BIA says K-1 visa holders remain eligble to adjust status despite subsequent termination of marriage.

On March 17, the BIA handed down an important decision of K-1 fiancée visa holders.  In Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), the BIA held that an alien who enters the United States on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) even if the marriage later terminates. 

The K-1 visa category allows an immigrant to enter the U.S. in order to marry his or her U.S. citizen fiancé(e).  The marriage must take place within 90 days of entry.  At that point the K-1 may adjust to conditional permanent resident status.  The conditional nature of the status is removed approximately two years later.  The catch is that K-1's can only adjust status on the basis of their marriage to the U.S. citizen spouse. 

Before the BIA's decision in Matter of Sesay, when a K-1's  marriage ended before filing to adjust status or while the adjustment of status was pending, the K-1 simply lost all rights to permanent resident status.  The simple formula was: No marriage = No adjustment.  With no alternatives available to adjust status, the K-1 was forced to return to his or her home country.  The BIA's decision in Matter of Sesay changed this rule substantially.  Now, where the K-1 enters into a bona fide marriage within the 90 day window ofter entry, the K-1 remains eligible to adjust status even if the marriage is terminated. 

Read the opinion here.

Deportations to Haiti Resume

In light of the earthquake in Japan, this post revisits another earthquake ravaged nation and its ongoing relationship to U.S. Immigration Policy.

One of the poorest countries in the world, Haiti was struck by a catastrophic quake on January 12, 2010.  In the days after the disaster, the U.S. Government announced it was halting deportations to the country. In January of 2011, the U.S. Government resumed deportations to Haiti.  DHS plans to deport some 700 persons back to the country this year.

Immigration advocates and those facing deportation to Haiti have pleaded for a halt to the deportations, citing “inhumane conditions” in Haiti.  A cholera epidemic reportedly has killed more than 4,000 people since October. One of the 26 detainees sent to Haiti in the first wave of the resumed deportations was Wildrick Guerrier.  Upon his return, he suffered choleralike symptoms and later died.  Before being deported, he had participated in a hunger strike and stated that deportation to Haiti amounted to a death sentence.

U.S. Immigrations and Customs Enforcement is currently seeking feedback on its resumed deportation policy.  The new draft policy was posted on March 7, 2011.  The document, which is the first written policy issued regarding the resumption of deportations to Haiti, comes three months after DHS announced its plan to resume deportations and more than six weeks after deportations actually began.

Read an article regrading the deportations here.
Read an article regarding the earthquake here.
Read the draft policy here.

Long Awaited DHS Report Released

Prince William County filed suit against the Department of Homeland Security ("DHS") on Tuesday over its refusal to provide information regarding Carlos Martinelly-Montano, an illegal immigrant charged with killing a nun in a alcohol related car crash last August.


DHS claimed that it could not release the information requested due to Immigration and Customs Enforcement privacy policies.


On Friday, however, DHS released a report of ICE's Inquiry into the matter to Judicial Watch, a conservative watchdog group, who along with others, also sued the DHS under the Freedom of Information Act.  The report indicates that Mr. Martinelly-Montano had been released by immigration authorities while awaiting deportation because he had demonstrated that he was not a flight risk.


View the Report here.
Read Washington Post Article here.
Read Washington Examiner Blog Post here.

Immigration Court's Case Backlog Reaches Record High

According to Transactional Records Access Clearinghouse, a non-partisan research organization that operates out of Syracuse University, the number of cases pending before Immigration courts reached a record high at the end of 2010.  At the end of December, the number of cases awaiting resolution in Immigration courts was roughly 268,000.  The backlog has increased by 44 percent since 2008 with cases pending 467 days on average.

Read the report here.
Read the article here.

Virginia General District Court Judge Refuses to Follow Va. Supreme Court

In a recent decision, Loudon County General District Judge Worcester strongly disagreed with and declined to follow the Virginia Supreme Court's recent holding in Commonwealth v. Morris and Chan.  The Supreme Court ruling, discussed in previous posts, denied the availability of certain writs, such as the writ of coram nobis (also called coram vobis), to aliens seeking post-conviction relief based on ineffective assistance of counsel.

Prior to the Virginia Supreme Court ruling, Judge Worchester had used the writ of error in four cases in which defendants had not been advised of deportation consequences. 

In his opinion, Judge Worchester stated "[i]f this Court were to abide by the ruling [in Morris and Chan] ... a constitutional violation will stand uncorrected. . . . [t]he Court will not allow this to happen." Finding that the Virginia Supreme Court's ruling was "at odds with long-standing precedent and jurisprudence," the judge apparently decided to ignore it and granted relief using the writ of coram nobis anyway.

Read the opinion here.
Read an article from the Washington Post here.

ARBITRARY SEARCHES & SEIZURES IN THE "CONSTITUTION-FREE ZONE:" Far From Border, U.S. Detains Foreign Students

Excerpt from The Chronicle of Higher Education, January 9, 2011 edition:

By Colin Woodard

Old Town, Me.

Six miles north of the University of Maine's flagship campus, on the only real highway in these parts, students and professors traveling south might encounter a surprise: a roadblock manned by armed Border Patrol agents, backed by drug-sniffing dogs, state policemen, and county sheriff's deputies.

Although the Canadian border is nearly 100 miles behind them—and Bangor, Maine's second-largest city, just 15 miles ahead—motorists are queried about their citizenship and immigration status. Those who raise an agent's suspicions are sent to an adjacent weigh station for further questioning and, sometimes, searches. Any foreign students or scholars unable to produce all of their original documentation are detained and could be arrested.

Thus far, nobody from the University of Maine has actually been arrested at this ephemeral checkpoint, which usually appears near the start of the academic year, when migrant laborers happen to be leaving eastern Maine's blueberry fields. One student had to wait at the roadblock until university authorities had satisfied agents that the individual was in the country legally, university officials say.

But elsewhere on the northern border, foreign students and scholars experience fear and uncertainty every time they leave campus, pick up a friend at the bus station, or board a domestic train or flight, even when they have all their documents with them.

U.S. Customs and Border Protection has greatly increased its manpower along the northern border, allowing for more-frequent use of roving patrols or surprise checkpoints on buses, trains, and highways far from the border itself. Students who failed to carry their original documents have been delayed and fined, apprehended even when they're just a few miles from campus.

"We used to tell students: When you get here, put your passport and I-90 form away so you don't lose it, because you don't need anything special when you travel around the country," says Thy Yang, director of international programs at Michigan Technological University, located a few miles from the shores of Lake Superior. "Now we tell them to carry it at all times.
. . .

'Temporary Permanent'

Customs and Border Protection officials did not make themselves available for an interview, despite repeated requests. A written statement ignored questions on the topic, instead providing general commentary on the purpose of internal checkpoints. "CBP Border Patrol agents conduct these types of operations periodically in key locations that serve as conduits for human and narcotics smuggling," the statement said. "These operations serve as a vital component to our overall border security efforts and help sustain security efforts implemented in recent years."

Customs and Border Protection also maintains that it can set up roadblocks—it prefers the term "temporary permanent checkpoints" for legal reasons—and question people on trains and buses or at transportation stations anywhere within 100 air miles of a U.S. border or seacoast. This broadly defined border zone encompasses most of the nation's major cities and the entirety of several states, including Florida, Michigan, Hawaii, Delaware, New Jersey, and five of the six New England states. The American Civil Liberties Union—concerned about the erosion of Fourth Amendment protections against arbitrary searches and seizures—has called it the "Constitution-Free Zone."

READ MORE AT:

http://chronicle.com/article/Far-From-Canada-Aggressive/125880/

Virginia U.S. District Court Rules Padilla is Not Retroactive

Recently, the U.S. District Court in Alexandria, Virginia took up the issue of whether the U.S. Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively.  The Court held that Padilla announced a "new" rule because the failure of counsel to advise the defendant of the risk of deportation would not have been unreasonable at the time the defendant's conviction became final.  Additionally, the Court held that none of the retroactivity exceptions identified in Teague v. Lane, 489 U.S. 288 (1989), were applicable to Padilla.

Read the opinion here.


Federal courts across the country are grappling with this issue and reaching widely different conclusions:

Finding Padilla Retroactive:

United States v. Zhong Lin - Western District of Kentucky.
Read the opinion in its entirety here.

Martin v. United States - Central District of Illinois.
Read the opinion in its entirety here.

United States v. Chaidez - Northern District of Illinois.
Read the opinion in its entirety here.

Finding Padilla Not Retroactive:

United States v. Perez - District of Nebraska.
Read the opinion in its entirety here.

United States v. Shafeek - Eastern District of Michigan.
Read the opinion in its entirety here.