Visa Lawyer Blog

Articles Posted in Unlawful presence

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The fate of the President’s executive actions on immigration now rests in the hands of eight justices on the Supreme Court, absent Justice Antonin Scalia. The Supreme Court will begin to hear oral arguments for the case, United States v. Texas on April 18th of this year, with a final ruling expected by summertime. Nearly a year and a half ago, President Obama announced a series of executive actions on immigration including the expanded Deferred Action of Childhood Arrivals (DACA) program, the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, and other measures to enhance border security, prioritize deportations, and modernize the immigration system. USCIS was expected to begin accepting applications for the expanded DACA and DAPA program on February 18th. The excitement surrounding the expanded DACA and DAPA program however was very short lived. A federal court order filed by Texas and other states on February 16th temporarily suspended these programs from going into effect.

Since then, the federal government and the State of Texas have been battling one another in court. The Fifth Circuit court determined that Texas and at least 25 other states had sufficient ‘standing’ to challenge both programs from being implemented. The state of Texas along with other states, argue that these programs are not only outside the purview of the President’s constitutional power, but that the States would be substantially burdened, should the programs go into effect. Texas states that as a result of these programs, the State would suffer increased health-care, law enforcement, and educational costs which would come out of the State budget and more importantly the pockets of Texas residents, who do not take kindly to these programs. Additionally, Texas claims that it would suffer additional financial burden in having to issue more drivers’ licenses to individuals qualifying for expanded DACA and DAPA, a state-subsidized benefit. If the Supreme Court decides in favor of the federal government, nearly 5 million immigrants residing in the United States unlawfully will be shielded from deportation, and States will be forced to bear the costs to accommodate their new ‘deferred’ status. Deferred status will grant individuals the right to legally obtain employment, obtain a social security number, a driver’s license, and an education, but it is not a path to citizenship. As it stands, it is unlikely that a new Supreme Court Justice will be appointed before oral arguments begin in this case, especially with mounting political pressure from Republicans seeking to block the President from making a nomination.

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“He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp” -Ruth Bader Ginsburg

When news broke of the passing of the longest serving Justice on the Supreme Court, Antonin Scalia, a cloud of uncertainty lifted above the heads of Republican frontrunners vying for the Republican nomination for President of the United States. Indeed, the topic of conversation during the February 13th Republican Presidential Debate, which occurred on the day of Justice Scalia’s passing, focused on whether or not the current President should nominate the next Supreme Court Justice. Justice Antonin Scalia, nominated to the Supreme Court by President Ronald Reagan in 1986, was the most outspoken conservative on the bench, and not very well liked by liberal politicians and intellectuals, primarily due to the philosophy behind his jurisprudence. Scalia’s jurisprudence during his 29 years on the bench belonged to the Originalist school of thought. An Originalist’s interpretation of the Constitution denies the contention that the Constitution should be interpreted by the Court as a living, breathing document, a view that is typically shared by liberal Constructivist Justices like Ruth Bader Ginsburg. Instead, Originalists believe that the Constitution should be interpreted according to the original intent or meaning shared by the founders as it was written. This would require an Originalist to adhere to the spirit of the law as it was intended by the founders of our country, as well as an understanding of what was meant when the Constitution was originally drafted.

During his time on the bench, Scalia tenaciously criticized the liberal Constructivist view, calling this interpretation of the Constitution, judicial activism, which he viewed as inappropriate. In his view the Supreme Court must be insulated and not be swayed by the social concerns of the public. Throughout his trajectory, Scalia has gone down in history for handing down the most controversial dissents in the history of the Supreme Court, avidly supporting the right to bear arms, challenging the right to abortion, affirmative action, gay rights, and was ultimately instrumental in securing the Presidential nomination of George W. Bush in the 2000 case Bush V. Gore. Up until his untimely death, the Supreme Court held a conservative majority. The conservatives on the bench include Chief Justice, John G. Roberts Jr. nominated by President George W. Bush in 2005, Justice Clarence Thomas nominated by President George W. Bush in 1991, Justice Samuel Anthony Alito Jr nominated by President George W. Bush in 2006, Justice Anthony Kennedy, a moderate conservative swing vote nominated by President Ronald Reagan in 1988, and up until recently Antonin Scalia nominated by Ronald Reagan in 1986. Together, these conservative Justices established a 5-4 majority against liberal Justices: Ruth Bader Ginsburg, Stephen G. Breyer, and recently appointed Justices Elena Kagan and Sonia Sotomayor. Justice Antonin Scalia’s sudden death has now upset the conservative majority, creating a balance of power between conservative and liberal minds on the bench. With the death of Scalia, the bench is now evenly split ideologically 4-4 with a vacant seat ready to be filled by a liberal Justice, thereby creating a Liberal majority. This of course will not be easy, since the Senate is dominated by the Republican party, and the Senate will be in charge of vetting the President’s nominee.

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A new factsheet published by AILA and Kids in Need of Defense (KIND) provides statistics on the representation and removal of unaccompanied children and families facing removal proceedings before immigration court. The data concludes that an overwhelming number of unaccompanied children and families are ordered removed from the United States, despite having demonstrated a legitimate fear of persecution or torture and passing a credible fear interview, making these individuals viable candidates for asylum, prosecutorial discretion, or other relief from deportation. This is due to a lack of legal representation and legitimate concern for the due process of law.

Families Passing Credible Fear in preliminary interviews with federal asylum officers

On the whole, the majority of families in detention centers demonstrate a legitimate fear of persecution or torture and maintain a high rate of approval during credible fear interviews;

  • In preliminary interviews with asylum officers, approximately 90% of families successfully demonstrated a credible fear of persecution or torture;
  • Upon completion of these interviews, approximately 88% of detained families pass their credible fear interviews;
  • The USCIS Asylum Office has indicated that the credible fear passage rates remain unchanged—at a rate of 90%;
  • DHS data indicates that 53% of 121 individuals, arrested by DHS during the January raids, lacked legal representation before immigration court;

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This morning, the Supreme Court announced that it would hear arguments for and against the extended Deferred Action for Childhood Arrivals (DACA) program and the new Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) program. If the government succeeds in its appeal, millions of undocumented immigrants will be granted temporary employment authorization, ‘deferred status’ meaning that these individuals will no longer need to fear deportation, and other benefits such as the ability to apply for a social security number. This decision is a victory for the Obama administration since it leaves open the possibility that the Supreme Court will lay down an important legal precedent in the midst of the presidential campaign and Obama’s exit from the White House.

  • To learn how expanded DACA is different than the initial DACA program click here.
  • To learn about the DAPA program click here.
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The Supreme Court justices are currently in deliberations, to decide the fate of Barack Obama’s expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) announced November 2014, as part of the President’s executive actions on immigration. At issue is whether or not the Court will hear arguments for and against lifting the temporary court injunction, which prevented the expanded DACA program and the new DAPA program from moving forward as initially anticipated.

The extended DACA and DAPA provisions were scheduled to go into effect on February 18, 2015, but were quickly blocked by a temporary injunction filed by Texas and 26 other states, just three days before applications for extended DACA and DAPA would have been accepted by USCIS. What has resulted has been a near two-year legal battle between the federal government and the states in question.

Timeline of legal action between the federal government and plaintiffs:

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Following a recent surge in apprehensions of undocumented immigrants at the Southwest border, the Department of Homeland Security announced that, beginning January 1st Immigration and Customs Enforcement (ICE) engaged in a concerted nationwide crackdown, taking adults and some children into custody, who have evaded their orders for removal. In a recent press release, the Secretary of DHS, Jeh Johnson indicated that the crackdown occurred as a result of President Obama’s November 2014 executive action on immigration, which put in place new priorities for removal, including the removal of convicted criminals, individuals posing a threat to national security, individuals apprehended at the border or who were found to have entered the United States unlawfully after January 1, 2014. In November 2014 President Obama had implemented these new priorities in an effort to secure the border. In the press release, Jeh Johnson added, “as I have said repeatedly, our borders are not open to illegal migration; if you come here illegally, we will send you back consistent with our laws and values…individuals who constitute enforcement priorities, including families and unaccompanied children will be removed.”

According to the Department of Homeland Security, Central American migrants were removed and repatriated at an increasing rate since the summer of 2014. During this time, there was a surge in the number of families and unaccompanied children from Central America attempting to cross the southern border illegally. In response to this surge, DHS collaborated with the Mexican, Guatemalan, Honduran, and Salvadorian governments to decrease these numbers. According to Jeh Johnson the collaborative efforts were temporarily successfully. In 2015 the number of apprehensions by the U.S. Border Patrol decreased dramatically to 331, 333. Fiscal year 2015 experienced the lowest amount of apprehensions on the southern border since 1972. Recently, an increased rate of apprehensions resurfaced. This sudden spike resulted in the January 1st crackdown prompting ICE to action. As part of the crackdown, dozens of female agents and medical personnel were deployed to assist with the apprehension and removal process. According to DHS, in cases involving medical urgency or other reasons, ICE exercised prosecutorial discretion. As stated by DHS, enforcement operations will continue as needed in collaboration with state and local law enforcement.

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District Court Denies Request for Temporary Restraining Order to Halt Syrian Re-Settlement Program in Texas

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First Family of Syrian Refugees Arrives in Canada

In their December suit, Texas Health and Human Services Commission V. United States, et, al., the state of Texas alleged that the United States government and the International Rescue Committee unlawfully attempted to re-settle six Syrian refugees in the city of Dallas without prior  consultation and collaboration. According to Texas, the federal government failed to consult with the state regarding re-settlement of these refugees, and prevented them from receiving vital information relating to security risks posed by Syrian refugees prior to their re-settlement. Texas also claimed that the International Rescue Committee similarly failed to collaborate and consult with the Texas Health and Human Services Commission in advance prior to the re-settlement of these refugees. To protect itself, the state of Texas asked for an injunction and a temporary restraining order to halt the resettlement of Syrian refugees until security checks could confirm that these Syrian refugees do not pose a threat to the state of Texas.

On December 9, 2015 the U.S. district court denied the temporary restraining order, adding that the state of Texas failed to provide compelling evidence to suggest that Syrian refugees pose a substantial threat of irreparable injury to its citizens. Presiding district court Judge David C. Godbey added that, “the [Texas] commission has failed to show by competent evidence that any terrorists actually infiltrated the refugee program, much less that these particular refugees are terrorists’ intent on causing harm.” Although the lawsuit still stands and will likely not receive a final ruling until early next year, the district court set an important precedent in its denial of the temporary restraining order. Judge Godbey further maintained that it is not within the purview of the district court to assess what risk, if any, Syrian refugees pose to any particular state. Such risk can only be assessed by the federal government. On this issue Godbey stated that, “the Court has no institutional competency in assessing the risk posed by refugees. That is precisely the sort of question that is, as a general matter, committed to the discretion of the executive branch of the federal government, not to a district court.” The rest of the lawsuit remains in litigation.

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katie

It is our pleasure to introduce our readers to our esteemed Paralegal and Case Manager Katie Foley who has worked at the Law Offices of Jacob J. Sapochnick since 2010. Ms. Foley, originally from Santa Cruz, California holds a Bachelor’s Degree in Liberal Studies from Cal State East Bay and her paralegal certificate from San Diego Miramar College. Throughout her career, Katie Foley has assisted our attorneys with various different types of immigration petitions including family-based petitions, employment based petitions (H-1B, E-2 etc.), deferred action, marriage visas, I-751 petitions, fiancé visas, consular processing, naturalization, temporary visas (B-1/B-2, J-1, F-1 etc), deportation and removal cases.  She has successfully processed hundreds of applications and in the process has formed long standing relationships with our clients. In her role as case manager, she assists our legal assistants with their case loads and provides direction as needed. Ms. Foley is an outstanding member of our firm for her impressive attention to detail, her understanding of the law, and the extensive guidance she provides our clients to ensure every case has a successful outcome. She provides all of our client’s strong personal support and comprehensive step-by-step instructions for each immigration process. If you are an international or out of state client, not to worry, Ms. Foley has perfected an easy online case processing system to assist clients with their immigration concerns no matter where they reside. In her free time, she enjoys lap swimming, barbecues, and gardening. To read more about Ms. Foley please click here.

For immigration questions please call our office. Your Immigration is our Passion.

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Yesterday night, in a 2-1 vote the United States Fifth Circuit Court of Appeals voted to uphold the lower court’s decision in Texas v. United States blocking President Obama’s extended Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs from going into effect.

The expanded DACA and new DAPA provisions were announced November of last year as part of Obama’s executive actions on immigration giving eligible undocumented individuals a legal status in the United States. The expanded DACA program would have made millions of law abiding undocumented aliens (with no criminal history) eligible for employment authorization and social security benefits. To qualify, expanded DACA applicants would need to provide documented evidence proving their continuous physical presence in the United States from January 1, 2010 onward. In exchange, the United States government would recognize these individuals as law abiding residents and safeguard them against deportation. The move was significant since it would mean that undocumented individuals would no longer need to live on the fringes of society. By granting these individuals an immigration classification, insurance companies would become accessible to them for the first time ever.

Similarly, Obama’s DAPA program would have extended eligibility of deferred action to parents of US Citizens and Lawful Permanent Residents born or or before November 20, 2014 the date of the DAPA program’s announcement. As part of the application process, DAPA applicants would be required to undergo extensive background checks and prove continuous residence since January 1, 2010 among other provisions. Click here for more information on DAPA.

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In this blog we are answering 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office.

Qualifying for 245i and Adjustment of Status

Q: My ex-husband filed an adjustment of status application on my behalf based on 245i. We separated before we received our initial interview appointment and later divorced. I have since remarried. Can my husband apply for my permanent residence now that we are married?

A: Thank you for your question. Certain individuals who have a qualifying relative willing to file an immigrant visa petition on their behalf, are eligible to adjust their status under 245i Immigration and Nationality Act if they entered the country without inspection (unlawfully) and were the beneficiary of a visa petition or application for labor certification filed on specific dates outline below. Before proceeding with a new green card application, you should make sure you qualify for 245i and have all of the necessary documents to prove your eligibility. 245i applicants must provide documented evidence of their physical presence in the United States and evidence that the visa petition or application for labor certification was filed on their behalf by providing the receipt notice of the petition also known as the I-797 Notice of Action.

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