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A new Board of Immigration Appeals decision, Matter of J-J-G, 27 I&N Dec. 808 (BIA 2020) has made it more difficult for foreign nationals to obtain Cancellation of Removal.  Cancellation of Removal is a form of relief from deportation where the foreign national, even if he or she entered the United States without any papers, has been in the United States for 10 years or more, has had good moral character for 10 years, has not been convicted of certain crimes, warrants a favorable exercise of discretion, and finally, has a United States citizen or lawful permanent resident spouse, parent or child that would incur exceptional and extremely unusual hardship if the foreign national were deported.  This form of relief is extremely valuable for many people who entered the United States a long time ago without papers.  In fact, if the Immigration Judge grants the cancellation of removal, the foreign national will get a greencard.  So, why did it just become more difficult to get Cancellation of Removal?


How do I get Cancellation of Removal?


Cancellation of removal is a form of relief from deportation only available in Immigration Court.  That means that you can’t apply for it unless you are already in removal (deportation) proceedings.  For many foreign nationals who have no options available to them to apply for affirmatively, cancellation of removal in immigration court can be a godsend. Once you are in Immigration Court, you would apply for Cancellation of Removal by submitting form EOIR-42B and applicable evidence.  The Immigration Judge would schedule your case for an Individual Hearing, which would be like a bench trial before the judge where you would present witnesses and evidence.  Lawful permanent residents would submit Form EOIR-42A and applicable evidence.  Lawful permanent residents do not have to establish that their removal would result in Exceptional and extremely unusual hardship, so this blog and the J-J-G case applies only to nonpermanent residents.

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Beginning on February 24th, 2020, most non-citizens applying for a greencard have been subject to a dramatic change in the Public Charge Rule.  This change is going to present an additional burden on those seeking a greencard, including the need to fill out and submit a new form, the need to present additional evidence, and the potential need for a joint sponsor.  It will also increase the number of greencard denials.


What is the Public Charge Rule?


Section 212(a)(4) of the Immigration and Nationality Act makes any person likely to become a public charge inadmissible.  The applicant has the burden of proof.  This means that most applicants for greencards must prove to the government that you are not likely to become a public charge.  In the past, it was usually enough to submit an I-864, Affidavit of Support from the Petitioner (U.S. citizen spouse, parent, etc.) along with tax returns showing that the Petitioner made 125% of the federal poverty level.  This is no longer the case.  Now, the government requires a completely new form, Form I-944 to be filed by the applicant, along with new additional evidence.

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There are two different categories of people who are in the United States without authorization.  First, there are people who were lawfully “admitted or paroled” and then overstayed their visa or otherwise violated the terms of the admission.  Second, there are people who entered the United States without authorization or inspection.  Different laws apply to each of these categories of individuals.  How a person entered the United States can have a drastic effect on whether they are eligible to get a green card inside the United States or whether they will have to wait outside the United States for many years before obtaining a greencard.


What if I entered the United States with a visa, but overstayed and now I have a United States citizen spouse who wants to apply for me?


According to the Department of Homeland Security’s 2018 Report, there were 666,582 overstays in the year 2018.  An overstay is a person that was granted authorization to enter and stay in the United States for a temporary period of time and then did not leave the United States within that authorized period.  This can be overstaying on the visa waiver program, a visitor visa, student visa, or any other temporary visa.  A person who overstays their visa is deportable.  However, that doesn’t necessarily mean that person will be deported.   The government forgives the overstay in many situations and will allow the person to obtain a greencard within the United States if they are otherwise eligible.  For example, under the current policies, USCIS (United States Citizenship and Immigration Services) will, within their discretion, allow a person who has overstayed their visa to obtain a greencard based on marriage to a United States citizen.  This forgiveness usually only extends to family based applications and not employment based.  There are also many considerations that can affect eligibility, so it is important for any person with any immigration violation, like an overstay status, to consult with an immigration attorney before filing any immigration paperwork.  USCIS can issue a Notice to Appear and place a person in removal (deportation) proceedings, so consult with an immigration attorney to understand the risks.

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A new decision, Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), released by the Attorney General has created a rebuttable presumption that a person with multiple DUI convictions during the relevant time period does not have “good moral character.”  This means that if a person had old DUI convictions and has rehabilitated themselves, it still will not be enough to establish “good moral character.”


What is “good moral character?”


In certain situations, a non-citizen must prove that he or she has “good moral character.”  For example, if a lawful permanent resident wants to become a United States Citizen, he or she will apply for naturalization and must establish that he or she has had good moral character for the past 3 or 5 years, depending on which provision of law they are applying under.  Also, a person that entered the U.S. without inspection and who is placed in removal (deportation) proceedings, may be eligible to have their removal cancelled (“cancellation of removal”) if they meet certain requirements.  One of those requirements is to prove that he or she has had good moral character for the last 10 years.

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In Florida, driving is considered by our courts as a privilege and not a right.  This is important because it means that the State of Florida has more authority to grant, deny, suspend, or revoke driver’s licenses than it would if you had a constitutional or statutory right to drive.  But people need to drive.  It is hard to exist and prosper without having the ability to drive from place to place.  Every State creates its own rules on who can drive and when. So, what are Florida’s rules when it comes to non-citizens?


The State of Florida and Driver’s Licenses for Non-Citizens


Some states are more immigrant friendly than others when it comes to issuing driver’s licenses.  Immigration is controlled by federal law.  Driver’s licenses is controlled by state law.  Each state can develop their own laws and rules on who can drive within their state.  Some states aren’t really concerned about a person’s immigration status.  The State of Florida requires its residents to submit evidence of their lawful status, or in some cases, evidence of their efforts to obtain lawful status, in order to obtain a driver’s license.

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So, you worked for years and years to become a Lawful Permanent Resident.  Spent hundreds or thousands of dollars.  Endured endless delays.  Finally filed your application to become a United States Citizen and…nothing.  Crickets.  Silence.  Not an approval.  Not a denial.  Nothing.  You’ve called the 1-800 number.  You’ve checked the status online.  You may have even made Congressional inquiries.  And still…nothing.  No explanation.  No timeline. Just radio silence.  So what can you do?


What can I do if USCIS refuses to adjudicate my Naturalization Application?


There has been a nationwide push among immigration lawyers to hold USCIS accountable for their inaction.  SUE!  Sometimes the only option is to litigate in Federal Court.  Simply filing a lawsuit in Federal Court is often enough to nudge your case loose from the bureaucratic vice within the bowels of USCIS.

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Did you know that the mere admission of past criminal conduct can lead the government to deny your admission into the United States.  It can lead to a denial of a green card.  It can lead to deportation.  Many unsuspecting people believe that admitting to minor criminal conduct that happened years in the past will be forgiven by immigration officials. That cannot be further from the truth.


Why would they deny my admission or deport me for simply admitting to past criminal conduct?


§212(a)(2)(A)(i) of the Immigration Act states that, “any alien…who admits having committed, or who admits committing acts which constitute the essential elements of … a crime involving moral turpitude…or an attempt or conspiracy to commit such a crime…or a violation of any law…relating to a controlled substance…is inadmissible.”  This means that no conviction is required.  Therefore, if you admit to committing certain crimes, you are inadmissible and  you must seek a waiver to be admitted into the United States, or to be able to get a greencard, or to be able to stay in the U.S.

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In 2018, the United States Supreme Court opened up an avenue of relief from deportation for many non-U.S. Citizens in the landmark decision of Perreira v. Sessions, 138 S.Ct. 2105 (2018). That avenue of relief has been closed down by the Board of Immigration Appeals (BIA) in a newly released decision of Matter of Mendoza-Hernandez, Matter of Capula-Cortes, 27 I&N Dec. 520 (BIA 2019).  Here’s how the new decision will affect people in deportation proceedings:


What did the U.S. Supreme Court say in Perreira v. Sessions?


Many people believe that when a non-citizen is in the United States without lawful status, they are automatically deported.  However, there are many forms of relief that can help a person stay in the country.  Some of those forms of relief require that the person has been inside the United States for a certain amount of time.  For example, a person who does not have a greencard and has overstayed their visa or entered without authorization has to have been in the United States for 10 years to ask for “Cancellation of Removal.”  If the government files a Notice to Appear with the Court within that 10 year period, the person is not eligible to seek “Cancellation of Removal.”

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There are countless blossoming romances happening right now all around the world.  Many of those relationships involve couples who have large age differences, religious differences, cultural differences, and more.  Often, U.S. citizens fall in love with and marry people from other countries.  The process of obtaining a greencard (officially known as a Lawful Permanent Resident card) for that spouse should be easy.  But it’s not.  Even if the marriage is clearly real, the non-citizen spouse can be denied a greencard if you do not submit sufficient evidence that the marriage is real.


What do I have to prove in order to get my non-citizen spouse a greencard?


The process is different depending on your circumstances (i.e. is your spouse in the country or out of country), but one thing is always required.  If you are filing a petition with USCIS (United States Citizenship and Immigration Services) to establish your relationship to your spouse, you will have to prove that the marriage is “bona fide.”  In other words, you have to prove that your marriage is real.  It was not entered into for the sole purpose of evading the immigration laws.  This doesn’t mean that a couple can’t decide to get married earlier than they normally would so they aren’t separated when the non-citizen has to leave the country.  It simply means that two people can’t get married solely so the non-citizen can stay in the U.S. when they do not intend to live as husband and wife.

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Immigrants throughout the United States have been victimized by “notarios” who present themselves as attorneys or attorney-like figures who take a much smaller fee than any attorney and who agree to file immigration paperwork on behalf of the unsuspecting immigrant.  These individuals often create major immigration problems for the vulnerable victims who often don’t speak English and are unfamiliar with our immigration laws.  The notarios will often commit immigration fraud or make material misrepresentations that can subject the immigrant victim to criminal prosecution and/or deportation.  Many victims put their trust in people to do the right thing and to file the correct paperwork with the correct information.  So they sign their names to the applications.  Often, without reading what they are signing. The Board of Immigration Appeals recently came out with a decision which discusses this very issue.  The BIA held that there will be a strong presumption that if you sign your name to an immigration application or petition, then you are aware of the contents of the application or petition.


What if I signed my name to an immigration application, but I didn’t read what was in the application?


In Matter of Valdez, 27 I&N Dec. 496 (BIA 2018), the Board of Immigration Appeals (BIA) decided the case of A.J. and Z. Valdez, a husband and wife who were citizens of Venezuela.  The Valdez’s hired a person who was not an attorney to help them get greencards.  The Valdez’s believed that the person was an attorney and pastor and could get them greencards through the church.  They paid this person $15,000 to represent them and he drafted the applications, presented the applications to the Valdez’s for them to sign, and then filed the applications with USCIS.  The applications were in English and the Valdez’s only spoke Spanish.  The Valdez’s signed the applications, relying on the person they paid and who they thought was an attorney.  USCIS granted the applications and the Valdez’s received their greencards.  Upon reentry after a trip abroad, Customs and Border Protection (CBP) placed the Valdez’s in secondary inspection and ultimately they were placed in removal (deportation) proceedings.  The Valdez’s were charged with being inadmissible under INA 212(a)(6)(C)(i) for fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act.”