Shautsova's Update: Essential Legal Insights for June 2016

June 2016

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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“Be the change that you wish to see in the world.”
― Mahatma Gandhi

NEWS FLASHES:

Citizenship And Arrest

Denaturalization: How US Government Can Take Citizenship Back

Choices For Abused Spouses

MOTHER’S DAY: HOW TO HELP YOUR MOM TO STAY/COME TO THE US

How to Bring Your Brother or Sister to the USA

Fighting Allegations Of Marriage Fraud

Non-Immigrant (212(d)(3)(A)) Waiver

Author: New York Immigration attorney Alena Shautsova

Immigrant waivers such as I 601 or I 601A waive grounds of inadmissibility for those who seek adjustment of status or an Immigrant visa. They are difficult to obtain, as usually, an applicant must demonstrate extreme hardship to a qualifying relative. There is however a waiver for those who do not seek an immigrant visa or permanent resident status. It is a 212(d)(3)(A) waiver and it is easier to obtain than an immigrant waiver.

An 212(d)(3)(A) waiver would allow somebody who was deported and has not yet “served” 5/10 years outside of the United States to return to the US for a visit, or somebody who has a problematic conviction record t return to the US for non-immigrant purposes.

To obtain such a waiver, an applicant has to submit an I-192 form. The current processing time announced by the USCIS is 150 days (many cases, however, get “stuck” in processing for much longer). It must be noted that if an applicant asks to waive certain grounds in connection with one classification, he/she cannot use the same waiver for a different non-immigrant classification. However, it is possible to request a waiver for multiple classifications at the same time (this applies to Canadian citizens, as it is impossible to obtain multiple visas for entry when a visa in a certain classification is required). If a person who obtained a waiver desires to change his/her status in the United States, the waiver would be subject to DHS scrutiny for continuing validity.

The criteria that the USCIS established for the non-immigrant waiver was specified in the Matter of Hranka, 16 I&N Dec. 491 (BIA 1978):

The risk of harm to society if applicant is admitted;

The seriousness of criminal or immigrant law violation;

The applicant’s reason for seeking entry.

This non-immigrant waiver may waive almost all grounds for inadmissibility, except for inadmissibility based on political or security grounds. The waiver may have two variations: for those who do not have a valid visa, and for those who have a visa, but need a waiver. The waiver may be submitted with the CBP at the border.

Typically, the waiver is granted for a period of one or two years. USCIS has plans to start approving initial waivers for 5 years. An applicant who obtained a non-immigrant waiver, will still have to obtain an immigrant waiver in case he/she would like to obtain for an adjustment of status.

Dangers of Domestic Violence Convictions for Immigration Purposes

Author: New York Deportation attorney Alena Shautsova

Domestic violence chargers are probably the most common ones. They can originate from both Family or Criminal courts. For example, in New York, a person may obtain an order of protection from a Family or from a Criminal court. If a family member is found in violation of an order of protection from Family court, that family member (if not a US citizen) may face deportation chargers…

Domestic violence convictions make one deportable. It means that one may still remain in the US if he/she is applying for a adjustment of status and seeks to “wipe out” the domestic violence conviction that application.

The danger of the domestic violence convictions lies in Immigration definition of conviction and in Immigration approach as to what constitutes a domestic violence. First, as a general matter, any admission or finding of guilt would be considered a “conviction” for Immigration purposes. It even might be true for adjudication in contemplation of dismissal in New York, if the guilty plea includes admission of guilt. Second, there is no clear definition of what is a domestic violence. Rather, it is a special relationship between a victim and the perpetrator that make a conviction one of a domestic violence. The term “crime of domestic violence” in section 237(a)(2)(E)(i) of the Act means

“any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or who has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.”

In its recent decision, Matter of Estrada, 26 I&N Dec. 749 (BIA 2016), the Board of Immigration appeals held that in analyzing whether a conviction is for a crime of domestic violence under INA §237(a)(2)(E)(i), the circumstance-specific approach should be applied to determine the domestic nature of the offense. It means that all probative evidence, and not only documents that establish record of conviction can be viewed to determine if a crime is one of domestic violence. Under the circumstance-specific approach in immigration proceedings, all reliable evidence may be considered, including documents that comprise the formal “record of conviction.” See Matter of Garza-Olivares, 26 I&N Dec. 736, 742 n.4 (BIA 2016); Matter of Babaisakov, 24 I&N Dec. 306, 320−21 (BIA 2007); see also Nijhawan, 557 U.S. at 41−43; Bianco, 624 F.3d at 272−73 (stating that the Government may prove the domestic nature of an offense by “using the kind of evidence generally admissible before an immigration judge”). Such evidence may include police reports and records, provided that the information in the report is reliable. See Matter of Grijalva, 19 I&N Dec. 713, 721−22 (BIA 1988) (holding that police reports are admissible in immigration proceedings and that their contents are properly considered absent a claim that the respondent’s statements were made involuntarily or that information was obtained as the result of egregious police misconduct); cf. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1349−50 (11th Cir. 2010) (finding that, absent corroboration, police reports were not sufficient evidence to establish removability where the “arrest reports state the police officer][s’ conclusions . . . rather than recording their observations of facts to show guilt”). These line of cases rest and reaffirms by the U.S. Supreme Court decision United States v. Hayes, 555 U.S. 415 (2009) where the Court held that the domestic nature of a conviction for a “misdemeanor crime of domestic violence” need not be an element of the offense and may, instead, be found by a factual inquiry. Hayes, 555 U.S. at 426.

The real damager of domestic violence charge is that it is extremely difficult to beat in Immigration court, as demonstrated by the cases cited above, the court might consider any probative evidence to establish elements necessary to deport a non-citizen. The good news is that in some situations it is possible to “clean” the record with certain applications.

Immigration Benefits for Military Personnel

Author: New York Immigration Lawyer Alena Shautsova

Generally speaking, it is not easy to qualify for immigration benefits in the United States. To promote family unity and, perhaps, to thank those who put their lives in danger for the safety of all of us, the government provides certain exceptions and benefits to current and former military members and their families.

First, the U.S. government provides an opportunity for an expedited citizenship for those military members who are on active duty and deployed. Second, those who qualify for MAVNI program and are holding non-immigrant visas ,and would like to serve in the U.S. military, may find a path to the U.S. citizenship without the need of being sponsored by an employer or a family member.

Also, military members may successfully apply for prosecutorial discretion. A very important benefit that has been recently expanded is that members of the military members may use parole in place program. Parole inplace allows to “fix” the illegal entry issue and helps to obtain a green card without having to leave the U.S.

Finally, recently the government announced parole program for Filipino members of the U.S. veterans of World War II. Under the policy, certain family members of Filipino World War II veterans may be eligible toreceive a discretionary grant of parole to come to the United States before their visa becomes available. In limited cases, certain eligible relatives will be able to seek parole on their own behalf when their Filipino World War II veteran and his or her spouse are both deceased. Under the Filipino World War II Veterans Parole Program, USCIS will review each case individually to determine whether authorizing parole is appropriate. When each individual arrives at a U.S. port of entry, U.S. Customs and Border Protection will also review each case to determine whether to parole the individual.

Often, U.S. military will provide full range of services, including immigration consultants to its members. It is always a good idea, however, to consult with a private Immigration attorney if one is faced with an Immigration challenges.