Court Says Otherwise Eligible TPS Recipients Can Adjust Following an Unauthorized Entry

Last Friday, the Ninth Circuit Court of Appeals issued a precedent decision that will open the door for undocumented immigrants with Temporary Protected Status (TPS) to apply for adjustment of status. Specifically, the court held that a grant of TPS constitutes an admission for purposes of adjustment of status under INA § 245(a).

The plaintiff in Ramirez v. Brown entered the United States without inspection in 1999, obtained TPS in 2001—which he has continuously maintained ever since—and married a U.S. citizen in 2012. His wife’s I-130 petition was approved, and he applied for adjustment of status. USCIS denied his adjustment application, alleging that he was not “admitted or paroled” as required by INA 245(a). He filed suit in district court, and following a decision in his favor, the government appealed. The Ninth Circuit sustained the district court’s favorable decision.

In particular, the Ninth Circuit considered INA § 244(f)(4), which specifies that “for purposes of adjustment of status under [INA § 245(a), the noncitizen] shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”  Applying traditional tools of statutory interpretation, the Court held that this language “unambiguously treats [noncitizens] with TPS as being ‘admitted’ for purposes of adjusting status.” In so holding, the Court agreed with an earlier decision of the Sixth Circuit, Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013), and rejected the opposite holding in Serrano v. U.S. Attorney Gen., 655 F.3d 1260 (11th Cir. 2011) (per curiam).

AIC

Si usted tiene TPS y una Visa Disponible, puede ajustar su estatus migratorio a Residente Permanente.

El 31 de marzo de 2017 el Tribunal de Apelaciones de los Estados Unidos para el Noveno Circuito publicó una nueva opinión publicada en Ramírez v. USCIS. Se dictaminó que un extranjero que tiene TPS se considera que está en situación legal como no inmigrante y ha satisfecho así los requisitos para convertirse en un no inmigrante, incluyendo la inspección y la admisión – con el propósito de ajustar su estatus. Eso significa que si usted tiene TPS y una visa de familiar inmediata está disponible; (Por ejemplo: usted tiene un cónyuge o un niño mayor de 21 años de edad que es un ciudadano de los Estados Unidos) si ese niño o cónyuge solicita por usted ahora es capaz de ajustar su estatus a residente legal permanente en los Estados Unidos sin Tener que salir del país. Comuníquese con el Grupo Legal Mira si cree que puede ser elegible o si tiene más preguntas.

Mira Law Group Secures Victory at the Ninth Circuit, Client is Released From Prolonged Immigration Detention

In an unpublished decision, the Ninth Circuit Court of Appeals reversed both lower court decisions denying relief to our client, who had been held in immigration detention for several years. The Ninth Circuit, ruling in favor of the petitioner, found that he would be subject to torture if returned to his native country of El Salvador. The Court reasoned that an IJ’s adverse credibility finding does not preclude protection pursuant to the Convention Against Torture where it is more likely than not that the petitioner will be subject to torture. The decision resulted in the release of our client who had been held in immigration detention for several years without even being given an opportunity to seek bond. He is now free, living in California and counseling at risk youth through community and religious organizations.

See decision here: https://cdn.ca9.uscourts.gov/datastore/memoranda/2015/12/07/13-73958.pdf

On September 15, 2015, Stanley Radtke Argued before Ninth Circuit Court of Appeals on Behalf of Mira Law Group in Najarro-Portal v. Lynch

Obama Administration Will Not Seek Immediate SC Review of Injunction Against Executive Action

For discussion of President Obama’s Executive Action proposal and legal arguments regarding Presidential authority to pass such action see:

http://http://www.pbs.org/newshour/bb/obamas-immigration-executive-actions-hold-legal-challenge-resolved/

 

9th Circuit En Banc Decision Affirms, In Part, Attorney Stanley Radtke’s Appeal of BIA Decision in Maldonado v. Holder

Mira Law Group Attorney Stanley Radtke’s appeal of a BIA decision, which he spearheaded as an Associate with his former employer, was ruled upon by the Ninth Circuit in an En Banc opinion. The Court affirmed Stanley’s argument, in part, by overruling the BIA rejection of Petitioner’s claim because he failed to prove that internal relocation was impossible. The Court ruled that neither the Petitioner nor the government should bear the burden to prove that internal relocation is impossible, when considering a non-citizen’s claim for withholding of removal pursuant to the Convention Against Torture. Rather, to the extent that internal relocation is an issue in the case, the Immigration Court should consider it when determining whether it is more likely than not that the Petitioner would be tortured if removed.

Recent Ninth Circuit Decision on Heightened Discretionary Standards

In Torres-Valdivias v. Holder, No. 11-70532, 2014 WL 4377469 (9th Cir. Sept. 5, 2014), the three-judge panel unanimously held that the heightened discretionary requirements adopted by the Attorney General in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), were properly applied by the Board in the context of applications for adjustment of status under section 245 of the Act.

In Matter of Jean, the A.G. established a presumption that discretion should not be favorably exercised on behalf of an applicant for asylum and adjustment of status under section 209 of the Act who had been convicted of “violent or dangerous crimes,” except in compelling circumstances, such as where removal would cause exceptional and extremely unusual hardship or where there are national security and foreign policy considerations in play. That heightened standard was subsequently extended to cases involving waivers under section 212(h) of the Act by regulation, see 8 C.F.R. § 1212.7(d), and the Board panel in Torres-Valdivias extended it to an adjustment of status application under section 245(i) of the Act.

The Ninth Circuit indicated that it would not extend Chevron deference to the Board’s decision. The court reasoned that the Board was altering the standard set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), in holding that Matter of Jean applied in the section 245(i) context. Matter of Arai also involved an application for adjustment of status under section 245 of the Act. The court noted that Chevron would not apply to an unpublished decision that is not directly controlled by a published decision interpreting the same statute. Noting that an agency “may not . . . depart from a prior policy sub silentio,” the court observed that the Board did not publish its decision or acknowledge Matter of Arai in its unpublished order.

Nevertheless, the court concluded that “the BIA’s decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner.” In this regard, the Ninth Circuit noted that the Board had “adopted and affirmed” the Immigration Judge’s decision which in turn had expressly found that Matter of Jean, had altered the Matter of Arai approach in cases where a violent or dangerous crime was involved.

Reform 2013

Democratic and Republican senators unveiled this Tuesday a long-waited landmark legislation, giving millions of illegal immigrats an opportunity to eventually become U.S. citizens

Under this proposal, undocumented immigrants who came to the United States before December 31 2011, and had stayed in the country continously could apply for a “provisional” legal status as soon as six months after de bill is signed by the president.

Beyond that, they would have to wait a decade or more for full citizenship which would entitle them to federal benefits, while the government works on further securing U.S. borders and enforcing the new immigration law.

Even with the many caveats, the proposal faces months of debate, scores of amendments and potentially significant opposition, particularly in the Republican-controlled House of Representatives.

The bill sets a goal of stopping 90 percent of illegal crossigs at the riskiest sections of the southern border with Mexico, either by catching people or forcing them to go back to their country.

More Visas For Some Jobs

The proposal would expand access to both low- and high-skilled labor for American Businesses, attempting to keep organized labor happy with provisions designed to keep companies from hiring cheap foreign labor or filing jobs with immigrants when U.S. workers are available.

10 Years for the Green Card

After 10 years the immigrants could apply for a “green card”, or permanent resident status, through an extended merit-based immigration system. Those applications could be processed whether or not the government achieved a 90 percent success rate in securing border hot spots.

The green card would not be automatic, although a Senate aide said the majority of the 11 million illegal immigrants would likely get it via the merit-based visa. The total amount of penalties paid would amount to $2000.

After the 10-year wait for the green card, it could take an additional three years to win U.S. Citizenship

TPS extension for Salvadorians

The Secretary of Homeland Security Janet Napolitano has extended Temporary Protected Status (TPS) for eligible nationals of El Salvador for an additional 18 months, beginning Sept 10, 2013 ending March 9, 2015.

Salvadorian Beneficiaries  seeking to extend their TPS must re-register during the 60 day re-registration that will be available starting May 30, 2013, through July 29, 2013. The USCIS office recommends beneficiaries to register as soon as possible once the 60 day period begins.

This 18 month extension allowa TPS re-registrants to apply for a new employment authorization document (EAD). Salvadorian TPS beneficiaries who re-register during this registration period will receive a new EAD with an expiration date of March 9, 2015. The USCIS recognizes that some re-registrants may not receive their EAD until the current one expires. USCIS is automatically extending current TPS El Salvador EADs bearing in September 9, 2013, expiration date for additional six months. These existing EADs are now valid through march 9, 2014.

Ninth Circuit Court of Appeal

9th Circuit Requests Additional Briefing in Case To Determine Whether to Hear en banc

Last week, I received an order from the Ninth Circuit Court of Appeal for additional briefing on the question of whether to hear the case en banc. I filed the petition for review in 2009 seeking appellate review of the denial of the protection afforded under the Convention Against Torture. This case was filed and fully briefed for my last law office that I worked in Burlingame.The appellant was a Mexican national, who was a Lawful Permanent Resident at the time, and he was ordered removed for an aggravated felony conviction, first degree burglary. Once he was removed to Mexico, he was kidnapped at the airport in Mexico City by uniformed police officers telling him he did not have proper papers and he needed to go with them. They turned him over to the Federal Police, who transported him to Morelia in Michocan and placed him inside the prison. There he was tortured while his father in the U.S. was on the phone. The crooked cops were demanding ransom, which was eventually paid. The appellant had cigarettes burned into his skin, he had his teeth knocked out, he had electrodes place on his genitals, and he was waterboarded with Coke Cola poured onto a rag placed over his mouth and nose.Appellant returned to the U.S., crossing in Arizona, but not before he was bit by a rattlesnake and lost his legs before Customs and Border Patrol located him. Appearing before Immigration Judge Yamaguchi in San Francisco, everybody acknowledged that he had suffered torture, by Yamaguchi held that he could safely relocate inside Mexico and ordered him removed.

The Board of Immigration Appeals sustained the removal order and the case was brought to the Ninth Circuit by my former office. I completed all the briefing, raising the legal issue that the IJ impermissibly held appellant to an incorrect standard, namely that under Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), that a CAT petitioner must establish that internal relocation is “impossible.” I argued that just as in this case, where the petitioner has established past torture, the burden should shift to the government to prove that relocation is possible, pursuant to Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011).

There is seemingly a split of authorities in the Ninth Circuit on this questions and this case is being considered for an en banc decision on what is the correct procedure. My contention is that Perez-Ramirez should be the standard.

“As we have previously acknowledged, “it will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by relocating him to another part of the country.” Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir.2005). Thus, when the past-persecution is shown, the government bears the burden to show by a preponderance of the evidence that the petitioner can move elsewhere within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.2003) (“[B]ecause a presumption of well-founded fear arises upon a showing of past persecution, the burden is on the INS to demonstrate by a preponderance of the evidence, once such a showing is made, that the applicant can relocate internally to an area of safety.”). Additionally, when petitioner “has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide and therefore that internal relocation is unreasonable.” Id.