Immigration Law

News Excerpts From the Oct. 15, 2015, Bender’s Immigration Bulletin

Administration Faces Criticism, Lawsuit After Revising October Visa Bulletin |

The Department of State and Department of Homeland Security faced extensive criticism and a federal lawsuit after revising the October visa bulletin less than a week before it was expected to take effect. The revised visa bulletin, which was issued on September 25, 2015, amended the dates in numerous categories on which USCIS would accept adjustment applications. The revisions operated to the determinant of thousands of noncitizens who had already spent significant sums of money in preparation for the submission of their applications. On September 30, 2015, attorneys filed a class action and sought a temporary restraining order requiring the State Department to honor the original October visa bulletin issued earlier in the month. The case is Mehta v. Department of State, No. 15-cv-1543 (W.D. Wash.). Rep. Zoe Lofgren (D-Calif.), whose district includes Silicon Valley, said via Twitter that the revisions to the visa bulletin were “confounding and unacceptable.”

Attorneys Demand Changes to New J Visa Waiver Form

On September 29, 2015, attorneys Bruce Hake and Brian Schmitt sent a letter to top officials at the Department of Homeland Security demanding changes to the new Form I-612, Application for Waiver of the Foreign Residence Requirement, by January 1, 2016, or they will file a lawsuit. According to the letter, the new form, which must be used beginning September 24, 2015, unconstitutionally interferes with the attorney-client relationship and was issued without notice and comment in violation of the Administrative Procedure Act. Form I-612 is used by noncitizens in J status seeking a waiver of the two-year home residency requirement on account of extreme hardship or persecution. The letter is reprinted at Appendix A.

BIA Solicits Amicus Briefs on ‘Ordinary Case’ Test for Crimes of Violence

On September 28, 2015, the BIA issued a public request for amicus briefs addressing what if any effect the Supreme Court’s recent decision in Johnson v. United States, 192 L. Ed. 2d 569 (2015) [enhanced opinion available to lexis.com subscribers | Lexis Advance], has on Matter of Francisco-Alonzo, 26 I. & N. Dec. 594 (BIA 2015). The deadline to submit amicus briefs is October 28, 2015. The invitation is reprinted at Appendix B.

In Matter of Franco-Alonzo, the Board held that the proper inquiry in determining whether an offense is a crime of violence under 18 U.S.C. §16(b) is whether it presents a substantial risk in the “ordinary case” that physical force will be used in the course of committing the offense. In Johnson, the Supreme Court struck down as unconstitutionally vague a similarly worded federal sentencing law, which required courts to consider whether a prior offense presented a “serious potential risk of physical injury to another” in the “ordinary case.” Following the Supreme Court’s decision in Johnson, many advocates have argued that 18 U.S.C. §16(b) is also unconstitutionally vague under the Due Process Clause.

Settlement Allows Noncitizens with Mental Disabilities To Reopen Cases

On September 25, 2015, a federal judge in Los Angeles granted final approval to a class-action settlement allowing noncitizens with mental disabilities to seek to reopen their cases and return to the United States after being forced to represent themselves in immigration court. Under the terms of the settlement, noncitizens with mental disabilities who were detained in Arizona, California, and Washington after November 21, 2011, may apply to have their cases reopened if they were deported after a hearing at which they lacked legal representation and were not subject to a competency determination. The government will assist the return of individuals whose motions are granted. The settlement was approved by U.S. District Court Judge Dolly M. Gee. The case is Franco v. Holder, No. 10-cv-2211 (C.D. Cal.).

Navy Joins MAVNI Program

The U.S. Navy recently announced that it will participate in the Military Accessions Vital to the National Interest program during the 2016 fiscal year and is seeking to recruit sixty-five sailors to participate in the program. The MAVNI program allows certain noncitizens with nonimmigrant or other temporary status to join the military and be placed on a fast track to U.S. citizenship. The Navy MAVNI program is open to asylees, refugees, noncitizens with Temporary Protected Status, and noncitizens with E, F, H, I, J, K, L, M, 0, P, Q, R, S, T, TC, TD, TN, U, or V status.

The Navy is seeking to recruit sailors who speak Korean or Levantine Arabic; who are of Iraqi background and speak Arabic of Farsi; who are of Pakistani background and speak Pashtu, Urdu, or Punjabi; and who are of Kenyan background and speak Swahili.

USCIS Publishes Revised International Office Pages

USCIS announced on September 28, 2015, that it had published revised versions of twenty-five international office pages on its website, www.USCIS.gov, in response to a customer satisfaction survey.

Enhanced SAVE CaseCheck System

USCIS announced on September 17, 2015, that it had enhanced the SAVE CaseCheck system to allow noncitizens applying for federal, state, or local benefits to track the status of resulting verification requests simply by entering their dates of birth and the serial numbers of various immigration documents.

Refugee Numbers Announced

On September 29, 2015, the White House announced that President Obama authorized the admission of up to 85,000 refugees for fiscal year 2016. The administration is reserving 34,000 admissions for refugees from the Near East and South Asia, 25,000 admissions for refugees from Africa, and 13,000 admissions for refugees from East Asia. Only 3,000 admissions were reserved for refugees from Latin America and the Caribbean.

Bender's Immigration Bulletin

[This is an excerpt from the Oct. 15, 2015, issue of Bender's Immigration Bulletin.]

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