The Supreme Court Overturns DOMA

June 26th’s historic Supreme Court decision that overturned section 3 of DOMA officially opened the door for same-sex couples to file marriage based petitions with U.S. CIS. If your marriage was legally valid in the state or foreign country where it took place, you can file for your spouse immediately. If you and your spouse filed with U.S. CIS anytime from February 2011 to the present and your case was denied, the agency’s director Alejandro Mayorkas announced that CIS will be reopening those denied cases. Mr. Mayorkas made that information public at the American Immigration Lawyers Association (AILA’s) annual conference on June 27, 2013. Please contact our office if you would like more information about filing for your spouse. For updates on the implementation of the Supreme Court’s decision, we recommend the following websites: Immigration Equality and National Immigration Project.

Post-Conviction Remedies Limited by Supreme Court

On February 20, 2013, the U.S. Supreme Court held Padilla did not apply retroactively to a federal conviction finalized before March 31, 2010. Chaidez v. United States (No. 11-820, slip. op. (February 20, 2013)). However, this opinion left open the question of whether defendants may challenge federal convictions under Padilla in a timely filed first post-conviction motion. The post-conviction attorney can also argue that another established constitutional duty (potentially the duty to negotiate effectively) was violated. For more information on how to argue for post-conviction relief for a conviction finalized prior to March 31, 2010, we encourage you to read the Immigrant Defense Project and National Immigration Project’s practice advisory.

Padilla Update

The Minnesota Court of Appeals recently held foreign nationals with criminal convictions who were not advised about the immigration consequences of their convictions may ask the criminal court to reopen their conviction, even for convictions PRIOR to last year’s important U.S. Supreme Court decision in Padilla v. Kentucky. This is important because it will allow immigrants who had criminal convictions from earlier than 2010 to go back to criminal court to ask the judge to change their sentence. As many immigrant defendants unfortunately learn too late, a gross misdemeanor sentence of 364 days instead of 365 can make the difference between remaining in the U.S. and being permanently deported. By reducing a sentence, individuals may become eligible for citizenship, legal permanent resident status or relief from removal (deportation). Please contact our office if you’d like to know more about how this decision or criminal consequences in general may impact your immigration status.

File Your Padilla Motions Soon

On March 31, 2010, the United States Supreme Court decided Padilla v. Kentucky. Justice Stevens wrote the majority opinion which stated immigrant defendants in criminal proceedings have a right to be advised of the immigration consequences of a plea deal if the consequences are clear. This decision is one of the best immigration decisions from the U.S. Supreme Court in decades. However, if history is our guide for these matters, time will only serve to narrow this holding as the Board of Immigration Appeals and the U.S. Courts of Appeals hear more cases based on the Padilla decision. One of example of this is the INS v. St. Cyr holding. In 2001, the U.S. Supreme Court decided in INS v. St. Cyr that legal permanent residents convicted before April 24, 1996 could apply for 212(c) relief. However, subsequent case law has significantly narrowed this holding. By 2005, the Board of Immigration Appeals had narrowed the holding in St. Cyr to state that a statutory counterpart between grounds of deportability and inadmissibility must be present in order for an immigrant to be eligible for 212(c) relief. Matter of Blake, 23 I&N Dec. 722 (2005). In Munoz-Yepez v. Gonzales, the 8^th Circuit Court of Appeals decided that if the immigrant could have received 212(c) relief, he would be denied cancellation of removal for a post-1996 non-aggravated felony because the post-1996 felony barred cancellation relief. Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. 2006).

This indicates that immigrants with criminal convictions with possible Padilla implications should file their motions to withdraw guilty pleas in the near future before the Padilla holding is narrowed by subsequent case law.

We have already filed one Padilla motion and have worked with criminal defense attorneys as they file their own. Please contact our office at 651-641-0440 if you would like Kim Hunter & Associates to assist with you with your potential Padilla cases.

TPS for Haitians: A Dangerous Gamble?

On January 21, 2010, the Department of Homeland Security extended Temporary Protected Status (“TPS”) to Haitians living in the United States. TPS is available to certain Haitians who were living in the United States on January 12, 2010 and remain in the United States continuously. The 180-day window to apply for Haitian TPS will end on July 20, 2010.

As of February 17, 2010, U.S. CIS had processed 13,162 applications for Haitian TPS. Approximately 67% of those applications came from Florida. This is a significantly lower than the 100,000 to 200,000 applications immigration advocates had originally expected.

However, in light of TPS’ history in the United States, it is unsurprising that so few Haitians have presented themselves to U.S. CIS and asked for TPS. The Immigration and Nationality Act mandates that the United States Senate may not consider any bill allowing a foreign national on TPS to adjust their status to legal permanent residence (“green card”) status unless a supermajority of the Senate (three-fifths or 60 votes) vote in favor of waiving the rule against allowing green card status to foreign nationals on TPS.

The following are the countries that have been granted TPS status and the year in which it was first designated:

• Liberia (March 1991)
• Somalia (September 1991)
• Sudan (November 1997)
• Nicaragua (January 1999)
• Honduras (January 1999)
• El Salvador (March 2001)

The Senate has never voted to allow any of the foreign nationals from these countries to apply for their green cards. In essence, foreign nationals on TPS present themselves to U.S. CIS and they receive a temporary status and a work permit. However, no one on TPS has ever been allowed to adjust their status to a green card based solely on having TPS.

This makes TPS a dangerous gamble for individuals from these countries. Their choices are: remain unlawful in the United States and hope they aren’t caught OR apply for TPS, give U.S. CIS their name, address and other information and hope they aren’t put into immigration proceedings (and possibly deported) when TPS status to their country is no longer available.

If you’d like this law to change and allow the thousands of individuals who have been in the United States for as many as 19 years to apply for their green cards, please call your Senator at (202) 224-3121 and encourage him or her to repeal 8 U.S.C. Section 244(h).

Haitian Client Featured in Minneapolis Star Tribune

Shoodley Cherichel, a Haitian citizen and long-time client of Kim Hunter & Associates, was featured in the Minneapolis Star Tribune on Sunday, January 17, 2010. Mr. Cherichel filed for several forms of relief from deportation, but was eligible for protection under the Convention Against Torture only. The Convention Against Torture (CAT) is supposed to protect individuals from being returned to their native country if it is more likely than not they will be tortured there. However, thanks to a series of negative Board of Immigration Appeals and Circuit Court cases on this subject which address whether or not a particular government has a “specific intent” to torture, Mr. Cherichel’s case was denied by the United States Court of Appeals for the 8th Circuit. Earlier, the immigration judge had granted Mr. Cherichel relief from deportation under the Convention Against Torture. In a lengthy opinion, she distinguished Mr. Cherichel’s case from that of an earlier Haitian case called Matter of J-E-. Unfortunately, subsequent circuit court decisions followed J-E- and the 8th Circuit went along with those circuits’ reasoning in denying Mr. Cherichel’s case. The 8th Circuit decision was released on January 12. Later that day, the earthquake hit Port au Prince.

Because Mr. Cherichel has a criminal history, he is not eligible for Temporary Protected Status (“TPS”). However, there is a current moratorium on all deportations to Haiti, and because of this and other factors specific to Mr. Cherichel, his future remains uncertain.

Liberian TPS / DED Update

On March 20, 2009, President Obama extended Deferred Enforcement Departure (DED) for thousands of Liberians in the U.S. Liberians who had DED status as of March 31, 2009 have been granted a one year extension through March 31, 2010. Employment authorization cards (EADs) with the expiration date of March 30, 2009 issued to Liberians with DED status are automatically extended until September 30, 2009. Liberians may show their existing EAD cards and a copy of the federal regulations in order to work. Persons wanting to obtain work authorization from September 30, 2009 to March 30, 2010 need to file form I-765 with the Vermont Service Center. Please go to the U.S. CIS website for more details.

Countless Liberians with DED status have family members that could file family-based petitions for them, which would allow the beneficiary to obtain legal permanent residence in the U.S. Depending on the relationship between the petitioner and the beneficiary, it could take many years before the beneficiary becomes eligible to receive permanent residence. Because of these visa backlogs, many Liberians have delayed filing family-based petitions. It took much lobbying by various congressional members and groups to get DED extended for another year. It is very uncertain what will happen to Liberians with DED after March 31, 2010, so it is more important than ever to file these family-based petitions. If you would like more information on how to petition for a family member, please contact our office.