Immigration Law

On June 26, 2013, the United States Supreme Court held that the Defense of Marriage Act is Unconstitutional.  While same sex marriage based immigration benefits are not granted under current law, there does appear to be relief on the way for same-sex couples seeking immigration benefits.  Janet Napolitano, Secretary of Homeland Security, issued the following statement, indicating that immigration benefits for same sex couples may not be far away:  

“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."

Gupta & Trujillo applauds the recent DOMA decision and DHS's efforts to extend immigration benefits to the gay and lesbian community.  

By Ramon Trujillo

Earlier this month, United States Citizenship and Immigration Services (“USCIS”) announced firm plans for the long awaited stateside waiver program.   The program had initially been announced in January 2012, with an expected start time of July 2012.  After some delays and modifications to the program, USCIS announced that it will begin to allow for the stateside waiver process for certain individuals beginning March 4, 2013. 

Currently, a relative of a United States Citizen who is in the United States illegally, but has a visa available at the consulate of their native country, would have to leave the United States to their native country in order to obtain their Visa.  However, once they stepped foot outside of the United States a three or ten year bar would kick in due to the alien’s illegal presence.  While this bar did not automatically prevent the alien from coming back to the United States, an earlier return to the US required a waiver application to forgive illegal presence.  The alien seeking the waiver would have to apply for the waiver at their consulate.  For example, a native of Mexico would apply for the illegal presence waiver at the consulate in Ciudad Juarez, Mexico.  The process could take weeks, months, and in some instances a lot longer until the alien learned if their waiver was approved. 

This process, unfortunately, kept families apart for an indefinite amount of time while the alien awaited decision on the waiver abroad.   If granted, the alien could return; if denied, the alien would be subject to the 3 or 10 year ban. 

The new process, beginning March 4, 2013, allows for certain relatives of American citizens who need a waiver of unlawful presence before being eligible for a green card to apply for that waiver in the United States.  The applicant would receive a decision on their case before leaving the United States to finish the process at the consulate in their native country. 

A few things to note about this program are that only those who are “immediate relatives” of United States citizens may apply (Parent, spouse and children).  In addition, if an alien is seeking a waiver for any crime, then the alien will be ineligible for the stateside waiver process.   Another important thing to note is that if approved, the waiver is only provisional, but this does not guarantee that the waiver will be approved at the consulate if circumstances change.  Also, if you already have a consular interview date scheduled, you are ineligible to apply for the stateside waiver program. 

One common misconception that aliens have had regarding the stateside waiver issues is the thought that they would not have to return to the consulate of their native country.  But, this is not true.  The provisional waiver will only give the alien an idea of whether their waiver is approved, but the alien still needs to return to their native country and finish the process off at their consulate. 

While this announcement is very exciting for countless relatives of United States Citizens and the waiver process has changed in terms of where an eligible person may apply, applying for this waiver remains a very rigorous and challenging process.  It is highly recommended that if you are seeking to apply for this waiver, that you seek out the assistance of experienced attorneys, such as Gupta & Trujillo. 

By Ramon Trujillo 

Gupta & Trujillo participated in AILA Southern California Chapter’s CLE event, “A Discussion on Rodriguez Bond Motions” on December 19, 2012.  The event covered a relatively newer procedure that is being used to assist aliens who are detained indefinitely.  

Rodriguez v. Robbins is a case that is pending before the Central District court of California and only applies to the courts within the Central District’s jurisdiction.  The case is being litigated by the ACLU.  Recently, the court granted a preliminary injunction allowing certain individuals who had previously been denied bond a second opportunity at being released on bond, pending a “Rodriguez motion.” 

When placed in Removal Proceedings in Immigration court, immigrants either decide to fight their charges and find a way to remain in the country or get deported back to their native country, voluntarily or through an Immigration Judge’s order.   When some of those individuals who decide to apply for some form of relief through the immigration court, the process can unfortunately be a very, very lengthy one. 

The length of time can be torturous to some.   Some immigrants are denied bond early on and must remain incarcerated until their case is finished.  Previously, there was little that could be done to assist these individuals. 

In some instances, knowing the delays ahead of them, some choose to not fight.   Understandably, many of these individuals have served their jail terms, some as little as a few months, but will remain incarcerated, sometimes even at the same jail where they served their criminal sentence, indefinitely, pending the outcome of their immigration filings.  

While relief through a Rodriguez motion may not grant relief to every single person detained for a prolonged time, aliens detained for six months while their case is pending are eligible to seek bond through a “Rodriguez motion.”  

In order to qualify, an individual must be detained for longer than six months pursuant to the general immigration detention statutes pending completion of removal proceedings, including judicial review; the person cannot be detained pursuant to one of the natural security detention statutes at 8 U.S.C. § 1226a and 1531-37; and have not been given a hearing to determine whether their prolonged detention is justified. 

The burden of proof is on the government to establish the basis for detention.  However, based on the discussions during the course of the CLE, it appears that there is much confusion in terms of the process by both judges and practitioners.  Bond amounts vary from minimal to extravagant.   While this is an evolving area of law, the efforts of many organizations involved look to shape how this bond re-determination can positively affect many aliens who are indefinitely detained. 

The Department of Homeland Security announced on June 15, 2012 that certain youth in the United States would be eligible for deferred action if they met certain requirements.  The affectionately termed DREAMers received great news that could aid them in their path towards maybe one day the DREAM Act itself actually becoming law. 

At that time, only those who were already in deportation proceedings could be able to seek relief.  At that time, USCIS announced that those wishing to apply affirmatively would not be able to apply until mid-August until USCIS established the procedure. 

On August 3, 2012, USCIS released more details regarding the procedure, including the filing fee.  The filing fee will be $85 if you are only seeking deferred action.  If you are also seeking an employment authorization document (“work permit”), the fee will be $465. 

It is important to note that not all applicants will be given work authorization.  USCIS has announced that you must prove that you have a reason for the need.  Simply wanting to work may not be sufficient.  It is important to consult our office in order to present your application as strongly as possible. 

On June 15, 2012, Janet Napolitano, Secretary of Homeland Security announced that effective immediately certain illegal immigrants who qualify would be eligible for relief from deportation.  Through the exercise of prosecutorial discretion, the Department of Homeland Security (DHS) will terminate removal proceedings against individuals who lack the intent to violate the law.  In addition, these individuals will be eligible for a work permit in order to gain legal employment in the United States. 

The following requirements must be met in order to be eligible for this relief:

·      Came to the United States under the age of 16;

·      Have continuously resided in the United States for at least five (5) years preceding the date of this memorandum. (From June 15, 2007 – June 15, 2012);

·      Currently in school, have graduated high school, obtained a GED certificate, or honorable discharged from the Armed Forces in the United State;

·      Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety;

·      And be under 30 years of age.

On Tuesday, July 19, 2011, Gupta & Trujillo’s attorneys, Anjana Gupta and Ramon Trujillo, participated in LawReview CLE’s course entitled Immigration Law Fundamentals as guest lecturers. The event, which was held at the beautiful Mission Inn hotel in Riverside, California, covered the basics of immigration law, from the sources of immigration law to more complex U-Visa and VAWA petitions.  The course was approved for 7 CLE credits by the State Bar of California, including 1 ethics hour.  While Immigration Law Fundamentals is a newer course that LawReview CLE offers as part of their Continuing Legal Education programming, the course had a good-sized turnout of immigration practitioners of various levels of experience. 

On Thursday, April 28, 2011, Gupta & Trujillo held its first Immigration Law seminar entitled “Know Your Rights” at the iconic Librería Martínezin Santa Ana, California.  The Librería Martínez and the Academy of International Dance graciously sponsored the event to raise immigration awareness among the Latino Community of Santa Ana and Orange County.  Gupta & Trujillo is proud of the event’s success, which attracted nearly 40 individuals, all of whom had pressing immigration concerns.