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Immigration Law

Excerpts From the Jan. 1, 2013 Bender's Immigration Bulletin

USCIS Issues Policy Memo on International Filings

On November 30, 2012, USCIS issued a final policy memorandum outlining the circumstances in which applicants may file Form I-601 (Application for Waiver of Grounds of Inadmissibility) and any associated Form I-212 (Application for Permission to Reapply for Admission into the United States After Deportation or Removal) at an international field office.

In foreign countries where a USCIS office is located, applicants may file Forms I-601 and I-212 if they demonstrate to the satisfaction of the Field Office Director the existence of "exceptional and compelling" circumstances that cannot be addressed by expedited processing at the Nebraska Service Center. According to the memo, such circumstances include, but are not limited to, medical emergencies, threats to the personal safety of the applicant or qualifying family member, potential aging out of visa eligibility, and the adoption of a child with an imminent need to leave the country.

The exceptions do not apply to applicants in countries with no USCIS field office, who must file Form I-601 and any associated Form I-212 at a domestic USCIS lockbox. Because no direct mail service exists between Cuba and the United States, applicants in Cuba may continue to file such forms with the USCIS field office in Havana. The memorandum is reprinted at Appendix B.

USCIS Issues Interim Memo Providing Age-Out Protection for Derivative U Status Holders

On December 12, 2012, USCIS issued an interim policy memorandum relating to derivative holders of U nonimmigrant status, which is available to noncitizens who cooperate in the investigation or prosecution of criminal activity.

Under existing law, persons must be continuously present in the United States for at least three years in U status to adjust to lawful permanent resident status under INA §245(m). However, because USCIS does not accord U status beyond a derivative child's twenty-first birthday, derivatives who turn twenty-one not only lose lawful status but may lack the requisite physical presence necessary to later apply for adjustment. USCIS is currently engaging in rulemaking to amend its regulations to protect derivative U status holders from aging out.

In the meantime, USCIS will grant deferred action on a case-by-case basis to derivative U status holders after they turn twenty-one, allowing them to obtain EADs. Going forward, USCIS will also grant derivative children four years of U status regardless of whether they will turn twenty-one during the four-year period. Finally, for derivative U-status holders who aged out of derivative eligibility prior to implementation of the memo, USCIS will consider the failure to maintain U status beyond the control of the derivative, and will grant extensions of status equal to the remaining period in U status allowed by statute.

The interim memo, effective until further notice, is reprinted at Appendix C. Comments will be accepted until January 10, 2013.

EOIR Names New Deputy Director, General Counsel

In December, the Executive Office for Immigration Review named long-serving agency employees as the new Deputy Director and General Counsel.

Ana Kocur, the incoming Deputy Director, had served since September 2011 as EOIR's Chief of Staff. Prior to that, she served as acting chief administrative hearing officer and counsel to the director at EOIR, as a senior panel attorney at the Board of Immigration Appeals (BIA), and as an attorney-advisor at the BIA. She also briefly served on detail with the Office of Immigration Litigation (OIL) in the Department of Justice.

Jeff Rosenblum, the incoming General Counsel, previously served as a supervisory attorney in EOIR's Office of the General Counsel. Before that, he served as an assistant general counsel for the Executive Office for U.S. Attorneys in the Department of Justice, and as an attorney for the U.S. Department of Labor. Rosenblum replaces Jean King, who had served as acting General Counsel since June 2012.

Federal Judge Orders Release of Documents on Access to Counsel During USCIS Interviews

In November, a U.S. District Judge for the District of Columbia ordered USCIS to disclose a series of documents relating to the ability of private attorneys to be present and participate during client interactions with agency employees. The order, issued by District Judge James Boasberg, came in litigation brought by the American Immigration Council following a request filed under the Freedom of Information Act (American Immigration Council v. United States Department of Homeland Security, Civil Action No. 11-1971). Judge Boasberg found that USCIS failed to adequately describe its search for requested documents and improperly invoked numerous FOIA exemptions in withholding relevant documents. Among other items ordered to be disclosed was a Powerpoint presentation training USCIS employees on how to interact with private attorneys.

                                      California Attorney General Issues Guidance on Immigration Detainers

On December 4, 2012, California Attorney General Kamala Harris issued guidance to state and local law enforcement agencies clarifying that immigration "detainers" filed by the Department of Homeland Security are requests, not commands, and may be honored at the discretion of the receiving agency.

An immigration detainer (Form I-247) is a document notifying state and local law enforcement agencies that DHS may assume custody of an arrestee, and requesting that the agency hold the subject of the detainer for an additional forty-eight business hours after he or she would otherwise be entitled to release. Although immigration detainers have been issued for decades, their use has become especially common following the expansion of the Secure Communities program, which gives DHS officials access to the fingerprints of all persons arrested by state and local law enforcement agencies.

Harris issued the guidance after receiving requests from law enforcement officials seeking clarification on whether they must honor immigration detainers. Harris explained that if immigration detainers were mandatory, forced compliance would represent the type of "commandeering" of state resources forbidden by the Supreme Court in Printz v. United States, 521 U.S. 898 (1997). Harris further noted that, unlike criminal warrants, immigration detainers may be issued without judicial approval or satisfying traditional evidentiary standards required under the Constitution.

Lawsuit Filed Against Montana Identification Law

On December 7, 2012, a Montana immigrants' rights group filed suit in Montana state court seeking an injunction against LR-121, a recently enacted ballot initiative requiring individuals to provide proof of citizenship or lawful immigration status to obtain certain state services. The measure applies to individuals seeking employment with state agencies, enrollment in state colleges and universities, the issuance of a professional license or permit, unemployment benefits, or crime victim assistance, among other services. It passed in November with 80% of the vote.

The lawsuit, which was filed in Montana's First Judicial District Court, alleges that LR-121 is preempted by federal immigration laws and violates due process, equal protection, and the right to privacy under the Montana Constitution. The case is Montana Immigrant Justice Alliance, et al. v. Schweitzer, 2012-0142.

New York Makes Unlicensed Practice of Law a Felony

On December 12, 2012, Governor Andrew Cuomo law signed into law a bill (A5700/S1998) making the unlicensed practice of law a felony in New York state. The unlicensed practice of law is currently a misdemeanor punishable by up to one year in jail. Under the new law, which was developed in connection with the New York State Bar Association, the offense will be a Class E felony punishable by up to four years in prison.

The bill's supporters said that it would make penalties for the unlicensed practice of law more consistent with those in other licensed professions, including physicians, dentists, pharmacists, and certified public accountants. The bill will take effect November 1, 2013.

IRS Changes ITIN Process

The Internal Revenue Service has finalized and made further changes to the process by which individuals may obtain an Individual Taxpayer Identification Number, a substitute for persons not eligible to obtain Social Security numbers. Going forward, all ITINs will expire after five years, after which recipients will have to re-apply. Original rather than notarized copies of documents are still required when applying for an ITIN, although the authenticity of original documents may be confirmed by a Certifying Acceptance Agent or at certain IRS Taxpayer Assistance Centers. Participants in the Student and Exchange Visitor Program should continue to follow separate IRS guidance issued on October 2, 2012. The changes are effective for the 2013 tax-filing season.

IACHR Seeks Suspension of Deportations to Haiti

In November, the Inter-American Commission on Human Rights called on U.S. immigration officials to suspend deportations to Haiti in cases involving noncitizens with serious illnesses or family members in the United States. The statement came after the completion of IACHR's most recent session, when commissioners heard reports that Haitian deportees still lacked access to basic medical care due to the earthquake that struck the country in January 2010. In 2011, after ICE resumed deportations to Haiti, the agency announced that it would take medical and other humanitarian concerns into account in determining whether to carry out final orders of removal.


Bender's Immigration Bulletin

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

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