How Did We Get Here?

I write this with true sadness, not surprised, but nevertheless still in shock over the Executive Orders President Trump will be issuing this week taking aim at those who would seek to call the United States home.

In the name of safety, the President seeks to, among other things, prevent refugees from resettling in this country, arm local police to raid immigrant populations in the United States, deport individuals arrested (but not necessarily convicted) of “any” crime, and, of course, build a wall.

While not explicit, these measures take direct aim at Muslim and Hispanic populations.

Please contact your senators and representatives, and consider supporting organizations who will be leading the fight against these draconian measures, such as the Immigrant Defense Fund: http://www.immdefense.org/

For more information on immigration and administrative processing please contact our office.

High Court Immigraion Roundup: The Supreme Court Taketh

U.S. v Texas

On June 23, 2016, the eight justices of the Supreme Court failed to break a tie in its consideration of U.S. v Texas, a case addressing the power of the President to grant work authorization and temporary reprieves from deportation to millions of undocumented individuals.  Specifically, President Obama, through his announcement of the DAPA program in late 2014, attempted to confer such benefits on a specific population — namely, individuals that were in the United States unlawfully but nevertheless: (1) had no serious criminal records; (2) were not recent arrivals; and (3) were parents of U.S. citizens or permanent residents.

A federal district judge in Texas previously decided that President Obama was operating beyond the scope of his powers in trying to do just this, and permanently halted the DAPA program from going into effect.  After months of appeals and litigation, the district court opinion reached the High Court.  Today’s decision, while creating no legal precedent because of the 4-4 tie, effectively keeps the DAPA program from being enacted during President Obama’s tenure.

While this result is deeply disappointing to millions of undocumented individuals, and advocates such as myself, the fight is not yet over.  Surely this year’s election, and the resulting selection of a ninth Supreme Court Justice, is now even more important to resolving an issue that affects the lives of so many of our friends and neighbors.

Mathis v. U.S.

While less noteworthy than Texas, the Supreme Court did issue a decision today which will assist non-U.S. citizens in removal proceedings for criminal convictions.  While not breaking any new legal ground, the Court in Mathis reiterated that in both the federal sentencing and the immigration context, judges must focus only on the “elements” of a criminal offense, and not the particular facts of a defendant’s conduct. The Mathis decision runs contrary to the position of the government, which advocated for a rule allowing judges greater leeway to consult underlying criminal paperwork in determining what offense a criminal defendant was convicted of.  The takeaway is that non-U.S. citizens in removal proceedings will have an improved ability to challenge their removal from the United States.

End of Year Round-up: SuperLawyers and More

It has been an exciting 2015 at the Law Offices of Michael Z. Goldman.  We are proud of the efficient and effective assistance provided to our clients seeking employment and family-based visa services.

We are especially proud of our ability to advocate for our clients in the courts when necessary, something that sets us apart from other immigration offices and those involved in administrative processing.

We attach a few examples of our recent successes here (Southern District of New York ordering immigration court to conduct bond hearing) and here (Board of Immigration Appeals reopening final order of removal based on ineffective assistance of previous counsel).

Our office’s growth and successes have resulted in Michael Z. Goldman being named a New York SuperLawyer “Rising Star” for the second year in a row.

We are excited for the opportunity to continue to zealously advocate for our clients in 2016!

The Real World Consequences of the Supreme Court’s Decision in Mellouli v. Lynch

[Note: A version of this essay was featured on crImmigration.com on June 2, 2015.]

In Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), the Supreme Court made absolutely clear that a state drug conviction can only trigger removability if it can be shown by the government that the “controlled substance” at issue is located on the federal — and not just the state — controlled substance schedules.

This is because the Immigration and Nationality Act (“INA”) makes removable only those convicted of offenses “relating to a controlled substance (as defined in section 802 of Title 21)” (i.e., the federal controlled substance schedules). See INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).

In Mellouli, the noncitizen facing deportation had been convicted of a misdemeanor Kansas drug offense (possession of drug paraphernalia) in which the Kansas criminal complaint failed to identify the controlled substance at issue. And notably, the Kansas controlled substance schedule was broader than the federal counterpart, containing nine controlled substances not on the federal list.

Mellouli’s lawyers urged that because of this critical discrepancy the government could not satisfy its burden to demonstrate that the controlled substance at issue was “defined in section 802 of Title 21,” and therefore Mellouli should not be found removable (unfortunately for Mellouli he had already been deported).

Was this discrepancy in the federal and state schedules a “harmless error”? Should paraphernalia offenses be analyzed differently, as previously held by the Board of Immigration Appeals and U.S. Court of Appeals for the Eighth Circuit? Should the government win as long as the state and federal schedules have “substantial overlap”, as urged by the Obama administration lawyers?

To these questions the Court in a 7-2 decision resoundingly said NO. Justice Ginsburg’s majority decision was straightforward (and almost circular) statutory analysis. Because the INA makes reference to controlled substances as “defined in section 802 of Title 21”, “to trigger removal . . . the Government must connect an element of the alien’s conviction to a drug ‘defined in [§802].’” Mellouli, No. 13-1034, slip. op. at 14.

Despite its seeming simplicity, the Mellouli holding will in my opinion have an enormous impact on a great number of non-U.S. citizens facing removal proceedings for drug offense convictions arising in states where the controlled substance schedule at issue is broader than the federal at the time of conviction (e.g., Kansas, Michigan, New York, California).

This is because, as I discussed three years ago, in many misdemeanor state drug cases the government has NEVER identified the controlled substance at issue in judicially noticeable documents such as a criminal complaint, or sentencing minutes (as was the case in Mellouli).

The Supreme Court has now confirmed that in such a situation the government will be out of luck and termination of immigration court proceedings should be immediate. Further examples of this playing out, pre-Mellouli, can be seen here:

  • California: Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-79 (9th Cir. 2007) (terminating case where California schedule listed narcotics not contained on the federal equivalent and record of conviction was inconclusive as to the identity of the narcotic).
  • Connecticut: Matter of Spaulding, 2004 WL 2943545 (BIA Nov. 2, 2004) (reversing Immigration Judge and terminating proceedings where, at time of conviction, two substances were listed in the Connecticut but not the federal controlled substance schedules, and it could not otherwise be determined what substance respondent was convicted of possessing).
  • New York: Matter of Nunez (Immigration Court, New York, N.Y. Sept. 20, 2013) (terminating removal proceedings after finding New York’s scheduled of controlled substances to be broader than the federal equivalent and recognizing that a mere New York “misdemeanor complaint” could not satisfy the government’s evidentiary burden to identify the controlled substance at issue)

Mellouli should have immediate dividends for many already in the removal system with older state controlled substance convictions.

And going forward I don’t believe that state prosecutors will bend over backwards to make their state-level documents ICE/DHS “Mellouli-friendly”. They are too busy. Of course, one of the reasons the paperwork in lower-level state drug offenses is lacking is because of the relentless, churning of poor criminal defendants who cannot afford a defense and who accept plea deals rather than risk years in prison.

The results of this factory-like process are complaints that are not specific, and sentencing and plea minutes (if they do exist) that are rote. This will not change simply because of a Supreme Court decision.

Post-Mellouli immigration practitioners with clients in removal proceedings for controlled substance offenses will come close to committing ineffective assistance of counsel without considering whether the state definition of “controlled substance” is broader than the federal counterpart. And criminal defense attorneys with non-U.S. citizen clients can do their part by working with state prosecutors to ensure that “non-identification” of a controlled substance is part of a plea deal.

H-1B FY2016 Update

On April 13, 2015, USCIS announced that it had received nearly 233,000 cap-subject H-1B Petitions for fiscal year (FY) 2016. This is believed to be the highest number of applications ever.  As a comparison, in the past two years, the U.S. received 172,500 and 124,000 H-1B visa petitions, respectively.

Since there are only 85,000 cap-subject H-1B visas available each year, only approximately 36% of this season’s visa petitions will be approved.

The % of likely success increases for advanced degree applicants, who are given advantages in the H-1B “lottery”, yet is even lower for applicants with only a bachelor’s degree.

USCIS conducted its “lottery” to pick the lucky Petitions on April 13, and will begin notifying Petitioning companies of the good (or bad) news over the next two-month period.

Those accepted applications that have utilized premium processing can expect decisions as early as the first or second week in May, as on April 14 USCIS announced it would begin processing such cases on April 27.

President Obama’s Executive Action

As many of you know, last night President Obama announced that he will seek to reform a number of areas within our country’s immigration system through executive action.  This message will briefly summarize some of the changes.  Please stay tuned for further details as they develop.

Expanded Deferred Action for Parents of USCs and LPRs; Expanded “DACA”:

President Obama’s most far-reaching and controversial decision will protect from deportation parents of US citizens and permanent residents who can demonstrate that they have been present in the United States since January 1, 2010.  These individuals will also receive work authorization.  This could benefit up to an estimated 4.4. million people.

President Obama also announced the expansion of the Deferred Action for Childhood Arrival (“DACA”) program which previously protected and provided work authorization to many who arrived in the United States before they were 16.  Most significantly, the Obama administration is eliminating the “age-cap” which previously limited DACA eligibility to only those born after June 15, 1981.

At this time it appears that the government will begin accepting applications for these programs in the spring of 2015.

Business Immigration Reform:

President Obama has also instructed agencies to amend regulations and reform the manner in which the law is applied in a variety of ways which should benefit foreign-born, highly skilled workers.  Among other things, the Obama administration will seek to expand and lengthen the OPT program for students, provide more green card opportunities for entrepreneurs and those running start-ups, and provide for greater job portability for those forced to wait lengthy periods of time for green cards as a result of visa backlogs.

Enforcement:

The President will direct Immigration & Customs Enforcement to focus primarily on the apprehension and removal of felons, those convicted of multiple and/or “serious” misdemeanors, and recent arrivals. Generally speaking, those present without authorization in the United States without criminal records will “not be priorities for removal.”

************************************************************************************************************

Please do not hesitate to contact my office by phone ((212) 901-3799) or email (michael@mzglaw.com) with any questions about the changes being implemented though President Obama’s executive action and how my office may be able to help.

 

 

Obama’s Move on Immigration

According to the New York Times, President Obama will announce — as soon as next week, but by no later than the end of the year, executive action which, among other things, will protect millions of this country’s undocumented from removal or the burden of much of the administrative processing.

At the same time it can provide such individuals with all important employment authorization documents.

While the precise contours of Obama’s plan are still being negotiated, it appears that the biggest beneficiaries of Obama’s immigration plans will be parents of US citizens and green card holders.

The Times reports of an internal debate within the Obama administration between a 5 or 10 year residency requirement, which will certainly have a big effect on the numbers eligible for this all-important relief. Stay tuned.

The (Almost) Absolute Power of the Government to Detain

One aspect of immigration law that shocks many is the power of the government to detain non-U.S. citizens convicted of certain crimes indefinitely without the opportunity for a bond hearing.  This is commonly described as “mandatory detention“.

Under this policy, Immigration and Customs Enforcement (ICE) routinely takes into its custody both the undocumented, AND permanent residents (“green card holders”) who have been convicted of certain criminal offenses.  This “mandatory detention” can apply even when:

1. The non-U.S. citizen has been a green card holder for many years;

2. The criminal conviction happened years, if not decades, before the new detention by ICE; and

3. The criminal offense is “low-level” (i.e., certain misdemeanors).

And “mandatory detention” allows for almost no discretion: it applies to those who served every day of their criminal sentences, finished probation with clean records, and have stayed out of trouble since.  Indeed, “mandatory detention” is one of the most unforgiving aspects of immigration law, and can separate families for months, if not years, all because of a mistake from the past.

Can Anything be Done to Fight Mandatory Detention?

There are scenarios where mandatory detention can be challenged. As illustrated below, my office has fought for and won bond hearings for those subject to mandatory detention through the filing of lawsuits (“Petitions for Habeas Corpus”) in federal court. Two arguments can be made which have found success:

1. First, a federal court may grant habeas where it can be demonstrated that ICE took an individual into detention months, if not years, after his release from criminal custody.

2. Second, a federal court may grant habeas if the facts demonstrate that the individual never was physically confined (i.e., served time in prison or jail) as a result of the criminal conviction.

Please note the government has appealed my office’s victory in the latter decision to the Court of Appeals for the Second Circuit.  Please stay tuned for further updates in this developing area of immigration law.

Please do not hesitate to contact my office by phone (212) 901-3799) or email (michael@mzglaw.com) with any questions about “mandatory detention” and how my office may be able to help.

***Attorney advertising; Prior results do not guarantee a similar outcome***

 

 

Administrative Processing: What is it, and What Can be done?

Oftentimes an applicant for a visa at an overseas United States consular post will have his application sent for additional review immediately following the visa interview. This process is known as, administrative processing.

Unfortunately for the visa applicant and his family, the reason for this additional processing is never made clear. It is also often unclear how long

People also often ask how long the administrative processing will take. this is difficult because the timetable for completion of the processing is never known in advance.

The US Administrative Process: What is Really Happening?

It is impossible to know why “administrative processing” is occurring.

Oftentimes during this period, the Department of Homeland Security or FBI will conduct further background checks on an individual or, the consulate will consult Department of State attorneys concerning particular aspects of a case.

US Administrative Processing: How Long Does it Take?

The DOS Administrative Processing web page informs us that, “most administrative processing is resolved within 60 days of the visa interview.”

Unfortunately, many individuals experience months, if not years, of “administrative processing”, with no explanation provided at all.

Although there is no definitive data on this subject, anecdotal evidence reveals the longest delays occurring at posts in the Middle East and Asia.

Can Anything be Done to Speed up the Administrative Processing Timeline?

Depending on the facts, yes.

My office has had success fighting the Department of State in federal court through the filing of what is called a mandamus lawsuit.

In this situation, we are asking that a court enter an order demanding that the overseas consulate make a judgment on a particular visa application.

Examples of our recent victories, each resulting in completing an administrative processing and the granting of a visa:

I have found that once such a lawsuit is filed, a decision on the visa is almost always processed quickly.

For families facing delays overseas, a mandamus lawsuit is one option to consider.

US Visa Administrative Processing

Please do not hesitate to contact my office by phone ((212) 901-3799) or email (michael@mzglaw.com) with any questions about administrative processing and how my office may be able to help.

***Attorney advertising; Prior results do not guarantee a similar outcome***

 

“Groundbreaking” Victory in Immigration Court

On September 20, 2013, we received a significant decision issued by New York Immigration Judge Alice Segal terminating removal proceedings against a long-time Permanent Resident of the United States.This decision, which you can read

This decision, which you can read here, has been described as “groundbreaking” by prominent attorney and blogger Matthew Kolken.

The decision is noteworthy because it is likely the first written decision of any court recognizing that New York’s schedule of controlled substances (i.e., drugs) is broader than the federal counterpart.

As seen in Judge Segal’s decision, this simple fact can have a tremendous impact on the case of any non-U.S. citizen currently in removal proceedings as a result of a New York controlled substance conviction.

As seen in Judge Segal’s decision, this simple fact can have a tremendous impact on the case of any non-U.S. citizen currently in removal proceedings as a result of a New York controlled substance conviction.