The Board of Immigration Appeals (BIA) has unequivocally held an alien who entered the United States on a K-4 non-immigrant visa can “only adjust his or her status to that of a lawful permanent resident based on the Petition for Alien Relative (Form I-130) filed by the United States citizen K visa petitioner.” Matter of Jean Ro Saclolo Valenzuela, 25 I&N Dec. 867 (BIA 2012). In the Matter of Jean Ro Saclolo Valenzuela, the respondent’s mother married a United States citizen who petitioned for both the respondent and her mother to receive K non-immigrant visas. Id. at 868. The respondent was issued a K-4 non-immigrant visa, which she used to enter the United States on December 28, 2003. Id. She was authorized to remain in the United States until December 27, 2005. Id.
The Board of Immigration Appeals (BIA) recently issued a precedent decision that addressed removal proceedings for aliens that entered the United States as refugees. Matter of D-K, 25 I&N Dec. 761 (BIA 2012). In the Matter of D-K, the BIA first determined “that a refugee who has not adjusted status to that of a lawful permanent resident (LPR) may be placed in removal proceedings without a prior determination by the Department of Homeland Security (DHS) that the alien is inadmissible.” Id.
Today, the Bureau of U.S. Citizenship and Immigration Services announced the process for filing for requesting deferred action for aliens who arrived as children. The Obama Administration-had previously announced a deferred action process for young aliens considered low enforcement priorities on June 15, 2012. Deferred action is a discretionary determination to defer removal of an individual as an act of prosecutorial discretion. Deferred action is not the DREAM Act. It is important to remember that deferred action does not confer lawful status upon an individual. It does not provide a path to lawful permanent residence and/ or United States citizenship.
Under section 101(a)(43)(S) of the Immigration and Nationality Act (INA) “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year”, INA §101(a)(43)(S), constitutes an aggravated felony. INA §101(a)(43)(S). However, the INA fails to define the phrase “an offense relating to obstruction of justice.” The Board of Immigration Appeals (BIA) recently used its authority to interpret statutes to conclude “accessory after the fact offenses necessarily relate to obstruction of justice within the meaning of section of 101(a)(43)(S) of the Act[.]” Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 844 (BIA 2012).
On June 24, 2012, the Annual NYC Gay Pride Parade sailed down Fifth Avenue to the Greenwich Village where the gay liberation movement was born in 1969. This year a group of Russian-speaking LGBT persons and their supporters marched in the Pride Parade, brought together by the RUSA LGBT – Russian-Speaking American LGBT Association – a New York City based organization which unites and supports gay, lesbian, bisexual and transgender/transsexual immigrants from the countries of the former U.S.S.R.
According to a poll conducted by the web-portal GayRussia.Ru – Russia’s leading online community for LGBT persons and their supporters – 65% of the respondents indicated that they would like to emigrate from Russia to a country which is safer and more respectful of its LGBT citizens. Some 27 % of the respondents indicated that they had no desire to leave Russia, while the remaining 5 and 3% of the respondents pointed out that they either already left Russia or never lived in Russia in the first place.
Criminal convictions are always problematic for aliens. At the very least, a criminal conviction is a negative factor requiring an alien to show equities. However, criminal convictions can often result in an alien being found inadmissible and/or removable from the United States. The relief available to aliens who are inadmissible and/or removable due to criminal convictions is limited. The Board of Immigration Appeals (BIA) recent precedent decisions are making it more and more difficult for aliens who are inadmissible and/or removable due to criminal convictions.
The Board of Immigration Appeals (BIA) recently limited the availability of the INA§212(h) waiver to lawful permanent residents who have been convicted of aggravated felonies. The Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits have previously held an aggravated felony conviction disqualifies an alien from a waiver under INA §212(h) only if the conviction occurred after the alien was admitted to the United States as a lawful permanent resident following inspection at a port of entry. See Bracamontes v. Holder, 2012 WL 1037479 (4th Cir. 2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); and Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011).
On June 15, 2012, the Obama Administration announced a deferred action process for young aliens considered low enforcement priorities. This is effectively an expansion of prior efforts by the Obama Administration to focus on public safety, border security, and the integrity of the immigration system. The Department of Homeland Security (DHS) has concentrated its limited resources on the removal of aliens that pose a danger to national security or a risk to public safety, including aliens who have been convicted of crimes, with particular emphasis on violent criminals, felons, and repeat offenders. At the same time, DHS has determined it will exercise prosecutorial discretion when dealing with low priority cases such as aliens who were brought into the United States as children and who have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses.
Cancellation of removal is a form of relief available to certain permanent residents and non-permanent residents in removal proceedings before the Immigration Judge. A non-permanent resident may seek cancellation of removal if the alien has been in the United States continuously for at least ten (10) years, is a person of good moral character, and can establish that his or her removal would result in “exceptional and extremely unusual hardship” to the alien’s United States citizen or legal permanent resident spouse, parent, or child. A “child” is defined by the Immigration and Nationality Act (INA) as “an unmarried person under twenty-one years of age.” INA §101(b)(1).
