June 2013 Visa Bulletin Shows Significant Improvements in Several Categories

The State Department published the June 2013 visa bulletin showing significant improvements in several visa categories. The most significant improvements was in the F2A category (spouses and children of LPRs). As to the business immigration categories, the 2nd and 3rd categories (except for China and India), saw improvements.  

BIA Rules that an Alien Who is a Citizen of Two Countries is Ineligible for Asylum

In a decision issued this week, the BIA ruled that a person who is a citizen of two countries must show that he has a fear of returning to both countries to qualify for asylum. In Matter of B-R, 26 I&N Dec. 119 (BIA 2013), the Respondent was a citizen of both Venezuela and Spain. He was born in Venezuela but his father was born in Spain. He applied for asylum claiming that he was threatened by pro-Chavez forces because he was a journalist.

At the removal hearing, the government alleged that the Respondent was a citizen of Spain since his father was born in the country. The immigration judge, after the parties briefed the issue, ruled that the Respondent was ineligible for asylum since he was also a citizen of Spain. The Respondent appealed to the Board. 

On appeal, the Respondent did not contest that he was a citizen of Spain, but argued that the Act only requires him to show that he fears persecution in one country to be eligible. The Board, when upholding the immigration judge's decision, reasoned that although this situation is not addressed in the Act, it is addressed in the United Nations Convention Relating to the Status of Refugees. The Convention makes a person ineligible for asylum if he is a citizen of two countries but has not availed himself to the protections of both. In other words, if a person does not have a fear of persecution in both countries, he can not be classified as a "refugee", and is thus ineligible for asylum. Using this language from the Convention, the Board ruled that the Respondent was ineligible for asylum. The Board thus upheld the immigration judge's decision and ordered his removal. 

This decision clarifies a very interesting situation, where the applicant for asylum is a citizen of two or more countries. What is not clear however, is whether the Respondent in this case was in fact a citizen of Spain and whether he did derive citizenship in that country. I will keep this post updated in case a Motion to Reconsider or a Petition for Review is filed.  

US Supreme Court Rules that not All Marijuana Convictions are Aggravated Felonies

In a decision issued last week, the US Supreme Court ruled that a Georgia marijuana conviction was not necessarily an "aggravated felony" under the Act. In Moncrieffe v. Holder, a Jamaican citizen plead guilty to trafficking marijuana in Georgia after he was arrested for having 1.3 grams of marijuana. The federal government moved to deport him and alleged that he was deportable as an aggravated felon under the Act. The immigration judge ordered his removal and the Board affirmed. His Petition for Review was rejected by the Fifth Circuit and the Supreme Court granted certiorari. 

In vacating the removal order, the Supreme Court ruled that a marijuana conviction is not an "aggravated felony" if the statute does not require remuneration or more than a small amount of marijuana. Using the categorical approach, the court ruled that in order for a marijuana conviction to qualify as an "aggravated felony" it has to 1) proscribe conduct that is criminal under the Controlled Substance Act and 2) the crime must be a felony under the Controlled Substance Act. Applying these two requirements to the Georgia statute, the court ruled that the conviction was not for an "aggravated felony" because it made an exception for the distribution of small amounts of marijuana. The statute deemed such cases misdemeanors under the statute. Thus, the court ruled that the Moncrieffe's conviction was not for an "aggravated felony" under the Act and reversed the prior decisions in the case. 

This is a very interesting decision by the Supreme Court which makes a very important distinction when it comes to controlled substance convictions. This will allow defense attorneys to better defend cases, especially when the statute of conviction does not require remuneration or a big amout of controlled substances. 

Eleventh Circuit Limits the Definition of Admission under the INA

In a decision published last week, the Eleventh Circuit ruled that  INA 212(a)(7)(A)(i)(I) does not apply to aliens who seek adjustment of status in the United States. Ortiz-Bouchet v. US Atty. Gen. In Ortiz, a non  United States citizen and his wife were placed in removal proceedings  under INA 212(a)(7)(A)(i)(I),  212(a)(9)(B)(i)(II) , and INA 212(a)(6)(C)(i). The government alleged that they were not admissible into the United States since they did not have valid immigrants visas at the time of admission, they misrepresented a material fact to an immigration officer and that they entered the United States within the ten  years after overstaying for more than one year. 

As to the charge under INA 212(a)(7)(A)(i)(I), the court ruled that the charge could not be sustained since Ortiz was not an applicant for admission since he was seeking adjustment of status in the United States. The court extended the definition of "admission" in Lanier to include cases where the government alleges that someone is inadmissible under the section. The court  granted the petition for review as to this charge and as to the other charges, on other grounds. 

This is a great decision that would provide additional protections to immigrants who find themselves in removal proceedings based on a misrepresentation charge, since the government almost always raises the charge under  INA 212(a)(7)(A)(i)(I) as a companion charge. 

Eleventh Circuit Issues two Pro-Immigrant Decisions within the Past Week

Within the past week, the Eleventh Circuit Court of Appeals issued two pro immigrant decisions. In Avila-Santoyo v. US Atty. Gen., the court ruled that the period of 90 days within which the Board of Immigration Appeals required a Motion to Reopen to be filed was not jurisdictional. In other words, the 90 days period was discretionary and the Board could accept Motions to Reopen filed after that deadline. In Ferreira v. US Atty. Gen., the court ruled that the Board abused its discretion by denying a Motion to Reconsider for an alien with an approved I-140 petition to apply for adjustment of status.   

In Avila-Santoyo, an immigrant filed a Motion to Reopen with the Board of Immigration Appeals after the 90 days period, during which the BIA requires Motions to Reopen to be filed. The Eleventh Circuit, in a prior unpublished panel decision denied his Petition for Review and he moved for reconsideration. In ruling that the 90 days period is not jurisdictional, the court reasoned that since the Board allows Motions to Reopen to be granted sua sponte, or on its own Motion, the 90 days deadline is a discretionary claims processing deadline and is not jurisdictional. The court also ruled that the deadline is subject to equitable tolling. 

In Ferreira, an immigrant was denied a Motion to Continue removal proceedings because the visa bulletin showed that his number would not be current for more than six years. He was the beneficiary of an approve I-140 and moved the immigration judge to continue his case while waiting for his number to become current.   The immigration judge denied his request and he appealed to the Board and it in turn rejected his request for the same reason. The Court reasoned that since the Board did not follow its own precedent when ruling on the continuance, its decision was wrong. The court remanded the case to the Board for further proceedings. 

These decision are very important to immigrants in the circuit. The Avila decision brings us in concert with all other circuits that have ruled the same. 

Florida Supreme Court Rules that Undocumented Immigrant Cannot Join the State's Bar

In a decision issued recently, the Florida Supreme Court ruled that an undocumented immigrant, who met all the requirements for admission into the State's Bar, cannot be admitted because of his undocumented status. Jose Godinez-Samperio, is a graduate of Florida State's College of Law and has met all the requirements to join the bar. The only issue barring his admission was his undocumented status. The California Supreme Court still has to issue a ruling on a similar case regarding bar admission in the State. The main reasoning behind the Florida  ruling is that the question of bar admission for undocumented persons is still unsettled.  

Godinez-Samperio came to the United States with his parents on a visitor's visa when he was nine years old. His family remained in the United States past their period of admission, usually six months. He has been granted Deferred Action, under the Obama Administration's DACA program, and has a valid driver's license and work authorization. It is unclear whether the Obama Administration will be successful in passing comprehensive immigration reform, which would amilurate cases including Godinez-Samperio's. 

The Justice Department has opposed bar admission for undocumented immigrants, arguing that they are ineligible for professional licenses. 

The path forward is unclear. A possible path is to challenge the decision by the Supreme Court in federal court based on Equal Protection grounds. I will keep following the case since is has garnered a lot of national attention. 

Employent Discrimination Against DACA Recipients

One of the issues that DACA recipients might face is potential employer discrimination because of legal status in the United States. Many of you might recall that DACA was the program under which the Obama Administration decided to defer the removal of young illegal immigrants who came to the United States as children, through no fault of their own, and now face the real prospect of removal if caught by the government. The program defers the removal of these illegal immigrants and grants them permission to work for two years. 

An employer is not allowed to discriminate against a job applicant because of his national origin or citizenship status. The National Immigration Law Center has published an employment guide to help DACA recipients with the job hunting process. The Department of Justice has also published letters to guide employers through the process of hiring a DACA recipient. 

The attorneys at Tucker & Ludin P.A. have the unique background to help you with both your immigration and employment problems. If you ever face discrimination because of your citizenship status or your national origin, please give us a call at www.tuckerludin.com or call us at 727-572-5000.