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Carl Shusterman's Immigration Update

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  1. Apply For Relief From Removal Under Pereira V. Sessions

    On June 21, 2018, the Supreme Court issued a decision in Pereira v. Sessions which will benefit many thousands of persons who are in removal/deportation proceedings, who have been ordered to leave the US or who have already been deported.



    Immigration attorneys are getting ready to file Motions to Reconsider and to apply for Cancellation of Removal for persons who have been found deportable in the past. Some of these persons may also be eligible for other forms of relief from deportation. For example, a person who married a US citizen may be eligible for adjustment of status.


    The Supreme Court, by an 8 to 1 vote, ruled that Mr. Pereira, a Brazilian citizen who came to the US on a visitor’s visa in 2000, overstayed and was placed in removal proceedings in 2006, was eligible to apply for a green card through cancellation of removal as a non-LPR.

    One of the requirements for Cancellation of Removal is that a person be physically present in the US for 10 years or more. The law provides that if the person receives a Notice to Appear (NTA) before an Immigration Judge, his period of continuous residence is deemed to end. This is known as the “stop time rule”.

    How did Mr. Pereira satisfy the 10-year rule since he was served with an NTA 6 years after he arrived in the US?

    The Immigration Judge, the Board of Immigration Appeals (BIA) and the US Court of Appeals for the 1st Circuit all held that he did not satisfy the 10-year requirement since he was served with an NTA in 2006, 6 years after he arrived in the US. However, the Supreme Court held that because the NTA did not specify the date and time of his hearing before the Immigration Judge as required by law, the NTA was invalid and the stop time rule did not apply.

    The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created the requirements for both Cancellation of Removal and the stop-time rule. IIRIRA requires that the NTA must specify the “time and place at which the proceedings will be held”. 8 USC 1229b(d)(1)

    However, the NTA which Mr. Pereira received in 2006 did not specify the date and time of his hearing. Instead, it simply ordered him to appear before an Immigration Judge “at a date to be set at a time to be set”. Therefore, the Supreme Court held that since the NTA did not comply with the requirements of the law, the stop-time rule does not apply.


    Who Benefits Under the Pereira Decision?

    This decision is significant in that it applies not only to Mr. Pereira, but to many thousands of persons who are currently in removal proceedings as well as to persons who have been ordered deported from the US and to those who have already been deported.


    In 1997, after the passage of IIRIRA, the Attorney General promulgated a regulation stating that an NTA served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable.” 62 Fed. Reg. 10332 (1997). Per this regulation, the government typically does not inform persons of the date and time of their initial hearings in Immigration Court on their NTAs. The Supreme Court held this regulation to be invalid, and ruled that these NTAs do not comply with the law and, therefore, the stop-time rule does not apply.


    As a result, there are many thousands of persons who are now eligible to reopen their removal proceedings to enable them to apply for relief from deportation.

    Mr. Pereira was able to accumulate 10 years of physical presence in the US because, in 2007, when the government sent him an NTA with the date and time of his hearing before an Immigration Judge, the government sent the NTA to an incorrect address. By the time he was turned over to the DHS in 2013 as the result of a traffic violation, he had satisfied the 10-year continuous physical presence requirement for cancellation of removal.




    The Supreme Court’s decision will allow thousands of persons whose cases are before Immigration Judges or on appeal to the BIA or the Federal Courts to apply for cancellation of removal. It also benefits persons who have been ordered deported, granted voluntary departure or who have been granted relief, like withholding of removal, which does not lead to permanent resident status.

    To qualify for relief from removal under Pereira, a person must qualify to apply for cancellation of removal if the stop time rule does not apply to them because their NTA did not specify the date and time of their hearing before an Immigration Judge. Cancellation of removal is available to those who meet the following requirements:


    1. You have been physically present in the US for a continuous period of 10 years prior to the institution of removal proceedings. (This requirement is not applicable if you have served a minimum of 24 months in the US Armed Forces, were present in the US during your enlistment or induction, and are either serving honorably or have received an honorable discharge.) “Continuous” means that you can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the 10-year period.
    2. You have been a person of good moral character for 10 years;
    3. You are not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
    4. Your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident.


    Persons who meet the above criteria should consult with immigration attorneys as soon as possible to learn what needs to be filed to request that an Immigration Judge or the BIA reconsider their cases. While their applications for cancellation of removal are pending, they are eligible to receive Employment Authorization Documents (EADs).

    An even bigger question is whether any removal proceeding initiated with a defective NTA fails to comply with jurisdictional requirements. Already, some Immigration Judges have granted Motions to Terminate. We will discuss this issue in a subsequent blog post.

    As a former INS Trial Attorney (1976-82), I wouldn’t be surprised if the number of persons who benefit from the Pereira decision number is in the hundreds of thousands.

    Free Legal Consultations Under Pereira

    Our law firm is offering free legal consultations with our deportation defense attorneys Giselle Sotelo and Jennifer Rozdzielski for persons who qualify under the Pereira decision through the end of July.

    If you qualify for relief from removal under Pereira and you need immigration help, please contact our office and provide your information.

    We will get in touch with you to schedule a time for you to speak with Attorney Giselle Sotelo or Attorney Jennifer Rozdzielski.

  2. 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.
  3. 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.

    http://www.theepochtimes.com/n2/images/stories/large/2009/12/18/luis82589388.jpg 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

  4. One Immigrant's 20-Year Journey to a Green Card


    http://pictures.directnews.co.uk/liveimages/a+nigerian+man+is+facing+deportation+after+a+judge+has+denied+him+his+green+card_16000287_800770480_0_0_11941_300.jpg 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

  5. I Beg Your Pardon


    http://shusterman.typepad.com/.a/6a0120a639ec4a970c0133ed3e0218970b-120wi 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.

    http://shusterman.typepad.com/.a/6a0120a639ec4a970c0133ed3e03d1970b-120wi 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.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

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

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