Friday, May 25, 2018

What Happens to an Immigration Petition If the Sponsor Dies? If an immigrant's sponsor dies before the immigration process is finished, it's not necessarily the end of the case.


If you’re waiting to immigrate to the U.S. on the basis of a visa petition filed by a family member who is a U.S. citizen or lawful permanent resident, that person’s death will certainly make the process more difficult. But unlike in past years, when the visa petition always died with the petitioner, you may still be able to get a U.S. green card. Your success depends on your relative’s status in the U.S., your relationship to him or her, where you currently live, and whether you have relatives in the United States who are willing to serve as financial sponsors for you.
Widow or Widower of a U.S. Citizen

If you were married to or the minor child of a U.S. citizen, you are in an especially good position to get a green card. Even if your U.S. citizen spouse died before filing the initial visa petition for you (on Form I-130) or before the petition was approved, you may be able to carry on and petition for yourself and your minor children.
You would file your visa petition on USCIS Form I-360. Unlike other family beneficiaries, you need not have an Affidavit of Support filed on your behalf.
There’s a deadline: You must file the petition no later than two years after the death of your U.S. citizen spouse. Also, remarrying before you are approved for your green card will destroy your right to it.
See How to File an I-360 "Special Immigrant" Green Card Petition.
Other Family Relations

The Family Sponsor Immigration Act, signed by President Obama in 2009, provides a potential remedy for spouses of U.S. citizens and permanent residents, unmarried sons and daughters of citizens, spouses and unmarried sons and daughter of green card holders, married sons and daughters of citizens, and brothers and sisters of citizens, in cases where the original petitioner has died.
The children of people on the above list may also be included, so long as they continue to meet the legal definition of "child" when the family’s priority date becomes current. (Immediate relatives of U.S. citizens don’t have to worry about priority dates, but preference relatives, who face annual limits on the numbers of visas allotted, must wait until a visa becomes available to them, based on their priority date – or the date their visa petition was first filed.)
If you fall into one of the above categories, and your petitioner dies, you may be able to apply for what’s called reinstatement of your visa petition on humanitarian grounds. However, you'll have to meet certain conditions, including that:
your Form I-130 has already been approved
you were living in the United States at the time the petitioner died and continue to reside there on the date USCIS makes a decision on your application, and
you find someone eligible and willing to act as your financial sponsor in place of your original petitioner (as described below).
As you can see, if you are living overseas at the time the petitioner dies, the petition will be revoked and you will not be able to go directly forward with an application for a green card. You can apply to USCIS for humanitarian reinstatement of the visa petition under old laws, but such a grant is completely discretionary. You're likely to face long delays. You’ll need a lawyer’s help to present compelling evidence of why your approval should be granted.
Who Can Serve as a Substitute Sponsor

Serving as a substitute sponsor is a primarily financial relationship. It involves filling out an Affidavit of Support on USCIS Form I-864. The Affidavit must indicate that the new sponsor is able to support the immigrants, as well as his or her own household, at a level that’s at or above 125% of the federal Poverty Guidelines. To see the latest guidelines, look at Form I-864P on the USCIS website.
In fact, by filing Form I-864, the substitute sponsor promises the U.S. government to pay back any need-based public assistance that the named immigrants receive for approximately the first ten years of their having a green card.
Some other eligibility requirements apply to the substitute sponsor as well. He or she must be a U.S. citizen or a lawful permanent resident of at least 18 years of age who has a domicile in the United States. And the sponsor must be a relative of yours. Eligible relatives include your spouse, son or daughter (aged 18 or older), parent, mother-in-law, father-in-law, sibling, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild (age 18 or older).
Getting Legal Help

If your petitioner has died, your wisest course would be to consult with an experienced U.S. immigration attorney. The attorney can determine whether you are still eligible for a green card and guide you through the appropriate application process.

Thursday, May 17, 2018

How to Use the Categorical Approach Now1 Katherine Brady, ILRC With a few exceptions, immigration authorities must use the “categorical approach” to determine whether a criminal conviction triggers a ground of removal. Expert use of the categorical approach may be the most important defense strategy available to immigrants convicted of crimes. This is especially true now that the Supreme Court again has addressed how the analysis must be applied, in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013). These decisions effectively overrule a lot of past precedent, to the benefit of immigrants. In 2014 the Board of Immigration Appeals (BIA) adopted the Supreme Court’s analysis and withdrew its own conflicting precedent. Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014), withdrawing Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012). If you represent an immigrant convicted of a crime and do not understand how to use the categorical approach in light of recent decisions, you may be doing your client a terrible disservice. Relying on older precedent, you may think that the conviction has adverse immigration consequences, when under recent precedent it should have no consequences, or at least less serious ones. Likewise, immigration judges who do not correctly apply the categorical approach commit reversible error. See Matter of Chairez-Castrejon, supra at 358. The purpose of this article is to provide a step-by-step guide on how to use the categorical approach under current law. Part I provides a concise outline of the analysis, in five steps. Part II discusses these steps in more detail and with examples. Part III provides more examples of formerly removable offenses that now should be held immigration-neutral. Part IV discusses in what contexts the full categorical approach does and does not apply. In particular, at this writing the full categorical approach applies to moral turpitude determinations in some circuits but not others, and applies to determining whether a crime is an aggravated felony except for a few cases where the circumstance-specific inquiry applies. See Part IV. This article is more of a how-to guide than an analysis of the reasoning of the key cases and their implications. For a more in-depth discussion of Moncrieffe v. Holder, Descamps v. United States, and Matter of Chairez-Castrejon, see Practice Advisories available online.2 As always, how much and whether to rely upon new arguments depends on context. Advocates representing non citizens in removal proceedings can advance these arguments. Advocates considering whether to file an affirmative application, in cases where this would expose a potentially removable person to authorities, should consider the chances that the argument might be rejected while the application is pending. Criminal defenders always should try to take the most conservative option of pleading specifically to a “good” offense, even if the statute really should be considered not divisible.
read the full article here:
 https://www.ilrc.org/sites/default/files/resources/how_to_use_the_categorical_approach_template_1.pdf

AAO Decision Holds 5 Felony Convictions  for theft and burglary in FL,Are Not CIMT'S (crimes involving moral turpitude) Therefor the person don't need a waiver.



In a recent AAO Decision from February 26, 2016, the AAO dismissed an appeal of an I-601 waiver finding the waiver to be moot because the Applicant was actually not inadmissible despite 5 felony convictions. The appeal came from the denial of an I-601 waiver of grounds of inadmissibility filed with the USCIS Miami, Florida field office.

The applicant was seeking a waiver of criminal grounds of inadmissibility under 8 USC §1182(h). Pursuant to INA §212(h) the applicant filed a waiver application to remain in the US with his USC wife and children.

In a decision dated November 7, 2014, the Director determined that the applicant failed to he had been rehabilitated or that his qualifying relative (USC spouse) would suffer extreme hardship upon his removal.

On appeal the applicant argued that the criminal convictions occurred more than 15 years ago and therefore he need not show extreme hardship to a qualifying relative.

The AAO did not address the Applicant’s arguments because they found the waiver to be moot because the applicant was actually not inadmissible under INA §212(1)(2)(A). The AAO arrived at this decision by applying the categorical approach to the Florida statutes under which the applicant was convicted.

The applicant was convicted of felony burglary under Fla. Stat. §810.02(1)., felony grand theft in violation of Fla. Stat. §812.014(2)(C)(6) felony grand theft auto in violation of Fla. Sat. §812.014(2)(C)(1), felony burglary of structure in violation of FLa Stat. §810.02, felony possession of burglary tools in violation of Fla. Stat. §810.06. All five convictions were in the year of 1997 and all five convictions were third degree felonies under Florida law.

Applying the categorical approach to each of the five statutes the AAO determined that none of the statutes were categorically Crimes Involving Moral Turpitude (CIMT) and therefore none of the convictions render the applicant inadmissible. The AAO further determined that none of the five Florida statutes were divisible under the law.

The AAO compared the Florida Burglary statute to a 1946 BIA case in which the Board determined that the New York burglary statute for burglary was not a CIMT as the act of illegally entering or remaining in a building was not inherently vile or depraved. In Matter of M-, 2 I&N Dec. 721, 723 (BIA 1946) the Board did note that while the act of unlawfully entering a building was not inherently vile or depraved the crime accompanying that act would be a CIMT.

The AAO notes that Florida’s grand theft and grand theft auto statutes do not require intent to permanently deprive the owner of property. The AAO found that since the statute did not categorically require a permanent taking it could not conclude the conviction was a CIMT.

In regards to possession of burglary tools the AAO again defers to a decision from the Board. In Matter of S-, 6 I&N Dec. 796 (BIA 1955) the Board held that possession of burglary tools in violation of Canadian Criminal Code §464(b) was not a CIMT unless the possession was accompanied by intent to use the tools to commit a crime that would be a CIMT.

The AAO therefore held that the waiver application was moot because the applicant was not inadmissible and did not need a waiver. The appeal was dismissed and the case was remanded for further proceedings consistent with their opinion.


This decision is an example of why applicants should always challenge the classification of their criminal conviction as a CIMT. Now that the Supreme Court has adopted a strict categorical approach many crimes that would seem to clearly be a CIMT may actually fall short under strict scrutiny under the categorical approach.

Sometimes 5 felony convictions can all be found to not involve moral turpitude under the strict categorical approach.