[ALBSA-Info] Good News

[irma spaho]

This excerpt is taken from Shusterman's latest newsletter.

One big applaud to the 9th Circuit for shaking the ground of the infamous 
1996 law! Let's hope this is just the beginning ...

Irma


>* Detention: The U.S. Court of Appeals for the Ninth Circuit held that the
>INS may not detain aliens for more than a "reasonable" time past the
>statutory 90-day removal period.  The court decided the case on statutory
>rather than constitutional grounds.  Two other appeals courts, one in
>Denver and the other in New Orleans have approved the INS's indefinite
>detention policy.  The 9th Circuit's decision, which could potentially
>affect thousands of detained persons, is expected to be resolved by the
>Supreme Court.
>
>
>* Expungements: The BIA, in Matter of Roldan, held that an expunged
>criminal conviction could be the basis for a person's deportation.  See
>
>	http://shusterman.com/apr99.html#8
>
>On March 16, the U.S. Court of Appeals for the Ninth Circuit heard oral
>arguments in the Roldan case, and from the questions that were posed to the
>attorneys, it appears that Matter of Roldan may soon be history!


>5. Unlawful Presence: INS Moves Closer To Reality
>
>Prior to the passage of the 1996 immigration law, if a person who was
>unlawfully in the U.S. (because he entered the U.S. without inspection,
>overstayed or violated his status) qualified for permanent residence, he
>had to consular process.  That is, he could not adjust his status in the
>U.S.  He instead had to return to his native country and apply for an
>immigrant visa abroad unless he qualified for adjustment of status under an
>exception (e.g., some immediate relatives of U.S. citizens, 245(I), 245(k))
>to the general rule.
>
>The 1996 law introduced the term "unlawfully present" to the lexicon which
>already included "illegal", "deportable", "excludable", and "unauthorized".
>  Aliens who were "unlawfully present" in the U.S. starting on April 1, 
>1997
>for a certain period of time were to be subject to a number of bars of
>inadmissibility if they subsequently departed the U.S.  Those who were
>unlawfully present in the U.S. for a period of 180 days were subject to
>3-year bars to returning to the U.S.  Others who had accumulated one year
>of unlawful presence were subject to 10-year bars.  Still others were
>subject to lifetime bars.
>
>I remember one congressman who had supported the 1996 law predicting that
>before the first 180-day period ended in late September 1997, we would see
>the largest voluntary departure of illegal aliens from the U.S. in our
>country's history.  Of course, nothing like this ever occurred.
>
>Instead, for the past three years, the INS and the American Immigration
>Lawyers Association (AILA) have been engaged in discussions as to what
>constitutes "unlawful presence" in the U.S.  The INS initially took a very
>hard line position, but over the years has shown increasing flexibility
>given the fact that the law is poorly-drafted and the consequences of
>unlawful presence are so severe.
>
>For example, the law states that for certain periods of time after a person
>has applied for an "extension of status" or a "change of status", he does
>not accumulate unlawful presence for the purpose of the 3-year bar.  The
>period of unlawful presence is "tolled" for 120 days.  However since the
>law does not use the words "adjustment of status", the INS initially held
>that time spent by a legal nonimmigrant waiting for his application for
>adjustment of status to be adjudicated (which always exceeds 120 days) was
>considered to be unlawful presence!  Later, the INS reversed its position
>and held that Congress used the words "change of status" generically to
>include applications for "adjustment of status".
>
>On March 3, 2000, in two separate field memos signed by Michael A. Pearson,
>the INS Deputy Executive Associate Commissioner, Immigration Services
>Division, the agency has taken another welcome step closer to reality.
>
>The first memo deals with applications for an extension or change of
>status.  The memo states that
>
>"Although legislative history is silent regarding the intent of the 120-day
>tolling period, an inference may be drawn that Congress expected the
>Service to adjudicate the petitions within such a time frame.  However, due
>to unprecedented workload, in many instances the Service has been unable to
>adjudicate a timely filed application for E/S (extension of status) or C/S
>(change of status) within the 120-day period envisioned by Congress."
>
>Later, in the memo, the INS holds that if a persons submits a timely
>application for an extension or change of status, and the INS fails to
>adjudicate the application for 180 days or even for over one year, the
>person does not accumulate any unlawful presence in the U.S., and if they
>depart the U.S. before their application is adjudicated, they are not
>subject to the 3/10 year bars.
>
>Of course, as the genie in the movie "Aladdin" would say, this rule is
>subject to a couple of "provisos": (1) The person must not have been
>employed in the U.S. without permission; and (2) The application must be
>"non-frivolous".  The problem with these provisos is that they are decided
>after the fact, after you leave the U.S. while your application for an
>extension or change of status is pending and apply for a visa abroad.
>
>For example, the memo states that
>
>"To be considered non-frivolous, the application must have an arguable
>basis in law and fact and must not have been filed for an improper purpose.
>If the consular officer finds that the alien qualifies for a visa in the
>same category as the visa classification that was sought in the abandoned
>E/S or C/S application, the consular officer may presume that the E/S or
>C/S application is not frivolous."
>
>What is an "arguable basis in law and fact" and what is an "improper
>purpose"?  Reasonable people may disagree.  However, a visa denial by a
>consular officer can not be appealed.  Although the Pearson memo is a giant
>step forward, there is no way to guarantee that when you leave the U.S.
>while your application is pending that a consular officer will deny your
>visa application on the grounds that your extension/change of status
>application was frivolous.  You, or your client, is in the unenviable
>position of depending on the kindness of strangers.
>
>The complete text of the Pearson memo can be found at
>
>	http://shusterman.com/up-eos.html
>
>The second Pearson memo eliminates the 120-day limitation discussed above
>for purposes of section 222(g)of the 1996 law, the provision that provides
>that if a person overstays his period of authorized stay in the U.S., his
>visa is automatically void, and he must return to his country if he wishes
>to obtain a new visa.  To read the complete text of this second memo, see
>
>	http://shusterman.com/222g-ins.html
>

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