TPS Only Temporarily Waives Grounds For Inadmissibility

January 26th, 2011 Max Nuyen

Matter of Sosa Ventura (B.I.A. 2010)

This case delineates the limitations of Temporary Protected Status (“TPS”).  Congress created TPS in order to allow persons whose home country is in a state of drought, famine, civil strife, or warfare who otherwise would not qualify for asylum or refugee status the chance to remain lawfully in the United States.  It only applies to persons who are physically present in the country, not to those who are outside U.S. borders.  TPS applies regardless of the person’s status or lack thereof.  That is, a person who entered the country without inspection (and thus, without status) may nonetheless qualify for TPS even though under typical immigration scenarios, such a person would be disqualified from receiving any type of immigration benefit.  TPS provides a person who entered without inspection a waiver and allows such a person to remain in the country and even authorizes employment. A person in TPS status may not be placed in removal proceedings while the status is current.  However, such benefits are only temporary.  TPS is not an immigration status.  It is merely a waiver against removal for humanitarian reasons.

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Immigration Judge May Not Request Corroborating Evidence For Convictions In Removal Hearings

January 15th, 2011 Max Nuyen

Rosas-Castaneda v. Holder (9th Cir. 2011)

This case illustrates the finer points between a conviction for a controlled substance violation and a conviction for an aggravated felony.  In most circumstances, the differences are merely academic, because either type of conviction would render a person inadmissible, and therefore, not eligible for immigration benefits.  However, in situations involving cancellation of removal where the petitioner has lawful permanent residence status (has already been admitted to the United States), the differences can mean being removed or being permitted to remain in the country.  In such situations, a person with an aggravated felony conviction is ineligible for cancellation of removal; while on the other hand, a person with a controlled substance violation remains eligible for relief.  This is a result of the quirks in the sections dealing with inadmissibility and removability in the immigration laws.

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Government Must Provide Copies of an Immigrant’s A-file in Removal Proceedings

December 16th, 2010 Max Nuyen

Dent v. Holder (9th Cir. 2010) 

Sometimes a case comes along with a decision so obvious and sensible that you wonder why the issue had not been decided the same way earlier.  Dent v. Holder is such a case.  Here, the Ninth Circuit found that an alien in removal proceedings has a right to a copy of his entire A-file from the government.  The A-file is a compilation of documents which the government maintains on an immigrant.  It contains the history of the immigrant’s various interactions with the different government agencies, including DHS, ICE, USCIS, CBP, and the former INS.  The government uses the information in an A-file to enforce immigration laws.  The A-file contains all of the immigrant’s official record materials such as any naturalization certificate, forms and their attachments, photographs, applications and petitions for immigration benefits, biometrics, identity papers, reports of investigations, statements, correspondence, and any memorandum on the immigrant which has been created by a government agency.  If there existed a document which pertains to an immigrant regarding an immigration related matter, it should be in the A-file.  Often times, evidence which the government uses in removal proceedings against an immigrant is found in the A-file.

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Court Strikes Down Discriminatory Law Against Nonimmigrant Aliens

November 11th, 2010 Max Nuyen

Adusumelli v. Steiner (U.S.D.C. New York. So. Div. 2010)

 I usually don’t write about cases which arise outside of the Ninth Circuit, but this case from New York piqued my interest because it involved a conflict between a state regulation and federal immigration laws.  The main issue  resolved in this case was whether a New York law which precludes aliens who are not lawful permanent residents from being licensed as pharmacists is constitutional.  The federal court hearing the case determined that such law was not only unconstitutional, but also was preempted by the federal government’s absolute authority to regulate immigration related matters.

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Moral Turpitude Watch

October 27th, 2010 Max Nuyen

Mendoza v. Holder (9th Cir.)

The 9th Circuit Court of Appeals ruled that robbery in violation of California Penal Code section 211 is a crime involving moral turpitude.  Suprisingly, the court had never directly addressed this crime in the past.  The court’s decision was unsurprising, however.

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BIA Accepts More Reasonable Method of Establishing Nationality for American Corporations

October 25th, 2010 Max Nuyen

Matter of Chawathe (BIA  2010)

Because the issued involved in citizenship cases are so straightforward, they rarely get appealed.  When it does happen, however, the lessons which emerge can be useful.  Matter of Cahwathe involved an employee of ChevronTexaco who had applied for naturalization.  In order to qualify for naturalization, he must establish, among other things, that he had resided continuously in the United States for at least five years prior to his filing an application.  Note that “reside,” for purposes of naturalization, is not the same thing as physically living in the U.S.   A person can “reside” in one place and be physically living in another.   However, a person who is physically outside of the U.S. for more than one year breaks the continuous residence period.  That is, a person may still be considered a continuous resident of the U.S., even if such a person is not physically present in the country, unless that period of absence is greater than a year. 

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Vote on DREAM Act Coming?

September 16th, 2010 Max Nuyen

With comprehensive immigration reform stalled, it’s been a slow summer for immigration related news, so yesterday’s announcement that the DREAM Act will be part of the Defense Appropriations Bill to be voted on early next week by the senate is the equivalent of a minor earthquake.

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Petty Offense Exception Applies to Crimes Involving Moral Turpitude

September 13th, 2010 Max Nuyen

 Matter of Heredia-Pedroza (B.I.A. 8/13/2010)

In a ruling which is sure to bring sighs of relief to many affected persons, the BIA determined that the respondent may be eligible for cancellation of removal even though he had been convicted of a crime of moral turpitude, because the petty offense exception applies even to crimes involving moral turpitude.

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Gender May Form Basis for Membership in a Social Group Under Asylum Law

August 16th, 2010 Max Nuyen

Perdomo v. Holder (9th Cir. 2010)

In the immigration field, asylum is one of the most hotly litigated areas.  Over half of all immigration cases which are appealed relate to asylum claims.  This is because the terms and definitions used in the asylum statutes are so broad that more often than not, court intervention is required to determine whether an applicant is eligible for asylum under one of its statutory categories: race, religion, nationality, political opinion, or membership in a particular social group.  Of these categories, “membership in particular social group” has seen more than its fair share of litigation because the category itself is not easy to define and not easily understood.  Neither is it self-explanatory.  The appellate courts have offered various definitions and descriptions of what constitutes a particular social group, but none of them have been very satisfying or easy to apply.  The difficulty has been striking the balance between making a group to small or too big as to become meaningless.

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Arizona Anti-Immigrant Law Bites the Dust

July 29th, 2010 Max Nuyen

U.S. v. State of Arizona

Unless you’ve been living in a cave underneath the ocean, you know that Arizona passed a law known as SB1070 this year in order to curb its immigration problem, real or perceived.  You may also know that the federal government sued the state of Arizona in order to prevent its enforcement of the law.  The feds also moved for a preliminary injunction to stop the law’s enforcement while the case is pending.  Yesterday, the federal judge hearing the case issued a favorable decision on the feds’ motion.  Although SB1070 was not struck down in its entirety, the judge ruled that several portions (the most controversial) are preempted by federal law, and therefore, unenforceable.  Specifically, the following sections:

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