El Paso Federal Bar Association Border Law Conference

El Paso Federal Bar Association Border Law Conference January 30 & 31, 2015 Mark Shmueli Iliana Holguin Olsi Vrapi

Automatic Citizenship By Birth, 14 th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. ” Exception: Children born to diplomats. United States v. Wong Kim Ark, 169 U. S. 649 (1898).

Others who acquire citizenship at birth Person born outside U. S. to two U. S. citizen parents, if one parent resided in U. S. prior to child’s birth. INA section 301(c) Person born outside U. S. to one U. S. citizen parent and a non-USC parent if U. S. citizen parent was physically present in U. S. for 5 years, two after 14 years of age. INA section 301(g) See Immigration & Nationality Act Sections 301(b)-(h); 302 (Puerto Rico); 303 (Panama Canal Zone); 304 (Alaska); 305 (Hawaii); 306 (U. S. Virgin Islands); and 307 (Guam).

Derivative Citizenship Children derive citizenship when their parent naturalizes, provided that: The child is under 18 years old, Is a lawful permanent resident, Is in the legal and physical custody of the naturalized parent. INA Section 320

Eligibility Overview 18 years or older; Admitted as a lawful permanent resident; Continuously resided in the U. S. as LPR for at least 5 years (3 years for spouses of US citizens); Physical presence in U. S. for half of statutory period; Resided for at least 3 months in state/USCIS district with jurisdiction over application; Good moral character for the statutory period; English proficiency and knowledge of U. S. history/government.

Eligibility: LPR Status Must have been admitted as lawful permanent resident. An applicant is not lawfully admitted for permanent residence if his or her LPR status was obtained by mistake or fraud, or if the admission was otherwise not in compliance with the law. Abandonment of residency: Issue of intent Factors demonstrating intent

Eligibility: Good Moral Character Mandatory denials for conduct during statutory period: Habitual drunkard Prostitute, pimp, smuggler, or polygamist Convicted/admits to crime involving moral turpitude, multiple criminal offenses, or drug offense Illegal gambling False testimony for an immigration benefit Incarcerated for 180 days or more Permanent bars: Convicted of an aggravated felony (after 11/29/90) Nazi persecution; genocide; torture or extrajudicial killings See INA 101(f)

Eligibility: Good Moral Character No limitation to statutory period Effect of probation or parole Failure to register for selective service Discretionary GMC determination: Adultery Failure to pay child support

Eligibility: English/Civics Examination English – elementary reading, writing, and understanding Age exception: no English test if… Over 50 and lived in US for 20 years as LPR or, Over 55 and lived in US for 15 years as LPR. INA 312(b)(2) Civics/History – knowledge of fundamentals Special consideration for over 65 with 20 years as LPR Only 25 possible questions instead of 100. INA 312(b)(3) Failing examination Medical disability waiver

Deferred Action for Childhood Arrivals (DACA) Came to the United States before reaching your 16 th birthday and are ANY AGE ; Have continuously resided in the United States since June 15, 2007, up to the present Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; 10

DACA (cont) Had no lawful status on June 15, 2012; Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and 11

Same Sex Marriage and Family US v. Windsor : CIS recognizes same sex marriages for immigration benefits regardless of whether the marriage is legal under the law of the state where the couple resides. Consular issues and K-1 fiance. – DOS will allow third country processing as of Nov. 2014 CIS has undergone extensive training on the issues surrounding same sex marriages 12

Family-Based Immigration 4 things to understand about family-based immigration: No automatic immigration benefits/status Different preference categories have different “waiting lines” Applicants are subject to grounds of inadmissibility Some applicants will be permanently ineligible for status regardless of family relationships

Family-Based Categories Immediate Relatives: spouses, unmarried minor children, and parents of USC’s Preference Categories: Unmarried sons/daughters of USC’s (over 21) Spouses and unmarried minor children of LPR’s Unmarried adult sons/daughters of LPR’s Married sons/daughters of USC’s Siblings of USC’s

Family-Based Categories Immediate relatives are not subject to a numerical quota Preference Categories are subject to numerical quotas “priority date” is the date that establishes an applicant’s place in line for a visa number Department of State responsible for publishing monthly visa bulletin tracking PD’s

Grounds of Inadmissibility— Crimes Important: may not require a conviction for ground to apply Crimes involving moral turpitude (CIMT’s) (Exception for petty offense and offense committed while under 18) Controlled substance violations Multiple criminal convictions with aggregate sentence of 5 years or more Controlled substance trafficking Prostitution and commercialized vice Significant traffickers in persons

Grounds of Inadmissibility— Misc. Material Misrepresentations (waiver available) False Claims to US citizenship (no waiver) Unlawful presence (waiver available) Unlawful entry after accruing more than 1 year unlawful presence or after removal (no waiver for 10 years) Alien Smuggling (limited waiver available) Public Charge (Affidavit of Support)

Procedure Generally, only eligible to apply for adjustment of status from within US if: IR’s only have to have entered lawfully Entered lawfully, have not worked without authorization and have not failed to maintain status Exception under INA § 245(i) All others must process at a consulate abroad Beware of UP bars that trigger upon departure

VAWA In the traditional family-based petition process, non-citizens rely on their U. S. citizen or lawful permanent resident relatives to file applications. VAWA is a variation of the regular family-based immigration process. Spouses and children of USC’s and LPR’s and parents of USC’s are eligible

VAWA Requirements Battery or Extreme Cruelty Qualifying Abusers – proof of USC/LPR status Proof of relationship (birth certificate or marriage certificate) Good Faith Marriage All Prior Marriages are Legally Terminated Residence with the Abuser and Residence in the US Good Moral Character

Procedure: Form I-360 I -360 self-petitions are filed and adjudicated exclusively by the Vermont Service Center; no filing fee charged for I 360 If an I-130 had been previously filed by the abuser, can request that I-360 be given same priority date Self-petitioner will receive prima facie notice of eligibility, allowing for receipt of certain public benefits Once I-360 approved, self-petitioner will be granted deferred action and employment authorization

I-130 v. I-360 VAWA self-petitioners can adjust even if entered EWI Not subject to public charge ground of inadmissibility More waivers available, such as for permanent bar Can show hardship to self for waiver purposes

The U Visa = A Beautiful Thing

Requirements Victim of qualifying criminal activity Have information and be helpful to police, prosecutor or court Suffered substantial physical or emotional harm Crime occurred in US

Who Is a Victim Direct vs. indirect victims Indirect victim could be a parent of a young child who was the direct victim even if the direct victim is a U. S. citizen. Direct victim is the typical one we think of a victim Indirect victims must comply with all other requirements such as have information and help the authorities, suffer harm, etc. Derivatives (spouses, children, parents, siblings) included

Qualifying Criminal Activity Murder; rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

Qualifying Criminal Activity Very broad Does not have to fit perfectly in the enumerated list above Can be even detected criminal activity – no need for an arrest to have occurred or a report to have been made. Certainly no charges or conviction is needed Example: an off duty policy officer who witnesses battery against a household member in the street can later certify a U visa

Helpfulness Law Enforcement Agency (LEA) certification needed Form I-918 -B LEA includes prosecutors and judges too. It also includes non-typical law enforcement agencies such as Child Protection Services, Department of Labor Wage and Hour Division, Attorney General’s office, etc. In short, any governmental entity that can start or refer a criminal investigation.

LEA Certification No I-918 -B signed by LEA = no U visa. Some LEAs mistakenly believe that if they did not secure an arrest or conviction that victim was not helpful therefore no certification. Must be signed by head of agency (except judges, no need to have chief judge certify) or another official designated by head of agency to certify U visas.

Substantial harm Physical OR emotional

Waivers Available Very generous waivers Waiver available for just about anything except terrorism and related grounds Much more generous than any other immigration relief

Collateral Relief Great form of collateral relief Stay of removal available for Reentry defendants Final orders of removal Can stay and later terminate removal proceedings

Future Lawful Permanent Residence Adjustment of Status to LPR status after 3 years of U status Allows for family members to apply as derivatives