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VAN DER HOUT LLP

APRIL 2019   

Van Der Hout LLP
Same Firm — New Name!

Van Der Hout, Brigagliano & Nightingale, LLP, a leading name in immigration, has changed its name to Van Der Hout LLP.

Founded by Marc Van Der Hout in 1980, Van Der Hout LLP is one of the nation's oldest and most preeminent law firms specializing in U.S. immigration law. Our name change adopts the current trend to shorten firm names but rest assured that the firm, led by our three current partners, Marc Van Der Hout, Zachary Nightingale, and Stacey Gartland, will continue our fundamental practice of providing the highest quality representation, engaging in bold legal innovation, and handling all our clients' cases with a deep appreciation for the humanity involved in each case.

Our eleven experienced attorneys bring broad expertise and leadership to our work in all areas of immigration law. Many of our cases have resulted in important precedent-setting rulings in a wide range of immigration related areas including: federal court litigation, employment and family-based immigration, asylum, removal defense, and appeals. While vigorously representing our clients, Van Der Hout LLP maintains its stellar reputation in the immigrant community, among our professional colleagues, and with the U.S. government, and is known for handling its cases with the highest professional and ethical conduct.

Van Der Hout LLP — Still the leading name in immigration.

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Implementation Delayed 90 Days

Another Blow to Asylum Seekers:
Attorney General Strips Eligibility for Bond

On April 16, the Attorney General (AG) issued a decision in an asylum case, ruling that asylum seekers who entered between ports of entry — even if they establish a credible fear of persecution — are no longer eligible for release on bond by an immigration judge. The decision sweeps aside long-standing court precedent and will make it much harder for asylees to prove their claims or access legal counsel. Now, asylum seekers must request release at the discretion of ICE, which is unlikely to do so. In issuing this decision, the Administration is attempting to expand mandatory detention even though it has a choice not to detain these asylum seekers. The law provides that asylum seekers can be released from detention if they do not possess a flight risk or threat to the public safety. Not only does the decision affect asylum seekers, but it threatens the independence of immigration judges. The AG delayed implementation of his decision for 90 days to give DHS time to plan for additional detention facilities. The American Immigration Lawyers Association (AILA) and other organizations plan to challenge the decision.

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AILA and Immigration Advocates
Sue Immigration Court in El Paso

The American Immigration Lawyers Association (AILA) and the American Immigration Council recently filed a lawsuit against the U.S. immigration court in El Paso, claiming that the court at the El Paso Service Processing Center (SPC) has arbitrary and unjust rules that decrease asylum-seekers' chances of staying in the country.

The complaint draws from interviews of attorneys practicing in the El Paso SPC — many speaking only anonymously for fear of retaliation by the judges — in addition to court observations of hundreds of immigration hearings and an analysis of the judges' courtroom protocols. The lawsuit details barriers to a fair day in court including:

  • the use of unreasonable and unjust courtroom procedures established by sitting judges, such as an arbitrary page limit on supporting evidence packets;
  • a culture of contempt and hostility toward respondents, including egregious and unprofessional comments from judges;
  • blanket denials of requests by remote attorneys to make telephonic hearing appearances; and
  • the failure to provide any or linguistically correct interpretation at hearings.

In 2017, the most recent year for which data was available, the El Paso court approved only four of the 88 asylum cases it considered, or about 4.5 percent. The previous year, it approved just three out of 130 applications, or 2.3 percent. Nationwide, about 40 percent of asylum seekers are approved, and their cases largely depend on which judge they go before. In New York, some judges grant asylum to 60 percent of applicants.

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Nonimmigrant Visitor Overstays:
Next Focus for Administration

The White House recently announced in a presidential memorandum that it is focusing on B-1 and B-2 visitor overstays and will begin engaging with relevant governments to identify conditions contributing to high overstay rates among their nationals, and make appropriate recommendations. Twenty countries have an overstay rate of more than 10 percent, the basis on which the Administration will be targeting them. Those recommendations could include suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas; targeted suspension of visa issuance for certain nationals; imposing limits to duration of admission; and/or adding additional documentary requirements. The memo also directs the Secretary of Homeland Security to provide the President with a summary of DHS's ongoing efforts to reduce overstays from countries participating in the Visa Waiver Program. Moreover, the Secretaries of State and Homeland Security are directed "to take steps to develop measures required for imposing admission bonds as a means for improving compliance with the terms and conditions of nonimmigrant visas."

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USCIS Increases
Denaturalization Efforts

The Trump Administration is creating a new office within USCIS to focus on identifying immigrants who are suspected of cheating to get their green cards or citizenship and to initiate denaturalization proceedings against them. The new denaturalization office will be located in Los Angeles and will have a least a dozen attorneys on staff. In the meantime, a USCIS team already has been reviewing more than 2,500 naturalization files for possible denaturalization, and more than 100 cases have been referred to the Department of Justice (DOJ) for possible action. The Administration expects to review some 700,000 immigrant files.

Although previously quite rare, the government can and has stripped naturalized U.S. citizens of their citizenship through the denaturalization process, the revocation of U.S. citizenship of a naturalized immigrant. (Natural-born U.S. citizens may not have their citizenship revoked against their will, since birthright citizenship is guaranteed by the 14th Amendment to the Constitution.) In the past, the government focused its denaturalization efforts on individuals who committed egregious crimes, including suspected war criminals who lied on their immigration paperwork (most notably former Nazis), and terrorist funders. In those cases, USCIS and the DOJ pursued cases as they arose, but not through a coordinated effort. The new office changes that paradigm.

When Can Denaturalization Occur?

The federal government may seek to revoke U.S. citizenship under two general grounds: (1) illegal procurement of naturalization, and (2) procurement of naturalization by concealing a material fact or by willful misrepresentation. Procuring naturalization illegally is when the individual was not eligible for naturalization in the first place because he or she does not meet or failed to comply with all the statutory requirements for naturalization. In such a case, the individual's U.S. citizenship can be revoked even if the individual is innocent of any willful deception or misrepresentation. In addition, the federal government can denaturalize an individual if he or she is or becomes a member or affiliated with the Communist Party, another totalitarian party, or a terrorist organization within 10 years immediately preceding the filing of the naturalization application or the five years immediately following naturalization. In these cases, affiliation with certain political parties or organizations precludes naturalization because it shows that the individual is not attached to the principles of the U.S. Constitution.

The federal government also may seek to denaturalize an individual if there is "deliberate deceit on the part of the person" in failing to disclose or misrepresenting a material fact that influences the decision to award the individual U.S. citizenship. The concealment or misrepresentation of a material fact can be made orally during the naturalization interview or in writing on the naturalization application. For example, an individual who misstates his or her employment in order to prevent an USCIS adjudicator from finding out his or her real employment activity has engaged in concealment. That individual would be at risk of denaturalization if the concealment or misrepresentation was material to the individual obtaining citizenship.

Why Now? Why is the Federal Government Focusing on Denaturalization Cases?

Efforts to denaturalize individuals are not new even though the USCIS office is. In 2010, a DHS task force started to identify individuals who should have been barred from naturalization. Although USCIS checks applicants' fingerprints against both the DHS and the FBI digital fingerprint repositories when processing naturalization applications, older fingerprint records had not been digitized (some 315,000 records), including about 148,000 fingerprint records of individuals ordered deported or who had criminal records. This created a possibility that those individuals could have naturalized under an alternate identity, and ICE has begun to digitize the older fingerprint records.

In 2016, the DHS Office of Inspector General found at least 858 cases of people who were ordered deported or removed but later obtained U.S. citizenship using an alternate identity because their fingerprint records had not been digitized.

What are the Limits to Denaturalization?

Denaturalization can only occur by a judicial order either through civil proceedings or a criminal conviction for naturalization fraud. USCIS refers cases for civil and criminal denaturalization to the DOJ when there is "sufficient evidence" that an individual is subject to one of the grounds of denaturalization. The DOJ's U.S. Attorney's Office must then file revocation of naturalization actions (for civil denaturalization cases) or criminal charges (for criminal denaturalization cases) in federal district court. Moreover, the burden of proof that the government must meet is high.

For civil denaturalization, the government must show "clear, convincing, and unequivocal evidence which does not leave the issue in doubt" that the individual procured naturalization illegally and/or concealed or willfully misrepresented a material fact during the naturalization process. There is no statute of limitations for pursuing a civil denaturalization case.

For a criminal conviction, the federal government must show "proof beyond a reasonable doubt" that the individual knowingly obtained or attempted to obtain naturalization through fraud for him- or herself or for another individual. Denaturalization as a result of a criminal conviction is subject to a 10-year statute of limitation.

An individual whose U.S. citizenship is revoked returns to the immigration status he or she had before becoming a U.S. citizen. That individual may be deported if she does not have lawful immigration status after denaturalized and/or can serve jail time if U.S. citizenship was revoked because of a criminal conviction.

Should People Be Concerned About Denaturalization?

Again, denaturalization is rare. Nevertheless, there are more than 20 million naturalized Americans in the United States. As a result, there is concern that the federal government's denaturalization efforts could lead to the revocation of U.S. citizenship of many individuals who made minor or unintentional mistakes or omissions in their naturalization application. Some of the questions during the naturalization process are broad and vague, such as "Have you ever committed, assisted in committing, or attempted to commit, a crime or offense for which you were not arrested?" In addition, courts have not clarified what constitutes an offense that was material to the individual obtaining citizenship and could be the basis for a denaturalization proceeding. A broad interpretation of the grounds for denaturalization could adversely affect many naturalized Americans, especially because there is no statute of limitations for civil denaturalization. Just the creation of this new office in and of itself is "undoing" their naturalization by taking away these Americans' assumption of permanence.

In 2017, the Supreme Court held in a unanimous decision in Maslenjak v. United States that only an illegal act that played a role in an individual's acquisition of U.S. citizenship could lead to criminal denaturalization, narrowing the scope under which an individual may be denaturalized. The Supreme Court ruled that if an applicant made a false statement during the citizenship process, the statement must have played some role in the individual obtaining citizenship in order to warrant the revocation of citizenship. The Court stated that "small omissions and minor lies" that did not influence the award of citizenship do not necessitate denaturalization. Yet, it remains to be seen how courts will determine whether a false statement played a role in an individual obtaining citizenship.

Stay tuned.

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What? I'm Suddenly Not a U.S. Citizen?

Dealing with the Complexities
of U.S. Citizenship Laws

Immigration lawyers have always encountered people who thought they were U.S. citizens only to find out they aren't. The issue often arises when the individual goes to renew his or her driver's license and doesn't have a birth certificate or passport, or when the person seeks to renew his passport. Whether this issue will become more common because of the more rigid requirements states are imposing to obtain driver's licenses or because USCIS and DOS are more closely scrutinizing applications and petitions, remains to be seen.

Determining citizenship can be complicated, especially when a child of U.S. citizens is born abroad. Different rules govern depending on the year of birth, whether the parents were married at the time of birth, whether both parents are U.S. citizens, or whether the U.S. parent lost the right to confer citizenship to his or her children due to spending too much time outside of the United States.

In other cases, children rely on their parents telling them that they are U.S. citizens throughout their youth, only to find out years later that they never were. They've spent their lives saying that they U.S. citizens — on work applications, on college applications, everywhere. A false claim to U.S. citizenship is a permanent, nonwaivable ground of inadmissibility.

And, then there are children born in the U.S. to diplomats. Were they born after the diplomat's termination of status? Are they U.S. citizens? Some children find out only when renewing a passport that they were not, in fact, ever eligible for citizenship even though they had received numerous U.S. passports in the past.

Foreign nationals who encounter issues surrounding proof of their U.S. citizenship are encouraged to seek the advice of experienced immigration counsel to learn their true status.

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Effective May 1

E-2 Visas Available
for Citizens of Israel

The U.S. embassy in Israel announced that an E-2 treaty investor agreement has been signed between the United States and Israel and will become effective May 1, 2019. Accordingly, Israeli citizens will be able to apply for E-2 visas at the U.S. Embassy Branch Office in Tel Aviv.

The embassy advises that the E-1/E-2 visa unit will review the submitted file and then schedule an in-person interview for the company and employee. Preliminary review of corporate files currently takes from two to three weeks and will be done on a first-come first-served basis. Following approval of an E visa application, the individual will receive his or her passport via courier service within 10 days.

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Good Moral Character (GMC) Requirement

Activity re Controlled Substances May Bar
GMC Determinations for Naturalization Purposes

USCIS has issued guidance to clarify that violation of federal controlled-substance law established by a conviction or admission, including for marijuana, remains a conditional bar to establishing good moral character (GMC) for naturalization, even where that conduct would not be a state law offense. Moreover, an applicant who is involved in certain marijuana related activities — such as working at a marijuana dispensary — may lack GMC if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.

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Conditional Residents (I-751 Applicants)
Should Expect Interviews by USCIS

In late 2018, USCIS issued a new policy memo that limits when officers can waive the interview requirement for Form I-751, the petition certain marriage-based green card holders must submit to remove the condition on their permanent residence. Under the previous policy guidance dated 2005, USCIS officers were advised that interviews should be scheduled only when (1) there is insufficient evidence of the bona fides of the marriage, and/or (2) in waiver cases, there is inconclusive evidence to establish eligibility for a waiver. In addition, the earlier guidance encouraged the use of Requests for Evidence (RFEs) to obtain additional evidence in lieu of transferring the petition to the local USCIS office for an interview. In contrast, the 2018 memo states that a waiver of the interview requirement can only be considered if the USCIS officer is satisfied that all the following conditions have been met:

  • A decision based on the record can be made because it contains sufficient evidence about the bona fides of the marriage, and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
  • For cases received on or after December 10, 2018, USCIS has previously interviewed the I-751 principal petitioner;
  • There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
  • There are no complex facts or issues that require an interview to resolve questions or concerns.

This means that permanent residents who received an immigrant visa outside the U.S. after approval by a U.S. consulate abroad or entered the United States as K visa holders and were never interviewed by USCIS will be required to be interviewed. The memo also contains language that suggests that even individuals who process in the U.S. will experience an uptick in in-person interviews.

I-751 petitions are already facing substantial processing delays that have increased from an average of 12 to 18 months. This new in-person interview requirement may further increase processing times and cause significant delays in obtaining a final decision on the petition. This is in line with reported trends across other USCIS application and petition types.

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NEWS IN BRIEF

The following additional items may be of interest to our readers:

H-1B Cap Reached in First Week of Filing: USCIS has received enough H-1B cap-subject visa petitions to exceed the statutory limit of 65,000 visas (plus 20,000 Master's cap visas). In fact, over 201,000 petitions were received this year, a modest increase from last year's lottery submissions. USCIS announced it will begin adjudicating premium processed cases on 5/20/19 for those petitions requesting a change of status. For all other FY 2020 H-1B cap-subject petitions, it will begin adjudicating them in June 2019 (or later). USCIS also announced that petitioners who now want to request premium processing for their cap-subject H-1B petition (requesting a change of status) must wait until May 20 to interfile such a request.

Supreme Court Takes Up Citizenship Question on 2020 Census: The U.S. Supreme Court heard oral arguments on April 23 on whether the government can add a citizenship question to the 2020 census. The Court's decision is expected in late June or July.

New Form I-129, Petition for a Nonimmigrant Worker: USCIS has released a new I-129 form dated 1/31/19, the form used for most employment-based nonimmigrant visas. Starting 5/20/19, USCIS will only accept this edition.

Discontinuation of Nonimmigrant Visa Issuance to Certain Foreign Nationals: DOS issued a final rule to allow consular officers to discontinue granting visas to individuals when a country has been sanctioned for denying or delaying accepting its nationals subject to a final order of removal from the U.S. The rule is largely technical in nature.

Six Month Extension for EADs for Liberians on DED: President Trump has extended the wind-down period for Deferred Enforced Departure (DED) through 3/30/20 for certain eligible Liberians. The six-month automatic extension is through 9/27/19, and employment authorization documents currently held by eligible Liberians can be renewed for six months as well.

Extension of TPS for South Sudan: USCIS extended the designation of South Sudan for Temporary Protected Status (TPS) for 18 months from 5/3/19 through 11/2/20. The re-registration period runs from 4/5/19 through 6/4/19.

Court Issues Preliminary Injunction Blocking Termination of TPS for Haiti: In early April, a district court enjoined the Trump Administration from terminating TPS for Haiti, pending a final decision on the merits of the case. The preliminary injunction is effective immediately and will remain in effect pending resolution of the case on its merits or further order from the court

Organizations Request TPS for Venezuela: Over 200 organizations signed a letter to the Departments of Homeland Security and State requesting that Venezuela be designated for Temporary Protected Status (TPS) due to the extraordinary and temporary conditions in the country.

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