employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ the beneficiary upon adjustment. It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act. Questions regarding this memorandum may be directed via e-mail through appropriate channels to Joe Holliday at Service Center Operations or to Mari Johnson in Program and Regulation Development. Accordingly, the Adjudicator’s Field Manual (AFM) is revised as follows:

1. Chapter 20.2 of the AFM is revised by adding a new paragraph (c) to read as follows:

20.2 Petition Validity.

(c) Validity after Revocation or Withdrawal. Pursuant to the provisions of section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313, the approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if:

A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and

The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

If the Form I-140 has been approved and the Form I-485 has been filed and remained unadjudicated for 180 days or more (as measured from the form I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation.

If the Form I-485 has been pending for less than 180 days, then the approved Form I- 140 shall not remain valid with respect to a new offer of employment.

Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has not established that the new offer of employment is in the same or similar occupation, the adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny the Form I-485.

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied. If at any time the BCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the job flexibility provisions of §106(c) of AC21 and the adjudicating officer may, in his or her discretion, deny the attached Form I-485 immediately. In all cases an offer of employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ the beneficiary upon adjustment. It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act.

2. The AFM Transmittal Memoranda button is revised by adding the following entry: Chapter 20.2(c) Provides guidance on the validity of immigrant petitions under section 106(c) of AC21 (Public Law 106-313) 08/04/03

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Posted in Citizenship and Immigration Services (CIS), I-485 Employment | Leave a comment

Conviction under Immigration law includes Illinois sentence for “1410 probation” (Gill v. Ashcroft, (7th Cir.) )

Posted on September 4, 2007 by Mike Baker

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003

Ct. of Appeal lacked jurisdiction to consider appeal of instant removal order under 8 USC §1227(a)(2)(B)(i) based on existence of alien’s prior Illinois state court conviction for possession of cocaine that was ultimately dismissed87 upon alien’s successful completion of probation period; under 8 USC §1101(a)(48)(A), alien’s state court proceeding qualified as “conviction” that precluded alien from applying for discretionary relief from removal order.

Gill pleaded guilty in an Illinois court to possession of cocaine. He was sentenced to “410 probation,” 720 ILCS 570/410. Section 410(f) provides that, if a first offender completes this probation without incident, “the court shall discharge the person and dismiss the proceedings against him.” The statute continues: A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. 720 ILCS 570/410(g). Gill did not deny that “410 probation” was a “conviction” under the text of §1101(a)(48)(A). The 7th Circuit declined to follow the holding of Lujan- Armendariz, “which elevated an abandoned administrative practice over a statutory text.” 222 F.3d 728 (9th Cir. 2000).

The term “conviction” under Immigration law: * * * The term “conviction” means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Two principal problems: How to classify diversionary dispositions such as “410 probation” that impose some restraint on liberty but withhold formal adjudication of guilt; second, how to classify convictions later expunged or covered by some other device for restoring the person’s civil rights. In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), the Board held that the criteria of §1101(a)(48)(A) apply to all offenders, no matter how they would have been treated if they had been charged in federal court. The 7th Circuit adopted the Board’s “straightforward” application of §1101(a)(48)(A), which abolished, for purposes of immigration law, any distinction between the treatment of deferred dispositions in first and successive drug-possession offenses. The Board has declined to acquiesce in Lujan-Armendariz and will not apply it outside the ninth circuit.

In Gill, the Seventh Circuit determined that the definition of conviction under federal immigration law, not the Illinois First Offender standard, controls. The 7th Circuit determined that an administrative appellate tribunal, namely, the Board of Immigration Appeals, had the authority to conclude that its uniform interpretation of what constitutes a “conviction” under federal law was dispositive, regardless of what states may say to the contrary (Matter of Roldan , 22 I&N Dec. 512 (BIA, 1999).

http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3377.pdf

Another court has looked at this differently (Lujan-Armendariz v. Immigration & Naturalization Service, 222 F.3d 728 (9th Cir. 2000). In the latter decision, the Circuit Court of Appeals found that state equivalents to the Federal First Offender Act (like 410 probation) in regard to first time simple drug possession charges if expunged, may not be used as convictions under the Immigration and Nationality Act to establish inadmissibility or deportability. The Ninth Circuit also extended this rule to foreign equivalents to the First Offender Act (Dillingham v. Immigration & Naturalization Service, 267 F.3d 996 (9th Cir. 2001). Unfortunately, the Ninth Circuit’s decision does not apply in Illinois, Indiana or Wisconsin. And, there is more. Under certain circumstances, a misdemeanor conviction under state law may amount to what is known as an “aggravated felony” (8 U.S.C. 1227(a)(2)(A)(iii) under federal immigration law (Guerrero-Perez v. INS, (7th Cir. 2001) 242 F.3d 727, rehearing den.(7th Cir. 2001) 256 F.3d 546). What this means is that certain misdemeanor convictions, like the First Offender conviction, can result in the removal from the United States of a lawful permanent resident or undocumented alien. (For example, Criminal Sexual Abuse, 720 ILCS 5/12-15(c) is a Class A misdemeanor. It is also an aggravated felony under federal immigration law. Since aliens who have committed aggravated felonies are unable as a matter of law to obtain cancellation of their removal hearings upon a conviction for such a crime, they may be deported). (Guerrero-Perez).

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003:
Download: http://callyourlawyers.com/pdfcaselaw/gil.pdf

Posted in 7th Circuit, Chicago Immigration Court, Deportation, Immigration Judge, Removal, Removal hearing | Leave a comment

Was the Marriage Entered into for Immigration Purposes? Is the marraige “Bona fide” for immigration purposes?

Posted on September 4, 2007 by Mike Baker

In order to be granted permanent residency, your spouse’s relationship with you must be established and your spouse must be admissible to the United States under the immigration law. Also, the marriage must be bona fide, not merely a sham to get the non US citizen spouse a green card. The USCIS takes fraudulent marriage seriously and you will be asked to provide supporting documents to show that the marriage is valid.

Over the past two decades, Congress and the CIS have grown increasingly suspicious of marriages. Since 1986, a foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years. While this conditional status is for the most part the same as regular permanent residence, it is designed to provide assurance that the parties did not marry for immigration purposes by allowing the conditional status to be revoked if the marriage does not last two years.

It is important to note at the outset that it is not against federal immigration law to consider immigration in deciding to get married. Considering immigration benefits will only be a problem if those were the ONLY reason to marry. So a couple, one of whom is undocumented and the other a citizen would not be breaking the law if they married before they would otherwise have planned to so the noncitizen can legalize his or her status. Despite this, and despite the fact that it can be impossible to determine why people marry, the CIS makes this determination every day. Therefore, it is important to know what factors will make the agency suspect marriage fraud.

Some of the most obvious of these are if the couple did not know each other for very long before marrying or had seen each other only a few times before marrying. Also, if the couple does not live together, the CIS will be very suspicious, even more so if they have never lived together. Also, marriages between couples from different backgrounds, especially those that lack a common language, are viewed with suspicion.

The CIS is very suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the CIS. In such cases, the beneficiary is required to stay outside the US for two years after the marriage unless the parties can prove the marriage is bona fide. The best way to show that the marriage is bona fide is to present evidence of the parties’ joint ownership of property and their cohabitation. Evidence of children born in the marriage, as well as affidavits from friends and family testifying to the bona fides of the marriage are also helpful.

The CIS has discretion to suspect and then accordingly to investigate a marriage which may bring immigration benefits to the aliens. If the CIS has reasons to suspect that the marriage is a “sham marriage”, the CIS officers have the authority to investigate. Usually, the CIS officers may visit the suspect couple at their residence, or visit their neighbors to investigate whether they reside together, share a household, or own property jointly, etc. Also, the CIS officers may arrange interviews with the couple at their residence or at local CIS offices. _________________________________

Whether an alien qualifies as a spouse depends upon three factors:

(1) the validity of the marriage under the law of the jurisdiction where it was performed;

(2) whether the marriage was entered into in order to confer an immigration benefit on the alien (a sham marriage); and

(3) the current status of the marriage.

The only legally-sanctioned marriage defined by the INA to be invalid for immigration purposes is one in which the two parties were not physically in the presence of each other at the time of the marriage ceremony, unless the marriage was subsequently consummated. Other marriages may be invalid at their inception because one of the parties lacked legal capacity or because the marriage is against the law of the jurisdiction.

The most common impediment to a valid marriage, however, is the objection that one of the parties lacked capacity to marry because of the invalidity of a prior divorce. Any prior divorce must meet the legal standards of the jurisdiction where the divorce decree is entered, and must be recognized in the jurisdiction where the subsequent marriage occurs. While all U.S. divorces are considered valid determining the validity of divorces in foreign jurisdictions is often a complicated task. This difficulty can be compounded when the foreign jurisdiction recognizes “custom-ary” divorces and marriages; in such instances, it is necessary to study the actual facts of the divorce or marriage proce-dure or ceremony to determine whether the proper ritual was followed.

Even if a marriage is valid at its inception, it may be considered sham for immigration purposes if it was entered into to confer an immigration benefit on the alien. The general authority to investigate the bona fides of a marriage rela-tionship for purposes of conferring an immigration benefit appears in section 204(b) of the INA. The basic test in all cases will be whether the parties entered into the marriage sharing the intention to establish a life together. Thus, the fact that the couple is presently divorced or separated does not necessarily negate the validity of the marriage for immi-gration purposes, although such circumstances may raise questions as to the bona fides of the marriage. In addition to this general investigatory authority, section 204(c) of the INA bars the approval of a visa petition for a person who pre-viously obtained, or attempted or conspired to obtain, immigration benefits by reason of a marriage determined to have been entered into for purpose of evading the immigration laws.

Several other provisions added by the Immigration Marriage Fraud Amendments of 1986 (IMFA) are also designed to combat sham marriages.

First, the INS cannot approve the spousal second preference petition of permanent residents who have been accorded their status based on a prior marriage unless:

(1) a period of five years has elapsed after the alien acquired the permanent resident status;

(2) the alien establishes through clear and convincing evidence that the prior marriage was not entered into for purposes of evading the immigration laws; or

(3) the prior marriage was terminated through the death of the petitioner’s spouse.

Second, an immigrant visa petition cannot be approved for an alien who has married after commencement of deportation, exclusion, or removal proceedings until the alien has resided outside of the United States for two years after the marriage. The alien can obtain a “bona fide marriage” waiver of the foreign residence requirement if the alien establishes by clear and convincing evidence that:

(1) the marriage was entered in good faith and in accordance with the laws of the place where the marriage took place;

(2) the marriage was not entered into for the purpose of procuring the alien’s entry as an immigrant; and

(3) no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparing petitions) for the filing of a petition on behalf of the alien.

Finally, under IMFA, aliens who obtain an immigration benefit on the basis of a marriage entered into within two years of the time the benefit is conferred will be granted conditional resident status for a period of two years. Before this period ends, the couple must file a joint petition to remove the conditional basis of the alien’s residence; failure to do so results in automatic termination of the alien’s resident status. When the conditional resident is unable or unwilling to obtain the cooperation of the citizen or resident spouse or parent, he or she will be required to file an application for waiver of the joint petition requirement. There generally is no requirement that a marriage currently be viable in order for it to be the basis for conferring immigration benefits. In most cases, as long as the couple entered into a bona fide marriage and have neither divorced nor legally separated pursuant to a formal written instrument, they will be considered spouses for immigration purposes.

(1) In the absence of adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. Matter of Cavazos, Interim Decision 2750 (BIA 1980), clarified and reaffirmed. Matter of Cavazos, 1980 BIA LEXIS 2; 17 I. & N. Dec. 215

(2) A fraudulent or sham marriage that is entered into for the primary purpose of circumventing the immigration laws does not enable an alien spouse to obtain immigration benefits.

(3) Where the parties enter into a valid marriage, and there is nothing to show that they have since obtained a legal separation or dissolution of that marriage, a visa petition filed on behalf of the alien spouse should not be denied solely because the parties are not residing together.

(4) Although the separation of spouses in and of itself is not a valid basis for denial of a visa petition based upon a determination that the marriage is not viable, a separation is a relevant factor in determining the parties’ intent at the time of their marriage, i.e., whether the marriage is a sham. (Matter of McKee, 1980 BIA LEXIS 17; 17 I. & N. Dec. 332)

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The following is a list of some of the typical questions asked during an adjustment of status interview. During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

MARRIAGE INTERVIEW-SAMPLE QUESTIONS

During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

Name and address.

Name and Date of Birth of Spouse.

When and where did you meet your spouse?

Describe this 1st meeting.

Did you make arrangements to meet again?

Did you exchange phone numbers?

When did you meet next?

Where were you living at the time? Where was your spouse living?

When did you decide to get married? Where were you at the time?

Did you live together before marriage?

When and where did you get married? How did you and your spouse get to the church, courthouse, etc.?

Who were the witnesses to the ceremony?

Did you exchange wedding rings?

Where had you purchased these rings? Did you and your spouse purchase them together?

Did you have a reception after the ceremony?

Where was it held?

Do you have any photos of the ceremony and /or reception?

Describe the reception.

Did any of your, and your spouse’s, family members attend? If so, who?

Did you go on a honeymoon? If so, when and where?

If you did not have a reception, what did you do after the wedding ceremony?

Where did you live after the wedding?

Describe the place where you lived right after the marriage. Number of bedrooms and bathrooms; furnishings; color of walls, floor coverings, appliances, etc; type of air conditioning, heating, etc; # of telephones, televisions, etc. Do you have cable television?

Where did you get the furniture? Was it already there, did you buy it, was it a gift, or did it come from your, or your spouse’s, previous residence?

If brought to the house or apartment, describe how it was transported.

Describe your bedroom. Where do you keep your clothes? Where does your spouse keep his or her clothes? Where are the bathroom towels kept? Where do you keep the dirty clothes?

Where is the garbage kept in the kitchen?

On what day of the week is the garbage picked up?

Where do you shop for groceries? Do you go together with your spouse? How do you get there?

Where do you work? What days of the week do you work?

What hours do you work? What is your salary?

What is your telephone # at work?

When was the last vacation you had from work?

Did you and your spouse go anywhere together at that time?

When was the last vacation you and your spouse took together?

Where did you go? How did you get there? Describe it.

Where does your spouse work? What days of the week? What hours? What is the salary, if you know?

What is your spouse’s telephone # at work?

When was the last time your spouse got a vacation from work?

Do you know your spouse’s family members? If so, which ones? If your spouse has children from a previous marriage, their names, ages, where they live, and where they go to school, if applicable.

Where do you live now? (If different from where you lived right after the marriage, then go over the same questions as above). How much is the rent? When is it paid? How do you pay it?

Do you have a bank account together? Where? What kind of account? (Checking, savings).

Are both of you listed on the account? (Do you have a bank letter, cancelled checks, etc.?)

Did you file a joint tax return this year? Do you have a copy with you?

Do you own any property together? What property? Did you bring copies of the documents with you?

What kind of automobile do you and your spouse have? Describe them.

Do you have an Insurance policy listing your spouse as the beneficiary? If so, do you have a copy?

Have you taken any trips or vacations together? Do you have photos from these trips?

Do you have any utility bills, or receipts from items you have purchased together?

What other documentation do you have to show that you are living together as husband and wife?

Do you have any pets? What kind, what are their names, and describe them?

What did you do for Christmas, New Year’s, your anniversary, or you or your spouse’s last birthday? Did you exchange gifts? If so, what kind of gift?

Did you or your spouse go to work yesterday? If so, at what time did you and/or your spouse leave the house and return?

Who cooks the meals at the house?

What is your spouse’s favorite food? What is your favorite food?

Does your spouse drink coffee? If so, does he or she use cream and/or sugar?

Did you eat dinner together last night? Did anyone else have dinner with you? What did you have?

What time was dinner served? Who cooked it?

Did you watch TV after dinner? What shows did you watch?

At what time did you go to bed? Who went to bed first?

Did you have the air conditioning or heater on?

Who woke up first this morning? Did an alarm clock go off?

Did you or your spouse take a shower?

Did you come to the interview together? Who drove?

Did you have breakfast? Where and what did you eat?

Please remember that the number and types of questions that can be asked is almost limitless. Therefore, you and your spouse should review your entire lives together prior to attending the immigration interview. Even married couples living together for many years sometimes have difficulties remembering all of the facts of their relationship. Be prepared and take original documents with you. Then you will have no problem passing the interview and obtaining permanent residence in the United States.

Posted in Adjustment of Status, Citizenship and Immigration Services (CIS), Immigration Marriage Fraud Amendments of 1986, Lawful Permanent Resident, Lawfully Admitted for Permanent Residence | Leave a comment

Domestic Battery Conviction , Illinois and Removal, Deportation from the United States

Posted on September 4, 2007 by Mike Baker
Domestic violence and related convictions will cause immigration problems not only for individuals that have a pending application for permanent resident status (green card) with the local CIS office but also for individuals that are already permanent residents or those who seek to apply for United States citizenship through naturalization.

Several years ago, Congress amended the Immigration law to include a conviction for domestic violence as ground of deportability. A felony conviction for domestic violence can serve as a basis for deportation even if no jail time was imposed or actually served. 8 U.S.C. § 1227(a)(2)(E)(i). A misdemeanor domestic violence conviction is not necessarily a “crime of violence” for deportation purposes, unless the “offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003, 2003 U.S. App. LEXIS 24051

Sec. 12-3.2 Domestic Battery (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)

(a) A person commits domestic battery if he intentionally or knowingly without legal justification by any means:

(1) Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended;

(2) Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

(b) Sentence. Domestic battery is a Class A Misdemeanor. Domestic battery is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery

Sec. 12-3.3 Aggravated domestic battery (720 ILCS 5/12-3.3)

(a) A person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery.

(b) Sentence. Aggravated domestic battery is a Class 2 felony. Any order of probation or conditional discharge entered following a conviction for an offense under this Section must include, in addition to any other condition of probation or conditional discharge, a condition that the offender serve a mandatory term of imprisonment of not less than 60 consecutive days. A person convicted of a second or subsequent violation of this Section must be sentenced to a mandatory term of imprisonment of not less than 3 years and not more than 7 years or an extended term of imprisonment of not less than 7 years and not more than 14 years. (Source: P.A. 91445, eff. 1‑1‑00.)

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003. http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf

REMOVABLE OFFENSES

The term “conviction” under Immigration law: * * * The term “conviction” means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Whether an aggravated felony or crime of moral turpitude, it is important to note that it is the “conviction” that counts. Dismissals, acquittals, adjudications (juvenile convictions) or no-paper charges do not count for immigration purposes. However, pleading guilty or even admitting to the facts supporting the elements of the offense may be considered as a conviction, even if the crimminal law does not recognize the conviction until the time a sentence has been entered (Judgment and Commitment Order). Sentences containing fines or probation constitute a conviction for immigration purposes. A deferred sentence counts only when there has been an admission of the facts beforehand. Convictions that are later set aside or expunged count as convictions if there has been an admission of the facts. In determining the length of the sentence, immigration authorities look to the term of the actual sentence, and not to the time that the offender is exposed to by statute.

Probationary sentences will trigger immigration consequenses if a term of incarceration is imposed but suspended. Probation will not trigger immigration consequences if the judge opts not to impose a sentence at all (known as an imposition of the sentence suspended, or an ISS sentence). In the case of an ISS sentence, if the candidate successfully completes probation, there are no immigration consequences because an actual sentence was never imposed. However, immigration consequences are triggered if the offender’s probation is ever revoked, as the court will impose a sentence at the time of revocation. Thus, for immigration purposes it always best to request an ISS sentence for a probationary candidate.

Crimes of Moral Turpitude. Any alien who – (I) is convicted of a crime involving “moral turpitude” committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

Multiple Criminal Convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.

Felony aggravated domestic battery is a “crime involving moral turpitude” (CIMT), an aggravated felony (only if one year of jail or more is actually imposed), and constitutes a domestic violence ground for deportation.

A felony aggravated battery conviction would be enough for ICE to charge as CIMT within 10 years of non citizen obtaining green card and/or as Agg. Felon/crime of violence if jail sentence imposed was more than one year.

Aggravated Felony: Any alien who is convicted of an aggravated felony (Sec.1101(a)(43) at any time after admission is deportable. (worst provision; no bail or relief) (f) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment is at least one year; A “crime of violence” under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, “by its nature,” involves a substantial risk that physical force may be used. Under federal law, a crime is a “felony” if the maximum term of imprisonment authorized for the offense is “more than 1 year.” See 18 U.S.C. § 3559(a) (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

Domestic Violence

8 U.S.C. § 1227(a)(2)(E)(i): Any alien admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2)(E)(i) Any alien who at any time after admission is convicted of a crime of domestic violence . . . . For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of Title 18) . . . by any individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

“Crime of Violence” With respect to the first prong of the § 1227(a)(2)(E)(i) analysis, 18 U.S.C. § 16 defines a “crime of violence” as follows:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

A “crime of violence” under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, “by its nature,” involves a substantial risk that physical force may be used. Under federal law, a crime is a “felony” if the maximum term of imprisonment authorized for the offense is “more than 1 year.” See 18 U.S.C. § 3559(a)

The BIA states that an offense does not fall within the definition of a “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i) unless (1) the crime is a “crime of violence” as defined in 18 U.S.C. § 16, and (2) the person against whom the crime was committed was a “protected person” within the meaning of § 1227(a)(2)(E)(i). Applying its traditional categorical approach to criminal convictions, the Immigration Judge/BIA would hold that (1) a felony conviction constituted a “crime of violence” because the crime, as defined by Illinois case law, requires an intentional touching that caused bodily harm and was non-consensual and, therefore, involves a substantial risk that physical force may be used, and (2) victim /spouse was a “protected person” under Illinois criminal and civil law.

[DOMESTIC VIOLENCE: The offense of aggravated stalking pursuant to section 750.411i of the Michigan Compiled Laws Annotated is a crime involving moral turpitude Matter of AJAMI, Interim Decision #3405, 1999)

A single conviction for misdemeanor domestic battery is not an Aggravated felony- as a crime of violence, and is not necessarily CIMT, unless non citizen has two or more unrelated convictions for CIMT.

A misdemeanor domestic battery conviction- regardless of jail time imposed or served by non citizen –does not necessarily fall within domestic violence Ground of removability. Flores V. Ashcroft

A simple misdemeanor battery (not domestic battery) conviction, and jail sentence of up to 364 days, charged as “offensive touching” (not bodily harm), could be argued does not constitute CIMT and clearly does not constitute a domestic violence or aggravated felony grounds for removal. ________________________________________________________________________

An Immigration Judge in Arizona recently terminated a deportation proceeding based on domestic violence-related misdemeanor convictions after concluding that the convictions were not “crimes of violence” under the Immigration and Naturalization Act (INA).

The INA describes various types of criminal conduct that can render an alien deportable. This list, increased by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, includes convictions for domestic violence.

An alien charged with being deportable in an Arizona case was convicted of “misdemeanor assault / domestic violence”and of “misdemeanor Disorderly conduct / domestic violence”under state law. The Immigration and Naturalization Service (INS) then sought his deportation, charging that the defendant was deportable under the domestic violence provision of INA §237(a)(2)(E)(i). This section defines a “crime of domestic violence”as any “crime of violence”committed against a person in one of several listed relationships with the perpetrator, e.g., a current or former spouse.

“Crime of violence,”in turn, is defined by another federal provision (18 U.S.C. §16): (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The respondent in the Arizona case argued that he could not be deported under the INA domestic violence ground for deportation because neither of his misdemeanor convictions met the federal statute’s definition of “crime of violence.”According to the Board of Immigration Appeals, the federal definition the classification described in the INA’s deportation provisions supersedes the state law definition to avoid inconsistent results for aliens similarly situated.

Specifically, in the Arizona case respondent argued that subpart (b) of the federal definition of “crime of violence”did not apply to his case because the offenses to which the defendant pleaded guilty were Misdemeanors, not felonies.

The respondent also argued that subpart (a) did not apply to him because the domestic violence provision required the “use, attempted use, or threatened use of physical force”directed against a statutorily protected victim – elements not required for either of his misdemeanor State convictions.

Essentially, the Arizona domestic violence laws under which the respondent was convicted were broader in scope than the INA definition, because they could have allowed the prosecution of acts that did not involve attempted physical force or disorderly conduct directed to a victim. Evidence of misdemeanor domestic violence convictions under state law alone did not clearly and convincingly demonstrate that the respondent had actually committed the federally-defined domestic violence that renders a person deportable.

The Immigration Judge held that the INS failed to prove that the defendant actually committed domestic violence as defined by the INA (that is, he used or threatened physical force) in the incident for which he had been convicted under Arizona law. The judge thereafter terminated the defendant’s deportation proceedings and ordered immediate release from INS custody.

Posted in Chicago Immigration Court, Citizenship and Immigration Services (CIS), Deportation, Domestic battery, Good Moral Character (GMC), Naturalization N-400 applicant, Removal | Leave a comment