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Immigration Law

News Excerpts From the May 1, 2015, Bender’s Immigration Bulletin

H-2B Applications and Prevailing Wage Requests Continue Through May 15; USCIS Resumes Premium Processing |

On April 15, 2015, the federal district court for the Northern District of Florida issued a further order in Perez v. Perez, No 3:14-cv-682 (N.D. Fla., March 4, 2015) permitting the DOL to continue its processing of H-2B applications and requests for prevailing wages through May 15, 2015 unless otherwise lifted by the court. DOL and the Department of Homeland Security (DHS) are working to publish interim regulations.

USCIS announced that it will resume accepting premium processing requests for Form I-129 H-2B petitions as of April 20, 2015. USCIS had temporarily suspended premium processing for all H-2B petitions on March 9, 2015. Employers may file Form I-907, Request for Premium Processing together with Form I-129, or they may separately request premium processing service for a previously filed H-2B petition.

Attorney General Holder Vacates Matter of Silva-Trevino

On April 10, 2014, Attorney General Eric Holder vacated Matter of Silva-Trevino, 24 I. & N. Dec. 687 (Att’y Gen. 2008). 26 I. & N. 550 (Att’y Gen. 2015). This controversial decision authorized immigration judges to consider evidence outside the record of conviction in determining whether a noncitizen had committed a “crime involving moral turpitude.”

Five circuit courts had rejected Matter of Silva-Trevino, in recent years, holding that immigration judges are required to apply the categorical approach and determine whether a crime involved moral turpitude solely by looking to the elements of the offense and a limited range of conviction records. Silva-Trevino v. Holder, 742 F.3d 197, 200-06 (5th Cir. 2014) [enhanced opinion available to subscribers]; Olivas-Motta v. Holder, 746 F.3d 907, 911-16 (9th Cir. 2013) [enhanced opinion]; Prudencio v. Holder, 669 F.3d 472, 480-84 (4th Cir. 2012) [enhanced opinion]; Fajardo v. U.S. Att'y Gen., 659 F.3d 1303, 1307-11 (11th Cir. 2011) [enhanced opinion]; Jean-Louis v. Att'y Gen., 582 F.3d 462, 472-82 (3d Cir. 2009) [enhanced opinion].

Attorney General Holder noted that both these rulings and recent Supreme Court decisions cast doubt on the validity of allowing immigration judges to look beyond the record of conviction in determining whether a crime involved moral turpitude. Complete vacatur is necessary to “enable the Board to develop a uniform standard for the proper construction and application of section 212(a)(2) of the Act and similar provisions in light of all relevant precedents and arguments.”

Issues Holder anticipates the Board to address are: (1) How adjudicators might determine whether a particular criminal offense is a crime involving moral turpitude under the Act; (2) When, and to what extent, adjudicators might use a modified categorical approach and consider a record of conviction; and (3) Whether an alien who seeks a favorable exercise of discretion under the Act after having engaged in criminal acts constituting the sexual abuse of a minor should be required to make a heightened evidentiary showing of hardship or other factors warranting a favorable exercise of discretion.

Matter of Silva-Trevino was issued by Attorney General Michael Mukasey three days after the 2008 presidential elections. Attorney General Holder’s decision vacating Matter of Silva-Trevino is summarized below in the Case Digest, BIA Decisions.

Immigration Judges to Affirmatively Inquire About Prosecutorial Discretion

On April 6, 2015, the Chief Immigration Judge Brian O’Leary issued a memorandum instructing immigration judges to affirmatively ask government attorneys whether the Department of Homeland Security considers the respondent a removal priority and intends to favorably exercise prosecutorial discretion.

The memorandum, Operating Policies and Procedures Memorandum 15-01, is reprinted at Appendix A.

Labor Department Announces Initiative to Reduce Wage and Hour Violations

On April 9, 2015, the Labor Department announced the commencement of an educational and enforcement initiative to reduce the number of wage and hour violations on Oklahoma farms that employ noncitizens workers.

The department made the announcement after a three-year investigation uncovered extensive violations of wage and hour laws on Oklahoma farms. The department stated that initial enforcement efforts will focus on watermelon growers.

Immigration Judges in Miami to Hear Cases of Detained Families in Texas

On Apr. 14, 2015, the Executive Office for Immigration Review (EOIR) announced that immigration judges at the Miami immigration court will hear all future cases involving noncitizens detained at the family detention center in Dilley, Texas.

Cases involving Dilley detainees were previously heard by immigration judges in Denver, who began hearing such cases when the government began operating the now-closed family detention center in Artesia, N.M.

The hearings will be conducted by video-teleconference.

Bender's Immigration Bulletin

[This is an excerpt from the May 1, 2015, issue of Bender's Immigration Bulletin.]

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