Transcript Document

Maryland Judicial
Conference
Federal Immigration in State
Courts: The Judiciary’s Guide
to Family and Individual
Immigration Status
Michael L. Kabik, Esq. © 2013
Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
12505 Park Potomac Avenue, 6th Floor, Potomac, MD 20854
T: (301) 231-0937 F: (301) 230-2891
[email protected] ShulmanRogers.com
May 10, 2013
Shulman, Rogers, Gandal,
Pordy & Ecker, P.A.
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Presentation Objective
To give Maryland’s Judiciary the tools to
understand:
Federal Immigration Framework,
Infrastructure, and Processes
Key Immigration Terminology
The Immigration Lifecycle
Impact of Immigration Legal Status on
Individuals and Families
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Federal Government
Immigration & Naturalization Service
(INS) within Dept. of Justice
Abolished in 2003
Immigration functions transferred to
new Dept. of Homeland Security
Split into 3 agencies
• Enforcement function (2)
• Benefits function (1)
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Federal Government
Dept. of Homeland Security’s
immigration functions:
U.S. Customs & Border Protection (CBP)
U.S. Immigration & Customs Enforcement
(ICE)
U.S. Citizenship & Immigration Services
(CIS)
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Federal Government
U.S. Customs & Border Protection (CBP)
Border enforcement
• Land border
• Sea border
• Airports
– Functional border
– Pre-Flight Inspection at airports in other countries
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Federal Government
U.S. Immigration & Customs
Enforcement (ICE)
Interior enforcement
• Detention
• Removal
• Worksite Enforcement
• Employer Sanctions
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Federal Government
U.S. Citizenship & Immigration Services
(CIS)
Benefits
• Nonimmigrant Status
• Permanent Residence (Greencard)
• Naturalization
• Employment Authorization
• Temporary Protected Status (TPS)
• Deferred Action for Childhood Arrivals (DACA)
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Immigration Lifecycle
Undocumented
Entry Without Inspection (EWI)
Out of Status
Unlawful Presence
Temporary Protected Status (TPS)
Deferred Action for Childhood Arrivals
(DACA)
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Immigration Lifecycle
Nonimmigrant Visas (NIVs)
Immigrant Visas (IVs)
Removal
Naturalization
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Temporary Protected
Status
Humanitarian relief that establishes a
temporary safe haven in the U.S. for
nationals of a foreign state
Ongoing armed conflict posing a serious threat to
personal safety
Earthquake, flood, drought, epidemic or other
environmental disaster resulting in substantial
temporary disruption of living conditions
• Foreign state is temporarily unable to handle the return
of its nationals
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Temporary Protected
Status
For qualified applicants, TPS granted for 6 to
18 months, extensions possible
Shall not be removed during TPS period
Shall be granted employment authorization,
extensions with TPS extensions
Shall not be detained based on based on TPS
Exclusions for certain criminal convictions,
persecutors, or security considerations
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Deferred Action for
Childhood Arrivals
Temporary relief for persons
Not in legal immigration status
Brought to the U.S. as young children
Granted for 2 years, extensions possible
Eligible to apply for employment authorization
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Deferred Action for
Childhood Arrivals
Criteria include:
Under age 31 as of June 15, 2012
Came to U.S. before age 16
Continuously resided in U.S. since June 15, 2007
Presence in the U.S. on June 15, 2012
Currently in school, graduated from high school,
obtained GED, or honorably discharged veteran
Not be convicted of certain criminal offenses
Not pose a threat to national security/public safety
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Nonimmigrant Visas
Temporary visas
Allow limited time entry into U.S.
For a specific purpose, including
• Employment
• Tourism
• Study
Many classifications
Derivative visa classifications for dependents
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Immigrant Visas
Permanent Residence in U.S.
Greencard
Employment-Based sponsorship
Family-Based sponsorship
Derivative status for dependents
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Immigrant Visas
Special Immigrant Juvenile Status
Provides help to foreign children in the U.S.
who have been abused, abandoned, or
neglected
Children unable to be reunited with a
parent may obtain Permanent Residence
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Immigrant Visas
Special Immigrant Juvenile Status
Requires a State Court order finding
• Child is a dependent of the court or legally
placed with a state agency, private agency, or
a private person, and
• Not in the child’s best interest to return to
home country (or country of last residence)
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Immigrant Visas
Special Immigrant Juvenile Status
Requires a State Court order finding
• Child cannot be reunited with a parent due to
any of the following
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Abuse
Abandonment
Neglect
Similar reason under state law
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Immigrant Visas
Special Immigrant Juvenile Status
Must be under 21 years old on the date of
filing Special Immigrant Petition with CIS
State Court order must be in effect on date
of filing and when CIS makes decision
• Unless “age out” of State Court’s jurisdiction
due to no fault of own
Cannot be married
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Naturalization
Acquisition of U.S. Citizenship (optional)
Requirements
• Length of Residence
• Continuous Residence
• Physical Presence
• Good Moral Character
• English language test (waiver)
• U.S. history and government test
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Removal
Applies to:
Permanent Resident Aliens
NIV Status Aliens
Undocumented Aliens
Violation of:
Criminal Laws
Immigration Laws
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Immigration Crossover
into Family Law
Federal
Family-Based Permanent Residence
Domestic Violence
Removal
Naturalization
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Immigration Crossover
into Family Law
State
Domestic Violence
Divorce
Custody
Adoption
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Family-Based
Permanent Residence
Immediate Relatives (IRs)
Spouse of U.S. Citizens
Children (<21) of U.S. Citizens
• Definition of Child includes Step-Children
Parents of Adult U.S. Citizens
Immediately eligible to apply to
immigrate
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Family-Based
Permanent Residence
Preference Categories
F1: Unmarried Sons/Daughters (21+) of
U.S. Citizens
F2A: Spouses/Children (<21) of Permanent
Residents
F2B: Unmarried Sons/Daughters (21+) of
Permanent Residents
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Family-Based
Permanent Residence
Preference Categories
F3: Married Sons/Daughters (21+) of U.S.
Citizens
F4: Brothers/Sisters of Adult U.S. Citizens
Requires a current “Priority Date” in
order to immigrate
Variable Backlog of PD’s (~2–23 years)
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Family-Based
Permanent Residence
The Process
Immigrant Petition (I-130)
• Filed by U.S. Citizen/Perm. Resident Sponsor
Adjustment of Status (I-485)
• Filed by Alien
• Must be IR or have current Priority Date
• Affidavit of Support (I-864) by Sponsor
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Family-Based
Permanent Residence
The Affidavit of Support (I-864)
Required in all FB Permanent Residence
Sponsorships since 1997
• Minimum income requirements based on
household size
– 125% Federal Poverty Guidelines
– 100% Federal Poverty Guidelines for active duty
military sponsoring spouse/child
• Joint Sponsors permitted in order to meet
income requirements
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Family-Based
Permanent Residence
The Affidavit of Support (I-864)
Requirement to provide the sponsored
immigrant any support necessary to
maintain him/her at an income at least
• 125% Federal Poverty Guidelines
• 100% Federal Poverty Guidelines for active
duty military sponsoring spouse/child
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Family-Based
Permanent Residence
The Affidavit of Support (I-864)
Requirement to reimburse a Federal, State
or local agency, or a private agency
• That provides any covered means-tested public
benefit to the sponsored immigrant
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Family-Based
Permanent Residence
The Affidavit of Support
Enforceable Contract Against Sponsor (and
Joint Sponsors)
• By sponsored immigrant
• By Federal or State government or any agency
providing a means-tested public benefit
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Family-Based
Permanent Residence
The Affidavit of Support
Means-Tested Public Benefit (MTPB):
• Food Stamps
• Medicaid
• Supplemental Security Income (SSI)
• Temporary Assistance Needy Families (TANF)
• State Child Health Insurance Program (SCHIP)
• State MTPBs
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Family-Based
Permanent Residence
The Affidavit of Support
Binding contract in force until the
sponsored immigrant:
• Becomes U.S. Citizen
• Has earned or been credited with 40 qualifying
quarters under Title II SSA excluding periods of
MTPBs
• No longer has PR status and departs the U.S.
• Dies
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Family-Based
Permanent Residence
The Affidavit of Support
Survives divorce
• Enforceable against Sponsor
• Enforceable against Joint Sponsor
Divorce does not terminate a Sponsor’s
obligations under the Affidavit of Support
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Family-Based
Permanent Residence
The Affidavit of Support
Federal courts have upheld the Affidavit of
Support requirement to provide support to
maintain the sponsored immigrant at the
125%/100% Federal Poverty Guideline
levels
• No duty of sponsored immigrant to mitigate
damages (i.e., seek employment)
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Family-Based
Permanent Residence
Marriage Cases – Process
Processing by CIS based on state of
residence
Interview required at CIS Field Office of
Sponsor and Alien
Timeline – Filing to Decision: ~3–6 months
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Family-Based
Permanent Residence
Marriage Cases – Process
Type of Residence – based on length of
marriage at time of approval
• Conditional Residence
– if married <2 years
• Permanent Residence
– if married 2+ years
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Family-Based
Permanent Residence
Marriage Cases – Process
Permanent Residence
• Does not expire
• Greencard valid for 10 years
– Update Photograph
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Family-Based
Permanent Residence
Marriage Cases – Process
Conditional Residence
• Valid only for 2 years
• Must file Petition to Remove Conditions on
Residence (I-751) within 90-day window before
expiration
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Family-Based
Permanent Residence
Marriage Cases – Process
Petition to Remove Conditions on
Residence (I-751)
• File jointly with Spouse
• Seek waiver of joint filing requirement due to:
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Death of Spouse
Termination of Marriage through divorce/annulment
Battered or subjected to extreme cruelty
Deportation would result in extreme hardship
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Family-Based
Permanent Residence
Marriage Cases – Process
Loss of Residence
Permanent and Conditional Residence can
be lost if
• Alien outside U.S. for certain periods of time
• Alien commits certain immigration/criminal
offenses
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Family-Based
Permanent Residence
Marriage Cases – Legal Standard
Must be bona fide marriage when entered
into by the parties
• Not solely for immigration benefit
Must continue to be married for approval
Approval possible even if parties living
apart and marriage no longer viable
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Family-Based
Permanent Residence
Marriage Cases – Legal Standard
If marriage occurs after commencement of
Removal Proceedings
• Alien must remain outside U.S. 2 years before
residence is granted
• Unless Alien meets higher burden of proof
– Clear and convincing evidence
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Family-Based
Permanent Residence
Adoption – Different Processes
In the U.S.
Intercountry Adoption
• Hague Convention country
• Non-Hague Convention country
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Family-Based
Permanent Residence
Adoption – Different Processes
Hague Convention on Protection of
Children and Co-operation in Respect of
Intercountry Adoption
• Multilateral treaty concluded on May 29, 1993
• Entered into force for the U.S. on April 1, 2008
• Where child habitually resides in another
country party to the Convention, must follow
the Hague process
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Family-Based
Permanent Residence
U.S. Adoption – Immigration Legal
Process
Adopted child may be sponsored for
permanent residence
• Immigrant Petition (I-130)
• Adjustment of Status (I-485)
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Family-Based
Permanent Residence
U.S. Adoption – Immigration Legal
Requirements
Age Requirement: Must be <16 unless:
• Natural sibling of another adopted child, then
<18
• Court order entered nunc pro tunc prior to 16th
birthday
– Recognized for immigration purposes in certain
limited circumstances
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Family-Based
Permanent Residence
U.S. Adoption – Immigration Legal
Requirements
Legal Custody Requirement: 2 years
Residence w/Parents Requirement: 2 years
• May occur before or after legal custody or
adoption
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Domestic Violence
Alien Victims of Domestic Violence
Violence Against Women Act (VAWA)
May obtain Permanent Residence
• Spouse/ex-spouse: Abused by U.S. Citizen/Permanent
Resident spouse/ex-spouse
• Child: Abused by U.S. Citizen/Permanent Resident parent
• Parent of Child: Abused by U.S. Citizen/Permanent
Resident spouse
• Parent: Abused by U.S. Citizen son or daughter
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Domestic Violence
Alien Victims of Domestic Violence
Alien battered/subjected to extreme cruelty
• By U.S. Citizen/Permanent Resident spouse/
ex-spouse or parent
• By U.S. Citizen son or daughter
• Includes physical and mental cruelty
• Also applies where marriage not legally valid
due to bigamy
File Special Immigrant Petition with CIS
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Domestic Violence
Alien Perpetrators of Domestic Violence
or Violators of Criminal/Civil Protection
Orders
Subject to Removal Proceedings
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Removal
Family-Based immigration sponsorship
Dependent on a family relationship
Where sponsorship is withdrawn or
where family relationship is terminated
Alien becomes deportable for failure to
maintain lawful immigration status
Unless Alien obtains alternate status
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Naturalization
Potential Adverse Good Moral Character
Finding (subject to “extenuating
circumstances” balancing test)
Willfully failing or refusing to support
dependents
Extramarital affair tending to destroy an
existing marriage
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Naturalization
Divorced Alien sponsored for Permanent
Residence based on marriage
CIS will request divorce complaint
indicating date of separation
Date of separation is key issue for
Naturalization application
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Naturalization
If complaint indicates earlier separation
date that contradicts previous
immigration applications
Naturalization may be denied based on
immigration fraud
Alien may be placed into Removal or
Recision Proceedings and be removed
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Key Considerations
Know the Parties
U.S. Citizen?
Permanent Resident?
Conditional Resident?
Pending Residence Application?
Pending Petition to Remove Conditions on
Residence?
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Key Considerations
Know the Parties
Nonimmigrant visa status?
In Removal Proceedings?
Overstay of NIV status?
Entry Without Inspection?
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Impact of State Court on
Immigration Status
Legalization of Immigration Status
Loss of Immigration Status
Undocumented spouse (parent)?
Removal of spouse (parent)?
Financial support to other parent/children if
removed?
Emotional ties to children if removed?
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Impact of State Court on
Immigration Status
Unique role of attorneys in representing
Immigration clients in State Courts
What is in the best interests of their
clients (and their children)?
Same 4 factors as above
Result: Attorneys are advocating for
Immigration impact beyond State Court
decisions
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