- First, it is important to note visa interviews are typically brief in nature. If you are a family-based IV (immigrant visa) client, expect questions about (1) dates of birth for yourself, your spouse and children; (2) dates of marriage(s), divorce(s), or death(s) of spouse; (3) familial relationships on which the IV is being sought; and (4) details on any immigration or criminal offenses.
- Answer all questions truthfully. Concealing an unfavorable response will only result in you making a material misrepresentation to the officer, which will likely warrant a denial and possibly permanent banishment from the U.S.
- Be prepared to explain and, if necessary, document previous stays in the U.S.
- Delays may occur due to the need for a security advisory opinion, referral to a panel physician, or a visa refusal.
- Delays may also occur due to "administrative processing," which includes: (1) you have a criminal conviction, (2) you have a name and dare of birth that closely mirror those of a known criminal/terrorist, (3) your country is designated as a state sponsor of terrorism, or (4) you possess expertise in certain sensitive technologies.
- Make sure all visa application forms are correct and you have a proper understanding of the language used in the forms.
- Review all applications in detail; be sure to be ready to explain why you believe you are eligible for the visa.
- The actual interview can tend to be unpleasant and even intimidating. You will likely wait for hours before appearing for an interview that may last only a few minutes. During these minutes, you will likely remain standing while the consular officer will sit on the other side of a bullet-proof glass.
- Most importantly, do not make any life changes based on the anticipation of receiving the visa until you actually see the visa in your passport.
Your I-130 has been approved. You have completed and submitted the DS-260 and all requested civil documents to the NVC. You receive an appointment notice. What sorts of things should you expect to happen at the interview?
If Respondent wishes to depart the U.S. without suffering the harsh penalty of a formal removal order, s/he may request a form of relief known as Voluntary Departure. There are two kinds of Voluntary Departure: Pre-Conclusion (prior to termination of removal proceedings) and Post-Conclusion (at the conclusion of removal proceedings). This posting will discuss Pre-Conclusion Voluntary Departure.
What is Pre-Conclusion Voluntary Departure?
If Respondent requests Pre-Conclusion Voluntary Departure before the conclusion of removal proceedings, this is known as Pre-Conclusion Voluntary Departure. The Immigration Judge is allowed to issue a period of up to 120 days before the Respondent actually depart. INA 240B(a). The Respondent must request this at a Master Calendar Hearing before conclusion of proceedings.
In order to receive Voluntary Departure, Respondent must (See 8 C.F.R. 1240.26(b)):
(1) Withdraw any pending requests for relief;
(2) Make no requests for additional relief;
(3) Concede removeability;
(4) Not have an aggravated felony conviction or be deportable under INA § 237(a)(4) (related to security grounds); and
(5) Waive appeal of all issues.
The Immigration Judge has the authority to impose other requirements, such as Respondent pay a bond of a set amount and that Respondent submit travel documents to the Government. 8 C.F.R. §1240.26(b)(3)(i). Finally, the Immigration Judge's decision to grant Voluntary Departure is discretionary. Matter of Arguelles,
22 I&N Dec. 811, 816 (BIA 1999).
What is Pre-Conclusion Voluntary Departure "In Safeguards"?
If Respondent is detained under ICE custody and the Immigration Judge grants Voluntary Departure, two things can occur: (1) Respondent could be released from ICE custody and have a set period of time to address his/her affairs before departing or (2) Respondent departs the U.S. directly from ICE custody, also known as "In Safeguards."
Here in San Diego, if an Immigration Judge grants Pre-Conclusion Voluntary Departure to Respondent "In Safeguards," Respondent will be turned over to the respective government officer in charge of the removal procedure, who in turn would process Respondent's physical departure. Here, in San Diego, Respondent will likely be required to provide a travel document to ICE. However, the government will pay the expense of Respondent's travel back to his/her country of origin. Jurisdictions may differ on whether Respondent will have to pay for his/her travel back to his/her country.
X was deported from the U.S. to Mexico. X then attempted to re-enter the U.S. to be reunited with his family. The government apprehended X, and returned him to Mexico. The government likely issued what is known as a "reinstatement order." In sum, the government (under the power of the Attorney General) reinstated X's prior deportation order. Now X is summarily sent back to Mexico, and there is no way to review or reopen the reinstatement order unless X asserts a fear of persecution if he returns to Mexico.
8 U.S.C. Sec. 1231(a)(5) readsL
"If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry."
But See Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012): “[W]here an alien pursues reasonable fear and withholding of removal proceedings following the reinstatement of a prior removal order, the reinstated removal order does not become final until the reasonable fear of persecution and withholding of removal proceedings are complete.”
Under 8 U.S.C. Sec. 1225(b)(1), the government has the authority to order the expedited removal of an inadmissible alien at the port of entry without a hearing, unless the alien indicates a desire to apply for asylum or a fear of persecution. 8 U.S.C. Sec. 1225(b)(1)(A)(i). See also Padilla v. Ashcroft, 334 F. 3d 921 (9th Cir. 2003). Except for limited habeas proceedings, “no court shall have jurisdiction to review … any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an [expedited] order of removal pursuant to section 1225(b)(1) of this title.” 8 U.S.C. § 1252(a)(2)(A)-(a)(2)(A)(i). Habeas proceedings in the expedited removal context are limited to determinations of:
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under such section, and
(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee … or has been granted asylum … .
See 8 U.S.C. Sec. 1252(e)(2). See also Smith v. U.S. Customs & Border Protection, 741 F. 3d 1016 (9th Cir. 2014).
Consider the following scenario: X entered the U.S. illegally. X married his U.S. Citizen wife and had children in the U.S. During a workplace raid, X was administratively removed to Mexico. X then illegally attempted to re-enter the U.S. X was apprehended at the port of entry and the government issued an expedited removal. X attempted to re-enter again and was apprehended by border patrol officials. X's removal order was reinstated. X remains in Mexico, but sadly, X's son is undergoing life altering surgery. What can X do to re-enter the U.S. legally?
Consider another scenario. X entered the U.S. with a valid tourist visa. X's tourist visa was cancelled. X then subsequently illegally entered the U.S. Due to health concerns, X left the U.S. on her own accord. Now, X's U.S. relative has sadly passed away in the U.S. and X wishes to attend the funeral. What can X do?
Under the Immigration and Nationality Act ("INA"), X is unfortunately permanently inadmissible in both scenarios. See INA Section 212(a)(9)(C)(i). No matter whether X has immediate relatives who may be able to petition for X, there is no legal means for X to legally enter the U.S.
Should X have a genuine fear of remaining in his/her native country, X could present himself/herself at the port of entry and request a credible fear hearing, and subsequently apply for asylum in front of an immigration judge. However, based on X's derogatory immigration history, X runs the risk of being detained for a minimum period of six months as an "arriving alien". See INA 235(b)(1)(B)(ii).
If X does not fear persecution in his/her home country, what possible remedy is available for X? Humanitarian parole may be an option.
Pursuant to the federal regulations, and INA 212(d)(5)(A), the Secretary of Homeland Security is authorized “in his discretion to parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission into the United States.” The Secretary has delegated his parole authority to USCIS, ICE, and CBP. To be clear, parole is a discretionary authority, and does not constitute an admission into the United States nor does it convey any benefits to the beneficiary. One common type of parole request is family reunification, and other emergent requests depending on the facts of individual cases.
Regarding family reunification, the government may consider several factors such as: Whether the request is designed to circumvent the normal visa issuance process, evidence of a bona fide relationship between the applicant and claimed relatives in the United States; and the age and mental and/or physical limitations of the family member who is seeking to be paroled into the United States.
In this scenario, X could request humanitarian parole through USCIS or at the port of entry through CBP. If at the port of entry, there are no set requirements, other than documentary proof as to why X needs to be in the U.S. and for how long.
Should X attempt to apply for humanitarian parole through USCIS, X should supplement the following:
Complete Form I-131 and include the filing fee for each parole applicant, complete Form I-134, Affidavit of Support for each applicant, a detailed explanation of the reasons why X is applying for humanitarian parole and for how long, and a detailed explanation as to why X would be ineligible for an immigrant visa. USCIS will typically send a response within 90-120 days. Further, applicants for humanitarian parole must be outside the U.S.
ICE attorneys and immigration judges must inquire as to and identify cases as enforcement priorities per OPPM 15-01.
Updates on new DHS priorities and initiatives - OPPM 13-01; OPPM 15-01
On November 20, 2014, the Secretary of the Department of Homeland Security (DHS) issued several new initiatives in terms of prioritizing civil immigration enforcement matters. See "Policies for the apprehension, detention and removal of undocumented immigrants," available at http://www.dhs.gov/sites/default/files/publications. There, the Secretary issued guidance on how DHS attorneys should implement and carry out enforcement priorities, and when DHS attorneys should exercise prosecutorial discretion.
OPPM 15-01 reiterates the importance of the burden DHS now has to identify whether pending cases in the removal system are enforcement priorities. If not, DHS is expected to notify the court and Respondent as early in the removal proceeding as possible. By doing this, DHS would be able to properly conserve resources and devote importance to high priority cases (for example, aliens apprehended at the port of entry, aggravated felons, or aliens who cannot establish to the Department's satisfaction that they were present in the U.S. prior to January 1, 2014).
Further, OPPM 15-01 directs Immigration Judges to be prepared to ask ICE attorneys at master calendar hearings, on the record, whether the case remains a removal priority for ICE and whether ICE is seeking termination or administrative closure. That way, judges can properly use docketing tools to attempt to ensure a fair and tiny resolution of cases before them. The role of the immigration court is to resolve disputes. See OPPM13-01.
So at the respondent's next master calendar hearing, not only should the ICE attorney be prepared to notify the court as well as the respondent whether his/her case is an enforcement priority (if the ICE attorney has not already previously done so), but the ICE attorney should also be prepared to take the next necessary steps based on the categorization of the respondent's case per the November 20, 2014 Johnson memo. Furthermore, the immigration judge should ask the ICE attorney on the record whether the case remains a removal priority or whether termination and/or administrative closure would be an adequate measure.
An asylum applicant must file his/her asylum application either with USCIS or EOIR within one year of his/her arrival into the U.S. 8 CFR 208.4(a); 8 USC Sec. 1158(a)(2)(B): "An alien must 'demonstrate by clear and convincing evidence that the application has been filed within one year after the date of the alien's arrival in the U.S.'"
However, there are exceptions to this one year rule. INA Sec. 208(a)(2)(D); 8 C.F.R. 208.4(a). Should an exception apply, then the applicant is entitled to a full adjudication of his/her asylum application. These exceptions include changed circumstances and/or extraordinary circumstances.
Changed circumstances can include changed conditions in the applicant's country of nationality, changes in applicable U.S. law, changes in the applicant's personal circumstances, as well as others. Please note: this list if not exhaustive. General consideration will be taken as to whether the applicant reasonably applied based on these circumstances. Extraordinary exceptions can include serious illness or mental/physical disability, including any effects of persecution or violent harm suffered in the past, death or serious illness of applicant's legal representative or a member of applicant's immediate family, or a legal disability. This circumstance must have inhibited the applicant from properly applying for asylum within the one year time limit. Further, the applicant must take reasonable steps to promptly apply as soon as this circumstance is no longer a hindrance in his/her life.
PLEASE NOTE: The one year filing deadline does not apply to unaccompanied minors per the Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA.") INA Sec. 208(a)(2)(E); TVPRA, P.L. 110-457, Sec. 235(d)(7)(A).
Is a conviction under California Vehicle Code Sec. 2800.2(a) a crime of violence for immigration purposes?
CA 2800.2 (a) states fleeing or attempting to evade a police officer is a crime. See https://www.dmv.ca.gov/pubs/vctop/d02/vc2800_2.htm. However, what effect does a conviction of this crime have on a non-citizen? Is it a crime of violence thus triggering deportability? The Ninth Circuit held that said conviction is not a crime of violence for immigration purposes. See Penuliar v. Mukasey, 528 F. 3d 603 (9th Cir. 2008). There, the court held a conviction for evading a police officer in violation of California Vehicle Code Sec. 2800.2 does not categorically qualify as a crime of violence within the meaning of 18 U.S.C. Sec. 16.
This is a very important note for "crimmigration" practitioners. The government may very well try to argue that the U.S. Supreme Court case U.S. V. Sykes, 131 S. Ct. 2267 (2011) renders such a conviction as a crime of violence. It does not, however, as the Indiana statute at issue in Sykes is substantially different than the California statute at issue in Penuliar. For a thorough discussion, see the court's opinion in Penuliar v. Mukasey, 528 F. 3d 603 (9th Cir. 2008).
Whether one is a resident or undocumented and is currently in criminal proceedings, it is crucial and even necessary that his/her criminal defense attorney understand and advise him/her of the immigration consequences of pleading guilty.
Sometimes, there is no viable option for a client in criminal proceedings except to plead guilty. However, what appears to be a "good deal" for a U.S. Citizen may in fact be fatal for a Legal Permanent Resident/undocumented immigrant and in certain instances, will result in him/her placed in removal proceedings. Therefore, counsel representing the client must take great care and have a detailed understanding of the nuances of immigration law. California law, as well as the Supreme Court, has held that criminal defense counsel has an affirmative duty to inform his/her client of the immigration consequences of his guilty plea. People v. Soriano, 194 Cal. App. 3d 1470 (1987). See also Padilla v. Kentucky, 130 U.S. 1473 (2010).
Criminal defense counsel could to a list of investigatory actions to determine the immigration consequences of his/her client pleading guilty. This includes researching the law, consulting with experienced immigration counsel, or simply have his/her client consult with immigration consult. California courts, as well as the Supreme Court has held that failure to do so constitutes ineffective assistance of counsel in violation of the 6th Amendment of the U.S. Constitution.
If the client is placed in removal proceedings, he/she could very well be ineligible for relief based on his/her conviction. At that point, a remedy called "post-conviction relief" would have to be employed where the client's attorney essentially attempts to re-open the criminal case and change/withdraw the client's guilty plea based on ineffective assistance of counsel. One such common measure in California is known as a 1018 Motion, or a "Motion to Vacate a Criminal Judgment in California." Another is a writ of Habeas Corpus, though the client would need to still be in actual or constructive custody (such as parole or released from custody on bail).
For more information on immigration consequences of guilty criminal pleas, please refer to www.ilrc.org/crimes.
A U.S. Citizen (USC) child over 21 cannot alone be a qualifying relative for purposes of the i-601A provisional waiver. The applicant must have a USC spouse or a USC parent as a qualifying relative. If the applicant has USC children, then s/he can mention them in his/her hardship waiver, but s/he must have a USC spouse or parent as the qualifying relative. If the applicant only has a USC child over 21 years old and neither a USC spouse nor parent, then s/he cannot qualify for the i-601A provisional waiver.