An article in the New York Times today highlighted a gaping weakness in the United States’ immigration system—our government has no reliable way to track if a visitor has left the country. That’s right, the immigration agencies don’t know whether or not the 2.9 million persons who entered the U.S. last year (and the tens of millions who came in prior years) on visitor visas are still here or have already left. Why? Because the government has no uniform “check out” requirement. The only system is place is where the visitor would turn in his I-94 card upon leaving the country. Even this is not consistently enforced because many visitors lose or forget to retain their I-94 cards. This is as sensible as a library having a self-enforced borrowing policy.
Ninth Circuit Clarifies Eligibility for “Grandfathering” of 245(i) Benefits for Spouses
October 8th, 2009 
Max Nuyen Landin-Molina v. Holder (9th Cir. 2009)
Before 1952, the general rule in immigration law was that one had to be outside the United States in order to be eligible to receive an immigration visa. American embassies and consular offices in foreign countries issued such visas, which permitted the recipient to enter the U.S. and live here permanently. Those who were already in the U.S. and who wished to obtain an immigration visa must leave the country. There was no mechanism to adjust one’s status from non-immigrant to immigrant. In 1952, Congress made changes to the immigration laws so that visitors who were physically present in the U.S. on non-immigrant visas may adjust their status to lawful permanent residents without having to leave the U.S. For the first time, a person may obtain permanent resident status while remaining in the U.S. The adjustment of status regime which Congress created was not open to just anyone, however. It had many restrictions which limited its availability. One of the most important was that in order to be eligible for adjustment of status, the applicant must be in the U.S. lawfully. That is, the applicant must have entered the country after having been inspected by a customs official at the point of entry, and the applicant’s status must be current at the time of the application. If the applicant could not establish these criteria, he or she would not be eligible for adjustment of status.
Ninth Circuit Reaffirms Imputation of Parent’s LPR Status for Minor Child
September 30th, 2009 Max Nuyen Mercado-Zazueta v. Holder (9th Cir.)
In this case, the 9th Circuit decided the question of whether a parent’s status as a lawful permanent resident may be imputed to an unemancipated minor child residing with that parent, for purposes of satisfying the five-year permanent residence requirement for cancellation of removal under § 240A(a)(1) of the Immigration and Nationality Act. To the collectively relief of many immigration attorneys and their clients, the court answered affirmatively. In light of the court’s recent decision in the Ramos v. Holder case (which dealt with the issue of whether a parent’s physical presence in the United States may be imputed to a minor child), there was a sense of worry in the immigration bar on whether the 9th Circuit was ready to abandon its longstanding imputation doctrine.
Attempted Kidnapping Deemed to be Aggravated Felony for Purposes of Removability
September 28th, 2009 Max Nuyen Delgado-Hernandez v. Holder (9th Cir.)
In the 9th Circuit, attempted kidnapping in violation of California Penal Code § 207(a) is now officially a removable offense because the crime carries with it the threat of physical force being used against the victim. Attempted kidnapping meets the definition of aggravated felony under 18 U.S.C. § 16(b) because the court considered it a crime of violence. The fact that the crime may not have been successfully carried out is of no import because the court noted that an attempt to commit an aggravated felony is treated as if it were completed commission of the aggravated felony.
USCIS Unveils New Website Design
September 24th, 2009 Max Nuyen On Tuesday, DHS Secretary Napolitano unveiled a redesigned USCIS website. I think the site does look better and is easier to navigate. The changes are not just cosmetic, though, because the site now includes tools and apps which allows you to track the status of your citizenship application, update your immigration records, and access forms. There is also a Spanish language version of the site. One of the reasons for the design is to provide the public with better service and to improve USCIS responsiveness to client questions. You should check out “My Case Status,” which allows those with pending applications to receive automatic e-mail and text message updates. The site changes are small steps, but are nonetheless very welcome. Every little bit helps. USCIS is doing a decent job of shedding its image as being an impenetrable bureaucracy.
USCIS Changes Procedures for Adjudicating I-751 Applications Where a Divorce is Pending but not Finalized
September 21st, 2009 Max Nuyen USCIS Acting Associate Direct Donald Neufeld issued a memorandum which offers guidance to field offices on how to process certain I-751 applications to remove conditions. The I-751 presents a difficult situation for couples who married in good faith but are separated or undergoing divorce proceedings prior to the filing of the I-751. The form only allows for joint applications if the couple is still married, unless the applicant can establish that he or she was battered by the petitioning spouse. In that situation, the applicant may request a waiver of the joint filing requirement. An applicant who is estranged (but not yet divorced) from his or her spouse would normally be out of luck because although the form requires a signature from the petitioning spouse, often times that spouse would refuse to cooperate in the process. The applicant would be at the tender mercies of both his or her uncooperative spouse and the rigid rules of the I-751 application. Although the applicant married in good faith, he or she faces losing permanent residence status because he or she is ineligible to file the I-751 without the signature of the spouse.
How Tough is the U.S. Citizenship Test?
September 18th, 2009 Max Nuyen Are you smarter than a high school student? In a recent study, the Oklahoma Council for Public Affairs discovered that only 2.8% of Oklahoma high school students could pass the basic citizenship test administered by USCIS. Shockingly, 77% could not identify America’s first president. That means the average naturalized citizen probably understands more about U.S. civics than the vast majority of high school students who were born and raised in America. The group who commissioned it were taken back by the results of the study, but I’m not surprised at all. In my experience, folks who apply for naturalization are a motivated bunch, and will work very hard to achieve their goals. I mention this study not to make fun of Oklahoma because I suspect that the results would be the same if the study was done in any other state (or even if the study was conducted with college students). Rather, I’m lamenting the decay of basic knowledge in the U.S. and to give kudos to the men and women who study to become citizens.
To read more about the study, visit this link:
To test your knowledge of U.S. civics, visit this link (you must answer 6 out of ten of the questions correctly to pass):
Federal Anti-Discrimination Laws May Not Protect Undocument Workers
September 15th, 2009 Max Nuyen Iweala v. Operation Technologies Services, Inc. (D.C. District Court, 2009)
This case would be a run of the mill discrimination case except for the fact that it may have significant implications for employees who do not have work authorization. The case also signals a brewing rift between the different federal appellate circuits regarding the issue of whether an undocumented worker is eligible for protection of the anti-discrimination statutes.
Iweala, the employee in this case was a black female from Nigeria. She sued her former employer, Operation Technologies Services, Inc. (“OTS”), alleging discrimination based upon her race, national origin, and pregnancy in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, and 42 U.S.C.S. § 1981. She also made hostile work environment and retaliation claims. She alleged that OTS discriminated against her because her supervisors excluded her from important meetings, placed her on the bottom of every leader chart for assignments, reprimanded her when other similarly situated persons were treated more favorably, treated her rudely, subjected her to profanity, removed her from service on the company’s help desk, and terminated her because of her race, national origin, and/or pregnancy status. Her supervisors also retaliated against her because she complained repeatedly about their discriminatory conduct.
Against these allegations, the OTS offered a novel defense—Iweala was precluded from bringing her discrimination lawsuit because her immigration status made her ineligible for employment. In a Title VII and § 1981 case, the employee is entitled to remedies only upon establishing that she was qualified for employment. When the employee is an alien, being qualified is not a function of job skills or capacity, but rather, whether or she is eligible to work in the United States in the first place. The employer’s argument is based on a simple premise—for Iweala to prevail on certain discrimination claims, she must prove that she was qualified for the job, and that she suffered discrimination despite her qualifications. However, if she was not eligible to work in the United States because she is an undocumented alien, then she does not “qualify” in the strict sense of the word. Regardless of her abilities, capacity, or skill for the particular job in question, she cannot as a matter of law work in the United States. Thus, the anti-discrimination statutes do not apply to her because she cannot as a matter of law establish that she is qualified for her job. OTS did not argue that Iweala was unqualified in the objective sense, just the legal sense.
OTS’s argument was not specious because other circuits have considered it and found the argument had merit, most notably the 4th Circuit. Other circuits have come to different conclusions, as the Iweala pointed out. She argued that the meaning of “employee” as contemplated by the various anti-discrimination statutes have encompassed all types of employees, regardless of immigration or visa status. Congress never expressed an intention to exclude foreign nationals without work authorization from discrimination protection.
The court in the case made a Solomonic decision—it found that Iweala was entitled to bring her lawsuit even though her employment eligibility is doubtful. However, she may be precluded from receiving any damages because she may not be able to establish that she “qualified” for her job. If this decision is held up on appeal (and no doubt this issue will be appealed), it would probably eliminate similar lawsuits by similarly situated persons because it would make the filing of such claims pointless. Why bother suing when you can establish liability but not be able to collect damages?
Another Crime Added to the Moral Turpitude List
September 10th, 2009 Max Nuyen Uppal v. Holder (9th Cir. 2009)
This case expands on the moral turpitude doctrine. That is, a person who violates § 268 of the Canadian Criminal Code is considered to have categorically committed a crime of moral turpitude. The Canadian statute deals with aggravated assaults. In examining the language of § 268, the 9th Circuit found that it met the requirements of a crime of moral turpitude as contemplated by U.S. immigration regulations in that a person convicted of the crime acted intentionally and his actions caused physical harm to another.
Requirement for Federal Contractors to Use E-Verify Passes Legal Challenge
August 25th, 2009 Max Nuyen Chamber of Commerce of the United States v. Napolitano
This was not unexpected, but the government won a significant victory in its decision to require that federal contractors use E-Verify. Since January 2009, pursuant to an executive order from President Bush, all contractors holding over $100,000 in federal contracts must use E-Verify to check the employment eligibility of workers. E-Verify is an electronic database system maintained by the Social Security Administration, USCIS, and other government agencies. The controversial policy was challenged in court since it was established, and was delayed several times. A consortium of plaintiffs, headlined by the United States Chamber of Commerce, filed suit to block implementation of the new policy. The feds have won the first battle. A district court judge ruled today that the requirement that federal contractors use E-Verify is permissible because it does not violate immigration statutes pertaining to the E-Verify program. An appeal of the judge’s decision will no doubt follow.