Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
AAO TPS Decisions of January 2012 & DACA                    Compiled w/commentary by Joseph P. Whalen 1 (August 26, 2012)C...
LINK & RESULT                  EXCERPTS & COMMENTSsupposed to be even more   treated as a misdemeanor under the term "felo...
LINK & RESULT       EXCERPTS & COMMENTS                      The TPS provisions may be compared to the                    ...
LINK & RESULT         EXCERPTS & COMMENTS                On June 29,1999, the case was administratively                clo...
LINK & RESULT               EXCERPTS & COMMENTS                               (f) the ultimate outcome of removal proceedi...
LINK & RESULT                    EXCERPTS & COMMENTS                            additional evidence with the I-290B as all...
LINK & RESULT               EXCERPTS & COMMENTS                        30 days to submit certified judgment and conviction...
LINK & RESULT               EXCERPTS & COMMENTS                              and was ordered to pay a fine, sentenced to  ...
LINK & RESULT               EXCERPTS & COMMENTS                        The regulation at 8 C.F .R. § 103 J( a)(l )(v) stat...
LINK & RESULT               EXCERPTS & COMMENTS                        during the requisite periods. Specifically, the    ...
LINK & RESULT                     EXCERPTS & COMMENTS                             incorrect information to file for TPS kn...
Upcoming SlideShare
Loading in …5
×

AAO TPS Decisions of January 2012 and DACA

851 views

Published on

Published in: News & Politics
  • Be the first to comment

  • Be the first to like this

AAO TPS Decisions of January 2012 and DACA

  1. 1. AAO TPS Decisions of January 2012 & DACA Compiled w/commentary by Joseph P. Whalen 1 (August 26, 2012)Certain parameters applicable to the new Deferred Action for Childhood Arrivals(DACA) parallel or are extremely similar to qualifications for requests for TemporaryProtected Status (TPS). It may be worthwhile reviewing the most recently releasedAAO TPS decisions concerning some shared or similar criteria such as themisdemeanor limit, as well as its “definition” and that of “conviction” 2 or seeing whatmight not even be counted. While it may be true that these similarities are not 100%matches, we should be able to at least get a “heads-up” on any impending “problemissues”. You can find these decisions at the specific links in the chart or browse formore among AAO’s Administrative Decisions. LINK & RESULT EXCERPTS & COMMENTS Jan052012_01M1244.pdf Temporary Protected Status (TPS) was withdrawn by the Director, Vermont Service Center. APPEAL DISMISSED ***** The applicant is a native and citizen of EI Salvador who was granted Temporary Protected Status (TPS) under section 244 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254. ***** The director withdrew TPS because the applicant had been convicted of at least two misdemeanors in the United States. ***** "Misdemeanor" means a crime committed in the Remember that DACA has United States, either (1) punishable by imprisonment slightly DIFFERENT for a term of one year or less, regardless of the term qualifications and is such alien actually served, if any, or (2) a crime 1 Contact me at joseph.whalen774@gmail.com or Silver.SurferEB5@gmail.com and review any of my numerous postings, at the links below, on a wide variety of immigration, nationality, citizenship, asylum, removal, and various related law issues, as well as general adjudication quality concerns. I provide freelance training, consultation, and research at reasonable rates. SEE: http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer 2 A recent case from the 9th Circuit (June 2, 2012) which denied en banc rehearing compiles numerous references to cases discussing the meaning and application of the term “conviction” for immigration purposes, including a discussion about finality even when an appeal or request for a “reduction” or dismissal is pending. SEE: http://www.slideshare.net/BigJoe5/planes-v-holder-9th-cir- june-5-2012-collecting-cases-on-conviction-under-ina Page 1 of 11
  2. 2. LINK & RESULT EXCERPTS & COMMENTSsupposed to be even more treated as a misdemeanor under the term "felony" of forgiving. We shall see this section. For purposes of this definition, any how that works out in crime punishable by imprisonment for a maximum practical application. term of five days or less shall not be considered a misdemeanor. 8 C.F.R. § 244.1. The term conviction means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, adjudication of guilt has been withheld, where - (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the aliens liberty to be imposed. Section 101(a)(48)(A) of the Act. ***** As cited above, a misdemeanor is any offense that "is punishable by imprisonment for a term of one year or less, regardless a/the term such alien actually served, if any." The record, in this case, reflects that the applicant entered a plea of guilty to each offense, and the judge accepted the plea and ordered some form of punishment to each charge. Therefore, for immigration purposes, the applicant was convicted of the misdemeanor offenses within the meaning of section 101 (a)(48)(A) of the Act.Jan052012_02M1244.pdf The [VSC] director denied the application because the applicant had been convicted of fourAPPEAL DISMISSED misdemeanors in the United States. On appeal, the applicant apologizes for his previous wrongdoings and asserts that he has not committed any crimes in the past ten years. The applicant, asserts, in pertinent part: Page 2 of 11
  3. 3. LINK & RESULT EXCERPTS & COMMENTS The TPS provisions may be compared to the provisions for the Nicaragua and Central American Relief Act. The latter provides for a period of seven years during which the applicant is required to show good moral character. Criminal convictions occurring outside that time period are not considered unless they are aggravated felonies or certain special crimes. In the instant case, the applicants convictions are for simple misdemeanors. An alien shall not be eligible for TPS under this section if the Secretary of the Department of Homeland Security finds that the alien has been convicted of any felony or two or more misdemeanors committed in the United States. See Section 244(c)(2)(B)(i) of the Act and 8 C.F.R. § 244.4(a). ***** The applicants statements on appeal have been considered. However, a time limitation is not provided for criminal activities for applicants for TPS under section 244( c )(2)(b) of the Act, and as provided in 8 C.F.R. § 244.4(a). The applicant must meet the eligibility requirements at the time the application is filed, and at any time thereafter. The applicant is ineligible for TPS due to his four misdemeanor convictions. Section 244(c)(2)(B)(i) of the Act and 8 C.F.R. § 244.4(a). Consequently, the directors decision to deny the application for this reason will be affirmed. ***** Finally, while not the basis for the dismissal of the appeal, it is noted that the record reflects that a removal hearing was held on May 29, 1998, and the applicant was granted voluntary departure from the United States on or before July 28, 1998. On June 25, 1998, the applicant appealed the immigration judges decision to the Board of Immigration Appeals (BIA). Page 3 of 11
  4. 4. LINK & RESULT EXCERPTS & COMMENTS On June 29,1999, the case was administratively closed to allow the applicant the opportunity to apply for TPS.FN1 FN1 Administrative closing of a case does not result in a final order. It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations. See Matter of Gutierrez-Lopez, 21 I&N Dec. 479 (BIA 1996). NOTE: Since this AAO Decision was decided there has been a further development on the issue of an IJ’s Administrative Closure authority. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012): (1) Pursuant to the authority delegated by the Attorney General and the responsibility to exercise that authority with independent judgment and discretion, the Immigration Judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances. Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996), overruled. (2)* In determining whether administrative closure of proceedings is appropriate, an Immigration Judge or the Board should weigh all relevant factors, including but not limited to: (a) the reason administrative closure is sought; (b) the basis for any opposition to administrative closure; (c) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (d) the anticipated duration of the closure; (e) the responsibility of either party, if any, in contributing to any current or anticipated delay; and Page 4 of 11
  5. 5. LINK & RESULT EXCERPTS & COMMENTS (f) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is re-calendared before the Immigration Judge or the appeal is reinstated before the Board. * This holding has been altered from the original holding—it is number (1)-(6) in the original rather than lettered (a)-(f) as shown here. I just think it reads better this way.Jan092012_01M1244.pdf The director denied the application because the applicant failed to establish he had: 1) continuouslyAPPEAL DISMISSED resided in the United States since February 13, 2001; and 2) been continuously physically present in the United States since March 9, 2001. ***** The term continuously physically present, as defined in 8 C.F.R. § 244.1, means actual physical presence in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences as defined within this section. The term continuously resided, as defined in 8 C.F.R. § 244.1, means residing in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence as defined within this section or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien. ***** A review of the evidence submitted with his initial application (from denied 2007 TPS application) and on appeal (of his 2010 denied TPS application with Page 5 of 11
  6. 6. LINK & RESULT EXCERPTS & COMMENTS additional evidence with the I-290B as allowed by the form instructions) only serves to establish the applicants continuous residence and continuous physical presence in the United States from 2003 to 2011. The applicant submitted a copy of a Form This was the critical 1040 for 2002; however, the form lacks probativeshowing that was required value as it is neither certified as being filed nor is from everyone who accompanied by any corroborating evidence. The applied. It looks like he record contains no contemporaneous evidence to entered the U.S. AFTER establish continuous residence since February 13, the legally allowed date 2001, and continuous physical presence since required for this TPS March 9, 2001, in the United States. The applicant designation. has, thereby, failed to establish that he has met the criteria described in 8 C.F.R. § 244.2(b) and (c). Consequently, the directors decision to deny the application for TPS will be affirmed.Jan132012_01M1244.pdf Temporary Protected Status was withdrawn by the Director, Vermont Service Center. APPEAL DISMISSED ***** The director withdrew the applicants TPS because he had failed to submit requested court documentation relating to his criminal record. ***** It is noted that the director indicated in his notice of January 28, 2011 that the applicant had been arrested on May 30, 2008, by the Police Department of Chicago, Illinois for two counts of driving without a license. On November 22, 2011, the AAO issued a notice to the applicant advising him that the director had inadvertently indicated he had been arrested on May 30, 2008, in Illinois instead of California. The applicant was informed that the FBI report indicated that he had been arrested on May 30, 2008, by the Hawthorne Police Department for two counts of driving without a license. The applicant was granted Page 6 of 11
  7. 7. LINK & RESULT EXCERPTS & COMMENTS 30 days to submit certified judgment and conviction documentation from the court for the May 30, 2008, arrest. The record shows that as of the date of this decision, the applicant has failed to respond to the AAOs notice. Therefore, the record must be considered complete.Jan132012_02M1244.pdf The director denied the application because the applicant had been convicted of at least twoAPPEAL DISMISSED misdemeanors in the United States. On appeal, counsel asserts that the court dispositions indicate that the applicant was charged with traffic violations and that the applicant pled guilty to two traffic infractions. ***** The record contains the following: 1. Court documentation in Case no. [REDACTED] from the General District Court (Traffic) for the City of Alexandria, Virginia, which indicates that on October 27, 1996, the applicant was arrested and subsequently charged with violating Virginia Code section 18.2-266, driving while intoxicated. On December 11, 1996, the applicant pled guilty to the offense and was ordered to pay a fine and his drivers license was suspended for a year. 2. Court documentation from the Fairfax County General District Court (Traffic), which indicated that on November 22, 1999, the applicant was arrested and subsequently charged with violating Virginia Code section 82-1-6/18.2-66, driving while intoxicated, second offense within five years. On March 1, 2000, the applicant pled guilty to the offense Page 7 of 11
  8. 8. LINK & RESULT EXCERPTS & COMMENTS and was ordered to pay a fine, sentenced to serve 180 days in jail (174 days were suspended) and his drivers license was suspended for three years. 3. Court documentation in Case no. [REDACTED] from the Fairfax County General District Court (Traffic), which indicated that on April 23, 2007, the applicant was arrested and subsequently charged with violating Virginia Code 42.2-300, driving without a license. On August 8, 2007, the applicant pled guilty to the offense and was ordered to pay a fine. The fact that counsel considers the applicants traffic convictions to be "violations" rather than "crimes," is simply not relevant to the question of whether the offense qualifies as a "misdemeanor" for immigration purposes. ..... ***** .....The court documents for each driving while intoxicated offense clearly indicate that the offense is a Class 1 misdemeanor. The applicant is ineligible for TPS due to his three misdemeanors convictions. .....Jan132012_04M1244.pdf The director denied the application because the applicant had failed to submit requested court SUMMARILY documents relating to his criminal record. DISMISSED On appeal, the applicant does not address the basis for the denial of his application. The applicant indicates at Part 2 on the appeal form that no supplemental brief and/or additional evidence will be submitted. Page 8 of 11
  9. 9. LINK & RESULT EXCERPTS & COMMENTS The regulation at 8 C.F .R. § 103 J( a)(l )(v) states, in pertinent part: Summary dismissal. An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. Inasmuch as the applicant has failed to overcome the directors finding and has failed to identify specifically an erroneous conclusion of law or a statement of fact as a basis for the appeal, the regulations mandate the summary dismissal of the appeal.Jan132012_05M1244.pdf The director denied the application because the applicant failed to establish: 1) her true date of biIrth;APPEAL DISMISSED 2) she was eligible for late registration; 2) her continuous residence in the United States since February 13, 2001, and 4) her qualifying continuous physical presence in the United States since March 9, 2001. ***** The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The record reflects that the applicant filed her initial TPS application[REDACTED] ON June 14, 2002. Along with her application, the applicant submitted copies of her birth certificate with English translation and her El Salvadoran identification card (cedula), which reflect that she was born on August 10, 1982. On December 2, 2002, the Director, Nebraska Service Center, denied the application because the applicant failed to establish continuous residence and continuous physical presence in the United States Page 9 of 11
  10. 10. LINK & RESULT EXCERPTS & COMMENTS during the requisite periods. Specifically, the director determined that some of the evidence provided appeared altered and, therefore, shed doubt on the remaining evidence. No appeal was filed from the denial of that application. The applicant filed the current application on February 3, 2011. [This is a detailed 7-page decision.]Jan132012_06M1244.pdf Appeal was submitted 40 days after the date of the denial. APPEAL REJECTED AS UNTIMELY The matter will therefore be returned to the director. If the director determines that the late appeal meets the requirements of a motion, the motion shall be granted and a new decision will be issued. As the appeal was untimely filed, the appeal must be rejected.Jan172012_01M1244.pdf The incorrect information provided by USCIS to the applicant does not mitigate her failure to file anAPPEAL DISMISSED initial TPS application within the 60-day period following the expiration or termination of the condition described in 9 C.F.R. § 244.2(f)(2)(ii). The applicant was aware of the denial of her LIFE application on December 18, 2008, as she filed an appeal. The applicant was also aware of the notice dated May 4, 2010, as it was sent to the same address of record which she maintains on the current appeal. The record contains no evidence that the notice was returned as undeliverable by the U.S. Postal Service. ***** Somehow this person managed to obtain incorrect notices about her denied LIFE Act I-485 long after it was denied and long after her appeal of it was dismissed. She then tried to use that Page 10 of 11
  11. 11. LINK & RESULT EXCERPTS & COMMENTS incorrect information to file for TPS knowing full well that the documents she was submitting to establish eligibility to file for TPS were incorrect. I have to say that I truly wonder how this person got the incorrect Notice in the first place! Did she get it from that contractor who got indicted?Jan302012_05M1244.pdf The director withdrew the applicants TPS because he had failed to submit requested courtAPPEAL DISMISSED documentation relating to his criminal record. On appeal, the applicant submits the requested court documentation. The applicant requests that his TPS be reinstated. ***** The applicant is ineligible for TPS due to his two misdemeanor convictions. Section 244(c)(2)(B)(i) of the Act and 8 C.F.R. § 244.4(a). The applicants statements made on appeal have been considered. Nevertheless, there is no waiver available, even for humanitarian reasons, of the requirements stated above. Consequently, the directors decision to withdraw TPS will be affirmed.There are numerous additional past decisions to explore in this category and others. Page 11 of 11

×