Tuesday, October 30, 2012

Even a Deferred Adjudication is a Conviction for Immigration Purposes

Deferred adjudication programs can offer a break to first time criminal offenders.  The idea is that a formal adjudication of guilt is withheld.  If the defendant shows a time of good behavior, often one year, then charges can be dismissed or reduced.

 But, what appears to be a good deal for criminal purposes could land a non-citizen defendant into hot water for immigration purposes.  This is because of the broad definition of "conviction" under U.S. immigration law.  A conviction includes not only a formal adjudication of guilt, but also any admission of guilt or of facts sufficient to find guilt, so long as some form of punishment is given.

In most deferred adjudication programs, the defendant has to admit guilt, or the judge has to find that the prosecutor has alleged sufficient facts to find guilt.  The result is usually some form of a suspended sentence, or some form of probation.  But, this is enough under immigration law to be considered a conviction.

This means that upon acceptance of a deferred adjudication program, immigration authorities can commence removal proceedings.

The defendant in this article from the Oregonian found that out the hard way.  According to the Oregonian, he worked as a cashier and would give his family unauthorized discounts or ring up false returns.  The result was a felony conviction which could be reduced to a misdemeanor.  However, because there is a felony conviction, which was likely considered an aggravated felony for involving a crime of theft for which a sentence of one year or more was imposed, it triggered ICE to commence deportation proceedings.

Given the broad definition of "conviction" under U.S. immigration law, it is advisable that a non-citizen defendant facing criminal proceeding receive accurate immigration advice.  In that way, an informed decision on whether to accept a plea bargain, accept deferred adjudication or push for a trial, can be made.

By:  William J. Kovatch, Jr.
(703) 837-8332

Monday, October 29, 2012

Loans to Apply for Deferred Action?

According to Fox News Latino, an organization in Los Angeles is making loans to immigrants who want to apply for the President's Deferred Action for Childhood Arrivals program.  Fox reports that the Binational Front of Indigenous Organizations (or Frente Indigena de  Organizaciones Binacionales -- FIOB) is offering loans of up to $1,000 to complete the application process.  To qualify, according to Fox, the immigrant must show that they have completed the forms and that they cannot afford the $465 fee.

A search of the FIOB website,, turns up no information on the loans.

Presumably, the $1,000 loan would cover the application fee, mailing costs, copying costs and a lawyer's fee.

The Fox article makes no mention of whether the offer for such loans is limited to residents of the Los Angeles area.

By: William J. Kovatch, Jr.
(703) 837-8832

Sunday, October 28, 2012

Social Security Numbers may be a Tricky Issue for Some Deferred Action for Childhood Arrivals Applicants

Those who apply for benefits under the President's Deferred Action for Childhood Arrivals program may face a tricky question when it comes to completing the application forms.  Both the form I-821D and the I-765 ask for the applicant's Social Security number.  The issue is that for many who have been residing in this country without legal immigration status, they may likely have been working illegally as well.  In some instances, in order to get the work, they may have been using a fake Social Security number.

As if anticipating this problems, the USCIS Frequently Asked Questions website comments that applicants are to disclose only the official Social Security number issued to the applicant by the Social Security Administration.  That is, disclose only your own Social Security number, and not any other number you may have been using in order to obtain work.

The potential trap here is that if a person uses a Social Security number that belongs to someone else, and does so knowing that the number belongs to someone else, they that amounts to the crime of aggravated identity theft.  If your application for deferred action reveals information showing that you committed aggravated identity theft, then it is very likely that USCIS will refer your case to ICE for possible removal proceedings.

Those who have used other Social Security numbers need to be very careful if they choose to apply for deferred action.  Your best bet is to consult with a lawyer to make sure you are aware of the risks. 

I go into more detail about Social Security numbers and deferred action in this article.

By:  William J. Kovatch, Jr.
(703) 837-8832

Saturday, October 27, 2012

Some Expressing Relief Upon Receiving Deferred Action

Some recipients under the President's Deferred Action for Childhood Arrivals program are expressing relief.  But, an issue that this article raises towards the end, questions remain concerning a permanent solution that could lead toward permanent residency and citizenship.

Friday, October 26, 2012

American Immigration Center on Who the DREAMers Are

The Immigration Policy Center of the American Immigration Council has issued its detailed estimates of exactly who the DREAMers are.

DREAMers are young people who have been brought into the United States at a young age, and have grown up knowing nowhere but the United States as home.  The DREAMers have no legal immigration status.  But, many have attended school in the United States and hold U.S. high school diplomas.

The term "DREAMers" comes from the DREAM Act (Development, Relief, and Education for Alien Minors), a proposal that was introduced in Congress to provide a pathway for legal status to these individuals.  In 2010, the DREAM Act was passed by the U.S. House of Representatives in 2010, but filibustered in the Senate.  The filibuster effectively killed the bill, despite the fact that a majority of Senators, 55, supported it.

The American Immigration Council provides a detailed analysis of where the DREAMers come from, and where they are in the United States.  The DREAMers are those who could potentially benefit from the President's Deferred Action for Childhood Arrivals program.

The American Immigration Council's DREAMers estimates can be found here.

By: William J. Kovatch, Jr.
(703) 837-8832

Deferred Action for Childhood Arrivals: American Immigration Council Practice Advisory

The Legal Action Center of the American Immigration Center has issued a practice advisory on the President's Deferred Action for Childhood Arrivals (DACA or Deferred Action for DREAMers) program.  Practice advisories are generally in depth legal analyses of a specific topic.  The American Immigration Council publishes these advisories to assist immigration lawyers in their practice.

The practice advisory, issued on October 25, 2012, provides a thorough discussion of the legal issues surrounding the deferred action program, from eligibility to the legal issues surrounding the application process.

One such legal issues concerns the disclosure of Social Security numbers.  Applicants are required to disclose their Social Security numbers both on Form I-821D and I-765.  USCIS has made it clear that the applicant should disclose only that Social Security number officially issued to the applicant by the Social Security Administration.  The American Immigration Council states that applicants should be careful about what evidence they submit to show physical presence, in order to avoid disclosing the use of other Social Security numbers.

The practice advisory can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832

Thursday, October 25, 2012

Deferred Action for Childhood Arrivals (DREAMers) and Driver's Licenses

Under the President's program, deferred action can provide a person with a promise not to be deported and work authorization.  But, will it allow recipients to get a driver's license.

In general, that issue depends on state law.  Arizona and Michigan have both announced that they will not issue driver's licenses to those who receive deferred action.

What about Virginia?  Section 46.2-328.1 of the Code of Virginia clearly provides that anyone in an approved deferred action status may be issued a driver's license.  This law was on the books long before the President's program.

In August, the Virginia DMV confirmed that it was going to comply with Virginia law and issue driver's licenses to those who receive deferred action under the President's program.

The ACLU is already planning a lawsuit to challenge the decision to deny driver's license to DREAMers in Arizona.  There may be a valid federalism claim.  That is, if the U.S. Government has express authority over immigration issues, and if federal law is the supreme law of the land, then the states cannot do any action to countermand federal action.  We'll watch the Arizona case and see how that plays out.

By:  William J. Kovatch, Jr.
(703) 837-8832

Business Professionals from Canada and Mexico: The TN Visa

Citizens from Canada and Mexico may apply for temporary admission to the United States to engage in business activities at a professional level.  This is known as the TN non-immigrant classification.

The TN visa is a result of the North American Free Trade Agreement.  Appendix 1603.D.1 of Annex 1603 of the NAFTA provides a list of professional activities that are eligible for TN classification.  Generally, the professional activities require a bachelor’s degree or higher.  Among the professionals listed are lawyers, engineers, accountants, computer systems analysts, teachers and graphic designers.

The visa is initially issued for a three year period.  It is a multi-entry visa, which means that the visa holder may travel outside of the United States and return during the three year period without applying for a new visa.  The visa holder may apply for an extension while in the United States.  Extensions can be granted in up to three year intervals.

Canadian citizens may apply at a U.S. port of entry.  A citizen of Mexico must apply at a U.S. consulate in Mexico.  To apply, the applicant must show proof of citizenship, and a letter from the prospective employer stating the applicant’s professional capacity, the purpose of the stay, the length of stay, and the applicant’s educational qualifications. The applicant may also need to provide credential evaluations.

There are no limits on the number of extensions that a person may apply for.  However, the U.S. Government must be convinced that the proposed stay is temporary.  That is, the applicant must show that the work will end at a predictable time, and that the applicant will return to his or her country once the work is completed.

By:  William J. Kovatch, Jr.
(703) 837-8832

Wednesday, October 24, 2012

Criminal Issues Require Precise Immigration Advice

If you are not a U.S. citizen, and you find yourself charged with a crime, you need precise immigration advice.  Immigration advice can be complicated, as there are seemingly inconsistencies within the immigration law itself, as well as inconsistencies between U.S. immigration law and state criminal law. 

How a criminal conviction affects eligibility for immigration benefits depends on the benefits sought.  Asylum, Temporary Protected Status (TPS), and Deferred Action for Childhood Arrivals all have their own different rules.  Plus all of these rules differ from whether the crime makes an alien inadmissible or deportable.

I go into further detail in this article.

For precise immigration advice on a criminal issue, consult with a knowledgeable immigration lawyer.

By:  William J. Kovatch, Jr.
(703) 837-8832

Until Naturalization is Complete, Deportation is Possible

A Dominican national discovered the hard way that until you complete the oath ceremony, you are not a citizen and subject to deportation.  In the Third Circuit case of Duran-Pichardo v. Attorney General of the United States, Mr. Duran-Pichardo, a permanent resident, applied for citizenship and passed the tests at the interview in 1998.  But, INS told him that he would have to wait for a decision on his case.  Mr. Duran-Pichardo followed up with numerous telephone calls, but got no decision.  After some time, he gave up.

It was then that Mr. Duran-Pichardo got into trouble.  He pled guilty to a drug trafficking charge, which is an aggravated felony.  He was placed in removal proceedings.  His attempt to restart his naturalization case failed, as USCIS now denied his application based on the aggravated felony.  The Third Circuit, while sympathetic to the long delay in Government action in his naturalization case, upheld his order of deportation.

Had Duran-Pichardo simply taken advantage of a portion of the Immigration and Nationality Act that permitted him to sue the Government over his delayed naturalization application, he could have avoided deportation.  Section 336(b) of the Act provides that if a decision is not made within 120 days of the examination, an applicant can sue in the U.S. District Court, and have the court decide whether to grant naturalization.

I go into more detail in this article.

If your naturalization application is delayed for any reason, contact a knowledgeable immigration lawyer to determine if you should use section 336(b), and sue in U.S. District Court.

By:  William J. Kovatch, Jr.
(703) 837-8832

William J. Kovatch, Jr. is admitted to practice in the U.S. District Court for Eastern Virginia.

Tuesday, October 23, 2012

Taiwan Now Part of the Visa Waiver Program

Taiwan has now become part of the visa waiver program.  The visa waiver program permits nationals of certain countries to travel to the United States with the need to apply for a tourist visa.  The length of stay is typically limited to 90 days.  During this time, the visitor is not permitted to work in the United States.

Currently, there are 37 countries that participate in the visa waiver program.  The list of countries can be found here.

In order to take advantage of the visa waiver program, travelers must seek travel authorization through the Electronic System for Travel Authorization program, or ESTA.  This is a computer-based system, where travelers input their information to receive the ability to travel visa-free to the United States.  Once you receive travel authorization, it is good for two years.  The ESTA website can be found here.

Travel authorization does not give you the right to be admitted to the United States.  It gives you the right to present yourself to a Customs agent at a port of entry to seek admission.  The Customs agent may still ask questions, and determine if you are inadmissible for any reason.  For example, it is fraud to obtain travel authorization through ESTA if you intent is to come to the United States to try to stay and become a permanent resident.

Frequently Asked Questions on ESTA can be found here. 

There was some debate for a while on whether an entry through the visa waiver program can count as admission after inspection for the purposes of adjusting to status as a permanent resident.  Recently, USCIS was instructed that an entry through the visa waiver program could be a valid admission for such purpose.  The instructions can be found in this Question and Answer session USCIS held with the American Immigration Lawyers Association (AILA).

By: William J. Kovatch, Jr.
(703) 837-8832

Second Circuit Decision on the Defense of Marriage Act May Have Immigration Ramifications

In this link, you will be directed to an article on mine talking in greater detail of the possible immigration consequences of the Second Circuit case of Windsor v. United States.

Monday, October 22, 2012

What Do You When a Relative is Detained by Immigration Authorities

When Immigrations and Customs Enforcement comes to your door, it can be a harrowing experience.  If ICE is taking away a relative of yours, there are things you need to do.  The main thing is to gather as much information about the situation as possible.  You will need to have this information so you can consult an attorney, and the attorney can tell you if your relative can be helped.

For more detail, see my article:  "My Husband / Brother / Friend Has Been Taken by ICE - What Do I Do?"

By:  William J. Kovatch, Jr.
(703) 837-8832

Friday, October 19, 2012

Could Same-Sex Couples Eventually Apply for Visas?

A decision by the U.S. Court of Appeals for the Second Circuit may open the door to permit same-sex couples to apply for visas.

The case is Windsor v. United States. It involves the application of the federal estate tax to the estate of a woman who had married her same-sex partner in Canada.  The couple lived in New York, where Thea Clara Spayer died.  Her same-sex spouse, Edith Windsor, inherited her property, and claimed the marital deduction when calculating the estate tax due.  The deduction was disallowed, citing the Defense of Marriage Act.

The Defense of Marriage Act limits the Federal Government to recognizing only a marriage between one mane and one woman when applying all federal law.  The Second Circuit found this to be in violation of the Equal Protection Clause of the U.S. Constitution.

While the decision involves the federal estate tax, the Defense of Marriage Act has also been applied to prevent a U.S. citizen from submitting a visa petition for a foreign-born same-sex spouse.  If the decision stands, it could open the door for same-sex couples to apply for immigration benefits previously denied.

The jurisdiction of the Second Circuit is limited to Connecticut, New York and Vermont.  But, there could be an incentive for same-sex couples to move to one of those states now, and file a visa petition in order to force the Federal Government to follow the decision in the immigration context.

The text of the decision can be found here.

An article from the New York Times on the decision can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832

Christians and Religious Minorities in Pakistan Face Persecution at the Hands of Pakistan's Blasphemy Law

Over the past few years, turmoil and assassinations have place in Pakistan, over the country's blasphemy law.  The law creates a possible death sentence to anyone who desecrates the name of Allah or the Prophet.  But, desecration can be broad.  It can include the mishandling of papers that happen to have the name of Allah or Mohamed printed on them.

The blasphemy law has been used as a tool by Islamic extremists in Pakistan to terrorize Christians and other religious minorities.  Politicians who oppose the law have been assassinated.  The murderer of one of the politicians, his own police body guard, was sentenced to death.  However, because the Muslim extremists considered the murderer a "hero or Islam," the judge was passed the sentence had to be whisked away to Saudi Arabia for his own protection.

I go into more detail on the situation of Christians and other religious minorities in Pakistan in this article:

Religious Minorities in Pakistan Charged with Blasphemy Face Possible Death Sentences.

By: William J. Kovatch, Jr.
(703) 837-8832

Thursday, October 18, 2012

Arlington Immigration Court's New Location

The Arlington Immigration Court has a new location: 1901 S. Bell Street, Suite 200, Arlington, VA 22202.  The location is in the heart of Crystal City.  Click on the image for a larger view.

The Court is easily accessible by Metro.  One block away from the Crystal City Metro stop on the blue and yellow lines.

This is the view walking south down S. Bell Street, from the Metro stop.  The building is across the street from the Marriott.
This is the door to the building.
The closest parking is on 20th Street.
This is the view from 20th Street.
Inside, there are bathrooms on the floor where the court is located, which is an improvement.

All must go through security on the second floor.  This is change from the old location, where attorneys were permitted to bypass security by showing a bar card.

By:  William J. Kovatch, Jr.
(703) 837-8832

Tuesday, October 16, 2012

Schools Busy Filling Requests for Transcripts for Deferred Action for Childhood Arrivals Applicants

Schools across the country are fielding an increase in requests for transcripts.  This is fueled by the requirement under the Deferred Action for Childhood Arrival (DACA or Deferred Action for DREAMers) that the applicant either have a diploma or GED, or be currently in school.  San Diego has even opened a special center specifically for the purpose of handling the increase in transcript requests.

San Diego reports a backlog in complying with the requests.  So far, there is no deadline on when a person can apply for deferred action under this program.  But, should there be a change in Administration, and with Republican presidential candidate Mitt Romney promising to end the program if he were to take office, there may be more urgency for potential applicants to obtain the documentation sooner and submit the applications while President Obama is still in office.

By:  William J. Kovatch, Jr.
(703) 837-8832

Deferred Action for Childhood Arrivals: Meeting the Education Requirements

This article claims that there are many undocumented aliens who cannot qualify for the President's Deferred Action for Childhood Arrivals (DACA or Deferred Actin for DREAMers) program because they never finished high school, and are finding it difficult to enroll in a class to work towards a GED.  One problem, according to the article, is that some states, such as Arizona, prohibit undocumented aliens from taking the free GED classes.

Regarding the education requirements, the USCIS guidelines state that the applicant must currently be in school, have graduated or obtained a certificate of completion from high school, or have obtained a general education development (GED) certificate.

USCIS goes into more detail in its Frequently Asked Questions:

Q2: Who is considered to be “currently in school” under the guidelines?
A2: To be considered “currently in school” under the guidelines, you must be enrolled in:

  • a public or private elementary school, junior high or middle school, high school, or secondary school;
  • an education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
  • an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam.
Such education, literacy, or career training programs include, but are not limited to, programs funded, in whole or in part, by federal or state grants. Programs funded by other sources may qualify if they are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges, and certain community-based organizations.

In assessing whether such an education, literacy or career training program not funded in whole or in part by federal or state grants is of demonstrated effectiveness, USCIS will consider the duration of the program’s existence; the program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam, or in placing students in postsecondary education, job training, or employment; and other indicators of the program’s overall quality. For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.

The "currently in school" criteria appears to be very broad. It can include literacy classes, career training, job training and an education program assisting students in passing the GED exam.  Given the broad definition of "currently in school," an applicant who otherwise dropped out of school would be wise to enroll in some class, be it an English literacy class or some form of vocational training, in order to be able to check this box.

But even if an applicant can't say that they are currently in school, that may not necessarily be the end of the quest to acquire deferred action.  As I posted earlier, the USCIS website appears to indicate that the agency will be on the lookout for candidates who may not meet all of the stated criteria, but who otherwise warrant the exercise of deferred action.  Thus, if an alien does not have a diploma or GED, and is not currently enrolled in school, that does not mean that the alien cannot qualify for deferred action of some sort.  It may mean that the applicant may need to pay up on mitigating factors in their life to convince USCIS to grant deferred action.  Such factors could include a U.S. citizen child who requires medical treatment.  It could include the need to stay in the United States to care for a sick parent or grandparent.  It could include clear evidence of the applicant's good moral character.

The potential applicant, then, should consider all of the risks, all of the potential benefits, and all of the angles that can be played up, to decide whether it is worth paying the $465 filing fee to apply for deferred action under this program.  Indeed, with the political climate the way it is, and with Republican presidential candidate Mitt Romney pledging to end the Deferred Action for Childhood Arrivals program, it may be worth it for an undocumented alien to take a shot, risk the filing fee, and try to obtain the benefit before a new Administration takes office.

By:  William J. Kovatch, Jr.
(703) 837-8832

Sunday, October 14, 2012

Updated Deferred Action for Childhood Arrivals Statistics

According to USCIS, over 4,000 applications for deferred action for childhood arrivals have been approved as of October 10, 2012.

Official statistics can be found here.

By:  William J. Kovatch, Jr.
(703) 837-8832

Friday, October 12, 2012

I Do Not Meet All of the Criteria for Deferred Action for Childhood Arrivals, Should I Still Apply?

I have been getting a number of people who admit that they do not meet one of the criteria for the President's Deferred Action for Childhood Arrivals (DREAMers, or DACA) program.  The question is whether they should go ahead and apply anyway.  This is not always an easy question to answer, and careful consideration should be given to the person's individual situation.

That being said, let's first consider exactly what deferred action is.  Deferred action is a decision by the U.S. Government not to seek the removal or deportation of an alien who otherwise is present in the United States in violation of U.S. immigration law.  That could be because the person entered illegally, or entered on a valid visa and overstayed, or entered on a visa that did not include work authorization, but worked anyway.  Department of Homeland Security regulations, 8 CFR 274a.12(c)(14), permit an alien granted deferred action to apply for employment authorization with a showing of economic necessity.

As an act of executive discretion, the President has broad authority to grant deferred action.  It could, for example, be based on humanitarian grounds.

Through the Deferred Action for Childhood Arrivals program, the President has defined a certain group of individuals to whom he would like to grant deferred action.  They are people who meet the following criteria:

You may request consideration of deferred action for childhood arrivals if you:  

1.      Were under the age of 31 as of June 15, 2012;
2.      Came to the United States before reaching your 16th birthday;
3.      Have continuously resided in the United States since June 15, 2007, up to the present time; 
4.      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;
5.      Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6.      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
7.      Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

(From the USCIS Guidelines).

This does not mean that if you do not meet all of the criteria that you cannot receive deferred action.

Consider the guidance USCIS places on its Frequently Asked Questions page. 

Q9: Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
A9:This process is only for individuals who meet the specific guidelines announced by the Secretary of Homeland Security. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.

(Emphasis added).  USCIS continues:

Q8: How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?
A8: If USCIS determines that you do not satisfy the guidelines or otherwise determines you do not warrant an exercise of prosecutorial discretion, then it will decline to defer action in your case. If you are currently in removal proceedings, have a final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial discretion under the ICE June 2011 Prosecutorial Discretion Memoranda through any of the established channels at ICE, including through a request to the ICE Office of the Public Advocate or to the local Field Office Director. USCIS will not consider requests for review under the ICE June 2011 Prosecutorial Discretion Memoranda.

(Emphasis added).
These two answers appear to indicate that although a person may not meet the technical requirements of the Deferred Action for Childhood Arrivals, USCIS may still consider whether that person should receive deferred action on some other basis.  

The question is why the person does not meet the requirements.  In some instances, the person who asks has come to the United States when they were sixteen.  In other instances, they have not been here five years.  But in all other respects, the person meets the qualifications.

To answer whether a person should apply for deferred action merits some more careful consideration of the specific situation that the person finds themselves in. In one instance, when I applied for a gentleman who was already in removal proceedings, but who did not meet all of the technical requirements, I got a telephone call from USCIS stating that we should apply through these new procedures.  Of course, that particular person had no criminal record, was currently in a U.S. high school and by all accounts is a person of good moral character.  The fact that he is in removal proceedings gave us the incentive to try anything we could.

In this regard, so long as the applicant is aware of the risks, and accepts that paying the filing fee is not a guarantee of receiving the benefit, it may be worth it to try.  The choice should be made, however, after considering all of the circumstances, and discussing the risks and potential benefits with a knowledgeable immigration lawyer.

By:  William J. Kovatch, Jr.
(703) 837-8832