Tag: Deportations

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Updates

The Changing Landscape of U.S. Immigration

The Changing Landscape of U.S. Immigration
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Quarterly Updates from Atty Lou Tancinco
Atty Lou Tancinco shares her latest updates via our quarterly newsletter.

Dear TLAW Subscribers:

The landscape of immigration law is constantly evolving, and recent policy shifts have brought significant changes and heightened uncertainty. To help you stay informed, our latest quarterly newsletter offers timely insights into key immigration issues.

In this edition, we focus on empowering individuals with knowledge about their rights, particularly in the event of an encounter with Immigration and Customs Enforcement (ICE). We address crucial questions such as: What are your rights if a friend or family member is detained? What recourse is available if there is no final order of removal?

We also delve into other critical topics, including:

We encourage you to take a moment to review these informative articles and updates. Staying informed is crucial for navigating the complexities of immigration law.

We remain committed to advocating for just, fair, and humane immigration reform. In the meantime, we urge you to be vigilant in asserting your rights. Our firm is here to provide guidance and support. If you have any questions or require legal assistance, please do not hesitate to contact us.

Sincerely,
Atty. Lou

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Updates

Facing Deportation: What Happens When a U.S. Citizen Spouse Denies Your Marriage?

Facing Deportation - When a U.S. Citizen Spouse Denies Your Marriage
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For marriages of less than 2 years involving a U.S. citizen and a non-citizen, the initial green card is issued with a two-year conditional period. Before these two years expire, the non-citizen spouse must file to remove these conditions to obtain a green card with a ten-year validity period. But what happens if the U.S. citizen spouse becomes uncooperative, despite the couple still living together? Worse, what if the USCIS denies the joint petition for removal of conditions, putting the non-citizen spouse at risk of deportation? Let’s delve into the case of Maria and John

Maria and John’s Story

Maria, a young college graduate, met John, a U.S. citizen, while working as a guest relations officer at a popular beach resort in the Philippines. Their relationship blossomed, leading John to file a fiancé visa for Maria upon his return to the United States. The visa petition was approved, and Maria traveled to the U.S. to be with John.

During her initial stay, Maria noticed alarming changes in John, who was 20 years her senior. He became increasingly forgetful, his behavior erratic, and his mood swings frequent. Despite these challenges, Maria remained a patient and loving wife. However, they lacked sufficient proof of marriage—no photos together, no joint documents, as they lived with John’s family and didn’t pay rent.

When USCIS called them for an interview to remove the conditions on Maria’s residency, they were interviewed separately. The immigration officer concluded that Maria had entered into a fraudulent marriage, denying the petition. Maria was shocked. Upon reviewing the USCIS decision mailed to her, she realized John had made inconsistent statements during the interview, including an admission that the marriage was solely for Maria to obtain a green card. Maria suspected John’s worsening memory lapses had caused him to forget critical details of their relationship.

Now facing deportation for alleged marriage fraud, what legal steps can Maria take?

Maria’s Deportation Proceedings

When a non-U.S. citizen faces removal due to a denied petition for removal of conditions, the burden of proof lies with USCIS to establish grounds for terminating the conditional resident status. For her defense, the applicant can present new, material, and relevant evidence that was not previously submitted during USCIS proceedings.

Given the lack of joint documents and photographs, Maria must provide testimonial evidence from individuals who can attest to the authenticity of their marriage. Financial and property arrangements vary among couples, and some may have better documentation than others. In Maria’s case, her joint tax returns were her only significant documents. She was advised to gather witnesses who could detail their marital relationship.

Importantly, Maria did not have the opportunity to present this evidence during the USCIS interview. Immigration court provides the ideal forum to present additional evidence to prove her marriage was entered into in good faith.

Besides testimonial evidence, Maria can demonstrate that John has been clinically diagnosed with dementia, explaining his inconsistent answers during the USCIS interview. This crucial evidence could have significantly impacted her case.

With the submission of testimonial evidence and John’s medical records, Maria successfully proved her case in court and retained her green card.

Options for Others in Similar Situations

For those not as fortunate as Maria, an immigration judge, with the assistance of legal counsel, may accept an INA Section 237(a)(1)(H) waiver if the charge for terminating conditional residency relates to marriage fraud.

This case highlights the importance of gathering substantial evidence and leveraging all available legal avenues to demonstrate the legitimacy of a marital relationship, even under challenging circumstances.

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Updates

Unauthorized Use of Social Security May Result in Removal

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Fernando entered the United States in 2010 without a valid visa. To be able to work in the United States, he used a social security number of another individual illegally. In 2015, he was convicted of the “use of an unauthorized social security number” in violation of federal law (42 USC 408(a)(7)(B). Later the Department of Homeland Security charged Fernando as being removable because his criminal conviction was considered as conviction of a crime against moral turpitude (CIMT). He was ordered removed by the Immigration Court as his cancellation of removal was denied. Fernando’s appeal to BIA was denied and on petition for review the 5th Circuit Court of Appeals affirmed the BIA decision.

In a similar case pending with the Supreme Court, the Pereida, a long time resident of the United States with U.S. citizen children was put in removal proceedings. He has an underlying case of unauthorized use of social security number but his criminal conviction was a misdemeanor state offense of criminal impersonation under the Nebraska criminal statute. The immigration court ordered him removed considering the conviction as a crime against moral turpitude. BIA affirmed the immigration judge’s decision.  The case is still pending with the Supreme Court. Oral arguments were heard in October 2020 and no decision has yet been rendered.

Case to Case basis

While the two cases are similar in facts, the second case of Pereida was a state conviction while that of Fernando was clearly a federal crime. Legal arguments will be centered on whether the elements of the state crime corresponds to the federal offense listed on the Immigration and Nationality Act. 

Conviction for unauthorized use of social security number is a crime against moral turpitude and is a deportable offense. But each case is different. The underlying offenses must be analyzed on whether they clearly fall under the federal offense grounds for removal. Also, legal counsels should be able to look into any post-convictions relief if they are available to lessen or erase the immigration consequences of the crime.

On President Biden’s first day of office, he issued an Executive Order revoking Trump’s 2017 Executive Order on Enhancing Public Safety in the Interior. Thus, ICE, USCIS and CBP released a Memorandum focusing only on removing individuals who are threats to national security, border security and public safety. Conviction of a crime against moral turpitude for unauthorized use of social security is a fraud offense and does not fall under these priorities. However, without clear directives from ICE, favorable discretion may or may not be exercised to not enforce removal of those with misdemeanor offenses and with strong family ties.

Pathway to Citizenship 

In the meantime, it would be best for those still waiting to avail of the “pathway to citizenship” to be good citizens and to stay away from engaging in unlawful activities to avoid complicating future immigration applications. Or better yet, to have your case assessed if you have criminal case history to determine possible legal options of obtaining permanent resident status or availing of future options to “pathway to citizenship.”

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Global Pinoy

Convicted sex offenders are not qualified to file family petitions

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Deportations from the United States usually arise in cases of non-US citizens committing crimes or violations of immigration law. However, in certain instances, deportation may also arise when it is discovered that the petitioning fiancé or spouse had been convicted of a sexual offense against a minor.

John, a US citizen, petitioned Jenna as his fiancé in 2007. Jenna is a single parent who has a minor child from a prior relationship. The fiancé visa petition filed by John on behalf of Jenna was approved. The consular officer issued proper visas for Jenna and her minor child.

Upon arrival in the United States, Jenna immediately married John in a simple civil wedding ceremony. After the marriage, an application for adjustment of status was filed with the US Citizenship and Immigration Service (USCIS) so that Jenna and her daughter could become green card holders.

John and Jenna have a genuine relationship. They are a happy couple. They live together as husband and wife, and have plans to have a child of their own. While applying for the change of immigrant visas, an unexpected problem arose that shattered the couple’s family dreams. Instead of a green card, Jenna received a Notice to Appear for a deportation hearing.

Unbeknownst to Jenna, John had a criminal conviction in 1979 and was sentenced to a prison term for committing a sexual offense against a minor. This offense made him incapable under the Adam Walsh Act of filing a petition on behalf of a foreign national. The prior visa of Jenna was rendered invalid, and the application for adjustment of status was denied. Jenna and her minor child are now being ordered to leave the United States.

The Adam Walsh Act
Jenna filed an appeal for the removal case in the Board of Immigration. It was denied. What will happen to Jenna and John? Will they be separated forever because of the legal barrier imposed by the Adam Walsh Act?

The Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) was enacted by the US Congress to protect children from sexual exploitation and violent crimes, prevent child abuse and child pornography, promote Internet safety, and honor the memory of Adam Walsh and other child crime victims.

The law prohibits US citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based visa petition on behalf of any beneficiary. The prohibition covers those convicted of kidnapping, false imprisonment, solicitation to engage in sexual conduct, use of a minor in a sexual performance, prostitution, criminal sexual conduct involving a minor or the use of the Internet to facilitate or attempt such conduct, and any other sex offense against a minor.

This prohibition applies unless it can be shown that the petitioner poses no risk to the safety or wellbeing of the beneficiary, including any derivative beneficiary. Beneficiaries include the spouse, fiancé, parent, unmarried child, unmarried son or daughter over 21 years of age, orphan, adopted child, married son or daughter, brother or sister.

Retroactive effect
John committed the crime against a minor in 1979, before the Adam Walsh Act was enacted. It had been 27 years since John was convicted of the offense when he met Jenna. He had served his sentence and was remorseful about his past conduct. He has committed no other crime since then. Jenna argued that since the crime was committed before the enactment of the law that prohibited the filing of family petitions by sexual offenders, his petition should not be considered affected by the prohibition.

The immigration court and the Board of Immigration Appeals agreed that the Adam Walsh Act does not contain a provision on its exact effectivity date. Nevertheless, it is applied retroactively because of the danger the offender may pose on the person being petitioned. It examined the law’s purpose, which is to “ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States. A petitioner who has been convicted of a “specified offense against a minor” poses a present danger as a potential sexual predator. Hence, John is still prohibited from filing a petition on behalf of Jenna.

No-risk exemption
John may still prove that he no longer poses a risk to the safety of his spouse and stepdaughter. This is the only exception available. However, any attempt to show that a petitioner has been rehabilitated and no longer poses a risk is measured by the highest standard available under the law, which is “proof beyond reasonable doubt.”

The effect of the Adam Walsh Act on Jenna and her daughter is that they may very well be removed from the United States as a result of John’s previous conviction. While this may be seen as antithetical to the policy of family reunification, we need to understand that it is also in the public interest to protect foreign nationals and minor children from the possible harm that could be posed by a convicted sexual offender.

It is not impossible to meet the high standard required by the USCIS and make a clear showing of rehabilitation from convictions involving crimes of sexual predation. It augurs well, however, that the standard is high, difficult and exacting, if we want to truly protect our children.