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Immigration Law

News Excerpts From the April 15, 2014, Bender’s Immigration Bulletin

USCIS Clarifies “Reason to Believe” Standard for I-601A Provisional Waivers |

On March 18, 2014, USCIS sent an e-mail to stakeholders seeking to cure confusion surrounding the regulation that prohibits the granting of provisional waivers to noncitizens who the agency has “reason to believe” are subject to grounds of inadmissibility other than lawful presence. According to USCIS, it will not find a reason to believe a prior criminal offense triggers a ground of inadmissibility if the offense was not a crime involving moral turpitude or if it falls under the petty-offense or youthful-offender exception. USCIS further stated that it would reopen all cases involving provisional waivers that were denied before January 24, 2014, solely due to a prior criminal conviction. The agency stated that it would notify applicants and their legal representatives within sixty days.

ICE Admits Immigration Detainers Are Not Mandatory

On February 25, 2014, ICE confirmed in a letter to numerous members of Congress that immigration “detainers” are not binding upon state and local law enforcement agencies. Federal immigration authorities frequently issue detainers upon learning of people in state or local custody who may be subject to removal from the United States. Also known as “ICE holds,” detainers ask the agency to maintain custody of inmates for up to forty-eight additional non-weekend, non-holiday hours to allow federal agents to assume custody. The letter, signed by ICE Acting Director Daniel H. Ragsdale, was issued one week before the U.S. Court of Appeals for the Third Circuit ruled that requiring state and local law enforcement agencies to comply with immigration detainers would violate the anti-commandeering principle in the Tenth Amendment. Galarza v. Szalczyk, No. 12-3991 (3d Cir. March 4, 2014). The letter is reprinted at Appendix A.

Claims Forms Released for ABT Settlement

On March 13, 2014, USCIS and EOIR released a claim form for individuals believing they were wrongly denied relief under the asylum-clock related settlement in ABT v. USCIS., 11-cv-02108 (W.D. Wash.). EOIR will review claims involving the failure of immigration court clerks to stamp and return a copy of an asylum application as “lodged not filed.” USCIS will review claims involving the agency’s denial of an application for an employment authorization document due to its failure to recognize the lodging date or the time between an initial denial of an asylum application and a remand from the BIA. USCIS will also review claims that it failed to provide required information to applicants who missed their asylum interviews. The claims forms are reprinted at Appendix B.

Federal Court Gives Preliminary Approval to Duran-Gonzales Settlement

On March 21, 2014, a federal judge gave preliminary approval to a settlement agreement in the long-running class action Duran-Gonzalez v. DHS, 06-1411 (W.D. Wash.). Initially filed in 2006, the suit challenged the Department’s refusal to follow Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), which held that noncitizens who had previously been removed can adjust status under INA §245(i) with an approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. After thousands of noncitizens submitted adjustment applications in reliance on the ruling, the Ninth Circuit overturned its decision in deference to the ruling in Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006).

Under the settlement, DHS denies all wrongdoing, but will allow class members to submit motions to reopen their cases. The class consists of noncitizens who would be eligible to adjust status under §245(i) but for the permanent unlawful-presence bar in INA §212(a)(9)(C)(i)(II); who properly filed a Form I-212 and Form I-485 between August 13, 2004, and November 30, 2007; who have not entered the country without admission since November 30, 2007; and who are not currently in removal proceedings. Preliminary settlement papers are reprinted at Appendix C.

GAO Issues Report on OPT Program

On March 7, 2014, the U.S. Government Accountability Office issued a report recommending that ICE implement safeguards to better monitor risks associated with the Optional Practical Training program for foreign F-1 and M-1 students. Among other recommendations, the GAO suggested that the Student and Exchange Visitor Program require students to report to Designated School Officers before and after completion of their OPT periods, and that DSOs record employer information in the Student and Exchange Visitor Information System. ICE concurred with all of the GAO recommendations. GAO issued the report in response to a request from Senator Charles Grassley (R-Iowa).

President Obama Signs Third Executive Order on Ukraine

On March 20, 2014, President Obama issued the third executive order prohibiting the entry into the United States of individuals who have undermined or threatened the stability of Ukraine. The most recent executive order expands the scope of two prior orders by blocking the property and entry into the United States of individuals involved in the financial services, energy, engineering, and defense sectors of Russia's economy. The entry restrictions were issued under INA §212(f), which authorizes the President to suspend the entry of foreign nationals whose presence would be “detrimental to the interests of the United States.” The order was published at 79 Fed. Reg. 16,169 (Mar. 24, 2014), and is reprinted in Appendix D.

VAWA Advocates Seek Publication of Nonprecedent BIA Decisions

On March 17, 2014, advocates for survivors of domestic violence asked the BIA to publish a series of unpublished decisions involving claims for relief under the Violence Against Women Act. The unpublished decisions in question, which were issued between 2006 and January 2014, involve a range of VAWA-related subjects, including the meaning of “battered” and “extreme cruelty” and the exception to the one-year deadline for filing VAWA-related motions to reopen. Given the dearth of VAWA-related precedent decisions, the letter stated that publication of the decisions would provide a framework for immigration judges.

USCIS Begins Phasing in Processing Changes for I-730

USCIS announced changes to its processing of Form I-730 (Refugee/Asylee Relative Petition), to be phased in beginning April 1. The first phase involves cases with beneficiaries in China. For more information, visit

Bender's Immigration Bulletin

[This is an excerpt from the April 15, 2014, issue of Bender's Immigration Bulletin.]

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