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Carl Shusterman's Immigration Update


  1. Senators Introduce Bill to Protect Dreamers

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ID:	1147 On December 9, 2016, a bipartisan group of Senators introduced the Bridge Act which would protect 740,000 DACA recipients from deportation and allow them to continue working and studying in the United States for the next 3 years.

    Like DACA, the bill does not provide a path to green cards for Dreamers. Instead, the bill would grant them “provisional protected presence” in the US. They would be allowed to remain in the US, renew their EAD work permits and, in some circumstances, qualify for Advance Parole international travel permits.

    Since President-Elect Trump has vowed to repeal President Obama’s executive orders, the bill, if enacted, would protect Dreamers from deportation for another 3 years unless they commit a deportable offense.

    The bill would also tighten the confidentiality provisions in the law. DACA requires applicants to reveal their addresses and other personal information. The bill would prohibit the government from using this information to try to deport DACA recipients or their parents.

    Although the bill is sponsored by a bipartisan group of Democratic and Republican Senators, it is unclear whether it has enough support to pass the Republican-controlled Senate and the House of Representatives.

    The introduction of the Bridge Act is expected to put pressure on President-Elect Trump to work out a solution to the immigration status of the Dreamers.

    Trump has been equivocal about how he intends to treat the Dreamers.

    On one hand, he has pledged to repeal DACA. However, in a recent interview with Time magazine, he stated:

    “We’re going to work something out that’s going to make people happy and proud. But that’s a very tough situation. They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”

    Stay tuned.
  2. New Deportation Priorities: How Will This Work?

    On August 18, the Obama Administration announced that all 300,000+ persons currently in removal proceedings as well as those subject to final orders of removal will have their cases reviewed by ICE, and that many of them will have their cases terminated and some will even be granted work permits. This announcement was greeted with great delight by immigration advocates and with angry blasts of vitriol from the anti-immigrant right wing. Congressman Luis Gutierrez (D-IL) was effusive in his praise, calling this "a victory not just for immigrants but for the American people as a whole" and calling on ICE Director John Morton to appear before Congress to explain how the new program will be implemented. Senator Richard Durbin, (D-IL) a co-sponsor of the DREAM Act, and one of 22 Senators who had called on the Obama Administration to halt DREAM Act deportations, stated that "the Administration's new process is a fair and just way to deal with an important group of immigrant students and I will closely monitor DHS to ensure it is fully implemented." However, House Judiciary Committee Chairman Lamar Smith (R-TX) denounced the new program as a "backdoor amnesty".

    The big questions left unanswered are who will benefit from this new program and how?

    We recommend that our readers carefully examine the text of the following three documents:

    1. DHS Secretary Napolitano's letter to Senator Durbin's dated August 18, 2011.
    2. ICE Director Morton's prosecutorial discretion memo dated June 17, 2011.
    3. The August 18, 2011 post on the White House Blog entitled "Immigration Update: Maximizing Public Safety and Better Focusing Resources"

    Although Senators Durbin and Lugar (R-IN) and 20 of their colleagues wrote solely about the DREAM Act students to Secretary Napolitano, her reply is written more broadly:

    "Accordingly, the June 17, 2011 prosecutorial discretion memorandum is being implemented to ensure that resources are uniformly focused on our highest priorities. Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities. In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal. Finally, we will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to further enhancing the identification and removal of aliens who pose a threat to public safety."

    A case-by-case review on all individuals currently in removal proceedings in order to implement the June 17 prosecutorial discretion memorandam will be quite an undertaking. First, the number of individuals involved exceeds 275,000. That's a lot of files to evaluate. It will take not days or weeks to evaluate all of these cases, but many months. Secondly, the government not only needs to review pending court cases, but those on appeal and those with final orders. Finally, the government will need to evaluate who will be placed in removal proceedings in the future. This will truly be a massive undertaking, and given the immensity of the bureaucracy and varied outlooks of ICE District Counsels (who must coordinate with the USCIS, CBP and other governmental agencies), the results may be highly divergent.

    Another wild card is the ambiguity of the June 17th Morton memo. This memo builds on seven previous prosecutorial discretion memos, most of which are listed on our website. The Morton memo lists 19 factors that should be considered in exercising prosecutorial discretion and cautions that "this list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities."

    What's that suppposed to mean, you ask? Wait, there's more!

    Consider the concluding paragraph of the White House Blog:

    "So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person's ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn't - that's the smartest way to follow the law while we stay focused on working with the Congress to fix it."

    And what are these "common sense guidelines"? Here, the Blog wisely punts this issue by linking these three key words to the Morton memo.

    And none of the above statements deal with persons who are not in removal proceedings which raises the question: If you want to obtain a work permit, do you have to find a way to get yourself in removal proceedings, and then ask ICE to terminate proceedings? Curious immigrants want to know.

    And, finally, what is a "low-priority case"?

    As a former INS prosecutor, I can't explain it to you, but I know it when I see one ;-)

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    Updated 12-02-2013 at 01:53 PM by CShusterman

  3. One Immigrant's 20-Year Journey to a Green Card A lot of IT professionals born in India justly feel that their immigration cases have been going on forever. We recently concluded a case for an Indian IT professional which was one of the longest and most complex that I have ever encountered.

    Mr. S received his degree in Computer Science from a prestigious university in the Midwest almost 20 years ago. During the 1990s, he worked for various employers in H-1B status. In 1999 and 2000, his employer obtained the approval of a labor certification and an I-140 visa petition (EB-3) on his behalf. This made him eligible for post-6th year extensions of his H-1B status.

    His immigration problems began in January 2001 when his former attorney submitted an application for an H-1B extension for him which was received by INS a couple of weeks after his H-1B status expired. This application was ultimately denied as being untimely filed.

    In August 2001, his priority date became current and his attorney filed an adjustment of status application for him and obtained an EAD.

    Fortunately, due to his 1999 priority date, he was eligible for adjustment of status under section 245(i), so the fact that he was out of status for over 180 days did not render him ineligible for adjustment.

    However, for reasons that I am still unable to fathom, his attorney obtained an advance parole for him and allowed him to travel outside the U.S. and return as a parolee.

    His depature from the U.S. triggered the 3-year bar of inadmissibilty due to his 180+ days of unlawful presence.

    The INS sat on his I-485 until 2004 when they denied it because of the 3-year bar. His attorney filed a motion to reopen (MTR) which was denied in 2005. After this denial, the attorney submitted a second I-485 which was denied in 2006. When this application was denied, the attorney filed a second MTR which was denied in 2007, and when this was denied, he filed a third I-485 which was quickly denied by USCIS.

    All three I-1485s and both MTRs were all denied for the same reason: Mr. S was inadmissible because of the 3-year bar and he had no qualifying relatives which would have enabled him to obtain a waiver.

    At this point, Mr. S scheduled a telephonic consultation with me.

    As a former INS Trial Attorney, my biggest surprise was that with five separate denials, the government had yet to place Mr. S in removal proceedings. He was now working for another employer, and I advised him that we would have to obtain the approval of a PERM application and another I-140 on his behalf.

    The good news was that if we could get both of these applications approved, USCIS regulations would permit us to use his 1999 EB-3 priority date. But how could he adjust his status? My theory was that nothing in the statutory language pertaining to the 3-year bar stated that the 3 years had to be spent outside the U.S. It had been well over 3 years since he had become subject to the inadmissibilty bar. If USCIS disagreed with our interpretation of the law, we would litigate the matter in Federal Court.

    Fortunately, by the time that the USCIS issued an NTA, a PERM application and an I-140 on Mr. S's behalf were approved. Since a parolee is not permitted to adjust status before an Immigration Judge (except for a renewed I-485), we submitted a Motion to Terminate Proceedings which the Immigration Judge granted, and the government did not appeal.

    We then submitted an I-485 to the USCIS. I flew out to the MidWest to attend the adjustment interview. What about the 3-year bar controversy? Fortunately, there was none since the USCIS General Counsel had issued a letter agreeing that the 3 years could run while the person was in the U.S. as long as he did not re-enter the country unlawfully.

    Mr. S was nervous, but the interview went well. However, the Immigration Examiner, confronted by such a mammoth file, told us that he would need some time to review the file before making a decision on the application.

    I returned to Los Angeles, and one day before my birthday in late March, I received an e-mail message from Attorney Amy Prokop of our law firm (the attorney who had done the bulk of the work in this matter), that Mr. S's application for adjustment of status had been approved. What a great birthday present!

    Here is what Mr. S had to say about this experience:

    "...I contacted Mr Shusterman (on a Friday afternoon) and decided to change my attorney. He worked with me over that weekend going over the documents I faxed to his house and came up with an action plan. He was upfront with me stating that my case is very difficult and we might have to go to federal court with this and if I was ready for several years of waiting. Needless to say his brilliant action plan got my case terminated from the Immigration court and a few months later got me my Green Card..."

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    Updated 12-02-2013 at 02:12 PM by CShusterman

  4. I Beg Your Pardon Today's New York Times featured an article revealing that New York Governor David Paterson is establishing a state panel to review pardon applications for legal immigrants who may face deportation because they were convicted of minor crimes in the distant past.

    Governor Paterson, in a speech to judges, called some of our immigration laws "embarrassingly and wrongly inflexible". He stated that "in New York, we believe in rehabilitation."

    Does this mean that New York is following Arizona's lead in usurping what is the responsibility of the federal government? Just the opposite. Federal immigration laws, at 8 U.S.C. 1227(a)(2)(A)(vi), specifically provide that certain classes of persons who would otherwise be subject to removal from the U.S. because of criminal convictions are automatically granted a waiver of removal "in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States."

    In reality, Governor Paterson is simply exercising his authority to pardon persons who were convicted of criminal offenses, and in doing so, federal law prohibits the USCIS from deporting the person.

    In a previous blog post, we have written about the unrealistic and inhumane portions of the immigration law that if applied to any of the past three Presidents of the United States would result in them being deported.

    We hope that the other 49 governors follow Governor Paterson's lead. The result would be that fewer lawful permanent residents would face deportation and separation from their families based on minor convictions which occurred many years ago.

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    Updated 12-02-2013 at 04:36 PM by CShusterman

  5. A Day in the Life of an Immigration Lawyer None of my friends from UCLA Law School, class of 1973, went into immigration law.

    Corporate law, personal injury law and real estate law were all far more lucrative. If you are looking for a multi-million dollar settlement, immigration law is not for you.

    So why do we immigration lawyers do what we do?

    Having spent over half of my life practicing immigration law, I can tell you that I consider myself to be very fortunate. The satisfaction that I get from meeting and helping immigrants from around the world makes it worthwhile.

    Let me explain myself by telling you about a recent day at the office:

    The first thing in the morning, I interviewed an RN who had arrived in the U.S. as a visitor a few years ago. She appeared to be hopelessly out-of-status. Although her father, a lawful permanent resident of the U.S., had submitted a visa petition on her behalf over 15 years ago, he had died soon thereafter. A nursing home had submitted a visa petition on her behalf in 2007. However, as I explained to her, this would not allow her to apply for adjustment of status for another four to five years.

    Then, I learned that her grandfather had been born in the U.S. and had traveled to her country during the Spanish-American War in 1898. He married her grandmother, and her father was born in 1916. Therefore, under the laws which existed on the date of her father's birth, he acquired U.S. citizenship at birth. Further, since her country was a U.S. possession until 1946, she acquired U.S. citizenship through her father.

    We are currently preparing an application for derivative citizenship on her behalf. We expect her to receive a Citizenship Certificate before the end of 2009.

    At the beginning of the appointment, my client thought that she was illegally present in the U.S. Thirty minutes later, she learned that she was a U.S. citizen. What a relief! See

    I saw my next appointment just before lunch. She was the wife of a U.S. citizen. Not just a U.S. citizen, but a sergeant in the U.S. Air Force who has been twice deployed in Iraq. She had been petitioned by her U.S. citizen step-father before her 21st birthday. During her interview, she was asked whether she was under 21 years of age, and whether she had ever been married. She answered truthfully. It took the INS two years to grant her permanent resident status and mail her a green card. By that time, she had married, and was pregnant
    with her first child.

    Five years later, she applied for U.S. citizenship. Her application was denied because, as the Immigration Examiner explained, she was granted a green card as an "immediate relative", not as a married daughter. Since she been granted a green card by mistake, he could not approve her application for naturalization. Furthermore, he informed her that she would be scheduled for a removal hearing before an Immigration Judge.

    Both she and her husband were stunned. What had she done wrong? As a former INS General Attorney (Nationality), I was a bit stunned as well.

    I called the Officer-in-Charge of her local INS office, and explained the situation to him. We are hopeful that she will not be placed in removal proceedings, and that her application for naturalization will be granted since the mistake was clearly the government's, not hers. See

    My final appointment of the day also involved a woman who had an application for naturalization which was denied. She is married, and is the mother of two children. She has lived in the U.S. for over 30 years, since she was a child. However, the USCIS concluded, based on an investigation which occurred over a decade ago, that her prior marriage was fraudulent. When the INS investigator asked her husband where they had lived when they were married, he could not remember the address.

    As a former INS Trial Attorney, this made me very suspicious as well. I grilled her regarding the details of her first marriage. After giving her the "third degree" for over 30 minutes, her answers were both detailed and credible. Then I asked her how it was that her former husband did not even know that address where she claimed that they had resided for over one year. She replied that they lived with her parents, and that her husband was a businessman owned a restaurant closeby. She knew exactly where their restaurant was located, the workers at the restaurant and many other details. But did she know the address of the restaurant? Absolutely not. Her husband knew exactly where their house was located, the marriage had been approved of by her parents and his prior to the marriage, and her parents were prepared to testify at her hearing. But did he know the address of the house? The answer was no.

    Given my background, I fully understood why the investigator had concluded that the marriage was fraudulent, but after spending considerable time questioning the wife, I concluded that he was mistaken.

    We will appeal the decision denying her citizenship. If necessary, we will defend her in removal proceedings. Will she ultimately be allowed to remain in the U.S. with her family? I have no doubt that she will. See

    Driving home on the freeway, I reflected on the circumstances of my three new clients, and how they had entrusted their futures to me and my associates. There is no way that we will let any of them down.

    My wife and I went out to dinner with an old friend from law school that evening. He is a corporate lawyer, and is extremely successful. He confessed that he was getting tired of the "rat race" and plans to retire at the end of 2009.

    He asked me when I planned to retire. "Retire?" I replied, "I have too many clients who depend on me. And besides, I am having way too much fun!"

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    Updated 12-02-2013 at 04:49 PM by CShusterman

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