Excerpts from the March 1, 2013, Bender's Immigration Bulletin

Supreme Court: Padilla Did Not Create New Rule: No Retroactive Application to Cases on Collateral Review

On February 20, the Supreme Court announced its decision in Chaidez v. United States. The majority of the Court held that the decision in Padilla v. Kentucky, 559 U.S. 356, is not retroactive for cases that were final when it was decided on March 31, 2010. The Chaidez case involved a woman who pleaded guilty to two counts of mail fraud involving about $26,000, then faced removal proceedings as an aggravated felon. The removal proceedings began in 2009. Before Padilla came down, she brought coram nobis proceedings to have her convictions vacated. She maintained that her attorney had not told her that she would face removal if she pleaded guilty. The trial court agreed with her, but the Seventh Circuit reversed.

Justice Elena Kagan, writing for the majority, said that Padilla had not merely applied the Strickland rule (ineffective assistance of counsel) to a new set of facts. It had decided a new question: whether Strickland even applies to advice about such "collateral consequences" as removability. She described the case law before Padilla as being largely against applying Strickland to collateral consequences. The Padilla court had removed the issue of advice about potential removal from the direct/collateral analysis. Therefore, it had propounded a new rule. So, under Teague v. Lane, Padilla did not apply to Chaidez's case, because the latter case was on collateral review.

Justice Clarence Thomas concurred in the judgment, briefly explaining that whenever the case is or was heard, he disagrees with the Padilla principle that a defense attorney must accurately advise a client when removal is certain if the client pleads guilty. (He and Justice Antonin Scalia had dissented in Padilla.) Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented in Chaidez. Justice Sotomayor would have held that Padilla only applied Strickland to a different set of facts. She described the majority's reasoning as "paradoxical" because it effectively said that "by declining to apply a collateral-consequence doctrine that the Court had never adopted, Padilla announced a new rule." She offered that the real issue to the majority was "a sense that Padilla occasioned a serious disruption in lower court decisional reasoning."

Chaidez and Padilla have been discussed many times in the Bulletin and LexisNexis Matthew Bender's emerging issues analyses: For example, César Cuauhtémoc García Hernández wrote Chaidez v. United States: Does Padilla v. Kentucky Apply Retroactively?, on lexis.com as 2012 Emerging Issues 6357. Further analysis will be available on the Immigration Law Community site, http://www.lexis nexis.com/community/immigration-law/. Also consult §4.01 of Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, and Ronald Y. Wada's renowned treatise, Immigration Law and Procedure.

Iowa, Michigan, and North Carolina to Issue Drivers' Licenses to DACA Grantees

Reversing positions initially taken by state officials, Iowa, Michigan, and North Carolina announced in recent weeks that beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program are eligible to apply for drivers' licenses under state law. The reversals leave Arizona, Nebraska, and Mississippi as the only States to make DACA grantees ineligible for drivers' licenses.

Officials in both Iowa and Michigan attributed the change to an update made to a USCIS website in mid-January confirming that DACA grantees are "authorized by the Department of Homeland Security to be present in the United States and considered to be lawfully present" during the period of deferred action. Prior to the change, state officials reportedly believed that DACA grantees were not lawfully present due to a statement on USCIS website saying that deferred action did not confer "lawful status."

In North Carolina, the reversal followed the issuance of a detailed legal opinion by the state Attorney General's office explaining the difference between lawful "presence" and "status" for purposes of federal immigration laws. 18 Bender's Immigr. Bull. 193 (Feb. 15, 2013). The announcement followed months of confusion in the State. North Carolina had issued-and then rescinded-drivers' licenses to more than a dozen DACA recipients before the Attorney General's opinion was issued.

According to figures released February 15, USCIS had received 423,634 requests under the DACA program and granted deferred action in 199,460 cases.

USCIS Issues Draft Policy Memorandum on EB-5 Adjudications Policy

On February 14, 2013, USCIS issued a draft policy memorandum for comment on the adjudications policy in EB-5 cases. The memo stated that petitioners and applicants must establish each element by a "preponderance of the evidence," a lower standard of proof that "clear and convincing" or "beyond a reasonable doubt." According to the memo:

Even if an adjudicator has some doubt as to the truth, if the petitioner or applicant submits relevant, probative, and credible evidence that leads to the conclusion that the claim is "more likely than not" or "probably" true, the petitioner or applicant has satisfied the standard of proof.

The memo also reviewed the three elements of the EB-5 program-the investment of capital, a new commercial enterprise, and the creation of jobs-and explained them in the context of both the original program and the Immigrant Investor Pilot Program.

Comments on the draft memo must be received by April 1. The twenty-five-page memo can be found on the USCIS website at www.uscis.gov > OUTREACH > Feedback Opportunities > Draft Memoranda for Comment.

DOL Withholding Changes to Some Prevailing Wages for Sheepherders

The Department of Labor announced on February 1 that it is withholding implementation of the 2013 prevailing wages for sheepherding occupations in Arizona, Nevada, Oregon, and Washington, due to pending litigation Pending further notice from the Department, the H-2A prevailing wages are $750 per month in Arizona and Washington, $800 per month in Nevada, and $1,227.67 per month in Oregon.

DOL Corrects Some Prevailing Wages for Livestock Work

The Department of Labor on February 1 announced corrected prevailing wage rates for open range production of livestock occupations in numerous states. Going forward, the H-2A prevailing rate is $875 per month in Idaho, Montana, North Dakota, Oklahoma, South Dakota, Texas (Regions 1-4), and Wyoming.

New Assistant Chief Immigration Judge

The Executive Office for Immigration Review has appointed Abigail M. Price as a new Assistant Chief Immigration Judge with responsibility for developing agency policy concerning vulnerable populations. Most recently, she served as a consultant to Catholic Relief Services in Baltimore and to the International Rescue Committee in New York. Price also previously served as deputy and national legal services director for Kids in Need of Defense (KIND) in Washington, D.C. She holds a bachelor's degree from Wheaton College in Massachusetts and a juris doctorate from Case Western Reserve University in Cleveland.

Filing I-539s in Future: Use ELIS or Paper

U.S. Citizenship and Immigration Services announced that it will disable the alternative legacy online filing channel for Form I-539, Application to Extend/Change Nonimmigrant Status. Going forward, customers must file the form through the Electronic Immigration System (ELIS) or by mailing a paper application to the appropriate location.

Bender's Immigration Bulletin

[This is an excerpt from the March 1, 2013, issue of Bender's Immigration Bulletin.] 

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