John Valdez’s Legal Blog

The United States Court of Appeals for the Ninth Circuit, in an unpublished decision, gave a broad interpretation to the phrase “exceptional circumstances” in the context of a motion to reopen a removal proceeding. 

In Vu v. Mukasey, the Court ruled that the Board of Immigration Appeals abused its discretion in finding that Nang Duc Vu’s motion to reconsider did not establish exceptional circumstances to excuse his failure to appear at his removal hearing (which resulted in an in absentia deportation order).  Vu argued that his failure to appear was due to his misunderstanding of the date for the hearing.  He also had available relief from removal based on an approved immediate relative petition.  The Ninth Circuit agreed with Vu, noting the available relief and stating that Vu “diligently appeared for all of his previous hearings” and “could have easily misunderstood the [date] of the [missed] hearing.” 

I find the Ninth Circuit’s ruling remarkable for its compassion.  Many courts need to find that someone was incapacitated by an accident before finding exceptional circumstances.  The Ninth Circuit not only looked at a common problem (a communication issue) as a reasonable explanation for missing a hearing, it also looked at the harshness of an in absentia order of deportation when relief is available.

Although the Vu case is not precedent, it does provide practitioners with hope for our clients who have been unfairly ordered deported in absentia.    

As an immigration attorney, I really enjoy helping Canadians come to the United States.  One reason I like helping Canadians is that they are our good neighbors to the North, and it is certainly good manners to help one’s neighbors.  Another reason is that there are more options to work with when processing cases for Canadians.

One important immigration advantage for Canadians is that generally Canadian citizens are not required to obtain nonimmigrant visas (one exception to this rule is E applicants, who must obtain a visa).  For example, if a Canadian citizen obtains an approved H-1B petition, that person may simply apply at the U.S. port of entry for admission in H-1B classification.  There is no wait for a visa appointment, no nonimmigrant visa fee, and no stressful interview with a Department of State official.  People from other countries must obtain a visa before entering the U.S. in H-1B classification.

Canadian citizens coming to the U.S. often have some nice procedural benefits not afforded to citizens of other countries.  Both business visitors and visitors for pleasure, if Canadian citizens, may simply apply at the Canadian border for permission to enter the U.S.  No visa or petition is required for these guests.  Of course, Canadian citizens must still convince port of entry inspectors of their legitimate purpose for traveling on business or pleasure.  Because visitor rules can be complex, it may be helpful to obtain an attorney’s services to prepare proper documentation for a request for admission.    

One of the most advantagous parts of NAFTA for Canadian citizens relating to travel to the U.S.  is the section governing the TN category.  The TN category helps facilitate the admission of Canadian citizens seeking to perform nonimmigrant work in the U.S. as professionals.  (There is also a TN for Mexican citizens, but this program is more complex, and its procedures are more difficult to navigate).  While intending nonimmigrant professionals from around the world must compete for a very limited number of available H-1B visas, Canadian professionals have no cap under the TN category.  Eligible professional categories for TN status are numerous and include:  

• Accountants;
• Architects;
• Computer System Analysts;
• Engineers;
• Hotel Managers;
• Lawyers;
• Dentists;
• Registered Nurse;
• Scientist; and
• College or University Teachers.

To obtain TN classification, the applicant may take supporting documents to a Class A U.S. Port of Entry.  The applicant can skip the visa process and does not need to submit a petition to the USCIS (unless the person is changing status or extending TN status in the U.S.).   TN status is currently limited to a one-year period with unlimited extensions allowed, assuming the applicant maintains a nonimmigrant intent and continues to satisfy the requirements for the TN occupation.  Family members are granted TD classification. 

As I mentioned in a previous blog, the USCIS has released a proposed regulation that, if implemented, will extend initial TN status to three years.  The regulation would also permit TN extensions for a three year period.

Although Canadian citizens have more options and, sometimes, fewer huddles when seeking admission to the U.S., they still must take care to meet applicable requirements.  I would be glad to advise you if you need assistance with your immigration matter.

Now is definitely the right time for businesses to review their employment practices for compliance with immigration rules.  The Bush administration is bent on putting the immigration problem on the backs of employers through fines and prosecutions; hence, employers should take precautionary steps to make sure they do not become a target or victim of the stepped up enforcement efforts of the Federal government.

That the government is stepping up enforcement efforts is not debatable.  According to the Transactional Records Access Clearinghouse (TRAC), the number of federal prosecutions for immigration offenses accounted for 58% of all prosecutions for April, 2008.  There were more than three times more prosecutions for immigration cases than for drug offenses.  Moreover, immigration raids have spread to almost all industries, from meat and poultry processing plants, to hotels, to farms, to construction sites, to courthouses, to, most recently, fast food chains.   

ICE recently announced that a McDonald’s Corporation (franchisee) pleaded guilty to crimes related to illegally employing immigrants.  The corporation agreed to pay $1 million in fines.

One way a company can protect itself against liability is to review its I-9 employment verification practices.  Although the Form I-9 looks simple, many employers have trouble understanding the accompanying directions to the forms, decifering the documents that may be used to satisfy the verification rules, learning about the necessary follow-up and retention rules, and appreciating the potential liability involved with the process. 

Smith & Garg immigration attorneys are trained to help employers manage their employment practices to effectively maintain compliance with immigration rules.  If your company needs assistance, please contact us.   

A California Court hit the government where it really hurts, the pocketbook, when it ruled that the USCIS was unreasonable in delaying adjustment of status applications for four years due to pending FBI security checks.  On July 2, 2008, the Court in Shirmohamadali v. Heinauer, No. Civil S-07-1073 DAD (U.S. District Court for the Eastern District of California) ruled that the plaintiff immigrants were not only entitled to adjustment of status, they were also entitled to $25,626.40 in attorneys fees and $936.66 in costs as prevailing parties.

For a long time now, the courts have been ruling that the USCIS cannot simply put off deciding applications for adjustment of status for years simply because security checks are sitting in file cabinets with no one working on them.  Yet, the government has continually brought the same arguments in defending law suits:  That they cannot be forced to adjudicate the applications and that the wait is reasonable.   See my prior blog on these cases. 

Well, it appears that the Courts are finally getting tired of the government’s losing arguments.  After examining the USCIS’ arguments and litigation actions, the Shirmohamadali Court found that the Agency’s “conduct did not have a reasonable basis in fact or in law, and the government’s litigation position was not justified to a degree that could satisfy a reasonable person.”    

I, for one, am glad that the courts can still help achieve some measure of justice for immigrants.   

The U.S. Consulate in Ciudad Juarez  (”the Consulate”) has changed its policy in a way that will prevent many young people from coming to the United States.  Indeed, the Consulate, the largest and busiest immigrant visa post in the world, will now apply a permanent bar to U.S. admission (refered to as “the Permanent Bar”) to all minors who:

• Previously accrued unlawful presence in the U.S. in the aggregate of more than one year;
• Who later entered the U.S. without inspection; or
• Attempted to enter the U.S. without inspection.

The term ”unlawful presence” is defined as being present in the U.S. after the expiration of the period of authorized stay or present in the U.S. without being admitted or paroled.  Unlawful presence will begin to accrue if a person unlawfully enters the U.S. without documentation, remains in the U.S. after the expiration of the person’s Form I-94, or remains in the U.S. after the government issues a decision noting the person is out of status.  

In adopting its new policy regarding minors, the Consulate had to deal with some confusing statutes that deal with the Permanent Bar, mentioned above, and the Three and Ten Year Bars.  The Three and Ten Year Bars work as follows:

1. Three Year Bar: If a person is unlawfully present in the United States for more than 180 days but less than 1 year, that person is barred from reentering the U.S. for 3 years; and
2. Ten Year Bar: If a person is unlawfully present in the United States for 1 year or more, that person is barred from reentering the U.S. for 10 years.

 There is an exception to the Three and Ten Year Bars for minors.  The applicable statute provides:  “No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States . . . .”  INA Section 212(a)(9)(B)(iii)(I). 

 Until recently, the Consulate applied this exception for minors not only to the Three and Ten Year Bar statute, but also to the Permanent Bar statute.  Unfortunately, the Permanent Bar statute contains no specific language granting minors an exception to the rule, which has led to confusion over the rule. 

The Consulate’s changed policy is truely unfortunate.  The former INS (now called the United States Citizenship and Immigration Services) had previously issued policy guidance in 1997 stating that the exception for minors did not apply to the Permanent Bar statute, but the Consulate exercised its own authority to apply the exception over the years until recently.

It is really ashame that the Permanent Bar statute will be applied in a manner that severly penalizes children.  Children have little choice but to follow the directions of their parents; thus, it is a very harsh law that imposes a permanent bar to U.S. admission based on actions children cannot avoid taking. 

The immigration attorneys at Smith & Garg advocate for the rights of immigrants.  If you or someone you know needs immigration assistance, please contact us.