Yesterday, November 20, 2014, President Obama announced in his prime time televised address to the nation that he would sign an executive order today, November 21, 2014, which would make some changes to the U.S. immigration policy and provide some temporary relief to estimated five million undocumented immigrants now in the USA. While the action is not a permanent, it is expected to help changing immediate life conditions of many people. It will change immigration policy in several ways. First, it will remove the heavy burden of living under continuous threat of deportation from some individuals with substantial times to the USA. While the policy still fell short of providing any such protection to parents of DACA eligible children, it does offered it to individuals who, on the date of the new policy announcement - November 20, 2014 – had either USC or LPR children in the USA. In the spirit of the same, the new policy also expended the reach of DACA by removing the upper age restrictions on those, otherwise eligible, as well as demanded some liberalization of the legal definitions applicable to many immigration cases which, if implemented, would clarify and expend the reach of the Provisional Waiver program; expend the reach of the National Interest Waiver and improve the utilization of the immigrant visas, allocated annually by the Congress. It will also eliminate the “save communities” initiative, which rendered many people in the limbo of awaiting for ICE detention after serving their time in state custody for relatively minor criminal infractions. Below is the overview of some of the changes.
Many agree the United States immigration system is broken. It will likely be several years before meaningful immigration reform is even considered by the U.S. Congress let alone actually enacted into law. In the interim, President Obama has indicated his willingness to use executive action to alter U.S. immigration policy. Recent reports indicate President Obama may announce a ten-point plan to modify immigration policy using his executive authority as early as November 21, 2014. This ten-point plan sets forth a wide-range of initiatives from increasing border to security and pay for immigration officers to expanding deferred action. Other initiatives include promotion of the new naturalization process by discounting the filing fee to the first 10,000 applicants, making immigrant visas available for tech jobs, changing removal priorities to target serious criminal offenders, and replacing the Secure Communities program with a new cooperative program designed to assist in immigration enforcement.
On June 26, 2013, the U.S. Supreme Court found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. See Windsor v. United States, 133 S.Ct. 2675 (2013). Section 3 of DOMA had amended the federal definition of “marriage” and “spouse”; after the enactment of DOMA “marriage” was defined as “only a legal union between one man and one woman as husband and wife”, 1 U.S.C. §7, and “spouse” referred “only to a person of the opposite sex who is a husband or a wife.” Id. DOMA precluded same-sex couples from deriving immigration benefits that were otherwise available to similarly situated heterosexual couples. Immediately after the U.S. Supreme Court’s decision, a variety of immigration benefits became available to same-sex couples. U.S. Citizenship and Immigration Services (USCIS) and the U.S. Embassies/Consulates now adjudicate petitions and applications for same-sex couples in the same manner as similarly situated heterosexual couples.
Criminal convictions can significantly impact whether an alien can remain in the United States regardless of the alien’s immigration status. Many aliens are under the mistaken impression that the designation of a crime as a felony or misdemeanor is what is most relevant in assessing the immigration consequences of a criminal conviction. The designation of crime as a misdemeanor or felony has little bearing on whether an alien is subject removal/deportation based upon a criminal conviction. Rather, the most relevant factor in assessing the potential immigration consequences is the actual criminal conduct for which the alien has been or will be convicted. Depending upon the language of the criminal statute under which the alien was convicted and the charge of removability/deportability lodged by the Department of Homeland Security (DHS), the immigration judge will employ the “categorical approach”, “modified categorical approach”, or “circumstance-specific” inquiry to determine whether the alien is removable/deportable as charged. The “circumstance-specific” inquiry is often the most problematic for aliens with criminal convictions as it allows the Immigration Judge (IJ) to look beyond the record of conviction to assess exactly what criminal conduct the alien committed. The Department of Homeland Security (DHS) may rely upon any relevant and probative evidence to establish the alien is removable/deportable as charged in the Notice to Appear (NTA) not simply the record of conviction such as the judgment, charging document, or plea agreement. This can become a substantial issues as aliens often accept plea agreements for lesser charges in order to avoid potential immigration consequences of criminal conduct.
After more than fifteen years of consideration, the Board of Immigration Appeals (BIA) finally issued a landmark precedential decision on August 26, 2014 recognizing domestic violence may be a basis for asylum. See Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014). This decision is a major victory immigrants as the BIA recognized that women who are subjected to domestic violence at the hands of their spouses/intimate partners may be able to establish asylum on account of membership in a particular social group. For years both the BIA and Department of Homeland Security (DHS) recognized that the abuse suffered by a domestic violence victim could rise to the level of past persecution and some foreign governments were unwilling and/or unable to protect the domestic violence victim. However, domestic violence was not recognized as a basis for asylum as the domestic violence victim could not establish a nexus between the abuse and one of the protected grounds (i.e. political opinion, race, religion, nationality, and/or membership in a particular social group). In the Matter of A-R-C-G-, the BIA specifically concluded that an asylum applicant may be able to establish the domestic violence was on account of the asylum applicant’s membership in a particular social group. The BIA applied the legal principles from the Matter of W-G-R- and Matter of M-E-V-G- requiring “an applicant seeking asylum based on his or her membership in a ‘particular social group’ [ ] establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. Dec. at 392. See also Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014); and Matter of W-G-R- , 26 I. & N. Dec. 208 (BIA 2014). A grant of asylum will depend upon the particular facts of the claim including country conditions, law enforcement statistics, expert witnesses, the asylum applicant’s past experiences, and other credible evidence. Nonetheless, the BIA's decision in the Matter of A-R-C-G- is important as it set legal precedent clearly indicating victims of domestic violence may qualify for asylum.
Criminal convictions can significantly impact whether an alien can remain in the United States. A criminal conviction that is found to be a particularly serious crime can bar an otherwise eligible alien from receiving asylum and/or withholding of removal under INA §241(b)(3)(B). An alien becomes ineligible for a grant of if he/she has been convicted of an aggravated felony. This alien may still be eligible for a grant of withholding of removal under INA §241(b)(3)(B) despite being convicted of an a crime that constitutes an aggravated felony if he/she is sentenced to a term of imprisonment of less than five years. Regardless of the sentence imposed by the criminal court and whether the crime constitutes an aggravated felony the Attorney General may determine the alien has been convicted of a particularly serious crime. The immigration judge will examine “factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community”, Matter of Frentescu, 18 I. & N. Dec. 244, 246 (BIA 1982), to determine whether a criminal conviction is for a particularly serious crime. The BIA was recently tasked with determining whether an alien’s mental illness/disorder was a factor to be be considered when determining if his/her criminal conviction was for a “particularly serious crime.” Matter of G-G-S-, 26 I. & N. Dec. 339, 339 (BIA 2014).
At a time when many states have chosen to enact legislation to drive away immigrants, the State of New York is taking significant steps to create a welcoming environment for immigrants. Governor Cuomo signed new legislation on August 6, 2014 designed to enhance the provision of immigration-related assistance in the State of New York. This legislation targets non-attorneys who provide immigration-related assistance by enacting stricter assistance-provider requirements including ensuring only attorney and non-attorney representatives authorized by the Board of Immigration Appeals (BIA) can provide legal services, enhancing translation requirements, increasing civil penalties for violations, and prohibiting the use of titles designed to mislead the immigrant into believing the provider is an attorney or specialized professional. The goal is to ensure that immigrants do not fall prey to con artists who often engage in conduct that jeopardizes an immigrant’s future ability to qualify for immigration benefits and places the immigrant at risk of deportation from the United States while at the same time extracting significant sums of money from hardworking individuals. This legislation also provides for a new criminal offense called “immigration assistance fraud”, which can be either a misdemeanor or felony depending upon the amount of money involved. Another key component of this legislation is the designation of the New York State Office for New Americans, which provides support to New York's immigrant population, as a permanent executive office.
Students who depend on undocumented parents are facing certain obstacles when matriculating at public universities.Often the greatest deciding factor for students in choosing where they will earn their degree is affordability. In an effort to make higher education more affordable for working class families—often comprised of minorities such as Latinos—States have established public universities with significantly reduced tuition rates for residents. Allowing more residents to gain specialized training or certification has significant economic advantages for the state. With higher education, better employment opportunities usually follow and therefore, generate better salaries for residents.
With recent changes in Russian legislation, LGBT Russians are desperately seeking freedom from persecution. These refugees now have a favorable chance at being granted asylum in Canada.
According to Canada’s immigration minister, Chris Alexander, homosexuals who intend to flee persecution in Russia will have their asylum claims viewed favorably—such as those persecuted because of religious or ethnic reasons in Canada. This is certainly a step towards progress in what seems to be lack of action from international convention.
Despite the attention that Vladimir Putin is receiving over his recent anti-gay policies, there is still, very much, a massive problem for homosexuals living in Russia. The severity of the issue has gone from alarming to outrageous. It is crucial to incite a major change in Russia’s policies. These laws and bills are seedlings which will inevitably expand as long as they are allowed to.
While many people are aware of the anti-gay sentiment, I strongly believe very few people are aware of the degree of persecution that homosexuals in Russia are subject to by both police officers and citizens alike. While going over collections of photographs collected during recent gay pride parades and marches in Russia, I immediately grasped the scope of the horror they live in.