Comments for AILA Slip Opinion Blog http://www.ailaslipopinionblog.com AILA Amicus Committee's Notes & Comments On Immigration Adjudication. Wed, 26 Jan 2011 09:30:22 +0000 hourly 1 http://wordpress.org/?v=3.2.1 Comment on Visa Waiver Program Litigation Update by Staying longer than intended on VWP, what are the consequences? http://www.ailaslipopinionblog.com/2011/01/03/visa-waiver-program-litigation-update/#comment-12 Staying longer than intended on VWP, what are the consequences? Wed, 26 Jan 2011 09:30:22 +0000 http://www.ailaslipopinionblog.org/?p=643#comment-12 [...] AILA Slip Opinion Blog » Visa Waiver Program Litigation Update [...] [...] AILA Slip Opinion Blog » Visa Waiver Program Litigation Update [...]

]]> Comment on Visa Waiver Program Litigation Update by AccentLegal http://www.ailaslipopinionblog.com/2011/01/03/visa-waiver-program-litigation-update/#comment-11 AccentLegal Thu, 06 Jan 2011 21:56:39 +0000 http://www.ailaslipopinionblog.org/?p=643#comment-11 Not that Mr. Manning needs me to defend him, but I think HA's comments are off base. I did not get the sense that Mr. Manning was defending the government's decision in the Bradley case, rather he was just reporting what happened, and suggesting that the decision sheds some light on what has been a murky issue (see Momeni v. Chertoff (9th Cir 2008) involving adjustment of status for individuals who have arrived under the visa waiver program. I would prefer that Mr. Manning stay on our side rather than "go work for the government". Not that Mr. Manning needs me to defend him, but I think HA’s comments are off base. I did not get the sense that Mr. Manning was defending the government’s decision in the Bradley case, rather he was just reporting what happened, and suggesting that the decision sheds some light on what has been a murky issue (see Momeni v. Chertoff (9th Cir 2008) involving adjustment of status for individuals who have arrived under the visa waiver program. I would prefer that Mr. Manning stay on our side rather than “go work for the government”.

]]> Comment on Is your client in lawful status, just a status, or in unlawful status? Context counts. by Adam Rosen http://www.ailaslipopinionblog.com/2011/01/04/is-your-client-in-lawful-status-just-a-status-or-in-unlawful-status-context-counts/#comment-13 Adam Rosen Thu, 06 Jan 2011 18:56:10 +0000 http://www.ailaslipopinionblog.org/?p=647#comment-13 These are important cases and the decisions are important to become familiar with. The oral arguments from Samirah v. Holder add a lot of "color" to Judge Posner's opinion in the case. He clearly is bothered by government’s refusal to agree that having a pending application for adjustment of status is “status.” There were two things that I wanted to share. In El Badrawi v. DHS, I am surprised that the Department of State actually revoked the visa while Mr. El Badrawi was still in the United States when 9 FAM 41.122 N3 specifically says that “under no circumstances” should this be done. I wonder if the arrest by ICE was somehow premised on the visa revocation? The other point that is interesting is that while DHS has rejected equating a period of authorized stay, POSABAG with status, I can tell you that in at least one case an I-485 was approved based on their POSABAG being regarded as status. When USCIS asked for proof of status, I explained that (1) The statutes passed interchange the terms “period of stay authorized by the Attorney General” and “status.” (2) Congress has been doing this interchange for years and it is presumed, pursuant to Lorillard v. Pons quoted by the AAO, to know of the existing administrative interpretation of POSABAG to the contrary. Therefore, if Congress actually agreed that POSABAG is not status and status is not POSABAG, then Congress would have stopped using them interchangeably. And (3) the only statement that POSABAG is not in fact “status” comes from the Neufeld Memo on Unlawful Presence, which is itself not binding. By noting the "Use" paragraph from the Neufeld Memo on Unlawful Presence, noting that in Broadgate, USCIS (thru counsel) explained that if a memo is issued without a “P” it is not binding despite incorporation into the AFM, the statement in the Neufeld Memo on Unlawful Presence that POSABAG is not “status” also must not be binding because this Neufeld memo also was issued without a “P.” It worked and adjustment was granted. These are important cases and the decisions are important to become familiar with. The oral arguments from Samirah v. Holder add a lot of “color” to Judge Posner’s opinion in the case. He clearly is bothered by government’s refusal to agree that having a pending application for adjustment of status is “status.”

There were two things that I wanted to share. In El Badrawi v. DHS, I am surprised that the Department of State actually revoked the visa while Mr. El Badrawi was still in the United States when 9 FAM 41.122 N3 specifically says that “under no circumstances” should this be done. I wonder if the arrest by ICE was somehow premised on the visa revocation?

The other point that is interesting is that while DHS has rejected equating a period of authorized stay, POSABAG with status, I can tell you that in at least one case an I-485 was approved based on their POSABAG being regarded as status. When USCIS asked for proof of status, I explained that (1) The statutes passed interchange the terms “period of stay authorized by the Attorney General” and “status.” (2) Congress has been doing this interchange for years and it is presumed, pursuant to Lorillard v. Pons quoted by the AAO, to know of the existing administrative interpretation of POSABAG to the contrary. Therefore, if Congress actually agreed that POSABAG is not status and status is not POSABAG, then Congress would have stopped using them interchangeably. And (3) the only statement that POSABAG is not in fact “status” comes from the Neufeld Memo on Unlawful Presence, which is itself not binding.

By noting the “Use” paragraph from the Neufeld Memo on Unlawful Presence, noting that in Broadgate, USCIS (thru counsel) explained that if a memo is issued without a “P” it is not binding despite incorporation into the AFM, the statement in the Neufeld Memo on Unlawful Presence that POSABAG is not “status” also must not be binding because this Neufeld memo also was issued without a “P.” It worked and adjustment was granted.

]]> Comment on Visa Waiver Program Litigation Update by HA http://www.ailaslipopinionblog.com/2011/01/03/visa-waiver-program-litigation-update/#comment-10 HA Tue, 04 Jan 2011 19:20:16 +0000 http://www.ailaslipopinionblog.org/?p=643#comment-10 Mr. Manning - By relying on the gov't response for your facts, you are making an assumption - that the gov't's assessment of the facts are entirely accurate and more importantly, complete. You then proceed to base your opinion on these inaccuracies and incomplete statements of fact and come to a conclusion ultimately agreeing with gov't's actions and final decision. I realize this is only a blog and should not be relied on for substance, but as AILA Amicus Chair,you, more than others, should be more careful and scrupulous in what you post. Furthermore, for someone who once said, "I don't have the expertise in VWP/AOS matters to comment on briefs" (paraphrasing), you seem to write awfully more blogs on this particular topic than those who have actually litigated this issue in federal courts. Lastly, I realize AILA has to be diplomatic with the government officials in Washington to get things accomplished. But when you defend the government's actions in this case, you are simply an advocate for the government. Perhaps, you should go work for the government, which will then perfectly explain your opinion here. My two cents... Mr. Manning – By relying on the gov’t response for your facts, you are making an assumption – that the gov’t's assessment of the facts are entirely accurate and more importantly, complete. You then proceed to base your opinion on these inaccuracies and incomplete statements of fact and come to a conclusion ultimately agreeing with gov’t's actions and final decision. I realize this is only a blog and should not be relied on for substance, but as AILA Amicus Chair,you, more than others, should be more careful and scrupulous in what you post.

Furthermore, for someone who once said, “I don’t have the expertise in VWP/AOS matters to comment on briefs” (paraphrasing), you seem to write awfully more blogs on this particular topic than those who have actually litigated this issue in federal courts.

Lastly, I realize AILA has to be diplomatic with the government officials in Washington to get things accomplished. But when you defend the government’s actions in this case, you are simply an advocate for the government. Perhaps, you should go work for the government, which will then perfectly explain your opinion here.

My two cents…

]]> Comment on Visa Waiver Program Litigation Update by Tweets that mention AILA Slip Opinion Blog » Visa Waiver Program Litigation Update -- Topsy.com http://www.ailaslipopinionblog.com/2011/01/03/visa-waiver-program-litigation-update/#comment-9 Tweets that mention AILA Slip Opinion Blog » Visa Waiver Program Litigation Update -- Topsy.com Tue, 04 Jan 2011 17:23:46 +0000 http://www.ailaslipopinionblog.org/?p=643#comment-9 [...] This post was mentioned on Twitter by Removal Immigration, Emily Hicks. Emily Hicks said: AILA Slip Opinion Blog » Visa Waiver Program Litigation Update http://bit.ly/hYvXJf [...] [...] This post was mentioned on Twitter by Removal Immigration, Emily Hicks. Emily Hicks said: AILA Slip Opinion Blog » Visa Waiver Program Litigation Update http://bit.ly/hYvXJf [...]

]]> Comment on Visa Waiver Program Litigation Update by AILA Slip Opinion Blog » Visa Waiver Program Litigation Update | Penny Stocks http://www.ailaslipopinionblog.com/2011/01/03/visa-waiver-program-litigation-update/#comment-8 AILA Slip Opinion Blog » Visa Waiver Program Litigation Update | Penny Stocks Mon, 03 Jan 2011 22:37:07 +0000 http://www.ailaslipopinionblog.org/?p=643#comment-8 [...] Awhile back, we did a round up of litigation taking place under the Visa Waiver Program. The post is available here. In one of the cases we blogged on, the petitioner sought Supreme Court review. (AILA Amicus guidelines for assistance … View full post on visa – Google Blog Search [...] [...] Awhile back, we did a round up of litigation taking place under the Visa Waiver Program. The post is available here. In one of the cases we blogged on, the petitioner sought Supreme Court review. (AILA Amicus guidelines for assistance … View full post on visa – Google Blog Search [...]

]]> Comment on A Visa-Waiver Round-Up by rgibbs http://www.ailaslipopinionblog.com/2010/06/07/593/#comment-7 rgibbs Wed, 09 Jun 2010 20:30:17 +0000 http://www.ailaslipopinionblog.org/?p=593#comment-7 The recent ESTA change, eliminating the I-94W which as I recall had an explicit waiver on the back (and a signature?), raises more serious notice/waiver issues. Check the ESTA registration online process to see what/how the notice there works. Note that agents can submit the ESTA application, but the agent has to confirm that he has told the actual applicant about the waiver of rights provision. Is this sufficient to make out the hearing waiver? Moreover, the ESTA registration is good for two years, not something the applicant would do just prior to an entry. Query whether CBP if pushed could come up with documetnation from the ESTA process to confirm that the person (or an agent? if so who?) actually received the notice and agreed to give up their rights? What if the agent says he lied and did not actually tell the applicant his rights were waived? The recent ESTA change, eliminating the I-94W which as I recall had an explicit waiver on the back (and a signature?), raises more serious notice/waiver issues. Check the ESTA registration online process to see what/how the notice there works. Note that agents can submit the ESTA application, but the agent has to confirm that he has told the actual applicant about the waiver of rights provision. Is this sufficient to make out the hearing waiver? Moreover, the ESTA registration is good for two years, not something the applicant would do just prior to an entry. Query whether CBP if pushed could come up with documetnation from the ESTA process to confirm that the person (or an agent? if so who?) actually received the notice and agreed to give up their rights? What if the agent says he lied and did not actually tell the applicant his rights were waived?

]]> Comment on Padilla v. Kentucky – Implications of SCOTUS Insights for Ill-advised Immigrants by Matthew Kolken http://www.ailaslipopinionblog.com/2010/04/08/padilla-v-kentucky-implications-of-scotus-insights-for-ill-advised-immigrants/#comment-6 Matthew Kolken Mon, 12 Apr 2010 14:16:39 +0000 http://www.ailaslipopinionblog.org/2010/04/08/padilla-v-kentucky-implications-of-scotus-insights-for-ill-advised-immigrants/#comment-6 On Friday I was able to use Padilla for the first time to fend off the removal of an individual charged with an an aggravated felony.<br /><br />Hopefully this will be the first of many to come. On Friday I was able to use Padilla for the first time to fend off the removal of an individual charged with an an aggravated felony.

Hopefully this will be the first of many to come.

]]> Comment on BIA Round Up: Recent Cases by Bennions http://www.ailaslipopinionblog.com/2010/02/24/bia-round-up-recent-cases/#comment-5 Bennions Thu, 25 Feb 2010 19:15:08 +0000 http://www.ailaslipopinionblog.org/2010/02/24/bia-round-up-recent-cases/#comment-5 In your analysis of Matter of Diaz and Lopez your first reference to 245(i) is a typo, reading 254(i) In your analysis of Matter of Diaz and Lopez your first reference to 245(i) is a typo, reading 254(i)

]]> Comment on Tenth Circuit holds K-2 visa holders do not “age-out” for purposes of adjustment of status. by Olena http://www.ailaslipopinionblog.com/2010/02/02/tenth-circuit-holds-k-2-visa-holders-do-not-age-out-for-purposes-of-adjustment-of-status/#comment-3 Olena Wed, 24 Feb 2010 19:01:27 +0000 http://www.ailaslipopinionblog.org/2010/02/02/tenth-circuit-holds-k-2-visa-holders-do-not-age-out-for-purposes-of-adjustment-of-status/#comment-3 Right decision. <br />We have as same case in our 10th Circuit Court (NM). Our daughter in deportation procedure (K-2 visa holder overstay?!?) now and we waiting Immigration Court in June 2010. We feel so sad to have this nightmare a few years already, put down our family financially and moral. Our daughter is intelligent and smart young Lady: She is top 10% student in Business School in our University. Her achievements in education and social life can be example for young people. She made business plan to open new business which can give occupation for many unemployed. But adjucator who decided she is age-out didn't care this young Lady with big potentional. She came here legally by visa K-2 before her 21, applied for adjustment status before her 21, paid all fees, had 2 times biometrics for adjustment status and continued to wait (web said: have patience, we received many millions applications, its take long time) ... to received denied application for Christmas Gift (yes, we received denied letter from USCIS because age-out on December 22). She has nothing there in Ukraine, she has parents here. Because her case for adjustment status was pending long time she couldn't go to the funeral when grandmother passed away from cancer 1.5 years ago. Daughter couldn't say last time bye Grandmother who raised her, gave her great heart, taught her be honesty and hardworking person. Daughter cried here. It was black days for us.<br />This issue age-out K-2 visa holder harmful not only for one family; there many families involved in this case. There are many Courts made decision: K-2 DO NOT AGE-OUT but still many families has trouble with adjustment already over 21 children. <br /> <br />How decision of 10-th Circuit Court affect our case: Do we need still wait Immigration Court, going as same circle thru all Courts like Colmenares and other (mean wasting tax payers money and get another mortgage (second, third) to pay Lawyers) or 10t Court Decision is decision for our case also, we can ask USCIS adjucate our case?<br />Thanks Right decision.
We have as same case in our 10th Circuit Court (NM). Our daughter in deportation procedure (K-2 visa holder overstay?!?) now and we waiting Immigration Court in June 2010. We feel so sad to have this nightmare a few years already, put down our family financially and moral. Our daughter is intelligent and smart young Lady: She is top 10% student in Business School in our University. Her achievements in education and social life can be example for young people. She made business plan to open new business which can give occupation for many unemployed. But adjucator who decided she is age-out didn't care this young Lady with big potentional. She came here legally by visa K-2 before her 21, applied for adjustment status before her 21, paid all fees, had 2 times biometrics for adjustment status and continued to wait (web said: have patience, we received many millions applications, its take long time) … to received denied application for Christmas Gift (yes, we received denied letter from USCIS because age-out on December 22). She has nothing there in Ukraine, she has parents here. Because her case for adjustment status was pending long time she couldn't go to the funeral when grandmother passed away from cancer 1.5 years ago. Daughter couldn't say last time bye Grandmother who raised her, gave her great heart, taught her be honesty and hardworking person. Daughter cried here. It was black days for us.
This issue age-out K-2 visa holder harmful not only for one family; there many families involved in this case. There are many Courts made decision: K-2 DO NOT AGE-OUT but still many families has trouble with adjustment already over 21 children.

How decision of 10-th Circuit Court affect our case: Do we need still wait Immigration Court, going as same circle thru all Courts like Colmenares and other (mean wasting tax payers money and get another mortgage (second, third) to pay Lawyers) or 10t Court Decision is decision for our case also, we can ask USCIS adjucate our case?
Thanks

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