Month: May 2018

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Updates

Revocation of U.S. Passports of Certain Sexual Offenders

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On May 11, 2018, the Department of State released its final rules providing various changes on passport revocations. In addition to statutory grounds for revocation, the Department of State included revocation of passport of U.S. citizens who are convicted of certain illicit sexual conduct.

Richard, a 63 year old U.S. citizen traveled to the Philippines in 2012. Upon his return to the United States, his brother discovered child pornography saved on his computer. Evidence showed that Richard had sexually abused 2 minor children while in the Philippines. Richard was investigated, charged with child pornography and engaging in child sexual conduct in violation of 18 U.S.C. 2423. After hearing, Richard was sentenced to 190 years imprisonment.

Anti-Child Sexual Tourism

Child sex tourism (CST) involves people who travel from their own country to another and engage in commercial sex acts with children. Under the federal law, child sexual tourism carries heavy penalties even if the crime was committed by a U.S. citizen or a green card holder outside of the United States. The following are the illicit sexual crimes that may be committed abroad:

  • Engaging in illicit sexual conduct in foreign places – U.S. citizens and legal residents are prohibited from going to another country and molesting or raping a child, or paying to have sex with a child. This carries a sentence of up to 30 years in prison (18 U.S.C. Section 2423(c)).
  • Ancillary Offenses, makes it illegal to be involved in the child sex tourism industry (sex tour operator). If you violate this law, you could face up to 30 years in prison.18 U.S.C. Section 2423(d)
  • Production of Child Pornography outside the United States – makes it illegal to produce pornographic images outside of the US and import or intend to import them into the U.S. First time offenders face 15 to 30 years in prison for violating this law.18 U.S.C. Sections 2251(c) and 2260(a))
  • Sex Trafficking of children by force, fraud, or coercion – makes it illegal to knowingly obtain a child (whether they are American or foreign) and offer or coerce them to engage in any type of sexual activity for something of value – including money, favor, goods or other type of benefit. This carries 15 years to life in prison if the child was under the age of 14, and 10 years to life in prison if the child victim was over the age of 14 and under the age of 18 (18 U.S.C. Section 1591)

Following a conviction of the crimes described above, the Department of State shall revoke the U.S. passport of the criminal offender if the passport was used to travel abroad in the commission of the underlying offense. If the sexual offender is abroad and his passport is revoked while outside the United States, the U.S. Department of State may issue a limited validity passport for direct return to the United States.

In the case of Richard above, the revocation of the U.S. passport is the least possible consequence. This sexual offense is a shameful affront on the dignity of a child and his lifetime imprisonment conviction serves him right.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s rights advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Updates

USCIS to Recall Incorrectly Dated Green Cards

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On May 14, 2018, USCIS will begin recalling approximately 8,543 Permanent Resident Cards (also known as Green Cards) due to a production error. The Green Cards were for approved Form I-751, Petition to Remove Conditions of Residence for spouses of U.S. citizens. The cards were printed with an incorrect “Resident Since” date and mailed between February and April 2018.

USCIS will send notices to individuals who received the incorrect Green Cards and to their attorneys of record, if they have one. The affected individuals should return their incorrect Green Card to USCIS in the provided pre-paid envelope within 20 days of receiving the notice. They may also return their cards to USCIS field offices. USCIS will send replacement Green Cards within 15 days of receiving the incorrect card.

The recall does not affect these Green Card holders’ status as lawful permanent residents. If affected individuals need to travel internationally or prove their lawful permanent residence while they wait for a replacement card, they may contact the USCIS Contact Center at 800-375-5283 to determine if they need additional proof.

Spouses of U.S. citizens may apply for naturalization after three years of permanent residency and must meet other requirements. The incorrect date on these cards could lead applicants to wait longer than necessary to apply to become U.S. citizens.

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Updates

Latest Court Ruling Orders USCIS to Accept New DACA Applications

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After President Trump announced the termination of the Deferred Action for Childhood Arrivals (DACA) on September 5, 2017, several lawsuits were filed questioning the validity of the termination. Two court injunctions were already issued by the federal courts in San Francisco and New York ordering the USCIS to continue accepting renewals for the DACA protection. On April 26, 2018, another federal court in the District Court of Columbia also issued an injunction against the termination of the DACA program. With the latest injunction the court ordered USCIS to also accept new DACA applications.

Who will benefit from this latest court ruling?

Joshua entered the United States when he was 7 years old. When the DACA was announced in 2012, Joshua was only 10 years old. When Joshua turned 15 in December 2017, he was not allowed to apply for a DACA application. No new DACA applications were accepted after the announcement of the termination of the DACA protection in September 2017. This is the reason why Joshua has not applied for the DACA protection. Last week, Joshua heard about this new court ruling and wants to apply for the DACA protection and for an employment authorization card. What can he do?

Requirements for DACA

DACA was available to any undocumented young immigrant who:

  1. came to the United States when she was under the age of sixteen;
  2. had lived in the United States continuously since at least June 15, 2007;
  3. was enrolled in school or had graduated from high school or been honorably discharged from the military;
  4. had not been convicted of certain criminal offenses and posed no threat to national security or public safety; and
  5. was under the age of thirty. Young immigrants who are out of status, who met these criteria were eligible for renewable, two-year grants of “deferred action” on their removal from the United States.

Termination of DACA and the Lawsuits

On September 5, 2017, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA program. USCIS would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018.

On September 8, 2017, the University of California filed a complaint challenging the rescission of the DACA program and asking the court to enjoin the implementation of the rescission. On January 9, 2018, the district court issued an order directing the government to partially maintain the DACA program. As a result, the USCIS issued guidance that they are accepting renewal applications.

On April 24, 2018, the U.S. District Court for the District of Columbia held that DHS’s decision to rescind DACA was “arbitrary and capricious” and vacated the termination of the program. The court ordered DHS to accept and process new DACA applications, as well as renewal DACA applications – however, it stayed its order for 90 days to give the government a chance to respond. The decision of the court differed from previous court rulings because it would affect new applications – i.e. initial applications from individuals who have never applied for DACA previously but who are eligible to apply.

After 90 days, Joshua will be able to file for a new DACA application as per order of the U.S. District Court by proving that he meets all the above eligibility requirements. While this is a positive development, DACA is only a temporary program and its future is very uncertain. It would be best if there will be a permanent path to citizenship for the Dreamers. At the moment, there are several bills before the U.S. Congress addressing this issue. The most appropriate bill that must be passed into law is the Dream Act (HR 3440 and S.1615). If passed into law, it will provide a path to naturalization to Dreamers after 5 years in conditional permanent resident status.

(Atty. Lourdes S. Tancinco is a San Francisco-based immigration lawyer and immigrant’s rights advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Updates

Supreme Court Spares Filipino from Deportation: Sessions v. Dimaya

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On April 17, 2018, the U.S. Supreme Court rendered a decision in the case of Sessions v. Dimaya ruling that the definition of the crime of violence as an aggravated felony is void for being vague. The Respondent (deportee) in this case is James Dimaya who is a Filipino citizen and a lawful permanent resident of the United States. Mr. Dimaya’s deportation case was terminated as a result of the Supreme Court ruling.

James Garcia Dimaya, who is citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 1992. In 2007 and 2009, Dimaya was convicted under the California Penal Code for first-degree residential burglary; both convictions resulted in two years’ imprisonment. Under the Immigration and Nationality Act (INA), a non-citizen convicted of an aggravated felony is subject to deportation.

The INA definition of aggravated felony includes a ‘crime of violence,’ which is any offense that involves the use or substantial risk of physical force against another person or property. The Department of Homeland Security (DHS) subsequently initiated deportation proceedings against Dimaya and claimed that his burglary convictions constituted crimes of violence under the Act. The Immigration Judge held that Dimaya was deportable and that burglary constitutes a crime of violence because it always involves a risk of physical violence. The Board of Immigration Appeals (BIA) affirmed. On appeal to the U.S. Court of Appeals for the Ninth Circuit, the definition of crime of violence was struck down as being vague. The Supreme Court ruled the same way stating that the crime of violence provision was unconstitutionally vague and could therefore not be a basis of the deportation or removal.

Since the decision was rendered last week, several questions were raised by those who may potentially be affected by this Supreme Court ruling.

Among these questions are the following:

Why did majority the Supreme Court Justices rule in favor of the immigrant in this case?

Interestingly in this 5-4 ruling, the arguments raised were regarding a constitutional protection that is extended to immigrants or non citizens. The issue that was resolved was whether the law in question which is the definition of a crime of violence under 8 USC 16(b) met the constitutional standard for due process and that accused is aware of the conduct that is proscribed by the statute. If it is not then it is considered void for vagueness. After hearing the arguments, majority of the justices ruled that the definition of a crime of violence is unconstitutionally vague and therefore this particular provision may not be used as basis to deport an immigrant.

Clearly this is a precedent case decided by the Supreme Court – who will benefit from this decision?

This is a deportation/removal case where the basis for removal is a criminal conviction relating to a crime of violence as an aggravated felony. This decision affects favorably those who are charged with removal based on crime of violence as in this case which is the crime of burglary.

What is the impact of this Supreme Court decision on future removal/deportation cases?

Those who are similarly situated as Dimaya – meaning those who are being charged with deportation because of a “crime of violence” – may have their cases revisited, reopened and terminated. Again this case affects those who are in removal proceedings because of the vague definition of “crime of violence” under 8 USC 16(b). It does not affect those aggravated felonies where the definition is contained elsewhere in the Immigration and Nationality Act.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)