Michael Baker -Immigration and Naturalization Law, DUI and Criminal Lawyer, Chicago

Immigration Judge Benchbook online

2009-06-08T17:38:00.012-05:00

June 4, 2009

EOIR Provides Public Access to “Immigration Judge Benchbook”

Vital Reference Handbook for Immigration Judges Is Accessible Online

FALLS CHURCH, Va. – The Executive Office for Immigration Review (EOIR) announced that it has posted the “Immigration Judge Benchbook” (Benchbook) online, as part of ongoing efforts to better meet the information needs of the people it serves. The general public can now view the many reference materials that the nation’s immigration judges use daily to conduct immigration proceedings and carry out crucial decision-making responsibilities. Moreover, providing public access to the Benchbook is in line with EOIR’s efforts to promote greater accountability and transparency of agency operations. The Benchbook is available on EOIR’s website at http://www.usdoj.gov/eoir/vll/benchbook/index.html.

EOIR initially established the Benchbook in 1985, as a reference guide developed by immigration judges for use by immigration judges. In 2007, EOIR revamped the Benchbook in an innovative attempt to merge solid legal reasoning with the latest technology available. As a result, the Benchbook is now a vital, up-to-date interactive resource that includes:

Tools (such as checklists, worksheets, forms, introductory guides, and sample orders) that help immigration judges prepare for various proceedings.
An interactive template that helps immigration judges build clear, concise, and well-reasoned decisions.
Internet links and search tools that provide immigration judges quick access to helpful legal resources.
“Alerts” that promptly advise immigration judges of relevant legal and policy changes, as well as Benchbook updates.

Information about appearing before immigration judges in immigration court is available in EOIR’s Immigration Court Practice Manual, which can be found on EOIR’s website at http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm.

The Benchbook now complements the Immigration Court Practice Manual and the Board of Immigration Appeals Practice Manual (http://www.usdoj.gov/eoir/vll/qapracmanual/ apptmtn4.htm) in providing helpful information to the people EOIR serves.

The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. Under delegated authority from the Attorney General, immigration judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws. EOIR’s immigration judges conduct administrative court proceedings in immigration courts located throughout the nation. They determine whether foreign-born individuals—who are charged by the Department of Homeland Security with violating immigration law—should be ordered removed from the United States or should be granted relief from removal and be permitted to remain in this country. The Board of Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR’s Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates.

Survey of Illinois DUI Arrests 2008

2009-05-18T13:45:00.016-05:00

The Alliance Against Intoxicated Motorists released a 2008 survey of arrests in Illinos towns for DUI. Leading the survey was Rockford with 785. Naperville was second with 651. Carol Stream and Barrington led the suburban Chicago area in the number of DUI arrests per officer. Each town had 9.44 arrests per officer. The town of Roscoe, just outside of Rockford, led the entire State of Illinois with 13.15 arrests per officer. The top DUI arresting officer was Sangamon County Sheriff's Deputy James McNamara with 247 arrests. Timothy Walker of the Chicago Police Department had 244 arrests. Mark Harwood of Waukegan, the suburban leader, made 187 arrests.

The Alliance Against Intoxicated Motorists (AAIM) is an independent non-profit organization founded in 1982 by families who had lost loved ones in drunk driving crashes. AAIM was Illinois' first citizen action group dedicated to the fight against driving under the influence.

Non-Citizens Deported Mostly for Nonviolent Offenses

2009-04-29T17:05:00.001-05:00

Human Rights Watch issued a report that it says documents for the first time exactly which kinds of non-citizens were deported from the U.S. between 1997 and 2007, and for what types of crimes.

The report says that 72 percent of immigrants deported from the U.S. between 1997 and 2007 were for non-violent offenses. Many of those immigrants were in the U.S. legally.

It shows that some of the most common crimes for which people were deported were relatively minor offenses, such as marijuana and cocaine possession or traffic offenses. Among legal immigrants who were deported, 77 percent had been convicted for such nonviolent crimes. Many had lived in the country for years and were forced apart from close family members.

From an L.A. Times story:

Federal authorities repeatedly have said that their priority was to find and remove illegal immigrants with violent criminal histories, but the U.S. government's stepped-up enforcement in recent years has led to the deportation of hundreds of thousands of immigrants convicted of nonviolent crimes, according to a new study.
Nearly three-quarters of the roughly 897,000 immigrants deported between 1997 and 2007 after serving criminal sentences were convicted of nonviolent offenses and one-fifth were legal permanent residents, according to the study released Wednesday by Human Rights Watch.

"This explodes the myth that immigrants deported for crimes are invariably people here illegally who committed serious, violent crimes," said David Fathi, director of the New York-based advocacy group's U.S. program. "We know now the large majority are being deported for nonviolent, often quite minor crimes."

Immigration Marriage fraud, misuse of visas

2009-03-27T08:30:00.042-05:00

Marriage Fraud: Marriage fraud has been prosecuted, inter alia, under 8 U.S.C. § 1325 and 18 U.S.C. § 1546(a). The Immigration Marriage Fraud Amendments Act of 1986 amended § 1325 by adding § 1325(c), which provides a penalty of five years imprisonment and a $250,000 fine for any "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." Under 8 U.S.C. § 1151(b), "immediate relatives" of U.S. citizens, including spouses, who are otherwise qualified for admission as immigrants, must be admitted as such, without regard to other, ordinary numerical limitations. The typical fact pattern in marriage fraud cases is that a U.S. citizen and an alien get married. They fulfill all state law requirements such as medical tests, licensing, and a ceremony. But the U.S. citizen is paid to marry the alien in order to entitle the alien to obtain status as a permanent resident of the United States; the parties do not intend to live together as man and wife.

A legal issue arises where the parties tell the INS they are married, and they subjectively believe they are telling the truth because they have complied with state marriage requirements. The Supreme Court has ruled that the validity of their marriage under state law is immaterial to the issue of whether they defrauded INS. There have been situations where a bona fide marriage turns sour but the alien induces the U.S. citizen spouse to maintain the marriage as a ruse only as long as necessary for the alien to obtain status as a permanent resident alien. There is a line of cases holding that the viability of the marriage, if initially valid, is not a proper concern of the INS. United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985); Dabaghian v. Civilleti, 607 F.2d 868 (9th Cir. 1979), and cases cited therein. However, the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. § 1186a, were designed, inter alia, to eliminate the Qaisi type loophole by establishing a two-year conditional status for alien spouses seeking permnt resident status, and requiring that an actual family unit still remain in existence at the end of the two year period.

The first paragraph of 18 U.S.C. § 1546(a) proscribes the forging,
counterfeiting, altering or falsely making of certain immigration
documents or their use, possession, or receipt. The second paragraph
proscribes the possession, or bringing into the United States of
plates or distinctive papers used for the printing of entry
documents. The third paragraph makes it a crime, when applying for
an entry document or admission into the United States, to personate
another or appear under a false name. The fourth paragraph makes it
a crime to give a false statement under oath in any document
required by the immigration laws or regulations.

The Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) amended subsection 1546(a) to provide for enhanced
penalties if the offense was committed to facilitate an act of
international terrorism or a drug trafficking crime.

Subsection 1546(b) makes it a felony offense to use a false
identification document, or misuses a real one, for the purpose of
satisfying the employment verification provisions in 8 U.S.C. §
1324a(b).

Title 18 U.S.C. §§ 1541 to 1546, provide criminal penalties for
offenses related to passports, visas, and related documents.
Sections 1541 to 1544 exclusively concern passports. Section 1545
deals with safe conducts as well as passports. 18 U.S.C. § 1546
deals with visas, permits, and related documents. See 3 A.L.R.Fed.
623.

A passport is defined at 8 U.S.C. § 1101(a)(30) as "any travel
document issued by competent authority showing the bearer's origin,
identity, and nationality, if any, which is valid for the entry of
the bearer into a foreign country." The Supreme Court has stated "[a
passport] is a document, which, from its nature and object, is
addressed to foreign powers; purporting only to be a request, that
the bearer of it may pass safely and freely; and is to be considered
rather in the character of a political document, by which the bearer
is recognized, in foreign countries, as an American citizen; and
which, by usage and the law of nations, is received as evidence of
the fact." See Haig v. Agee, 453 U.S. 280, 292 (1981). Title 8
U.S.C. § 1104 entrusts control of passport and visa matters to the
Department of State, and establishes a Passport Office and a Visa
Office. Title 8 U.S.C. § 1185(b) makes it unlawful for a United
States citizen to attempt to depart from or enter the United States
without a valid passport, except as authorized by the President.

Section 211a of Title 22 authorizes the Secretary of State to issue
United States passports in foreign countries. Title 22 U.S.C. § 212
limits issuance of United States passports to United States
nationals only. Section 213 prescribes the method of applying for a
passport, Title 22 U.S.C. §§. 213, 214a, and 215 control the fees
for passports, 22 U.S.C. § 217a limits the temporal validity of
passports to no more than 10 years. State Department regulations
governing passports appear at 22 C.F.R. Part 51. See 59A Am.Jur.2d
"Passports" for a general discussion of the law of passports.

The statutory maximum term of imprisonment for violations of 18
U.S.C. §§ 1541 - 1546 is 10 years. See 18 U.S.C. § 3291. However, 18
U.S.C. § 1547 provides that notwithstanding any other provision of
title 18, the maximum term of imprisonment that may be imposed for
passport and visa violations (except violations under 18 U.S.C. §
1545) if committed to facilitate a drug trafficking crime is 15
years; and if committed to facilitate an act of international
terrorism is 20 years.

_________________________________________________________

§ 1546. Fraud and misuse of visas, permits, and other documents

(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or

Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or

Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact—
Shall be fined under this title or imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section 929 (a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense), or both.

(b) Whoever uses—

(1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor,

(2) an identification document knowing (or having reason to know) that the document is false, or

(3) a false attestation, for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act, shall be fined under this title, imprisoned not more than 5 years, or both.

(c) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a subdivision of a State, or of an intelligence agency of the United States, or any activity authorized under title V of the Organized Crime Control Act of 1970 (18 U.S.C. note prec. 3481).[1] For purposes of this section, the term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

§ 1325. Improper entry by alien

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts

Any alien who

(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or

(2) eludes examination or inspection by immigration officers, or

(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

(b) Improper time or place; civil penalties
Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

(c) Marriage fraud
Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.

(d) Immigration-related entrepreneurship fraud
Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both.

595 F.2d 1192
_____________________________
Sec. 3291. Nationality, citizenship and passports

No person shall be prosecuted, tried, or punished for violation
of any provision of sections 1423 to 1428, inclusive, of chapter 69
and sections 1541 to 1544, inclusive, of chapter 75 of title 18 of
the United States Code, or for conspiracy to violate any of such
sections, unless the indictment is found or the information is
instituted within ten years after the commission of the offense.

CHAPTER 213--LIMITATIONS

18 U.S.C. § 3282 Offenses not capital

Except as otherwise expressly provided by law, no person shall be
prosecuted, tried, or punished for any offense, not capital, unless the
indictment is found or the information is instituted within five years
next after such offense shall have been committed.

(June 25, 1948, ch. 645, 62 Stat. 828; Sept. 1, 1954, ch. 1214,
Sec. 12(a), formerly Sec. 10(a), 68 Stat. 1145; renumbered Pub. L. 87-
299, Sec. 1, Sept. 26, 1961, 75 Stat. 648.)
_________________________________

TITLE 9 CRIMINAL DIVISION 9-73.000 http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/title9.htm
IMMIGRATION VIOLATIONS—PASSPORT AND VISA VIOLATIONS 9-73.000 http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/73mcrm.htm#9-73.600

I-9 Documents Acceptable for Employment Eligibility Verification

2009-02-18T17:01:00.009-06:00

All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form.

Do not file Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., Department of Homeland Security, Department of Labor, Office of Special Counsel).

U.S. Citizenship and Immigration Services (USCIS) announced that it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on December 17, 2008. The rule streamlines the Employment Eligibility Verification (Form I-9) process. The delay is intended to provide the government with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. A notice announcing this delay has been transmitted to the Federal Register and is scheduled for publication on February 3, 2009. In addition, USCIS has reopened the public comment period (which was to end on February 2, 2009) for 30 days until March 4, 2009.

* Download I-9 (Rev. 06/05/07 N - only for use BEFORE April 3, 2009) (408KB PDF)
* Download I-9 (REV. 02/02/09 N - Only for use On and AFTER April 3, 2009) (444KB PDF)
* Download I-9 (Revisado en 6/5/07 N – para utilizarse sólo ANTES del 3 de abril de 2009) (818KB PDF)
* Download I-9 (Revisado en 02/02/09 N – para utilizarse sólo EN y después del 3 de abril de 2009) (443KB PDF)

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S. The interim final rule will amend regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9.
___________________

USCIS Publishes Interim Final I-9 Rule; New I-9 Form
The interim final rule streamlining the employment eligibility verification (Form I-9) process that the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), announced it submitted to the Federal Register on December 12, 2008, has now been published in the Federal Register along with a copy of the proposed new I-9 form at 73 Fed. Reg. 76505 (Dec. 17, 2008).

The interim final rule amends 8 CFR § 274a.2 to change the term “eligibility” to “authorization” and, in subsection (b)(1)(v), narrows the list of acceptable identity documents and specifies that expired documents are not considered acceptable forms of identification.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A (8 CFR § 274a.2(b)(1)(v)(A)) documents verify identity and employment authorization, List B (8 CFR § 274a.2(b)(1)(v)(B)) documents verify identity only, and List C (8 CFR § 274a.2(b)(1)(v)(C)) documents verify employment authorization only. The interim final rule removes the terms “unexpired” and “expired” from those documents currently listed in the regulations. Rather than modify each acceptable document with the term “unexpired,” the rule imposes a general requirement that all documents must be unexpired. USCIS invites comments on whether this prohibition on the use of expired documents for the Form I-9 should be modified to permit employers to accept List B identity documents that have expired within the last 90 days (or other limited time period) of the date when they are presented to the employer for the Form I-9.

In 8 CFR § 274a.2(b)(1)(v)(A)(3), the rule modifies the reference to temporary I-551 stamps on unexpired foreign passports to include pre-printed temporary I-551 notation on machine-readable immigrant visas (MRIVs); however, since the pre-printed notation is not included on Form I-94s, the rule does not make any changes to regulatory references to temporary I-551 stamps on Form I-94s.

The interim final rule eliminates Forms I-688, I-688A, and I-688B (temporary resident card and older versions of the employment authorization card/document) from List A, new 8 CFR § 274a.2(b)(1)(v)(A). USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 in 8 CFR § 274a.2(b)(1)(v)(A) foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI).

In addition, the rule updates the list of acceptable documents and receipts by including “Form I-94A” next to each reference to the Form I-94, Arrival-Departure Record, new 8 CFR § 274a.2(b)(1)(v)(A)(5) and (b)(1)(vi)(B) and (C). The Form I-94A is nearly identical to the Form I-94 except that all fields are computer-generated rather than being annotated by hand.

The rule replaces the current reference to the List C document “Social Security number card” with the statutory term “Social Security account number card” and revises the restrictions in the acceptability of social security account number cards to track the statutory language, new 8 CFR § 274a.2(b)(1)(v)(C)(1). The rule also corrects the incorrect reference to Forms FS-545 and DS-1350 as “Certification of Birth Aboard” to reflect that the FS-545 is correctly titled “Certification of Birth” and the DS-1350 is correctly titled “Certification of Report of Birth,” 8 CFR § 274a.2(b)(1)(v)(C)(2) and (3). Additionally, the rule replaces references to the former INS with “DHS.”

In implementing the regulatory changes being made by this rule, DHS is also revising the Form I-9 itself. Changes to the Form I-9, in addition to revisions to the list of acceptable documents, include:

• in Section 1, making “citizen of the United States” and “noncitizen national of the United States, as defined in 8 U.S.C. 1408” two separate categories in the employee attestation part of the form

• in Section 1, replacing “An alien authorized to work until __/__/__ (Alien # or Admission _____” with “An alien authorized to work (A# or Admission #_____) until (expiration date, if applicable--month/day/year)__/__/__”

• in the form instructions, including a paragraph that clarifies when employers need to reverify certain employees to read as follows: “Note that some employees may leave the expiration date blank if they are aliens whose work authorization does not expire (e.g., asylees, refugees, certain citizens of the Federated States of Micronesia or the Republic of the Marshall Islands). For such employees, reverification does not apply unless they choose to present in Section 2 evidence of employment authorization that contains an expiration date (e.g., Employment Authorization Document (Form I-766)).”

The revised Form I-9 includes additional changes, such as revisions to the employee attestation section and the addition of the new U.S. passport card to List A.

Employers will have to use the revised Form I-9 for all new hires and to reverify any employee with expiring employment authorization beginning 45 days after publication in the Federal Register. The current version of the Form I-9 (dated June 5, 2007) will no longer be valid after that date.

The interim final rule is effective February 2, 2009. Written comments must reference Department of Homeland Security (DHS) Docket No. USCIS-2008-0001 and must be submitted on or before February 2, 2009, by:

• using the federal eRulemaking Portal: http://www.regulations.gov

• mailing paper, disk, or CD-ROM submissions to Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210

• using hand delivery/courier to U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210; contact phone number: (202) 272-8377

Currently, the first box in that section states: ‘'A citizen or national of the United States.’‘ USCIS states that separating those two groups will eliminate one difficulty that currently exists when prosecuting those who make false claims to U.S. citizenship. USCIS explains that noncitizen nationals of the U.S. are persons born in American Samoa as provided in INA § 308 [8 USCA § 1408]; certain former citizens of the former Trust Territory of the Pacific Islands who relinquished their U.S. citizenship acquired under INA § 301 of Pub. L. No. 94-241 (establishing the Commonwealth of the Northern Mariana Islands) by executing a declaration before an appropriate court that they intended to be noncitizen nationals rather than U.S. citizens; and certain children of noncitizen nationals born abroad, as provided by INA § 308. A definition of noncitizen national is added to the instructions to the Form I-9.

_________________________________________________
Revised Form I-9

Form I-9. The revised edition of Form I-9 is dated February 2, 2009, and must be used beginning on that date; the June 5, 2007 version of the form should be used until that time. Both versions of the form are available on USCIS' website.

This revised Form I-9 reflects the changes made by the interim final rule to streamline the employment eligibility verification (Form I-9) process, including the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I-9. The following modifications to the form and its instructions supplement that discussion:

• "eligible" has been changed to "authorized" throughout the form and its instructions

• on page 1 of the instructions under the heading "Section 1, Employee," USCIS has noted that, instead of being completed at the time of hire, this part of the form must be completed no later than the time of hire

• also on page 1 of the instructions, USCIS has added a paragraph concerning noncitizen nationals of the U.S.

• under the "Section 2, Employer," heading on page 1 of the instructions, the agency has noted that (1) employers "cannot specify which document(s) listed on the last page of Form I-9 employees present to establish identity and employment authorization" as "[e]mployees may present any List A document OR a combination of a List B and a List C document"; (2) "receipts showing that a person has applied for an initial grant of employment authorization, or for renewal of employment authorization, are not acceptable" and (3) if photocopies of original documents presented by the employee are made, they must be made for all new hires

• at the top of page 2 of the instructions, a reference to the USCIS Handbook for Employers (Form M-274) has been included as a source for more information

• under the heading "Section 3, Updating and Reverification" on page 2 of the instructions, a note has been added that employers have the option of completing a new Form I-9 instead of section 3 for reverification purposes

• in the USCIS Forms and Information section of the instructions on page 2, USCIS has added its website address and the phone number 1-888-464-2418 as a reference for information about Form I-9 and E-Verify

Direct Filing N-400 Application for Naturalization

2009-01-28T15:58:00.002-06:00

The Direct Mail Program for Form N-400, Application for Naturalization, took effect on January 22, 2009. As of that date, all nonmilitary applicants must submit Form N-400, and any related supplements, to one of two lockbox addresses, based on where the applicant resides. N-400s will be processed by the National Benefits Center, which will complete national security checks, conduct various processing steps, and maintain applicant files waiting for adjudicative interview by USCIS field offices. Previously these tasks were performed by the USCIS service centers.

Applicants who reside in: Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, Territory of Guam, or the Northern Mariana Islands must submit Form N-400 to:

U.S. Postal Service Address:
USCIS Lockbox Facility, USCIS
P.O. Box 21251
Phoenix, AZ 85036

Private Courier (non-USPS) Address:
USCIS, Attn: N400
1820 E Skyharbor Circle
S. Floor 1, Phoenix, AZ 85036

Applicants who reside in: Alabama, Arkansas, Connecticut, Delaware, DC, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, or the U.S. Virgin Islands must submit Form N-400 to:

U.S. Postal Service Address:
USCIS Lockbox Facility, USCIS
P.O. Box 299026
Lewisville, TX 75029

Private Courier (non-USPS) Address:
USCIS, Attn: N400
2501 S. State Hwy 121, Bldg. 4
Lewisville, TX 75067.

USCIS will only forward incorrectly filed N-400s to the correct location for 30 days after the effective date of the change. After this 30-day period, the agency will reject cases that are not filed according to the new policy.

7th Circuit, Aliens, Immigration case law updates, Asylum

2008-12-29T10:38:00.012-06:00

Kadia v. Holder, No. 07-3604 (02/20/2009) Asylum/Withholding of Removal/Convention Against Torture

Kadia v. Holder (Tinder)
Oral Argument | Full Text

The alien testified that: she was arrested by members of a special police unit and accused of spying, supporting a strike, being a member of an opposition political party, and sending arms to her native village; she was beaten, raped, and detained for 18 days; she suffered a miscarriage; and she fled and went into hiding after she was taken to a hospital for treatment. The IJ found that the alien was not entirely credible and that she failed to show that the harm that she suffered constituted persecution on account of a protected ground. The BIA stated that it did not need to address the adverse credibility finding. It concluded, without explanation, that the alien failed to meet her burden of showing her eligibility for asylum and other relief. The court held that a remand was necessary because the BIA failed to provide a reasoned analysis, which would allow for proper appellate review of its decision. The BIA could not have reached its conclusion without implicitly adopting the IJ's adverse credibility finding. If the alien's testimony was true, the treatment she described might constitute past persecution based on imputed political opinion, which could qualify her for asylum.

The petitioner fled Cameroon in the spring of March 2007 and presented her claim for asylum and related relief before the U.S. immigration court. She claimed that members of Cameroon's special anti-gang police physically abused and detained her because they believed that she held subversive political opinions. She testified that in December 2006 two men, not in uniforms, came to her home and showed her an arrest warrant and a badge. They identified themselves as members of the Cameroon anti-gang or special police force. They took her to an unfamiliar location and accused her of going to America to give away their country's military secrets, being a member of the opposition party, the Southern Cameroon National Council (SCNC), supporting a university strike, and sending arms to her village. They also mentioned a tribal chieftaincy problem between her uncle and her brother. She was detained for 18 days during which period she was beaten and raped. Her captors took her to a hospital where she had a miscarriage. Two days later she escaped and went into hiding until she was able to leave Cameroon. She did not tell her superior police officers what had happened to her because she was too frightened.

In denying her relief applications, the IJ expressed his belief that the petitioner's story was not entirely credible. He also denied the claim based on his finding that she failed to show that the harm she suffered constituted persecution on account of a protected ground. He declared that the petitioner's inconsistent testimony and the fact that she never sought help from her police department superiors raises serious doubts whether the harm she suffered, if true, was on account of an imputed political opinion and not a tribal issue. The BIA purported to “adopt and affirm” the IJ's decision but added that it agreed with the IJ insofar as he found that the petitioner failed to meet her burden of establishing eligibility for asylum, withholding of removal, and CAT protection as the evidence failed to sufficiently establish that the petitioner was persecuted or would more likely than not be persecuted on a protected ground. The Board indicated that, in light of this finding, it did not need to address the IJ's adverse credibility finding.

The circuit court held that the BIA's order was insufficient because it lacked a reasoned analysis. It considered that the BIA's conclusion that it need not address the IJ's credibility determination could not be squared with its finding that the petitioner failed to establish persecution on account of a protected ground. The court explained that it has defined persecution as “punishment or the infliction of harm which is administered on account of race, religion, nationality, group membership or political opinion, which rises above the level of mere harassment.” It remarked that the petitioner's alleged experiences would seem to establish harm above the level of mere harassment and that the violence she suffered was motivated by the political opinion that her captors attributed, rightly or wrongly, to her. The court declared that, if her story is credited, then her detention and abuse would seem to constitute past persecution based on imputed political opinion. The court indicated that it could not affirm the BIA if the basis for its decision is unclear. It stated that the BIA could not have affirmed the IJ without adopting his adverse credibility finding, which it declined to reach, and therefore the court concluded that the BIA's decision was not supported by a reasoned analysis. Accordingly, the court remanded the case to the BIA for clarification of the reasons for its decision and commented that this would inevitably require the Board to address the IJ's adverse credibility finding.
__________________________________

Duad v. Holder, No. 07-3566 (02/12/2009) Suspension of Deportation/Hearsay Evidence in Removal Proceedings

Duad v. Holder (Wood)
Oral Argument | Full Text

Petitioner alien, a native and citizen of Malaysia, sought review of an order of the Board of Immigration Appeals (BIA) affirming the immigration judge's (IJ) denial of suspension of deportation pursuant to the former § 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C.S. § 1254 (repealed).

The court noted that it lacked jurisdiction under 8 U.S.C.S. § 1252(a)(2)(B)(ii) to review the BIA's conclusion that the alien had not shown the kind of extreme hardship necessary to earn suspension of deportation. The alien argued that the BIA erred in accepting hearsay documents and violated the alien's right to due process in doing so and that the documents were all that permitted the IJ to find that the alien did not meet the requirement of good moral character. The court found that the contested materials played little or no role in the IJ's decisionmaking process. The IJ had before him a BIA decision in which it found that substantial and probative evidence existed showing that the alien's marriage was entered into for purposes of evading the immigration laws, and the IJ also heard oral testimony about the death of a child in the alien's care and the investigation surrounding it. That evidence, standing alone, would have been enough to support the IJ's finding that on balance the alien did not merit withholding of deportation. The court noted that the IJ's decision to admit various unsworn documents did not violate the alien's due process rights.

The petitioner, a native and citizen of Malaysia, entered the U.S. in 1984 as a nonimmigrant to enable her to work with the Malaysian Consulate as a student counselor. In the late 1980s, she converted from Islam to Buddhism, and, in 1989, she married a Buddhist gentleman was a U.S. citizen. Before that marriage ended in divorce, the U.S.husband had filed an I-130 family petition on behalf of Ms. Duad. The INS denied that petition, finding that the marriage was a fraud. In 1991, she married a Jewish man, another U.S. citizen, and the petitioner ran a small day-care service from her home. In 1996, deportation proceedings were commenced against the petitioner for overstaying her nonimmigrant authorization. In October 1998, a child who had been in the petitioner's care died from a cerebral hematoma. The petitioner was charged with homicide but was acquitted after a trial. Her insurance company settled a civil wrongful-death action brought against her. The state authorities proceeded to revoke her day-care license. After 13 years of marriage to her second husband, divorce proceedings ensued in 2004.

The petitioner had a legal permanent resident daughter and grandchildren residing in the U.S. and no close family in Malaysia. In support of her suspension application, she asserted that she feared religious persecution because Malaysia is predominately Muslim and is intolerant toward both Buddhism and Judaism. She also relied on the fact that she was 65 years of age and the retirement age in Malaysia is 55. Although the IJ gave her the benefit of the doubt on the issue of “good moral character,” a necessary requirement for suspension of deportation, notwithstanding the fraudulent marriage to the first husband and the unfortunate death of the child, in assessing the “extreme hardship” factor, the IJ denied relief after balancing these negative factors against the positive factors. He acknowledged that deportation would cause hardship but observed that country conditions in Malaysia were not as bleak as the petitioner had painted them to be. He admitted various
unsworn documents into evidence, including a DCFS letter, presented on the date *656 of the hearing, which informed the petitioner that it was recommending revocation of her day-care license and that her renewal application would be denied.
__________________________________
Khan v. Filip, Nos. 06-3966 & 07-2252 (1/29/09)

Khan v. Filip (Sykes)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s order finding under 8 USC sec. 1158(a)(3) that alien's asylum application was untimely, and that alien's evidence regarding his depression was insufficient to constitute "extraordinary circumstances" to justify 5-year delay in filing asylum application. Moreover, while alien showed that he was mistreated in home country, he failed to show, for purposes of his withholding of removal claim, that any mistreatment was motivated by his political beliefs.
__________________________________
Stepanovic v. Filip, No. 07-3883 (1/28/09)

Stepanovic v. Filip (Kanne)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s order finding alien was ineligible for cancellation of removal even though alien claimed that he was "battered spouse" as set forth in sec. 240(A)(b)(2) of INA. Bd.'s order qualified as denial of discretionary relief that was not subject to appellate review under 8 USC sec. 1252(a)(2)(B), and alien otherwise merely challenged Bd.'s rejection of aliens' factual claim that he was abused spouse.
__________________________________
Ghaffar v. Mukasey, No. 07-3474 (12/29/08)

Ghaffar v. Mukasey (Rovner)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider appeal of Bd.'s denial of alien's asylum application alleging persecution on account of his status as Shiah Muslim where application had not been filed within one year of his arrival in U.S. as required by section 208(a)(2)(B) of INA. Moreover, Ct. of Appeals could not review IJ's determination that 1.5 year delay was not caused by extraordinary circumstances where alien failed to raise legal issue with respect to IJ's determination. Ct. also found that alien had waived his claim that IJ was biased and/or had denied him due process by failing to record alien's wife's testimony since alien had failed to raise said issues with Bd. His claims regarding IJ bias, and the BIA's failure to make a record of his wife's testimony, were both within the Board's power to address, and thus he was required to raise these claims before the BIA.
__________________________________
Torres v. Mukasey, No. 08-1614 (12/23/08)

Torres v. Mukasey (Kanne)
Oral Argument | Full Text

Petition for review of a denial of Honduran native's application for asylum and related relief is granted where: 1) the IJ's credibility determination was tainted due to the IJ's improper conduct during the hearings at issue; and 2) there was not substantial evidence to support the IJ's conclusions. Record failed to support IJ's denial of alien's asylum and withholding of removal applications based on alien's claim that he was persecuted by members of Honduran army due to his relationship to other members of his family. IJ played excessive role in questioning alien during asylum hearing and improperly relied on IJ's personal beliefs when making adverse credibility findings against alien. Moreover, record provided sufficient nexus between alien's mistreatment and his relationship to his other family members to support instant claim. Petition granted.
__________________________________
Chavez-Vasquez v. Mukasey, No. 08-1652 (12/8/08).

Chavez-Vasquez v. Mukasey (Ripple)
Oral Argument | Full Text

Illegal alien's petition for review of an order of removal is dismissed where: 1) the court lacked jurisdiction to hear an appeal from a judgment regarding cancellation of removal rendered under section 1229(b) of the Immigration and Nationality Act; 2) a procedural due-process claim could not be heard because petitioner had failed to raise it before the BIA; and 3) petitioner's evidence regarding country conditions in Guatemala had been considered, and the IJ's findings of fact with respect to that evidence were not reviewable.

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s order affirming IJ's denial of alien's application for cancellation of removal where alien claimed that removal would work extreme hardship on her two U.S. born sons. Section 1252(a)(2)(B)(i) of INA precludes Ct. of Appeals from reviewing judgments regarding requests for cancellation of removal, and subject matter of instant appeal, which concerned allegation that IJ neglected to consider evidence regarding adequacy of medical treatment for alien's sons and economic conditions in Guatemala, did not pertain to question of law.
__________________________________
Jimenez-Gonzalez v. Mukasey, No. 08-1071, No. 06-3228 (11/21/08) Recklessness is not a Crime of Violence

Jimenez-Gonzalez v. Mukasey (Ripple)
Oral Argument | Full Text

Petition for review of an order of removal based on petitioner's conviction on a state charge of criminal recklessness is granted where criminal recklessness is not a crime of violence for immigration purposes.

Mr. Jimenez-Gonzalez pleaded guilty to two counts of criminal recklessness, a Class C felony in Indiana, by shooting a firearm from his truck into an apartment located in a residential neighborhood. He was then sentenced to four years’ imprisonment. Indiana Code § 35-42-2-2(c)(3).

Aliens are removable under 8 U.S.C. § 1227(a)(2)(A)(iii) if they commit an aggravated felony. The definition of “aggravated felony” includes a conviction for a “crime of violence []as defined in section 16 of Title 18,” for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F).

A “crime of violence” is defined in 18 U.S.C. § 16(b) as an offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The Supreme Court examined the scope of Section 16(b) in Leocal v. Ashcroft, holding that a conviction for drunk driving did not qualify as a crime of violence under Section 16(b). 543 U.S. at 13. In reaching that conclusion, the Court held that a crime based on strict liability or negligence could not be a crime of violence, because “[i]nterpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.” Id. at 11.

"In the wake of Leocal, five other circuits have held that reckless crimes cannot be crimes of violence under Section 16(b). See United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008) (holding that reckless assault on a police officer was not a crime of violence); United States v. Portela, 469 F.3d 496, 499 (6th Cir. 2006) (holding that reckless vehicular homicide was not crime of violence); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-31 (9th Cir. 2006) (enbanc) (discussing Leocal and holding that reckless domestic violence was not a crime of violence); Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006) (holding that reckless assault was not a crime of violence); Oyebanji v. Gonzales,418 F.3d 260, 263-65 (3d Cir. 2005) (holding that reckless vehicular homicide was not a crime of violence). These circuits have interpreted Leocal to limit the scope of Section 16(b) to crimes that require purposeful conduct, rather than negligent or reckless conduct.

Today we join our sister circuits and hold that reckless crimes are not crimes of violence under Section 16(b). As the Third Circuit persuasively reasoned, “[t]he cornerstone of the Leocal Court’s reasoning was that the concept of the use of physical force against the person or property of another ‘requires active employment’ and ‘naturally suggests a higher degree of intent than negligent or merely accidental conduct.’” Oyebanji, 418 F.3d at 263 (quoting Leocal, 543 U.S. at 9 (emphasis in original)). And we believe that accidental and reckless crimes are not the type of “violent” crimes Congress intended to distinguish as worthy of removal. See Leocal, 543 U.S. at 11; Garcia, 455 F.3d at 468-69."
__________________________________
Siddique v. Mukasey, No. 08-1127 (10/31/08) frivolous asylum

Siddique v. Mukasey (EASTERBROOK)
Oral Argument | Full Text

Petition denied and dismissed in part. Record contained sufficient evidence to support IJ's order finding that alien made frivolous asylum application where alien admitted to lying during asylum hearing and presented forged document to support his claim of persecution. Record showed that alien had lied about existence of murdered wife and child, and IJ could properly find as result that alien was permanently disqualified from receiving any remedies under immigration laws, such as his request to adjust status based on his subsequent marriage to U.S. citizen.

According to Siddique, people regularly lie to the government in Pakistan to get benefits, so he thought that he should proceed in the same fashion in the United States. We need not decide whether Siddique’s latest representation about life in Pakistan is correct (his history does not inspire confidence). Aliens must tell the truth to officials in the United States. The possibility of cultural differences is one reason why Congress directed immigration officials to notify aliens, at the outset of the asylum process, that honesty is essential, and to foreclose remedies under the immigration laws only if an alien tells material lies after being informed about the consequences of frivolous applications. 8 U.S.C. §1158(d)(4)(A), (6). Siddique received the required notice. He chose to disregard the warning and must pay the price of his decision. He should count himself lucky that he has not been prosecuted for perjury. The petition for review is dismissed for want of jurisdiction to the extent that it challenges the IJ’s discretionary decisions and denied to the extent that it contests the permanent bar on any benefit under the immigration laws.
___________________________________
Adebowale v. Mukasey, No. 07-2201 (10/24/08)

Adebowale v. Mukasey (Coffey)
Oral Argument | Full Text

Petition by a Nigerian-born citizen of the United Kingdom for review of denial of his motion to reopen asylum proceedings is dismissed for lack of jurisdiction where the IJ's determination that petitioner failed to demonstrate exceptional circumstances required to reopen was a factual one not subject to appellate review.

Adebowale claimed that he misread the notice of his hearing and thought that the hearing was set for September 9, not September 7. Without elaborating, he stated that his mistake might have resulted from an alleged disorientation accompanying a “viral infection” during the previous week and the stress of his being “threatened with homelessness.” The IJ did not demand medical evidence, but instead noted that the lack of any corroborating evidence, including medical records, harmed the credibility of Adebowale’s factual allegations. Adebowale did not even describe the symptoms that he suffered or explain why his illness prevented him from attending the hearing or accurately reading the date on the hearing notice. Indeed, Adebowale said only that he suffered from a “viral illness” that disoriented him and possibly contributed to his mistake.
_____________________________________
Malik v. Mukasey, No. 07-3821 (10/23/08) Motion to Continue

Malik v. Mukasey (Evans)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider aliens' appeal of Bd.'s order affirming IJ's denial of aliens' motion to continue removal proceedings so that aliens could apply to become lawful permanent residents based on their recent marriages to U.S. citizens. Ct. of Appeals generally lacks jurisdiction under 8 USC sec. 1252(a)(2)(B)(ii) to review instant discretionary ruling, and basis for said ruling, i.e., that aliens had lied about identity of native country and that adjustment petitions were without merit, were acceptable reasons for denying continuance.
_____________________________________

Johnson v. Mukasey, No. 08-1126 (10/01/08)

Johnson v. Mukasey (Posner)
Oral Argument | Full Text

In an action to remove a permanent resident because of a drug conviction, petition for review denial of motions to reopen and reconsider after a ten-year delay in executing the removal order is denied where the discretionary denial of a motion to reconsider is not reviewable.
________________________________________
Fernandez v. Mukasey, No. 06-3476, 06-3987, 06-3994 (9/15/08)

Fernandez v. Mukasey (Manion)
Oral Argument | Full Text

Petitions by three aliens for review of their orders of removal are denied where each of the petitioners' most recent state court convictions for misdemeanor drug possession constituted an aggravated felony under the Immigration and Nationality Act, because each occurred after a previous drug conviction became final.

"The sole issue on this appeal is whether the second (or, as is the case with Mateo, third) of each of the petitioners’ multiple state-court convictions for drug possession was accurately characterized as an aggravated felony under § 101(a)(43)(B) of the INA.

Petitioners Florencio Victor Jimenez-Mateo, Julio Calderon, and Omar Cendejas- Fernandez (collectively “petitioners”) were ordered removed from this country. The orders of removal were based on findings that petitioners’ most recent state-court convictions for drug possession offenses constituted aggravated felonies under § 101(a)(43)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B), because each of the petitioners had previously been convicted of a controlled substance offense. The petitioners have filed timely petitions for review in this court. They assert that their first and second state-court convictions for simple drug possession cannot amount to an “aggravated felony” under § 101(a)(43)(B) of the INA. Because we have already found in United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007), that such convictions do constitute an “aggravated felony” under § 101(a)(43)(B) of the INA, we deny their petitions for review."
________________________________________
Esquivel v. Mukasey, No. 07-2260 (9/11/08)

Esquivel v. Mukasey (Coffey)
Oral Argument | Full Text

Petition for review of a finding that petitioner was ineligible for a waiver of inadmissibility is denied where: the waiver in prior proceedings of the removal effect of petitioner's conviction for attempted murder did not require it to be waived in subsequent proceedings. That a § 212(c) waiver doesn't effectively expunge a conviction from an alien’s criminal record for immigration purposes or bar subsequent consideration of that conviction. The BIA has established that a § 212(c) waiver does not waive the basis for excludability itself; it merely waives the finding of excludability.
________________________________________
Jezierski v. Mukasey, No. 07-3569 (9/10/08). Motion to Reopen

Jezierski v. Mukasey (Posner)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider alien's petition for review of Bd.'s order denying her motion to reopen her removal proceedings on grounds that her counsel was ineffective. Ct. of Appeals lacks jurisdiction to review petition to reopen removal proceedings unless petition presents question of law, and Bd.'s rationale for denying motion to reopen, i.e., that alien failed to establish prejudice arising from counsel's representation, was not question of law that would confer jurisdiction on Ct. of Appeals.

An attorney's failure to file an appeal brief with the BIA in a removal proceeding does not create a presumption of prejudice.

"[T]here is no such rule. The alien derives it from a series of Ninth Circuit cases that hold that the Board's failure to consider the alien's arguments because his lawyer did not file a brief (or did not appeal at all) establishes a presumption of prejudice. Granados-Oseguera v. Gonzales, 464 F.3d 993, 997 (9th Cir. 2006); Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006); Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004); Dearinger v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000). There was no failure by the Board in this case. The Board does not require an alien who is appealing the adverse decision of an immigration judge to file a brief, and when no brief is filed the Board will still decide the merits of the appeal, and did so in this case. (The Board reserves the right to dismiss the appeal summarily if the alien, after indicating that he intends to appeal, fails to do so. 8 C.F.R. § 1003.1(d)(2)(i)(E). Sometimes the Board exercises the right, e.g., In re Ibrahim Al- Hamidieh, A95 518 117, 2007 WL 4699755 (BIA Dec. 4, 2007), sometimes not. E.g., In re Jose Alfredo Rodriguez-Murrieta, A90 116 459, 2007 WL 4699778 (BIA Nov. 30, 2007). To repeat, the Board did decide the merits of alien's appeal.) In deciding whether to reopen, the Board asked itself whether the removal proceeding might have come out differently had the alien been represented by competent counsel, and concluded that it would not have. That conclusion was not the answer to a question of law, but a discretionary determination."

________________________________________
Ali v. Mukasey, No. 07-2462 (9/8/08).

Ali v. Mukaseyy (Williams)
Oral Argument | Full Text

Record contained sufficient evidence to support IJ's deportation order after finding that alien, who entered U.S. on H-1B work visa, had wrongfully begun working for second employer before he could lawfully do so. Alien admitted to Special Agent that he was working for second employer prior to said employer filing petition on alien's behalf. Moreover, alien failed to preserve for review his claim that instant Special Agent violated 8 CFR sec. 287.3(a) by arresting and interviewing him.

Where an alien failed to object that the arresting officer was also his examining officer, the objection is waived.

"We cannot reach Ali's argument, however, because his brief to us marks the first time that he raised this argument. An alien must exhaust all available administrative remedies that are available as of right before we can review a claim. See 8 U.S.C. § 1252(d)(1); Huang v. Mukasey, 525 F.3d 559, 564 (7th Cir. 2008). Exhaustion is not required when there is a fundamental, substantive constitutional violation, Bosede v. Mukasey, 512 F.3d 946, 952 (7th Cir. 2008), but that is not the case here."
________________________________________
Sharashidze v. Mukasey, No. 07-2611 (9/8/08). Asylum/reopen

Sharashidze v. Mukasey (Wood)
Oral Argument | Full Text

Petition for Review, Order of Bd. of Immigration Appeals. Appeal dismissed.

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s order denying alien's request to reopen proceedings where IJ had previously terminated alien's grant of asylum based on alien's state conviction for indecent solicitation of sex act from minor, which qualified as aggravated felony for immigration purposes. Alien's motion to reopen was untimely, and alien failed to identify any legal, jurisdictional or constitutional error with respect to Bd.'s denial of motion to reopen. Petition for review of a BIA order of removal on the basis of conviction on an aggravated felony is dismissed for lack of jurisdiction where all of petitioner's arguments sought review of factual questions, and the court had jurisdiction to review only for legal or constitutional error.

Arguing a due process violation does not exempt an alien from the ordinary time limits for moving to reopen an asylum case.

"Sharashidze argues that the fact that he is arguing that his due process rights were violated somehow exempts him from the ordinary time limits that apply, but he is wrong: 8 U.S.C. § 1252(a)(2)(D), which authorizes this court to decide constitutional claims and questions of law, is explicitly constrained by the 30-day time limit in § 1252(b)(1). See Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007) ('Section 1252(a)(2)(D) plainly states that other limitations on judicial review in "this section"-that is, section 1252-still apply.'). Unless some other principle confers jurisdiction upon this court, we may review the denial of the motion to reopen (and only for legal, jurisdictional, and constitutional error) but not the underlying denial of the petition for review of the IJ's decision. See Asere v. Gonzales, 439 F.3d 378, 380-81 (7th Cir. 2006)."
_________________________________
Bakarian v. Mukasey, No. 06-3228 (9/4/08)Cancellation of Removal

Bakarian v. Mukasey (Manion)
Oral Argument | Full Text

In an immigration case in which the government sought removal of
petitioner as having been convicted of crimes of moral turpitude,
petition for review of denial of cancellation of removal and waiver of
inadmissibility is denied where: 1) petitioner did not meet the
continuous-residence standard for eligibility of a cancellation of
removal; and 2) petitioner's failure to raise the application of the
stop-time rule before the BIA was not excused by futility, and the court
therefore lacked jurisdiction to hear the issue on appeal.
__________________________________
Vaca-Tellez v. Mukasey, No. 07-2397 (9/2/08). Petition for Review, Order of Bd. of Immigration Appeals. Petition denied. Aggravated felony/PSMV

Vaca-Tellez v. Mukasey (Rovner)
Oral Argument | Full Text

Bd. did not err in affirming IJ's removal order based on existence of alien's "aggravated felony" arising out of alien's guilty plea to Illinois charge of burglary with intent to commit theft of motor vehicle. Alien's conviction qualified as "theft offense" under 8 USC sections 1101(a)(43)(G) and (U) for purposes of satisfying definition of aggravated felony. Ct. rejected alien's argument that govt. failed to establish existence of aggravated felony where record failed to contain transcript of his plea hearing on underlying conviction. Fact that defendant never was charged with or convicted of attempted theft in underlying offense did not require different result.
____________________________________
Ndonyi v. Mukasey, No. 07-3196 (9/2/08) Asylum

Ndonyi v. Mukasey (Kanne)
Oral Argument | Full Text

Petitioner claimed persecution in Cameroon on the basis of her political and religious beliefs, petition for review of BIA order is granted, order of removal vacated, and cause remanded where: 1) the evidence on the record did not support agency determinations that petitioner did not suffer past persecution; and 2) the government did not meet its subsequent burden to establish that petitioner lacked a well-founded fear of future persecution.
________________________________________
Alvear-Velez v. Mukasey, No. 07-2133 (9/2/08) aggravated felony/res judicata

Alvear-Velez v. Mukasey (Ripple)
Oral Argument | Full Text

Petition for review of a BIA decision to remove petitioner on the ground that he had been convicted of an aggravated felony is denied where: 1) although a prior deportation proceeding based on the same felony conviction had already been concluded, res judicata did not apply to preclude the use of the conviction in a new removal proceeding because intervening legislation had retroactively expanded the definition of an aggravated felony to include petitioner's crime; and 2) transitional rules set forth in the Immigration Reform and Immigrant Responsibility Act applied only to procedural requirements for removing aliens and not to the substantive changes to the definition of aggravated felony.
________________________________________
Aioub v. Mukasey 07-3666 (08/29/2008) Asylum/Withholding/Marriage Fraud

Aioub v. Mukasey (Kanne)
Oral Argument | Full Text

Petitioner alien sought review of an order of the Board of Immigration Appeals (BIA), which adopted an Immigration Judge's (IJ's) decision finding the alien removable on account of marriage fraud in violation of 8 U.S.C.S. § 1227(a)(1), and which denied the alien's petition for asylum and withholding of removal. The Seventh Circuit affirmed decisions by the IJ and the BIA, which exercised discretion to deny the petitioner's asylum claim because of their findings that he committed marriage fraud. The court also sustained the agency's determination that he did not establish a clear probability of future persecution in his native Bangladesh because of his conversion from Islam to Christianity.

The alien, a native of Bangladesh, came to the United States on a student visa and then married a United States citizen two years later. Before a DHS agent, he admitted that the marriage was fraudulent. Consequently, the petitioner was charged with removability pursuant to INA § 237(a)(1)(G)(ii) [8 USCA § 1227(a)(1)(G)(ii)] for attempting to obtain permanent residence through marriage fraud. In his hearing before the IJ, he claimed that his admission to the agent was a result of the fact that, at the time, he was a “mental disaster.” The government produced the DHS agent as a witness who related that the U.S.-citizen wife informed him that the petitioner provided her and her fiancé with an apartment and a vehicle for her participation in the fraudulent marriage. The “wife” testified that she had shared an apartment with the petitioner, but that they never consummated the marriage and she actually became pregnant with the child of her fiancé. When interviewed by the DHS agent, she withdrew the I-130 family application that she had filed for the petitioner.The woman he married testified that, while she moved into the alien's apartment, they never consummated the marriage, she slept in a separate bedroom with another man and her daughter, and she married the alien only to assist him in obtaining immigration benefits. Both she and her boyfriend admitted that the arrangement had been made in exchange for money and access to the alien's apartment and vehicle. The IJ found the alien removable on account of marriage fraud and denied asylum and withholding of removal. The BIA adopted that decision. On review, the court found that there was substantial evidence supporting the IJ's factual finding that the alien's marriage was fraudulent, that the IJ did not abuse his discretion in denying the asylum application, and that the IJ did not err in denying withholding of removal. There was no evidence compelling a finding that the alien would suffer future persecution in Bangladesh. The alien admitted that he could relocate to the largest city in Bangladesh, find employment, and remain relatively anonymous. The court denied the petition for review.

The petitioner's asylum case was based on his conversion to Christianity while he was in detention. He related that, when he told his father in Bangladesh of this development, the family became the target of discriminatory sanctions after the father told the local villagers of his son's conversion. The petitioner testified that he fears retribution should he return to Bangladesh. His expert witness, a college professor, agreed with the State Department's International Religious Freedom Report that a Bangladeshi Christian could absolutely practice Christianity openly, but some of the local villagers have a phobia towards non-Muslims. The professor explained that, as a convert, the petitioner might experience a harsh reaction in his local community, but other Bangladeshis would have no way of knowing of the petitioner's conversion to Christianity.

The IJ ruled against the alien petitioner on the deportation charge and also denied his claims for asylum and withholding of removal. The IJ concluded that the asylum application was not barred by the one-year filing rule because his conversion constituted changed circumstances. He proceeded to rule that the fraudulent marriage to obtain permanent residence warranted a discretionary denial of asylum and that the petitioner did not meet his burden with respect to the alternate withholding claim. The BIA adopted and affirmed the IJ's decision.

The court found that there was substantial evidence supporting the IJ's factual finding that the petitioner had entered into a fraudulent marriage. The court next reviewed the discretionary denial of asylum for abuse of discretion. In finding that the IJ did not abuse his discretion, the court referred to its prior holding in Alsagladi v. Gonzales, 450 F.3d 700, 702 (7th Cir. 2006), [FN12] that immigrants who “take the easy, but dishonest path when a more honorable if more difficult one is open cannot insist on administrative lenity.” In turning to the withholding of removal claim, the court referred to the petitioner's own expert and the State Department report, which indicated that Bangladesh is a tolerant nation, and the fact that the petitioner himself admitted that he could relocate to the largest city of Bangladesh, find employment, and remain relatively anonymous. Accordingly, it agreed with the agency that he did not establish a clear probability of future persecution on account of his new religion.

________________________________________

Kholyavskiy v. Mukasey, No. 07-1020 (8/28/08) Asylum/Religious Persecuton

Kholyavskiy v. Mukasey (Ripple)
Oral Argument | Full Text

Petition for Review, Order of Bd. of Immigration Appeals. Petition granted and denied in part and remanded.

In asylum proceeding where alien alleged that he suffered past persecution in Russia on account of his Jewish religion, alien was entitled to new evaluation by Bd. of his appeal from IJ denial of his asylum claim where Bd. did not consider cumulative significance of alien's young age (i.e. 8 to 13 years old) when various acts of harassment by school mates and others occurred. Bd. must also evaluate alien's claim for humanitarian asylum based on assertion that he cannot obtain certain medications if forced to return to Russia.
_______________________________
Asylum/REAL ID Act's Corroboration Rule/Hearing by Video Conference

Rapheal v. Mukasey No. 07-1391 (MANION)
Oral Argument | Full Text (07/02/08).

In Rapheal v. Mukasey, 2008 WL 2600798 (7th Cir. 2008), the U.S. Court of Appeals for the Seventh Circuit granted a petition for review in favor of a native and citizen of Liberia, who is also a citizen of Nigeria, and held that the BIA, in denying her claims for asylum, withholding of removal, and Convention Against Torture (CAT) [FN10] relief, committed legal error by failing to consider her credibility before rejecting her claim based upon lack of corroborative evidence. The court also ruled that her video-conferenced hearing violated her right to a fair hearing because she was deprived of the opportunity to examine critical documentary evidence used against her.

In January 2006, the petitioner flew from Germany to the U.S. She presented a passport belonging to another person. Only after immigration officials contacted the passport's owner by phone did the petitioner admit the fraud. Consequently, removal proceedings were commenced against her. She admitted the fraud, but applied for asylum, withholding of removal, and protection under the CAT. Her immigration court hearing was held via video conference. She stated that her father was a well-known doctor and that rebels blamed him for acting as a “voodoo doctor” for Liberia's former president, Charles Taylor. She claimed that she was forced to flee Liberia after rebels murdered her family and seriously injured her. She found herself in a refugee camp in Nigeria where she was repeatedly raped and otherwise abused. She testified that a guard at the camp cut her thumb off so that she could have a “taste of the pain” that Taylor caused the Nigerian people. She later married a Nigerian at the camp, and they had two children together. She testified that her husband was murdered, and the children were killed in a fire, and she attributed these tragedies to her husband's political activities.

The IJ found that the petitioner was not credible because she had earlier told immigration officers that her maiden name was “Kocoker,” whereas, in her testimony, she asserted that she had never heard this name before. The IJ noted that the petitioner failed to submit any corroborative evidence of her identity, her parents' identity, or her husband's identity or evidence that her family was well-known in Liberia. Therefore, he denied all relief and ordered her deported to Germany with an alternate order to Liberia. The BIA concluded that it did not need to reach the credibility issue because she was not entitled to relief due to her lack of corroborative evidence. [FN11]

Preliminarily, the court explained that when the Board issues its own opinion, rather than adopting or merely supplementing the IJ's opinion, the court's task is to review only the Board's opinion. The court indicated that it did not need to determine what the Board intended, but suggested that, in the future, it should exercise greater care in identifying whether it intends a stand-alone decision or merely supplementation of the IJ's decision. In addressing the petitioner's argument that the Board could not require her to provide corroborative evidence without making an explicit credibility finding, in reliance upon the Seventh Circuit's Gontcharova v. Ashcroft, 384 F.3d 873 (7th Cir. 2004), [FN12] decision, the court concluded that the REAL ID Act of 2005 [FN13] effectively superseded this decision by providing that “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” [FN14] The court pointed out that this new provision requires corroborating evidence even if the applicant is credible. The court nonetheless ruled that the Board needed to consider the petitioner's credibility before ruling on the need for corroborative evidence, given its ruling that corroboration was required in light of the conflicting documents in the record. The court pointed out that, had the Board credited her testimony that immigration officials incorrectly noted Kocoker as her maiden name, the alleged disparity would not have served as a basis for requiring corroborative evidence.

The court also reasoned that the IJ's adverse credibility finding was inextricably intertwined with his ruling on the need for corroborative evidence. The court proceeded to hold that the IJ and the BIA did not err in holding that corroborative evidence was reasonably obtainable. It rejected the petitioner's argument that the IJ was required to warn her about the need for such evidence, reasoning that the REAL ID Act clearly states that corroborative evidence may be required, thereby placing immigrants on notice of the consequences of failing to provide same. The court stated that normally it would just remand the case to the Board to rule on credibility and then to rule anew on the need for corroborative evidence, but in light of its determination that the petitioner was deprived of a fair hearing, a new hearing was required to allow the petitioner to review the immigration document involving the disputed maiden name. The court noted that video hearings are authorized by Congress under INA § 240(b)(2)(A)(iii) [8 USCA § 1229a(b)(2)(A)(iii)], but ruled that the petitioner's rights were violated under INA § 240(b)(4)(B) [8 USCA § 1229a(b)(4)(B)] because she did not have a reasonable opportunity to examine evidence used against her.
________________________________
Borrego v. Mukasey, No. 07-2183 (7th Cir. 2008 08/25/200)
Nonimmigrant Waiver Under INA § 212(d)(3)(A)/
Prior False Claim to U.S. Citizenship

Borrego v. Mukasey (Manion)
Oral Argument | Full Text

Petitioner alien, using an alias, falsely claimed to be a United States citizen in an attempt to gain entry into the United States in 1997. The alien's attempt was foiled, and she was barred from entering the United States for a period of five years. Less than four years later, the alien obtained a B-2 visa under her real name and returned to the United States. The alien was later discovered and ordered removed. The alien sought review.

The sole issue the alien presented in her petition for review was whether a waiver pursuant to § 212(d)(3)(A)(ii) of the Immigration and Nationality Act (INA) could be granted retroactively. The alien argued that it could and that the Board of Immigration Appeals erred in concluding otherwise. If such a waiver could be granted retroactively, then the alien would be able to seek an adjustment of status. The court disagreed with the alien, noting that the text of § 212(d)(3)(A)(ii) of the INA did not contemplate a waiver application by someone who had already gained admission to the United States, such as the alien. The statute spoke in terms of a waiver applicant who was "seeking admission," not one who was already admitted. Furthermore, the statute's last sentence giving the Attorney General the power to set conditions on admission for those applying for entry demonstrated that the statute's drafters had in mind a waiver applicant who was not yet admitted. Thus, under the clear language of § 212(d)(3)(A)(ii), the alien was not eligible for a waiver because she had already obtained admission.

The petition was filed by a citizen of Mexico who was apprehended at the U.S./Mexico border in 1997 and was returned to Mexico pursuant to an expedited removal order for having falsely claimed to be a U.S. citizen, rendering her inadmissible under INA § 212(a)(6)(C)(ii) [ 8 USCA § 1182(a)(6)(C)(ii)]. She was also informed that she was prohibited from entering or attempting to enter the U.S. for a period of five years unless she obtained permission from the Attorney General (AG) to reapply for admission. In 2001, during the period of the aforesaid five-year bar, she applied for and obtained a B-2 visitor visa. She did not inform the consul of her five-year bar on admission, nor did she seek the required permission from the AG. In her visa application (which was in Spanish), she responded “no” to the question of whether she had ever attempted to enter the U.S. by means of fraud or had been deported within the past five years. Upon receiving the visa stamp, she entered the U.S. in January 2001. She subsequently married a U.S. citizen, and, together, they filed the applications in furtherance of her adjustment of status in 2003. Upon ascertaining her immigration history, the INS denied her adjustment and commenced removal proceedings against her, alleging her deportability pursuant to INA § 237(a)(1)(A) [8 USCA § 1227(a)(1)(A)] as an alien who (1) sought to procure admission by fraud; (2) sought admission within five years of a previous removal order; and (3) falsely represented herself as a U.S. citizen. Before the IJ, the petitioner challenged the 1997 removal order and also sought permission to reply for admission, retroactively, under INA § 212(a)(9)(A)(iii) [8 USCA § 1182(a)(9)(A)(iii)].

The IJ determined that he lacked jurisdiction to review the 1997 removal order and proceeded to rule that the petitioner was not eligible for a waiver of inadmissibility or adjustment of status. Consequently, he ordered her removal to Mexico. Before the BIA, the petitioner challenged the IJ's rulings and also claimed that she was eligible for a waiver of inadmissibility under INA § 212(d)(3) [8 USCA § 1182(d)(3)] (waiver provision for nonimmigrants). In affirming the IJ's order and, citing to Matter of Fueyo, 20 I. & N. Dec. 84 (B.I.A. 1989), the Board indicated that such a waiver cannot be granted retroactively in removal proceedings.

Before the Ninth Circuit Court, the petitioner only presented her argument for the § 212(d)(3) waiver. The court agreed with the Board that the INA does not contemplate a waiver application by someone who has already gained admission to the U.S. as, by its very nature, the relief sought can only confer advance permission for a future entry, and, therefore, the statute makes no provision for this waiver to be granted retroactively, referring to the stated rationale in the Fueyo precedent. The court considered that the clear language of the statute does not embrace the situation of an applicant who had already obtained admission to the U.S. The court distinguished its recent holding in Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008), [FN30] which involved a petitioner who was in possession of a K-3 nonimmigrant visa, but had not yet been admitted to the U.S., given that she had been placed into removal proceeding at the port of entry and thus was in the posture of “seeking admission.” The court also deemed it relevant that petitioner Borrego was solely responsible for the erroneous issuance of her visa given her deception in her responses to the relevant questions on the visa application form. The court stated that it must enforce the consequences of the petitioner's failure to disclose her inadmissibility and to seek a waiver at the proper time. [FN31]
________________________________
Iglesias v. Mukasey, No. 07-2910 (08/22/2008) Motion to Reopen/Jurisdiction

Iglesias v. Mukasey (Williams)
Oral Argument | Full Text

In Iglesias v. Mukasey, 2008 WL 3877302 (7th Cir. 2008), the U.S. Court of Appeals for the Seventh Circuit held that it possessed jurisdiction to review the alien petitioner's claim that the BIA abused its discretion in denying his motion to reopen (MTR) based on his marriage to a U.S. citizen, but denied the petition for review on the merits, concluding that the alleged legal error by the BIA in ignoring evidence presented by the petitioner was harmless.

The petitioner, a native and citizen of Colombia, came to the U.S. in 2002 on a visitor's visa. He applied for asylum as his visitor authorization was expiring. He claimed that he was an agricultural specialist whose life would be in danger if sent back to Colombia. Removal proceedings were commenced against him in 2003, and he proceeded to apply for asylum, withholding of removal, and CAT relief before the immigration court. The IJ denied relief and ordered removal to Colombia.

While the petitioner's timely appeal was pending before the BIA, he married a U.S. citizen who filed an I-130 immediate relative petition on behalf of the petitioner, which if approved, would allow him to file for adjustment of status as relief from removal. DHS had scheduled the couple to be interviewed in June 2007, but the BIA dismissed the appeal of the removal order in April 2007. The petitioner then filed his MTR with the Board, invoking the Board's Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (B.I.A. 2002), [FN27] precedent decision governing MTRs in marriage-based cases. He submitted numerous documents in an attempt to show that the marriage was bona fide, but the BIA agreed with DHS, which opposed the motion, and issued a one-page decision, stating that the petitioner had not presented “clear and convincing” evidence to show a bona fide marriage. However, the Board's decision did not mention any of the actual evidence submitted by the petitioner.

The court noted that it had recently issued a decision, Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008), [FN28] holding that the 2005 REAL ID Act strips the courts of jurisdiction over discretionary decisions made by the BIA and that, hence, the court generally lacks jurisdiction over claims that the BIA abused its discretion in denying a MTR, but also reiterated that the Act permits discretionary decisions to be reviewed when they entail constitutional claims or questions of law. The court also noted that the petitioner did not phrase his argument in terms of “constitutional claims or questions of law” and that his brief only argued that the BIA “abused its discretion.” However, the court took cognizance of the fact that petitioner Iglesias submitted his briefs before the court decided Kucana, which abrogated earlier precedent indicating that the court generally had jurisdiction to review denials of MTRs. The court recognized that a claim labeled as challenging an abuse of discretion might also encompass a genuine claim of legal error, just as a legal or constitutional claim might disguise what is in reality just a factual allegation. The court ruled that the petitioner's due process rights were not implicated based on the court's prior holdings, including in Hamdan v. Gonzales, 425 F.3d 1051 (7th Cir. 2005), [FN29] that an alien petitioner has no liberty or property interest in obtaining purely discretionary relief, such as the reopening of a case. However, the court indicated that a claim that the BIA has completely ignored the evidence put forth by a petitioner is an allegation of legal error and a matter which the court can review.

Turning to the merits, the court outlined the documents presented by the petitioner with his MTR, including a marriage certificate, wedding pictures, third-party affidavits, and a receipt from the Social Security Administration indicating that his wife had applied for a new social security number under her married name. The court concluded that the BIA was saved from its legal error in not mentioning this evidence because most of the documents only went to show that the petitioner is married, not that his marriage is bona fide. The court pointed out that the three third-party affidavits were actually form affidavits containing very little information. The court ultimately ruled that, because the BIA could have reasonably concluded that the evidence did not constitute clear and convincing proof of the marriage's bona fides, it was not required to remand the case given that the BIA's alleged error in not mentioning this evidence in its decision was harmless.

Petitioner alien, a 52-year-old citizen and native of Colombia, sought review of an order of the Board of Immigration Appeals (BIA) denying the alien's motion to reopen. The alien claimed that the BIA abused its discretion when it denied the alien's motion to reopen his immigration case because it completely ignored the evidence he presented regarding his marriage to an American citizen.

The court concluded that the alien's allegation that the BIA completely ignored the evidence he presented was a good faith claim of legal error that the court could review under 8 U.S.C.S. § 1252(a)(2)(D). The court held that while the BIA committed legal error in failing to mention the substantial evidence that the alien produced regarding his marriage, the error was harmless as most of the alien's documentary evidence only went to show that he was married, not that his marriage was bona fide. Although the alien submitted a brief letter from his personal banker, the BIA would have been within its discretion in holding that it was not enough to show that the couple was financially hitched. Moreover, the affidavits that the alien presented contained very little information from which to conclude that the marriage was bona fide. For example, there was only one line in the friend's affidavit that could support a finding that the marriage was bona fide. However, that line was not written by the friend but was part of the form affidavit, so the BIA would have been within its discretion in holding that the affidavit was not "clear and convincing" evidence that the marriage was bona fide.

________________________________
Habeas Corpus/Detention During Removal Proceedings

Al-Siddiqi v. Achim No. 07-3872 (EVANS)
Oral Argument | Full Text (06/27/08).

In Al-Siddiqi v. Achim, 2008 WL 2550753 (7th Cir. 2008), the U.S. Court of Appeals for the Seventh Circuit reluctantly affirmed a decision by a district court, which denied a petition for habeas corpus filed by a citizen of Qatar, on behalf of whom an IJ had authorized release on bond, but whom DHS continued to detain through various bureaucratic machinations. The circuit court disagreed with the district court's ruling that it lacked jurisdiction to redress his continued detention, but indicated it was constrained to deny habeas relief, given the fact that, on the date of oral argument before the Seventh Circuit, the IJ issued a voluntary departure order, with a provision that the petitioner remain in custody until he leaves the U.S.

Petitioner, a 25-year-old citizen of Qatar, came to the United States to study. For a little over two years he attended various colleges in Madison and Milwaukee, Wisconsin, but in December 2006 he didn't maintain a full course load, resulting in the termination of his student visa. Finding petitioner's excuses insufficient, an IJ ordered him removed. Subsequently, an immigration judge (IJ) ordered petitioner released from detention upon the posting of a bond. Since then, petitioner had repeatedly tried, without success, to post the bond. The Department of Homeland Security (DHS) refused to release petitioner, justifying under various rationales its defiance of the IJ's bond order. The instant court found that the IJ ordered petitioner detained pursuant to his right to impose conditions on petitioner's voluntary departure order, 8 U.S.C.S. § 1229c(a), (b); 8 C.F.R. § 1240.26(c)(3), not under his authority to review DHS's bond determinations. Now petitioner remained in custody not because DHS refused to honor the IJ's former bond order, but because the IJ determined that he should remain in custody as a condition of his voluntary departure.

In the meantime, DHS received a five-paragraph letter from the FBI stating that the petitioner was linked to a network believed to facilitate the recruitment of individuals who may pose a threat to national security. The letter noted that the petitioner was receiving failing grades and that he routinely traveled out of town and alleged other “suspicious” activity, which the court described as devoid of context. After receipt of this letter, DHS “revoked” the IJ's bond order. The court questioned what legal authority allowed this action. The petitioner responded by asking the IJ for reconsideration and filing his habeas petition in the U.S. District Court for the Southern District of Illinois, which transferred the case to the Eastern District of Wisconsin. The IJ conducted another bond hearing but raised the bond amount to $60,000 after apparently considering that the FBI letter was insufficient to demonstrate that the petitioner was a threat to national security. DHS appealed the IJ's bond ruling to the BIA, but two days later it withdrew the appeal, on the same day when the BIA affirmed the actual removal order. The petitioner then filed a petition with the circuit court for review of the BIA's order and his motion for a stay of removal was granted by the circuit court. DHS again refused to accept the bond, so the petitioner filed an amended habeas petition and moved for summary judgment, alleging that DHS' refusal to honor the bond was without legal authority and a violation of his right to due process. The government proceeded to move the BIA to reopen the removal proceedings. The petitioner did not oppose this request, but informed the BIA that his non-opposition was contingent on enforcement of the IJ's order to release him on $60,000 bond. The BIA granted the reopening motion, but indicated that it could not address the bond issue as that involved a separate proceeding. Thereafter, the district court denied the habeas petition, reasoning that it lacked jurisdiction pursuant to INA § 236(e) [8 USCA § 1226(e)] to review DHS' “discretionary” decisions on bond matters. The district court also held that the petitioner did not exhaust administrative remedies, and that his individual due process interest in personal liberty is secondary to the potential threat posed by alleged terrorist activity.

The petitioner appealed this ruling to the circuit court. In the meantime, he applied for asylum in his reopened removal proceedings, asserting that he would be killed or tortured if forced to return to Qatar because the FBI suspects he has ties to terrorism. The IJ denied this application, but granted voluntary departure with the stipulation that the petitioner remain in custody because of the lack of confidence that the petitioner would comply with the voluntary departure order.

The circuit court concluded that 8 USCA § 236(e) did not deprive it of authority to review statutory and constitutional challenges to detention, pointing out that the Supreme Court, in Demore v. Kim, 538 U.S. 510 (2003), [FN18] held habeas review survives. The court considered that it had jurisdiction to review the petitioner's claims that DHS' refusal to honor the IJ's bond order is without legal justification and violated his due process rights. The court held that DHS never provided support for its position that the BIA's reopening order invalidated the IJ's bond order, and its position was in conflict with its own regulation, 8 CFR § 1003.19(d), which provides that a bond hearing is separate from the removal proceeding itself. The court also observed that the IJ's granting of voluntary departure constituted a rejection of DHS' contention that the petitioner posed a terrorist threat, as INA § 240B(b)(1)(B) [8 USCA § 1229c(b)(1)(B)] specifically precludes voluntary departure when an alien is removable on terrorist grounds. However, the circuit court concluded that the IJ's supervening voluntary departure order and accompanying custody order sufficiently changed the landscape, requiring the court to affirm the denial of the habeas petition. The court expressed that this action was not an endorsement of DHS' less than forthright efforts to keep the petitioner detained. Among other remarks, the court noted that DHS could have invoked INA § 236(c)(1)(D) [8 USCA § 1226(c)(1)(D)] to attempt to detain him as a suspected terrorist, instead of flouting the IJ's order and refusing to follow its own rules.
________________________________

LaGuerre v. Mukasey No. 06-4164 (per curiam)
Oral Argument | Full Text (5/20/08). CAT, domestic violence

Bd. did not err in denying alien's CAT claim and finding that alien's Illinois conviction for domestic violence qualified as "crime of violence" and "aggravated felony" that rendered him deportable under 8 USC sec. 1101(a)(43)(F) and 18 USC sec. 16. Elements of crime supported Bd.'s finding that domestic violence charge involved use of physical force by alien. Moreover, alien failed to show in CAT claim that it was more likely than not that he would be tortured if removed to Haiti.
______________________
Soumare v. Mukasey No. 07-2502 Asylum (May 8, 2008)

Soumare v.Mukasey (Kanne)
Oral Argument|Full Text Soumare v. Mukasey

Petition for review of a final order of removal is denied where: 1) the
IJ properly found that petitioner's testimony was not credible to
support his claim for asylum; and 2) the petitioner failed to
corroborate his story with any evidence.

Before an IJ may deny a claim for insufficient corroboration, the IJ
must (1) make an explicit credibility finding; (2) explain why it is
reasonable to expect additional corroboration; and (3) explain why the
alien’s explanation for not producing that corroboration is inadequate.
See Tandia v. Gonzales, 487 F.3d 1048, 1054- 55 (7th Cir. 2007);
Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir. 2006). “[T]he
importance of corroboration depends in part on the degree of specificity
and detail in a petitioner’s story.” Gontcharova v. Ashcroft, 384 F.3d
873, 877 (7th Cir. 2004).

Where the testimony of an asylum applicant contradicted his asylum application, it was not error to deny asylum.

"Based on the record, we believe that substantial evidence supports the IJ's finding that Soumare did not testify credibly. Soumare's testimony was not detailed, and it contradicted his asylum applications. See Capric, 355 F.3d at 1085 ('A credibility analysis assesses the applicant's claim only for internal consistency, detail, and plausibility, . . . .'). Soumare testified that he worked for RPG for six years, but could not recall what the letters RPG stood for, nor could he provide an approximation of how many people he recruited for RPG or the names of any individuals he recruited into the organization. Soumare could not definitively state when his father's store was vandalized or whether he or his brother managed the store at the time of the vandalism-even though Soumare claimed that he and his family were targeted by the Guinean regime because of suspicions that the income from the family business was being redirected to the rebels."
___________________________________

Huang v. Mukasey, No. 07-2074 (May 8, 2008) CAT; credibility

Huang v. Mukasey (Flaum)
Oral Argument|Full Text Huang v. Mukasey

Petition for review of an order of removal is denied where: 1)
petitioners' asylum applications were untimely filed; 2) the court
cannot consider the asylum claim since petitioners failed to exhaust
their administrative remedies; and 3) petitioners did not present
credible evidence as to their claim under the Convection Against
Torture.

Where the testimony of aliens seeking withholding of removal under the Convention against Torture was incredible, withholding was properly denied.

"We are satisfied that there was a substantial basis for the IJ to conclude that the petitioners were not credible. For instance, Huang and Dong were not fully able to explain why they would each pay $50,000 to get smuggled into the U.S., but why they could not afford (or find resources to pay) the $370 fine. Some support for this inconsistency can be found in Huang's testimony, where she stated that greater economic opportunity was part of her motivation for coming to the U.S. But there are other, more telling inconsistencies as well. The abortion certificate that Huang presented as evidence for her claim, for example, is generally only given to individuals who undergo a voluntary abortion, so that they may give it to their employer to get leave to rest. COUNTRY REPORT at 22-23.

Huang did not claim to have a voluntary abortion, and, perhaps more significantly, she was self-employed. The fine associated with this procedure stated that it was for 'early birth without marriage,' but there was no birth. In general, petitioners have not presented an adequate explanation for why they would be required to pay a social compensation fee when no child was born. Also, it was unclear why Dong would be summoned to the Public Security Bureau when Huang was the one who became pregnant and who was specifically named in the notice of the fine. With respect to Dong's time in prison, it was curious that he omitted any claims of torture in his initial asylum application, and offered as his reason that he was not asked about it. And the detention notice that he claims he kept with him in jail for the entire year is, according to evidence in the record, never given to the individual who is detained. The timing of certain events also raised suspicion with respect to the veracity of petitioners' story. Huang's pregnancy and the couple's cultural marriage were discovered by Family Planning officials-in a different village-rather swiftly.

This was in spite of the fact that Huang saw a private doctor, not a government doctor. Additionally, while it may be entirely plausible, it is a little difficult to imagine that Dong would be arrested only thirty minutes after having returned to town from ten days of hiding.
___________________________________
Chatta v. Mukasey, No. 07-2179 (4/21/08). Asylum

Chatta v. Mukasey (EVANS)
Oral Argument|Full Text Chatta v. Mukasey

Chatta v. Mukasey, No. 07-2179 (4/21/08). Petition for Review, Order of Bd. of Immigration Appeals. Petition denied. (Evans)

Petition for review of a denial of an application for asylum, withholding of removal and relief under the Convention Against Torture is denied where: 1) substantial evidence supported the IJ's determination that petition was not credible; 2) petitioner did not show that the government perpetuated or condoned the alleged persecution; and 3) petitioner did not show that he would be subject to torture.

Record contained sufficient evidence to support IJ's denial of asylum request by alien (native of Pakistan) where alien alleged that he feared persecution based on his religion. Alien's allegations of persecution were not credible given his contrary statements in his airport interview that he had no reservations about returning to Pakistan. Moreover, alien failed to show that Pakistani govt. was unable or unwilling to protect him from acts of private citizen who, according to alien, had harmed him in past
_____________________
Ali v. Mukasey, No. 07-1970 April 4, 2008 'Moral turpitude' offense

Ali v. Mukasey (EASTERBROOK)
Oral Argument|Full Text Ali v. Mukasey

Petition for review of a finding that a resident alien's criminal offense was one of moral turpitude such that a waiver of ineligibility for admission was unavailable is denied where: 1) when deciding how to classify convictions under criteria that go beyond the criminal charge, such as the amount of the victim's loss, or whether the crime is one of moral turpitude, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction; and 2) substantial evidence supports the IJ's decision (which the BIA joined) that petitioner's crime entailed concealment and deceit, thus was a crime of moral turpitude.

Where a permanent resident alien is convicted for conspiracy "to commit any offense against the United States, or to defraud the United States," which he did by selling firearms without a license or required paperwork to people not authorized to own them, the IJ correctly classified the offense as "involving moral turpitude;" and, the agency did not err when it used his presentence report to make the moral turpitude classification.

"The Board was on stronger ground, however, in treating Ali's offense as a species of fraud, which has long been seen as a crime of moral turpitude. See Jordan, 341 U.S. at 227-28, 232; Palmer v. INS, 4 F.3d 482, 485 n.6 (7th Cir. 1993); Matter of Kochlani, 24 I.&N. Dec. 128, 130-31 (2007) (reaffirming the Board's precedents on this issue). Ali does not deny that, if his conviction is for fraud, then he is ineligible for discretionary relief. But he insists that unlicensed dealing in firearms does not entail fraud. If his conviction were under 18 U.S.C. §924(a)(1)(D), as he supposes, Ali might have a point-Bryan v. United States, 524 U.S. 184 (1998), on which the agency's brief relies, has nothing to do with moral turpitude-but the actual offense of conviction is 18 U.S.C. §371. That crime may be committed in either of two ways: conspiracy to commit some other federal crime, or conspiracy to defraud the United States. The IJ and Board concluded that Ali's violation of §371 entailed fraud (implying that the subsection of §924 underlying the crime was §924(a)(1)(A)). And with good reason. The judgment of conviction describes the crime as '[c]onspiracy to defraud the United States.' The presentence report adds: 'it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy'. The presentence report also stated that Ali and his confederates sold the guns to someone who, they believed, would resell them to known thugs (members of the Latin Kings street gang) in exchange for cocaine. ... "...[W]e now conclude that when deciding how to classify convictions under criteria that go beyond the criminal charge-such as the amount of the victim's loss, or whether the crime is one of 'moral turpitude', the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction. Because it resolves a disagreement within the circuit, this opinion has been circulated to all active judges under Circuit Rule 40(e). No judge favored a hearing en banc.

"Section 1229a(c)(3)(B) does not include presentence reports among the documents that the agency may use to determine what crime Ali committed. See Conteh, 461 F.3d at 58-59. That is not, however, how the agency used the report. The judgment of conviction itself contains what is required to that end (the crime is conspiracy to defraud the United States, in violation of §371). The agency used the presentence report to ensure that the judgment was not a mistake (in other words, to ensure that there really was deceit, rather than just a conspiracy to violate a record-keeping law) and to make the moral turpitude classification, a matter that stands apart from the elements of the offense."
_____________________________________
Irasoc v. Mukasey; April 3, 2008 (Asylum, religious persecution)

Irasoc v. Mukasey No. 07-2406 (EVANS)
Oral Argument|Full Text Irasoc v. Mukasey

Petition for review of a denial of withholding of removal is granted where the IJ employed an incorrect legal standard because he required a showing of serious injuries when denying petitioner's claim of past persecution.

The IJ also held that Irasoc failed to meet his burden of proof with respect to withholding of removal. He reasoned that Irasoc had openly practiced his religion for most of his adult life and proselytized throughout Romania without “great difficulty.” Further, he said that religious freedom has “flourished” in Romania since the overthrow of the Communist government; the Romanian Pentecostal Church itself has over 30,000 members. The IJ concluded that the July 2002 incident was not past persecution because it was a single episode of mistreatment during which Irasoc was not “serious harmed.” Separately, the IJ determined that Irasoc had failed to establish a “more likely than not” fear of future persecution.

To establish eligibility for withholding of removal, an applicant must show a “clear probability” of persecution on account of his religion, race, or nationality. 8 U.S.C. § 1231(b)(3)(A); Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007). The applicant must demonstrate either that he suffered past persecution (which creates a presumption of future persecution) or, in the absence of such evidence, that it is more likely than not that he would face future persecution in the country to which he would be returned. Binrashed, 502 F.3d at 670-71; Tariq, 505 F.3d at 656-57. If the applicant demonstrates past persecution,the burden shifts to the government to rebut the presumption that the applicant would endure future persecution if removed. Binrashed, 502 F.3d at 670-71.

Here, the IJ applied an incorrect legal standard in determining that Irasoc did not suffer past persecution from the genital beatings. In particular, the IJ found that Irasoc had failed to establish that he was “seriously harmed.” Yet we have reversed the BIA for requiring that a petitioner suffer “serious injuries” as a prerequisite to a finding of past persecution. Asani, 154 F.3d at 722-24. We have, instead, held that past persecution is defined only as “punishment” or “the infliction of harm” adminis- tered on account of nationality, religion, race, group membership, or political opinion. Id. at 723, 724. And we have, on multiple occasions, determined that past persecution “need not necessarily threaten the petitioner’s life or freedom.” Id. at 723; see Tarraf v. Gonzales, 495 F.3d 525, 534-35 (7th Cir. 2007) (“Physical abuse causing serious injuries is not the sine qua non of perse- cution.”). In determining whether an incident constitutes past persecution, we do not simply evaluate the applicant’s claim “against a generic checklist.” Tarraf, 495 F.3d at 535. While the frequency and intensity of the episode(s) are variables in the analysis, even a single incident can reflect past persecution as long as the specifics reveal the severity of the particular situation. Id.; Zhu v. Gonzales, 465 F.3d 316, 319 (7th Cir. 2006) (injury must be considered alongside specific details of incident); Dandan, 339 F.3d at 573 (number of times applicant subjected to detention or abuse, and details of abuse, is relevant to analysis of claim).
_____________________________________________________________
Desai v. Mukasey No. 07-1831 March 28, 2008. (FLAUM, Circuit Judge)
Argument | Full Text No. 07-1831 Desai v. Mukasey

Petition for review of a finding of removability is denied where a state conviction for the delivery of a look-alike drug was a crime with a relation to a federal controlled substance sufficient to render petitioner a removable alien.

"On March 6, 2002, Desai was charged with Unlawful Delivery of a Look-Alike Substance in violation of Illinois law, 720 ILCS 570/404(b). He pled guilty to this class 3 felony and received probation.

The BIA correctly determined that the phrase “relating to” is intended to have a broadening effect. Given this understanding of what the phrase “relating to” means, we must apply it to the Illinois Controlled Substances Act, 720 ILL. COMP. STAT. 570/102(y), which defines a “Look-Alike Substance” as follows: a substance, other than a controlled substance which (1) by overall dosage unit appearance, including shape, color, size, markings or lack thereof, taste, consistency, or any other identifying physical characteristics of the substance, would lead a reasonable person to believe that the substance is a controlled substance, or (2) is expressly or impliedly represented to be a controlled substance or is distributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance.

This state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance. Psilocybin is a controlled substance under the federal CSA. Thus, this is a state law that is related to a federal controlled substance, in the sense that violating it in the way that Desai did—by distributing something that would lead one to believe it contained Psilocybin—brings it into association with a federal controlled substance.

We have recently held that possessing “a pipe for smoking marijuana is a crime within the scope of § 1182(a)(2)(A)(i)(II) because drug paraphernalia relates to the drug with which it is used.” Escobar Barraza v. Mukasey, ___ F.3d ___, No. 07-2502, slip op. at 6 (7th Cir. Mar. 13, 2008) (emphasis added). It is the fact that there is a relation between the pipe and the controlled substance that justifies making the possession of the pipe illegal. So too here, it is the fact that there is a relation between the Look-Alike and the controlled substance that justifies making the distribution of the Look-Alike illegal. To put it more bluntly, the idea of distributing a “Psilocybin Look- Alike” would not even exist as a legal (or linguistic) concept without its connection to, or relationship with, Psilocybin. The simulacrum and the thing itself are always connected.

So our task is simply to examine whether the state law is one relating to a federal controlled substance. This of course does not give states free rein to define their criminal laws in a manner that would allow them to effectively usurp the federal government’s authority to determine who is permitted to enter and live in this country. If a state decides to outlaw the distribution of jelly beans, then it would have no effect on one’s immigration status to deal jelly beans, because it is not related to a controlled substance listed in the federal CSA. But if a state, like Illinois, decides to outlaw the distribution of a substance that is purported to be and would lead a reasonable person to believe it to be “shrooms,” we have explained why there is enough of a relation to the federal controlled substance to warrant removal from the United States for violating the law."
___________________________________________
07-1097 Haxhui v. Mukasey: Asylum; persecution

Haxhui v. Mukasey No. 07-1097 March 19, 2008 (Flaum, J.)
Opinion | Full Text Haxhui v. Mukasey

Where an asylum seeker suffered persecution for anti-corruption activities in Albania, it was error to deny him asylum.

"Haxhiu's military duties are no obstacle to his asylum claim because his anti-corruption activities persisted beyond his employment with the Albanian Army. See Musabelliu, 442 F.3d at 996; Pavlyk, 469 F.3d at 1089. He approached the press after his termination-and suffered persecution for doing so. The threats to his family, realized at least with respect to his son (the cause of his daughter's harm is unknown), came about because of his attempt to engage in 'classic political activit[y].' See Pavlyk, 469 F.3d at 1089; see also Musabelliu, 442 F.3d at 995 (providing as an example of political speech that may attract persecution 'someone who writes an op-ed piece or otherwise urges the people to rid themselves of corrupt officials'). Indeed, this round of threats specifically cited Haxhiu's public speech as the impetus for harm to him and his family. Thus, it was premature for the IJ to conclude his analysis at this stage. And it is not decisive that the corruption of which Haxhiu complained did not pervade every level of the Albanian government; a political opinion in opposition to corruption carries no such requirement. See generally Pavlyk, 469 F.3d at 1089; Musabelliu, 442 F.3d at 995-96; Marquez, 105 F.3d at 381."

Petition Granted.
____________________________________________________
Escobar-Barraza v. Mukasey No. 07-2502 March 13, 2008 (EASTERBROOK)
Oral Argument | Full Text Escobar-Barraza v. Mukasey, No. 07-2502

Petition for review of a determination of inadmissibility is granted where, although the petitioner was inadmissible, he qualified for a waiver under 8 U.S.C. section 1182(h) since his conviction for possession of drug paraphernalia related to a single offense of simple possession of 30 grams or less of marijuana.

"Possessing a pipe for smoking marijuana is a crime within the scope of § 1182(a)(2)(A)(i)(II) because drug paraphernalia relates to the drug with which it is used, and that statute speaks of a crime "relating to a controlled substance (as defined in section 802 of title 21)". If possession of drug paraphernalia relates to the controlled substance for the purpose of § 1182(a), why not for the purpose of § 1182(h)? The Board's observation that a conviction for possessing paraphernalia differs from a conviction for possessing marijuana is true, but § 1182(h) is not limited to a conviction for possessing less than 30 grams of marijuana. The phrase is: "such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana" (emphasis added). The Board's understanding deprives the italicized phrase of any function, treating "relates to" as if it were "is". Neither the Board's opinion nor the brief and argument by the Department of Justice has suggested what "relates to" means, or how that phrase can bring a paraphernalia conviction within § 1182(a)(2)(A)(i)(II) but not § 1182(h). Consider someone who is arrested while smoking marijuana from a pot pipe at a concert. In most states, that's three crimes: possessing marijuana, possessing drug paraphernalia, and using drugs in a public place. If the state obtains a conviction for possessing marijuana, then § 1182(h) applies if the alien had 30 grams or less. (A 6-ounce (170 gram) can of loose tobacco, see Top Tobacco, L.P. v. North Atlantic Operating Co., 509 F.3d 380 (7th Cir. 2007), is sold as enough for 200 cigarettes; this implies that 30 grams of marijuana is considerably more than one person could smoke at a concert.) Likewise, we should suppose, if the prosecutor charges the alien with smoking pot in public, that conviction "relates to" the marijuana being smoked. Section 1182(h) speaks of a conviction that relates to an "offense" of possessing marijuana; an "offense" may or may not lead to a "conviction" for that possession. That's how a conviction for smoking pot in public relates to the offense of possessing marijuana. And it is hard to see why things should be different if the prosecutor charges the alien with possessing paraphernalia to smoke the weed. Not even Thomas Reed Powell--who famously defined the legal mind as one that can think of something that is inextricably connected to something else without thinking about what it is connected to--could miss the fact that a pot pipe is related to the pot that it is used to smoke.

So there is no logical problem in treating a pot pipe as related to marijuana, whether or not the pipe and the marijuana are found together in a pouch.

Pipes, roach clips, and other paraphernalia designed for use with personal-possession quantities of marijuana come within § 1182(h) because the paraphernalia relates to the drug, and the implied quantity is under 30 grams. Scales, bagging gear, trays and lamps for growing whole plants, and other apparatus for use with larger quantities or distribution do not relate to "simple possession" and so fall outside the waiver. Drawing the line will be difficult in some cases but is easy in Escobar's. His conviction for possessing one pot pipe "relates to a single offense of simple possession of 30 grams or less of marijuana". He is therefore eligible for consideration under § 1182(h)."
________________________________________

US v. De Horta Garcia, No. 07-2060 Removal; discretionary waiver

US v. De Horta Garcia No. 07-2502 No. 07-2060 March 13, 2008. (BAUER)
Oral Argument | Full Text No. 07-2060: US v. De Horta Garcia

Conviction for illegal re-entry is affirmed over defendant's challenge to the denial of his right to seek a discretionary waiver of deportation during his original deportation hearing where: 1) defendant is barred from a collateral attack on his deportation order since the alleged violation did not make the deportation order fundamentally unfair; and 2) relief under INA section 212(c) is not available to any alien whose removal proceeding began after repeal except those who affirmatively abandoned rights or admitted guilt in reliance on section 212(c) relief, and defendant did not demonstrate such affirmative reliance.

The AEDPA's bar against discretionary waivers applies retroactively to aliens who offended before its passage, but were convicted after its passage.

"De Horta Garcia notes, however, that other circuits have taken alternative approaches to the reliance question. First, some circuits have applied St. Cyr to aliens who did not plead guilty or concede deportability before enactment, but did take some affirmative action in their prosecution that evidenced reliance on § 212(c) before enactment. E.g., Restrepo v. McElroy, 369 F.3d 627, 634-35 (2d Cir. 2004); Ponnapula v. Ashcroft, 373 F.3d 480, 494-96 (3d. Cir. 2004). Second, two circuits, the Third and the Tenth have criticized the majority of circuits for requiring a showing of actual detrimental reliance and have only required objectively reasonable reliance. Id. at 489-90; Hem v. Maurer, 458 F.3d 1185, 1197 (10th Cir. 2006). The Fourth Circuit has gone further and not required a showing of reliance at all, reasoning, in part, that it is always reasonable to rely on governing law.

Olatunji v. Ashcroft, 387 F.3d 383, 389-96 (4th Cir. 2004). De Horta Garcia attempts to rely on these alternative approaches, but his arguments are far too cursory to reach the compelling reason we require before revisiting circuit precedent. See Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006)."

Affirmed.
______________________________________

Gao v. Mukasey, Immigration Asylum; motion to reopen; equitable
tolling March 11, 2008

Gao v. Mukasey No. 06-4431 March 11, 2008 (POSNER)
Oral Argument | Full Text No. 06-1931: Gao v. Mukasey

Where an asylum applicant waited 75 days to file an untimely motion to reopen, equitable tolling does not excuse the lengthy delay.

"The petition was filed on the 106th day, which was the 75th or 76th day after the petitioner discovered that he had a ground for filing a petition to reopen. The preparation of such a petition does not require an elaborate investigation. All that is required is that the petitioner submit an affidavit explaining (1)(a) what his former counsel was hired to do and (b) how he failed, (2) affirming that the petitioner has notified the former counsel of his allegations of ineffective assistance and given counsel an opportunity to respond, (3) attaching the lawyer's response, if any, and (4) indicating whether the petitioner has filed his complaint about his former counsel with the appropriate disciplinary authorities.

In re Lozada, 19 I. & N. Dec. 637 (BIA 1988); see also Patel v. Gonzales, 496 F.3d 829, 830 (7th Cir. 2007); Benslimane v. Gonzales, 430 F.3d 828, 831 (7th Cir. 2005); Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007). Obtaining the necessary information should not take two and a half months-at least not normally; and the petitioner has failed to point to any circumstances that made this the abnormal case in which a diligent attempt to comply with the 90-day deadline would have failed, in which event an appeal to equitable tolling would lie."

Petition Denied.
______________________________________

Hussain v. Mukasey No. 07-3688 & 07-3832 March 6, 2008 (POSNER)
Oral Argument | Full Text No. 07-3688 & 07-3832: Hussain v. Mukasey

Where an alien obtained entry by fraud, the government need not separately allege that the alien engaged in terrorism as grounds for denying asylum.

"Although Hussain was found removable for engaging in terrorist activity, it was not a ground stated in the charge that initiated the removal proceeding against him, and so, he argues, it cannot be the basis for barring him from seeking cancellation of removal. But all that the statutory bar requires is that the alien be removable on grounds of terrorism.

8 U.S.C. § 1229b(c)(4). That makes sense because one purpose of the terrorism statute is to bar forms of post-removal relief to aliens who have been ordered removed on a lesser ground, such as fraudulent entry. As held in such cases as Salviejo-Fernandez v. Gonza- les, 455 F.3d 1063, 1065-66 (9th Cir. 2006), and Brown v. Ashcroft, 360 F.3d 346, 352-53 (2d Cir. 2004), that purpose does not require that involvement in terrorism be the stated ground of removal."

Petitions Denied.

Viracacha v. Mukasey No. 07-1548 March 3, 2008 (EASTERBROOK)
Oral Argument | Full Text No. 07-1548: Viracacha v. Mukasey

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s denial of alien's asylum application based on fact that said petition had been filed nearly three years after applicable one-year deadline for filing asylum claims. Under 8 USC sec. 1158(a)(3), Ct. of Appeals is generally precluded from considering Bd. denials of untimely asylum applications, and alien's appeal failed to contain either constitutional question or question of law where alien merely challenged IJ's determination that any change in Columbian conditions was not material.

Judicial review under 8 U.S.C. 1252 (a)(2)(D) is limited to questions of law.

“Provisions foreclosing judicial review of particular administrative decisions are common. The most famous such exclusion is in the Administrative Procedure Act of 1946, 5 U.S.C. §701(a)(2) (decisions ‘committed to agency discretion by law’ are not judicially reviewable), and to our knowledge no serious argument has ever been made that §701(a)(2) is unconstitutional. The Supreme Court has applied it repeatedly without a single Justice expressing doubt about its validity (though there is often debate about whether a given question has been so “committed”). See, e.g., Lincoln v. Vigil, 508 U.S. 182 (1993); Heckler v. Chaney, 470 U.S. 821 (1985). Given the preservation of legal and constitutional claims in §1252(a)(2)(D), the preclusive effect of §1158(a)(3) is less sweeping than that of the APA. The use that the panel in Ramadan was able to make of the “canon of avoiding constitutional questions” shows why many thoughtful people think the canon a bad one—for constitutional questions lurk everywhere, and judges who seek to avoid them can end up rewriting statutes that would be deemed perfectly valid if the question were faced and resolved. See Henry J. Friendly, Benchmarks 210 (1967); William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L. Rev. 831 (2001).”

Negrete-Rodriguez v. Mukasey No. 06-1931 March 3, 2008. (MANION)
Oral Argument | Full Text No. 06-1931: Nerete-Rodriguez v. Mukasey

Petition for review of a removal order involving a determination that petitioner was ineligible for cancellation of removal is denied where the BIA properly categorized petitioner's Illinois felon-in-possession conviction as an aggravated felony.

A state court conviction for felon in possession of a firearm is an aggravated felony.

“The Illinois statute under which Negrete was convicted, 720 ILCS 5/24-1.1(a), is clearly the state law counterpart to § 922(g)(1). Although not ‘mere surplusage,’ a jurisdictional element does little more than ensure that the conduct regulated in a federal criminal statute is within the federal government’s limited power to proscribe, thereby preventing the federal government from usurping power from the ‘States [who] possess primary authority for defining and enforcing the criminal law.’ Brecht v. Abrahamson, 507 U.S. 619, 635 (1993). The statutory scheme expressly includes the state equivalent of a § 922(g)(1) offense in the definition of ‘aggravated felony.’ The only purpose of the commerce element of § 922(g)(1) is to obtain federal jurisdiction over the crime. Clearly Congress did not intend an element not necessary in state law to be the factor determining whether the state offense can be considered the equivalent of a § 922(g)(1) offense. That would likely eliminate the intended inclusion of most state statutes, since states do not operate under the same jurisdictional constraints as the federal government.

Negrete does list several Illinois criminal statutes that he argues incorporate an element of affecting commerce.

See, e.g., 720 ILCS 5/24-3.5(c) (unlawful purchase of a firearm); 720 ILCS 5/24-3.4 (unlawful sale of firearms by liquor licensee); 720 ILCS 5/24-3 (unlawful sale of a firearm); 720 ILCS 5/24-1(a)(7) (prohibiting, among other things, the sale of a ‘machine gun,’ sawed-off shotgun, or explosive device); 720 ILCS 5/24-3.3 (prohibiting, among other things, the sale of firearms on school premises); 720 ILCS 5/24-2.1(a) (prohibiting, among other things, the sale of firearm projectiles). An examination of those statutes, however, only confirms the previous point. While some offenses committed under those statutes may involve commerce, none of those statutes contains an express element of affecting commerce, which is what Negrete is arguing that § 101(a)(43)(E)(ii) requires for his state felon-in-possession conviction to count as an aggravated felony. Furthermore, Negrete’s citation to those statutes misses the mark. The question is not whether a state could conceivably create a felon-in-possession offense that contains an element of affecting commerce. Rather, it is whether Congress meant to limit the phrase ‘offense described in section 922(g)(1)’ contained in § 101(a)(43)(E)(ii) only to state offenses that have such an element. Nothing in the text of the statute indicates that is what Congress intended. See Castillo, 244 F.3d at 1023.” Affirmed.

Khan v. Mukasey No. 07-1138 February 25, 2008. (KANNE)
Oral Argument | Full Text 07-1138: Khan v. Mukasey

Petition for review of a denial of a request for a discretionary waiver of inadmissibility and an application for an adjustment of status is dismissed for lack of jurisdiction where petitioner failed to raise any viable constitutional claim or question of law.

"Khan has has presented a 'flabby constitutional argument' in lieu of arguing that his statutory or regulatory right was violated. See Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006). While an alien has a Fifth Amendment right to due process in immigration proceedings, see Giday v. Gonzales, 434 F.3d 543, 547 (7th Cir. 2006) (citing Reno v. Flores, 507 U.S. 292, 306 (1993)), it is well-established that a party complaining of a dueprocess violation must assert a liberty interest in order to maintain his due-process claim, see Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006). As a result, we have repeatedly held that "an alien's right to due process does not extend to proceedings that provide only such discretionary relief " because an appeal to discretion is not a substantive entitlement. Id. at 662; Hamdan v. Gonzales, 425 F.3d 1051, 1060-61 (7th Cir. 2005); see also Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004). Here, Khan was required to pursue discretionary relief-the waiver of inadmissibility-in order to remain in the country. Therefore, Khan has not asserted any liberty interest, and as a result, he cannot maintain his constitutional due-process claim." Dismissed.

Tchemkou v.Mukasey No. 06-2638 February 22, 2008 (WILLIAMS)
Oral Argument | Full Text 06-2638: Tchemkou v. Mukasey

After the grant of a petition for review of a BIA decision, petitioner's motion for attorney's fees and costs is granted where the government's position in the underlying action was not substantially justified.

Derezinski v. Mukasey No. 07-1221 February 20, 2008 (POSNER)
Oral Argument | Full Text Derezinski v. Mukasey No. 07-1221

Petition for review of a denial of a second motion to reopen removal proceedings conducted in absentia is denied where there were no changed circumstances that would justify a reopening and the petitioner could not prove that he did not receive notice of the original hearing.

Bd. did not err in denying alien's motion to reopen removal proceedings where motion was filed 11 years after Bd. had entered deportation order in absentia. While alien argued that he never received Bd.'s notice of deportation hearing, Bd. was entitled to find that alien had evaded receipt of Bd.'s notice where: (1) Bd. sent notice via certified mail that was returned "unclaimed"; (2) according to alien, he was told by postal officials that a parcel in his name had been returned to sender; and (3) plaintiff should have contacted immigration authorities at that time to learn whether any time or place of hearing had been set.

Gaberov v. Mukasey No. 07-1417, February 19, 2008 (EVANS)
Oral Argument | Full Text Gaberov v. Mukasey No. No. 07-1417

Petition for review of a denial of a motion to reopen immigration proceedings is granted where the evidence that petitioner presented of the BIA's failure to send him notice of an earlier denial of his application for asylum, coupled with his demonstration of due diligence, entitled him to equitable tolling of the 90 day time-limit to file a motion to reopen.

Wood v. Mukasey No. 06-2550 February 14, 2008. (SYKES)
Oral Argument | Full Text 06-2550: Wood, Lolita v. Mukasey

Petition for review of a denial of a continuance in removal hearings and a denial of a discretionary adjustment of status is denied where the court does not have jurisdiction over continuance and adjustment of status decisions, and the BIA properly exercised its appellate-review authority over discretionary issues when it determined petitioner did not merit a status adjustment.

The BIA does not exceed its authority by reaching and deciding an adjustment-of-status question, even though the IJ did not address it.

"Provided the BIA can do so without additional fact-finding, 8 C.F.R. § 1003.1(d)(3)(iv), we see no reason why it must avoid issues of discretion in an appeal because they were never reached by the IJ. Although this proviso is potentially important, in Wood's case the BIA did not stray from the administrative record; it premised the exercise of its discretion on the IJ's finding that Wood falsely portrayed herself as Bendikas's wife for purposes of asylum during the January 2003 hearing. We conclude the BIA acted within the scope of its appellate jurisdiction when it denied Wood the discretionary relief for which she unsuccessfully sought a continuance before the IJ."

Garcia-Meza v. Mukasey No. 07-2215 February 5, 2008. (WILLIAMS)
Oral Argument | Full Text 07-2215: Garcia-Meza, Carlos v. Mukasey

Petition for review of a final order of removal, arising from a conviction for petitioner's grabbing a police officer's fingers and twisting them, is granted and the matter remanded where the BIA's finding that petitioner's state crime of "aggravated battery of a peace officer" was a crime of moral turpitude, was based on a misapprehension of Illinois law.

Bd. erred in ordering removal of alien/lawful permanent resident under 8 USC sec. 1227(a)(2)(A)(i)(I) based on alien's Illinois conviction on charge of aggravated battery of peace officer that Bd. deemed to be 'crime of moral turpitude.' Alien's conviction concerned battery of police officer that did not result in bodily harm or violence, and thus remand was required since Bd. based its decision on mistaken belief that alien's conviction contained element of bodily harm.

Battery of a police officer is not a crime of moral turpitude absent bodily harm or intent to cause harm or use violence.

"Illinois follows the common law rule that any contact, however slight, may constitute a battery. See Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir. 2006). At oral argument, we posed the hypothetical that in Illinois, an individual angry at being given a parking ticket might crumple up the ticket and throw it on the ground and face charges of aggravated battery if the ticket hit the issuing officer's shoe. We would be surprised if the BIA concluded that such behavior is 'inherently base, vile, or depraved,' or that it would 'shock the public's conscience.' In the language of this court's decision in Mei, the magnitude of the loss it causes is small (there is no injury, although the officer might have hurt feelings), and it does not arouse great public indignation (everybody hates parking tickets). We also asked the parties for a citation of any decision in which battery or assault of a police officer without violence or bodily harm was found to be a crime of moral turpitude. The government pointed to Mei, in which we found that aggravated (meaning high-speed) fleeing from an officer is such a crime. But that case did not involve an assault or battery statute, and regardless, the difference between a 100+ mile-per-hour car chase and a little finger grabbing seems obvious enough."

"At the end of the day, it is the Board's prerogative to decide whether Garcia-Meza committed a crime of moral turpitude. For the reasons we have explained, its decision that his offense is such a crime is based on a misapprehension of Illinois law and must be vacated."

Eke v. Mukasey
No. 06-3391 January 7, 2008.

Pet. for Review, Order of Bd. of Immigration Appeals. Petition denied. Bd. did not err in finding that aliens' Illinois conviction on charge of conspiracy to violate Illinois identity fraud statute by attempting to purchase automobile constituted "aggravated felony" under 8 USC sec. 1101(a)(43)(M)(i) in govt. petition for summary removal. Value of vehicle was more than $10,000, and fact that alien never actually acquired vehicle was not material since Bd. could look to intended loss to satisfy requirements of sec. 1101(a)(43)(M)(i).

Petition for review of a denial of withholding of removal is denied over the petitioner's arguments that: 1) his convictions were not for crimes that fall within the definition of "aggravated felony"; 2) he should not have been required to provide corroborating evidence of his homosexuality; 3) the Board should have considered the pattern of persecution against homosexuals in Nigeria; and 4) his due process rights were violated when the IJ insisted on conducting the hearing on the merits by video conference.

Hussain v. Mukasey
No. 07-2448 December 18, 2007

Denial of a petition for habeas corpus alleging that petitioner's detention pending removal proceedings deprived him of liberty without due process of law is affirmed where: 1) the immigration code bars the court from ordering the release of an alien pending judicial review of the order of removal; and 2) the principle that an alien may be released if, six months after the beginning of the removal period there is no significant likelihood of removal in the reasonably foreseeable future, does not apply when judicial review of the removal order is pending.

Dist. Ct. did not err in denying alien's habeas petition, claiming that his 2.5-year detention pending resolution of his removal proceeding deprived him of liberty without due process. Alien's petition was rendered moot when IJ subsequently entered order directing that alien be removed contingent to govt. compliance with Convention Against Torture provisions. Moreover, Ct. of Appeals could not order alien's release pending its review of validity of contingent removal order.

Mekhael v. Mukasey
11/16/07 No. 06-4285

Christian Lebanese citizen's petition for review of a denial of a motion to reopen asylum proceedings is granted and the matter remanded where BIA failed to give reasoned consideration to post-hearing evidence, including the 2006 war between Israel and Hezbollah, as well as increased violence against Christians in Lebanon following the publication in Denmark of cartoons caricaturing the Prophet Muhammad.

Zheng v. Mukasey
11/09/07 Case Number: 07-3673

A motion seeking a stay of petitioner's removal to China pending review of the dismissal of his original asylum claim and a denial of his motion to reopen the asylum proceedings is denied as: 1) the motion was untimely as far as the original asylum claim was concerned; and 2) petitioner failed to establish that he was entitled to a stay as to the other claim.

Bolante v. Keisler
10/31/07 Case Number: 07-2550

A motion for release on bail by an asylum applicant is denied where: 1) a grant of a bail would conflict with the Attorney General's non-reviewable discretion to deny parole to asylum-seekers; and 2) the petitioner's entry visa was revoked prior to his arrival in the U.S., thus he was not lawfully admitted to the U.S. for constitutional purposes, and had no right to be released.

Mohammad Hussain v. Keisler
10/24/07 Case Number: 06-2932

Petition for review of an order of voluntary departure is denied where: 1) petitioner filed an asylum application but later withdrew it in exchange for a longer period of voluntary departure; and 2) the court lacks jurisdiction over petitioner's claim that his obligation to register pursuant to the National Security Entry-Exit Registration System led to the initiation of removal proceedings against him and violated his right to equal protection of the laws.

US v. Pacheco-Diaz
10/23/07 Case Number: 05-2264

Sentence for illegal reentry is affirmed over defendant's arguments
that: 1) a prior Illinois conviction for simple possession of marijuana
was insufficient to trigger an eight-level enhancement; 2) the district
court misapprehended the scope of its discretion when it declined to
further reduce his sentence for acceptance of responsibility; and 3) his
sentence was unreasonable because the court failed to meaningfully
consider the unwarranted disparity between his sentence and the
sentences of similarly situated defendants in fast-track jurisdictions.

Potdar v. Kiesler, No. 06-2441 (10/10/07).

Petition for Review, order of Bd. of Immigration Appeals. Petition
denied. Petition for review of an order vacating an earlier order to
reopen removal proceedings is denied where the court did not have
jurisdiction to review the denial of petitioner's motion for a
continuance.

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s
order denying alien's request to reopen and terminate exclusion hearing
in order to allow alien to proceed on his application for adjustment to
permanent resident status. Alien's motion to reopen was essentially
request for continuance of exclusion proceedings, which, under Ali,
precludes any review of denial by Ct. of Appeals.

Tariq v. Keisler, No. 06-2518 (10/9/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support IJ's denial of asylum
request by alien (native of Pakistan) where alien alleged that he and
his family were persecuted by creditor while in Pakistan, and that he
would be subject to future persecution based on his Western upbringing
if forced to return to native country. Alien's asylum petition, which
was filed more than 1 year after alien reached age of majority, was
untimely. Moreover, alien could not base application for withholding of
removal on acts of creditor where: (1) creditor was mere private
citizen; (2) alien could not demonstrate that harm done by creditor was
on account of alien's membership in particular social group; and (3)
alien failed to present evidence that his Western upbringing would cause
individuals in Pakistan to attribute any political opinion to him.

Ali v. Gonzales, No. 06-3240 Petition for review of a denial of a
request for a continuance and subsequent motion for reconsideration is
dismissed for lack of jurisdiction where: 1) the jurisdiction-stripping
provision of section 242(a)(2)(B)(ii) of the Immigration and Nationality
Act (INA) generally precludes judicial review of continuance decisions
of immigration judges; and 2) selective prosecution claims by aliens are
largely barred by 8 U.S.C. section 1252(g), and petitioner's claims of
discrimination were insufficient to invoke the exception for outrageous
cases.

(9/14/07)

Moab v. Gonzales, No. 06-2710 (9/13/07). Petition for Review, Order of Bd. Of Immigration Appeals. Petition granted.

Record failed to support Bd.’s finding that alien was not credible in his asylum and withholding of removal applications where alien alleged that he endured beatings in his native country (Liberia) because he was homosexual. While Bd.’s credibility determination was based largely on fact that alien failed to mention his homosexuality in airport interview, airport interviews are not always reliable indicators of credibility, and alien’s alleged homosexuality was consistently mentioned in his asylum application.

Kadia v. Gonzalez No. 06-1299 (9/7/07). Petition for Review, Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum petition by alien (native of Cameroon) who alleged that he would be persecuted because of his political beliefs if forced to return to native country. While IJ found alien to be incredible based on perceived inconsistencies between his testimony and his statements made in asylum application, Ct. determined that said inconsistencies either pertained to trivial facts or were not in fact inconsistent statements. IJ also improperly questioned alien by failing to give alien full opportunity to explain events supporting his asylum claim.

Peralta-Cabrera v. Gonzalez, No. 06-2254 (9/7/07). Petition for Review, Order of Bd. of Immigration Appeals. Petition granted.

Bd. erred in denying alien's motion to reopen asylum proceedings based on contention that alien was entitled to new hearing because he never received notice of asylum hearing and because deportation order was entered in absentia. Record showed that notice was sent via certified mail to address given by alien, but that, pursuant to post office policy, post office never attempted to deliver said notice because it was not addressed to alien "in care of" actual home owner. Ct. further found that govt., which was aware that alien was staying temporarily with home owner, had responsibility to ensure that notice would be delivered in compliance with postal policy.

Visa Waiver Program Admits 7 New Countries

2008-11-17T17:56:00.001-06:00

Visa Waiver Program Expansion

Release Date: November 17, 2008

For Immediate Release DHS Press Office Contact: 202-282-8010

The Visa Waiver Program (VWP) enables eligible citizens or nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. The program is administered by the U.S. Department of Homeland Security (DHS) and was recently expanded to include seven new allies to the list of countries authorized to participate in the VWP.

Facilitating Travel Between Partner Nations With A Common Focus On Security

* The administration sought authority for years to reform the VWP.

* In 2006 President George W. Bush proposed, and Congress ultimately passed as part of the "Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act)," reforms to the VWP law that gave the Administration greater flexibility to admit countries to VWP as the program's security was strengthened. Section 711 of the 9/11 Act amends Section 217 of the Immigration and Nationality Act, which provides the legal authority for the VWP.

Easier Travel For Legitimate Tourists And Travelers

* DHS has increased the number of participating VWP countries from 27 to 34. Expanding the number of countries whose citizens can travel to the U.S. without a visa increases business and social ties between our countries and at the same time deepens cooperation on required security measures.

* The seven newly added countries are: the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia.

* Citizens of countries eligible to travel to the United States under the VWP prior to November 17, 2008 are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Strengthening Security Measures To Protect Against Those Who Want To Do Us Harm

* To be admitted to the VWP, a country must meet various security requirements, such as enhanced law enforcement and security-related data sharing with the United States and timely reporting of both blank and issued lost and stolen passports. VWP members are also required to maintain high counterterrorism, law enforcement, border control, and document security standards.

* As a result of these information sharing measures, DHS is able to screen arriving VWP passengers far more effectively and to detect, apprehend, and limit the movement of terrorists, criminals, and other dangerous travelers.

* Beginning November 17, 2008 eligible citizens or nationals from the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania,and Slovakia must obtain approval through the Electronic System forTravel Authorization (ESTA) prior to traveling to the United States under the VWP

* Beginning Jan. 12, 2009, eligible citizens or nationals from all VWP countries must obtain approval through ESTA prior to traveling to the United States under the VWP.

* ESTA is an automated system that assists in determining eligibility to travel to the United States under the VWP, and whether such travel poses any law enforcement or security risk. Upon completion of an ESTA application, a VWP traveler is notified of his or her eligibility to travel to the United States under the VWP.

For more information on the Visa Waiver Program, please visit http://www.cbp.gov/xp/cg ov/travel/id_visa/business_pleasure/vwp/. For additional information on ESTA, visit www.cbp.gov/esta.
___________________________

The VWP allows foreign nationals from certain countries to be admitted to the United States under limited conditions and for a limited time without obtaining a visa.

The following countries are currently in the program:

Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

For citizens with the unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands, and the Isle of Man, the Secretary of Homeland Security, in consultation with the Secretary of State, may add countries to the program or remove them from the program at any time.

After May 15, 2003, citizens of Belgium must present a machine-readable passport in order to be granted admission under the VWP. This requirement also applies to citizens of Andorra, Brunei, Liechtenstein and Slovenia.

To qualify for the VWP, you must:

Intend to enter the United States for 90 days or less;
Have a passport lawfully issued to you by a VWP country that is valid for six months beyond your intended visit;
Be a national of the VWP country that issued your passport;
Have been checked using an automated electronic database containing information about inadmissible aliens to the United States;
Have a return trip ticket to any foreign destination other than a territory bordering on the United States or an adjacent island unless:
1. You are a resident of an adjacent island,
2. This requirement is waived by the Attorney General under regulations, or
3. You are a visitor for business who arrives aboard a private aircraft that maintains a valid agreement guaranteeing to transport you out of the United States, if you are found to be inadmissible or deportable;
Present to the U.S. Customs and Border Protection (CBP) officer a completed and signed Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure Form. ( Visa Waiver Program Applicant Responsibilities )
Not pose a safety threat to the United States;
Not have failed to comply with the conditions of any previous admission under the Visa Waiver Program;
If arriving by air or sea, you must arrive aboard a carrier that signed an agreement, "signatory carrier", guaranteeing to transport you out of the United States if you are found to be inadmissible or deportable;
Convince the examining CBP officer that you are clearly and beyond a doubt entitled to be admitted and that you are not inadmissible under section 212 of the Act. For reasons that would make you inadmissible, please see the Immigration and Nationality Act at INA § 212 (a);
Waive any right to review or appeal a CBP officer's decision as to your admissibility, other than on the basis of an application for asylum or an application for withholding of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and
Waive any right to challenge your removal, other than on the basis of an application for asylum or an application for withholding of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The advantage of entering the United States under the VWP is that tourists and people wishing to conduct business in America can travel to the United States spontaneously without obtaining visas, unless they are otherwise inadmissible.

If you are admitted to the United States under the VWP, you may not change or extend your non-immigrant status. If your admission is denied, you have no right to administrative or judicial review, except as noted above. Likewise, if you are found to have violated the terms of your admission, you also forfeit the right to contest a removal order; therefore, before using the VWP, you should carefully consider your options.

Citizenship, Acquisition and Derivation, Child Citizenship Act

2008-10-08T17:31:00.002-05:00

Citizenship: Acquisition and Derivation.

(a) Introduction. (revision dated 07/18/2005) In addition to the naturalization process, the United States recognizes the U.S. citizenship of individuals gained through other means. A Certificate of Citizenship documents citizenship that is obtained other than through birth in the United States or naturalization under section 310 of the Act.

Form N-600 Application for Certificate of Citizenship is used to request the Certificate of Citizenship provided for in section 341 of the Act. Form N-643 was created after Congress provided for the naturalization of adopted children in 1986. The Child Citizenship Act of 2000 (CCA), P.L.106-395 , became effective on February 27, 2001 and led to revisions to the forms to apply for Certificates of Citizenship.

Application and petition forms, and documents issued to support an application or petition, such as Form I-130 Petition for Alien Relative, labor certifications, Form DS 2019, medical examinations, affidavits, formal consultations, letters of current employment and other statements, must be submitted in the original unless previously filed with USCIS. Official documents issued by the USCIS need not be submitted in the original unless required by USCIS. Unless otherwise required by the applicable regulation or form's instructions, a legible photocopy of any other supporting document may be submitted. (This paragraph added 07/18/2005.)

USCIS may, at any time, request submission of an original document for review. The request will state a deadline for submission of the original document. Failure to submit the requested original document by the deadline may result in denial or revocation of the underlying application or benefit. An original document submitted in response to such a request, when no longer required by USCIS, will be returned to the petitioner or applicant upon completion of the adjudication. If USCIS does not return an origi nal document within a reasonable time after completion of the adjudication, the petitioner or applicant may request return of the original document by submitting a properly completed and signed G-884 to the adjudicating USCIS office. (This paragraph added 07/18/2005.)

Please note that it is up to the applicant to establish eligibility for the Certificate of Citizenship. In general, issuance of the certificate provides evidence of U.S. Citizenship vested in the applicant. Denial of an application does not necessarily mean that the applicant is not a citizen. The evidence submitted in support of the application may not have been sufficient. Proper evidence may establish otherwise.

(b) Definition of Child for Naturalization and Citizenship . The definition of “child” for naturalization and citizenship is more restrictive than that used for immigration or adjustment of status. The definition for child as used in naturalization and citizenship (Title III) is found at section 101(c) of the Act. This definition does not include stepchildren. Adopted children are provided for when they are included specifically in any section of the INA that applies to citizenship. Before February 27, 2001, section 321of the Act governed citizenship for children born out of wedlock.

Legitimation is a concern when determining acquisition or derivation of citizenship. You must also be aware of the specific rules requiring the child’s legitimation under section 101(c) of the Act and determine the citizenship status of the father. If the natural father was a citizen at the time of the child’s birth, then section 309 and section 301 of the Act may apply, depending on the child’s date of birth.

Generally, the child must be legitimated while under 16 years of age, unless another section of the Act refers to a specific age. For example, under section 309 of the Act, the child needs to be legitimated by his or her father before age 18.

(c) “Acquisition” of U.S. Citizenship . Prior to the effective date of the CCA (February 27, 2001), “acquisition” referred to citizenship acquired at birth. The relevant statutory provisions dealing with acquisition are section 301 , section 303 , section 309 , and section 324 of the Act. You will find Naturalization Charts 1 and 2 (at Appendix 71-1 and Appendix 71-2 of this field manual) helpful in adjudicating acquisition claims.

Sections 301 and 309 of the Act provide for citizenship at birth.

Section 320 of the Act, as amended by the Child Citizenship Act, provides that the child “acquires” citizenship when certain conditions are met. Section 320 will be discussed under the “derivation” of citizenship, as it more closely resembles derivation statutes.

Section 324 of the Act provides for reacquisition of citizenship under certain conditions and was amended in 1994 to provide for the reacquisition of citizenship by certain section 301 citizens.

(1) Sections 301 and 309 of the Act . Form N-600 is used to apply for a certificate of citizenship when citizenship is acquired at birth under section 301 and section 309 of the Act. When adjudicating applications under these sections, the Act and conditions that exist at the time of birth of the applicant govern. Because these sections have been modified extensively over the past century, officers adjudicating these applications must be familiar with the Naturalization charts, with the issues that are covered in the Interpretations and changes in terminology through public laws. For example, P. L. 104-51 changed the term “illegitimate” to “out of wedlock” in section 101(b)(1)(D) of the Act.

• Children Born in Wedlock. The provisions of section 301 of the Act have governed the acquisition of citizenship at birth by children born in wedlock since 1952. Prior laws and statutes are extensively covered in the Interpretations. Most issues that have arisen pertain to cases where only one parent is a U.S. citizen and the other is an alien. Keep in mind the definition of child and that stepchildren are not eligible for citizenship through this process.
• Children Born Out of Wedlock. Prior to the Act of October 1, 1978, children born out of wedlock acquired citizenship through the mother if the mother had resided in the U.S. for one year. To acquire citizenship through his or her father, a child born out of wedlock needed to be legitimated or to meet other requirements depending upon when the child was born and when the child turned 16, 18 or 21. It should be noted that section 309 of the Act provides that section 301 of the Act applies to a child born out of wedlock when citizenship is claimed through the father. Therefore in adjudicating an application under section 309, it is not enough to establish that the father meets the requirements stated in section 309(a) or section 309(b) of the Act. Once it is established that the father and child qualify under section 309(a) or 309(b), the father must then establish that he had the required physical presence and residence under section 301(g) of the Act at the time of the child’s birth.

The general requirements for “Acquisition” are:

• Citizenship: The parent must be a citizen of the United States at the time of the child’s birth.
•Residence and Physical Presence: The Act has consistently required residence and physical presence in the United States or outlying possessions prior to the birth of the child. Officers should be aware that the definition of outlying possession has not been constant. For example, the Philippines were considered an outlying possession from 1899 to July 4, 1946. See section 101(a)(29) of the Act. Currently, the Act defines outlying possession as American Samoa and Swains Island.

Officers should also review section 301(g) of the Act for the conditions under which time spent outside the U.S. as a member of the military or working for certain U.S. government or international organizations may qualify as residence and physical presence in the U.S.

• Certificate: If approved an “AA” or “AB” certificate is issued. The date of citizenship is the birth date of the applicant.
• Retention Requirements: Until the Act of October 1, 1978 U.S. citizens who had acquired citizenship through birth outside the U.S. to one U.S. citizen parent had to meet residence and physical presence requirements in order to retain U.S. citizenship. Although the Act eliminated retention requirements for those born after 1952, it may be possible that a person born in 1952 and subject to the provisions of the 1940 Act would have failed to retain citizenship. For those born before 1952, consult Interpretation 301.1(b)(6) for a com plete discussion of the retention requirements.

(2) Section 324 of the Act: Resumption of Citizenship . The Act of October 24, 1994, Pub. L. 103-416, amended section 324 of the Act effective April 24, 1995 to provide that an alien who was formerly a citizen under section 301 or a preceding statute, but had failed to meet the retention requirements and had lost citizenship, could regain citizenship by taking the oath of allegiance. Section 324 does not change the period of time during which the person was considered an alien. Children born to such a person during the time they were not a citizen are considered to be born to an alien parent. Upon approval of an application under Section 324(d) the effective dat e will be the date of oath. The N-600 should be noted with the period of time that the applicant was not to be considered a citizen.

In preparing the Certificate of Citizenship (“AA” or “AB”) for such an applicant the following shall be noted on the Certificate:

• The effective date of citizenship is the date of oath. The date of citizenship must be marked with an asterisk.

• The reverse side of the certificate shall be endorsed in clear bold type : “(applicant’s name), a citizen of the United States by birth, from date of birth (DOB), to the present, excluding the periods of noncitizenship from to .”

(d) “Derivation” of U.S. Citizenship . Prior to the enactment of the CCA on February 27, 2001, “derivation” applied to citizenship that is obtained through an action after birth, such as naturalization of a parent. Derivation statutes are section 320 and section 321 of the Act in effect prior to Feb 27, 2001(see Appendix 71-6). You will find Naturalization Chart 3 (at Appendix 71-3) helpful in adjudicating derivation claims.

Because of changes in the Act, officers adjudicating these applications must have available to them prior sections 320, 321, and 322 of the Act. Applications for Certificates of Citizenship may deal with events that occurred prior to the current law, and officers must be aware of the prior standards for acquisition or derivation. The Interpretations will most often provide guidance on such issues as residence and physical presence. It should be noted that the Interpretations section 320 also covered prior s ection 321 and should be referred to when needed in cases involving derivation prior to the CCA.

(1) Child Citizenship Act, Pub. L. 106-395, Revised Section 320 of the Act . The Child Citizenship Act (CCA), effective February 27, 2001, amended section 320 of the Act and removed section 321. Although the CCA uses the term “acquires,” it is sufficiently similar to sections 320 and 321 in effect before February 27, 2001 to be considered a derivation statute. Officers adjudicating applications filed after February 27, 2001 should review the regulations at 8 CFR 320 which were published after the implementation of the CCA. The revised section 320 became the only method for children in the U.S. under the age of 18 to acquire citizenship. See also Appendix 71-7.

The CCA applies to adopted children and certain foreign-born natural children. A child adopted by a U.S. citizen parent is eligible for the CCA if the child satisfies the requirements applicable to adopted children under section 101(b) of the Act, including children described in section 101(b)(1)(E) and section 101(b)(1)(F) of the Act.

The CCA also applies to children who meet the requirements of section 101(c) of the Act. This includes unmarried children born in wedlock and legitimated children. An alien child who was born out of wedlock and has not been legitimated is eligible for derivative citizenship when the mother of such a child becomes a naturalized citizen under section 320 and 322 of the Act. Section 321 , in effect until February 26, 2001, had a specific reference to children born out of wedlock who were not legitimated.

A child of a naturalizing parent is also covered by the CCA provided that the child meets the definition of section 101(c) or section 101(b)(1)(E) or (F) of the Act. The CCA only requires one U.S. citizen parent to confer automatic citizenship. The naturalization of a single alien parent, regardless of his or her marital status or the immigration status of the other parent, is sufficient for a child to be eligible for citizenship under CCA.

The CCA applies to children residing in the U.S. pursuant to a lawful admission for permanent residence. Children who had previously been granted lawful permanent residence but were outside the U.S. temporarily on February 27, 2001 became citizens upon their return to the U.S.

For children who acquired citizenship on the date the CCA went into effect, the Certificate of Citizenship reflects February 27, 2001 as the date of acquisition. Children whose date of citizenship is February 27, 2001 are those who were still under age 18 and who met all the other requirements of section 320 of the Act (i.e., lawful permanent residence, living with and in the legal and physical custody of the U.S. citizen parent) on February 27, 2001.

After February 27, 2001, the date reflected on an individual’s certificate of citizenship will be the date when the last requirement needed to acquire citizenship automatically under section 320 of the Act is met. This date can be either:

• the date on which an alien parent of a qualifying child naturalizes, or
• the date on which a qualifying child is lawfully admitted for permanent residence, or
• if adopted, the date on which a qualifying child, who has been lawfully admitted as a permanent resident, has been finally adopted by a U.S. citizen or had such an adoption recognized by the state where the child resides.

Upon approval of the application the applicant is issued an “A” certificate.

(2) Derivation prior to the enactment of the CCA (before February 26, 2001) . Until the effective date of the CCA (February 27, 2001), derivation was dependent upon the naturalization of a parent. Prior to February 27, 2001, section 320 of the Act applied to a child who was born to a U.S. Citizen parent and an alien parent, while section 321 of the Act applied to a child born in wedlock to two alien parents and a child born out of wedlock to an alien mother (See old sections 320 and 321 in Appendix 71-6 of this field manual). Over the years, the citations concerning adopted childre n changed. Be sure to review the dates of adoption and the law in effect at the time. See Interpretations 320.1(d)(1), Interpretations 320.1(d)(1)(2) and Interpretations 320.1(d)(1)(3).

• Requirements: The basic requirements for both sections were the naturalization of an alien parent or parents, as applicable, the lawful admission for permanent residence of the alien child, and the satisfaction of these and any other statutory requirements before age 18. Since the order in which the requirements were satisfied was not stated in the statute, as long as the applicant meets the requirement of the statute before age 18 the applicant derives U.S. citizenship.

The exception was an adopted child during certain time periods. Therefore, for example, under the prior INA section 321(a)(3), citizenship would be derived when a divorce occurred after naturalization of one parent and the naturalized parent obtained legal custody of the child. The date of derivation would be the date of divorce.

• Legitimation and Legal Custody: Although the common application was based upon the naturalization of two alien parents, two important issues when adjudicating claims for derivation under section 321 of the Act are legitimation and legal custody. Section 321 allowed derivation when the two alien parents had a legal separation and the parent having legal custody naturalized. Interpretations 320.1(a)(6) contains a discussion of legal custody and legal separation which were valid for certain time periods. Officers should become familiar with the law of the states in their office’s jurisdiction with respect to legal custody. Generally, legal custody is custody granted by a competent governmental authority or by a statute. See also the current definition of legal custody in 8 CFR 320.1 and 8 CFR 322.1.

Provided all other statutory requirements are met, a child whose paternity has not been established by legitimation before the age of 16 may derive citizenship through the mother (see section 101(c) and section 321(a)(3) of the Act) . Remember that the age for legitimation has varied over the years from 16, 18 or 21 depending on the period and statute in effect.

Early volumes of the published decisions contain many decisions on legitimation and foreign legitimation. You may also consult the Foreign Affairs Manual or inquire with the Library of Congress if there are questions that still need to be resolved regarding the legitimation requirements of a particular country. Check the Library of Congress opinions on the Intranet before sending a request for an opinion. See Chapter 14.10 of this field manual regarding procedures for requesting Library of Congress research .

• Date of Citizenship: The date of citizenship for most applicants will be the date of the last action to occur before age 18. This will be one of the following:

– naturalization of parent(s).

– legal custody when there has been a legal separation.

–death of an alien parent when the other parent has naturalized

–naturalization of a surviving parent

– lawful admission for permanent residence.

For an adopted child, the date of citizenship will be the date of naturalization for the adopting parent if the other conditions are met.

(3) Other Persons Eligible for Certificates of Citizenship . The CCA amended section 322 of the Act to cover foreign-born children not eligible under section 320 of the Act who are residing outside the United States with a United States citizen parent.

Note: Until the Form N-600K, Application for Citizenship and Issuance of a Certificate under section 322, is available, a parent seeking naturalization for a foreign born child under this section may apply on the Form N-600; parents of an adopted child may also use Form N-643.

In order for a child born and residing outside the United States to acquire citizenship under section 322 of the Act, the United States citizen parent must apply for naturalization on behalf of the child. (See Appendix 71-7 of this field manual and 8 CFR 322.)

As of November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act, P.L. 107-273, amended section 322 of the Act to allow the addition of U.S. citizen grandparents and U.S. citizen legal guardians as eligible to apply for naturalization on behalf of a child born and residing outside the United States. Under this amended provision, application by the U.S. citizen grandparent or U.S. citizen legal guardian can be made within 5 years of the death of a U.S. citizen parent of a child who could otherwise have been the beneficiary of an application pursuant to section 322. The law does not authorize applications pursuant to section 322 by any person other than a U.S. citizen parent except in cases in which a U.S. citizen parent has died. (See Appendix 71-8 of this field manual.)

The child will need to be in the United States temporarily to complete naturalization processing and take the oath of allegiance. The naturalization process for such a child cannot take place overseas. The application is filed with the U.S. office where the child and applicant wish to appear for the interview. The U.S. office reviews the application, and if it appears to be approvable, will send the applicant and the child an appointment notice. The appointment letter should be taken to a U.S. Consulate or the consular section of a U.S. Embassy in order to obtain a nonimmigrant visa for the child, if a visa is required for entry. The child may be admitted under any nonimmigrant classification. “Admission” is defined under section 101(a)(13) of the Act; “parole” is not considered an admission. (See also 9 FAM 41.31 Note 11.6).

You will need to determine if the child is maintaining lawful status. A child is considered to have maintained lawful status if his or her nonimmigrant classification has not expired or been revoked if he or she has not violated the terms of his or her visa.

If the child qualifies under section 101(b)(1)(E) of the Act as having been adopted and has been in the legal custody and resides with the U.S. citizen parent for two years, documentation establishing the legal custody and residence must be submitted with the application. If the application is based upon a child as defined in section 101(b)(1)(F) of the Act, the application must be supported by an approved Form I-600 or evidence that the child has been admitted for lawful permanent residence with the immigr ant classification of IR-3 or IR-4.

Particular care should be taken to ensure that the U.S. citizen parent or U.S. citizen grandparent has the required residence and physical presence in the United States to transmit citizenship. Unlike in other sections of law, the U.S. citizen’s grandparent’s residence could have been before or after the birth of the child and application. Assuming the alien child meets all other requirements of section 322 , an alien child remains eligible after the death of the citizen parent's own citizen parent, so long as the citizen parent's own citizen parent met the physical presence requirement in section 322(a)(2)(B) at the time of death. (See LINK) to Policy Memorandum 94, dated April 17, 2003, "Effect of Grandparent's Death on Naturalization under INA Section 322.")

A child becomes a citizen under section 322 of the Act as of the date of the approval of the application and the takes the oath of allegiance, unless the oath is waived due to young age. The application must be approved and the oath taken before the child reaches his or her 18 th birthday. The child will receive an “A” certificate.

(e) Filing the Application and Initial Processing . Forms N-600 and N-643 are filed with the USCIS office in the United States having jurisdiction over the place of residence of the applicant. Overseas applicants may file the application with any office of the USCIS within the United States.

Upon receipt of the form, the application must be examined to assure that it is complete, presents a prima facie case of eligibility for the issuance of a certificate of citizenship and has the required fee and photographs. Applicants must submit any additional documentary evidence necessary to support their citizenship claim. Any document in a foreign language requires an English translation.

Further clerical operations will be necessary: obtaining or creating the applicant’s “A” file, verifying the naturalization of parent(s), verifying the military service of a parent, securing additional necessary documentation and other related files.

Former Form N–601, Status N-600 Application, was the processing worksheet for all N–600 cases. The N–601 has since been eliminated, but is exhibited in Appendix 71-9 to provide elements for a locally developed processing worksheet. Offices should use either Form N–601 or a locally developed processing sheet to record the status of the application. The processing sheet shall be maintained on the right side of the A-file.

You will need to determine if an interview is required. See 8 CFR 341.2(a)(1) to determine if the interview can be waived. All applications for certificates of citizenship filed under section 322 of the Act require an interview with the applicant and the child. See also Appendix 71-7 of this field manual.

• N-643 waiver of child's appearance: If the child is under 14 years of age on the date of the scheduled interview, and there are no circumstances in the case giving rise to the suspicion that the child is an impostor, or has abandoned residence in the United States, the child shall not be required to appear before an officer if the parent or guardian is available to appear for examination under oath or affirmation by an officer, as required by 8 CFR 341.2, and to identify a photograph of the child as that of his/her son or daughter. If the child’s appearance before the officer in connection with the N-643 application is waived, the oath requirement shall be regarded as also waived, and the words "oath and personal appearance waived" shall be noted in the report section provided on Form N-643.

• N-600 waiver of child’s appearance: When the person(s) through whom citizenship was acquired or derived is available to appear for examination under oath or affirmation by an officer, as required by 8 CFR 341.2 and to identify a photograph of the child as that of his son or daughter, the child's appearance before the officer in connection with the N-600 application, and the oath requirement in his case, shall be regarded as waived as long as there is no suspicion that the child is an impostor and no other s uch consideration.

(1) Initial Documentation . The documentary evidence in support of the N-600 application is not required if such evidence is available for use in other files. The instructions of the Form N-600 state that if the required documents are available, you should request the file to obtain them before asking the applicant to submit duplicate copies.

An unexpired United States passport issued for 5 or 10 years is now considered prima facie evidence of U.S. citizenship. Because it does not provide the actual basis upon which citizenship was acquired or derived, the submission of additional documentation may be required or the passport file may be requested. If after review there are differences or discrepancies between the USCIS information and the Passport Office records which would indicate that the application should not be approved, no action should be taken until the Passport Office has an opportunity to review and decide whether to revoke the passport.

If the applicant indicates that he or she did apply for some sort of documentation from the State Department, you may send a completed Form N-602 to the Director of the Washington District office. Clearly describe the document requested. Similarly, if documents requested are unusual in nature, they should be described in reasonable detail. Furthermore, if there appears to be a question concerning the legitimacy of the applicant, the validity of his parents’ marriage, or some other matter which may be expect ed to be resolved upon the basis of the documents requested, this fact should be appropriately stated in Form N-602. If there is some reason to believe that the applicant or parent has expatriated, briefly explain the facts on the form. You may attach supplementary sheets if there is not enough room on the Form N-602. Washington Investigations will verify the information or document requested with the Department of State. You should review the Foreign Affairs Manual Volume 9 Appendix C to determine the avai lability of documents from the applicant’s country of birth. The manual can be found on the Internet at:

http://foia.state.gov/FAMDIR/fam/fam.asp

A record of admission on Form I-94 may have been created during the period that retention requirements existed for some U.S. citizen children born abroad. These Forms I-94 are maintained in Headquarters Records for a United States citizen born abroad and entering the United States for the first time. Many are stored on microfiche and microfilm; in 1983, HQ Records started automating the I-94s. To request information about these files, you will need to send a fax to the Office of Records Management Certifica tion Unit at (202) 305-1737. You will need to include the name of the person or applicant, the date of birth, date of entry and the Form I- 94 number or admission number.

(2) Assumed name/Signature . When the applicant has assumed, or is known by a name other than a true name, but has not changed the name in accordance with the law of the jurisdiction where it was assumed, the certificate of citizenship shall be issued in the applicant's true name followed by the words "also known as" and the assumed name. However, in such a case the applicant shall be required to sign only the true name on the certificate and on the photographs submitted with the application. The certificate shall be signed by the ap plicant unless the applicant is a child unable to sign his/her name, in which case the certificate shall be signed by the parent or guardian, and the signature shall read "(insert name of child) by (insert name of parent or guardian, indicating which)."

(3) Assembling the Record of Proceeding . It is required that the officer properly identify and assemble the record material so that the record will be complete, that it may be read without taking the file apart, and that the papers in it are in the same order in every case handled. If an affidavit or sworn statement is taken, or a supplementary report is prepared by the officer to clear up a discrepancy or establishing that a discrepancy defeats the claimed citizenship, this affidavit, statement, or report should be attached to and remain a part of the file.

The order of the various papers shall be, to the extent possible, as follows:

(A) Form N-600 and supplementary sheets.
(B) Officer’s memo(s), if any.
(C) Affidavits or recorded statements taken by officer examining applicant or the person(s) acting in applicant’s behalf
(D) Documents from the applicant
(E) Other evidence, such as verification of naturalization, reports from Department of State

Form N-601 or the processing sheet shall be maintained as the uppermost piece of material on the right-hand side of the A-file.

(f) Adjudicating the Application .

(1) The Interview . Information gathered by the examiner during the review or examination may form a basis for revocation of the basic naturalization, or for criminal prosecution, or a basis of action upon similar applications in later years. You should review every answer in Form N-600, Form N-643, and Form N-600 Supplement A for completeness, accuracy, veracity and understanding by the applicant (or his parent or guardian if he is under 14). Each and every correction or change on the application or supplementary sheets, in cluding changes to improve legibility, shall be consecutively numbered, even though several changes may form a part of a single item within an answer. All changes and the numbers must be made in red ink.

The officer should quickly determine the identity of the person appearing for examination and his competency. The officer must be satisfied before administering the oath (or affirmation) that all persons understand the nature of the oath (or affirmation) and the significance of their testimony and of testifying under oath or affirmation.

The officer and all persons who are to be placed under oath or affirmation shall stand, if physically able, and have his right hand raised during the administration of the oath. The applicant, or his parent or guardian if he is under 14, shall be examined first.

Where it is necessary to develop and explain inconsistencies or discrepancies as a part of the record, every effort shall be made to obtain complete details in the form of a brief summary indicating what the applicant or witness said, rather than the officer’s conclusions, and if the matter is deemed important, a sworn (affirmed) statement shall be obtained. (See Chapter 15.6 of this field manual)

All documents shall be carefully examined and all persons interviewed with regard to all of the matters bearing on not only whether citizenship was derived or acquired as claimed but also whether the applicant is currently a citizen of the United States. In cases in which primary documentary evidence cannot be obtained, secondary evidence may be used.

The examination should cover such matters as identity and relationship; marital history; legitimacy or legitimation, where material; residence of the person(s) through whom claiming, both before and after naturalization; residence and physical presence before the applicant’s birth on the part of the person(s) through whom claiming; retention requirements; and expatriatory acts, including, where women are concerned, loss of citizenship by marriage to an alien.

Allegations as to naturalization may be supported by the Naturalization Certificate. If the certificate is unavailable or suspect, the allegations shall be checked against the relating file, other USCIS records, court records, or other verification of naturalization, and a determination made regarding whether the record of naturalization found relates to the applicant’s case.

Full details shall be set out for each link in the chain of citizenship for both the applicant and the person(s) through whom citizenship is claimed, and all elements essential to such citizenship shall be proved. Where a parent is a non-citizen national of the United States and that status is material to the applicant’s claim, this element shall also be fully developed.

Keep in mind the definitions of the terms “United States” and “outlying possessions” under the applicable section of law and clearly distinguish between “residence” and “physical presence” where necessary. (See section 101(a)(38), section 101(a)(29) and section 101(a)(33) of the Act).

All essential information furnished by the applicant or the person acting in his behalf which cannot be inserted in the application shall be made a part of the record by a separate detailed statement under oath or affirmation from the applicant or that person. If the nature and extent of military service in the Armed Forces of the United States are material to the claim of citizenship, Form N-426, or DD Form 214 issued to personnel at the time of discharge, shall be used to verify the information, unless th e verification relates to a person on active duty with the armed forces. In such event, a certification from the serviceman’s commanding officer, satisfactory in form and content, may be accepted.

(2) A Review of a Number of Important Data Elements on the Forms .

• PRC Number : Check the information on the Permanent Resident Card (PRC), if any, with the information in the appropriate box on the application and against the file number. This may reveal that a new file may have been created upon receipt of the application, even though an A-file previously existed. The examining officer must determine whether files should have been consolidated.
• Name : The applicant’s present full, true and correct name without abbreviation (and maiden name, if any) shall be shown. Any variation in name from that which is supported by the documents available shall be explained as part of the record.
•Birth data : The date and place of birth are especially important when derivation is through a parent, as they bear materially on identity of the applicant, legitimacy, requisite age to derive or retain citizenship, and relationship. They may also be material factors in considering whether particular conduct resulted in expatriation. The date of birth must be accurate and must be checked against all data in the file, such as the birth certificate, visa or other record of entry data, and alien registration record. Tran slations should be checked if possible with regard to dates, against the document translated, since translators may mark down an incorrect date in the translation. Where the date of birth is material, any variation in the record shall be fully explained as a part of the record and the examiner’s conclusion regarding which date is correct shall be supported by a memorandum containing his reasoning.
• Arrival data : Allegations regarding arrival shall be checked against arrival data in the file. If the applicant traveled on a United States passport and was admitted as a United States citizen, the passport number, together with the date and place of issuance, shall be shown.

If a lawful admission to the United State for permanent residence is material to the applicant’s citizenship, the officer must determine whether applicant’s entry constituted such an admission; whether the visa or record verified relates to the applicant; and whether entry on that date brings the applicant within the terms of the relevant statute. If retention requirements are applicable, the officer shall also determine whether they have been satisfied so far as timeliness of entry into the United States a nd residence or physical presence are concerned.

If the applicant claims United States citizenship at birth (“AA” or “AB” certificate), but was admitted to the United States as an alien, the facts shall be fully developed, particularly to ascertain whether expatriation has occurred. The explanation shall be included in a sworn (affirmed) statement made by the applicant, or, if time does not permit the taking of a statement, a memorandum shall be prepared by the examining officer setting forth the applicant’s explanation. Such sworn (affirmed) statement or memorandum shall be made a part of the record. If it appears the State Department has a relating file which should be consulted, a report indicating what the file shows should be obtained and included in the record.

When the applicant arrived before July 1, 1924, and lawful admission for permanent residence is material, the information set forth should be compared with data in official verifying records to determine that the record of arrival found relates. The verifying record should be carefully checked against data supplied by the applicant, since it may reveal discrepancies as to name, age, parentage, absences of parents or a prior application, possibly of another person, on which the same arrival record was used. Material discrepancies shall be explained in a memorandum made a part of the record, and where the discrepancies indicate possible fraud, a sworn (affirmed) statement should be taken and made a part of the record.
• Absences : The information in this item is essential to determining whether the applicant may have expatriated, or whether there was a failure to comply with applicable retention requirements. The date of an absence may be significant in itself if it occurred during a war period when service in the armed forces of the foreign state might reasonably be expected to have been performed with expatriative effect. It should be thoroughly explored with the applicant, parent to elicit all relevant facts bearing upon the iss ue. If you have determined expatriation occurred, develop a written summary of the facts.

After admitted absences have been recorded appropriately, the applicant shall be asked whether there were any other absences and, when the information in that respect is complete, the words “No other” shall be written in this space. The word “None” shall be written in the space for this item if there have been no absences.

• Required evidence of residence, physical presence : Documentary evidence of residence or physical presence required for acquisition or retention of citizenship must be submitted. Prior to 1978 records of admissions at ports of entry were often prepared by inspecting officers for United States children born abroad, upon the occasion of their first arrival in the United States. Such arrivals can be verified by consulting Headquarters records.

Public Law 95-432, effective October 10, 1978, repealed the retention requirements of former section 301(b) of the Act. The amending legislation was prospective only and did not restore citizenship to anyone who, prior to October 10, 1978, had lost citizenship by failure to retain it in accordance with former section 301(b) of the Act. The Act of October 10, 1978 also redesignated section 301(a)(1) to (7) as section 301(a) to (g).

Public Law 103-416, effective April 24, 1995, provided that aliens who had lost citizenship by failure to meet the retention requirements could regain their citizenship by taking the oath of allegiance. (See section 324 of the Act.) That provision, though, states that the effect is prospective only and during the period between loss and reacquisition the citizen was an alien. See discussion in section (c)(2) of this field manual chapter.

•Person through whom citizenship claimed : Only one block should be checked.
• Information about parents : The information called for is that relating to the natural or adoptive parents, as pertinent.
•Photographs and name shown on certificate : A person’s name may have been changed by a common law change, which permits the adoption of a name at will, provided it is not done for a fraudulent purpose. In many states, however, the right of common law change has been abrogated, or permitted only before a certain date. When it is found that a person may validly claim a name other than that given at birth, the space for name on the form shall be corrected to show such name other than the name at birth if not already shown. When it cannot be establishe d there has been a change of name by any legally valid method, the “also known as” procedure for including the assumed name in the citizenship certificate should be employed.
• Relating files : Relating files of other family members may be examined in cases where there is only secondary documentary proof, or where there is reason to suspect fraud, or where the relating file contains a document which should be made available to the applicant which bears upon the eligibility of the applicant.
• Prior application : If a prior application was denied, unless the denial was because of a ruling which has since been changed or abrogated, the evidence supporting the new application shall be carefully checked by the examining officer to determine whether it is sufficient to warrant a change in the previous determination. Any change shall be supported by documentary evidence.
•Signature : Be certain the application is properly signed by the applicant if he or she is 14 years of age or older; otherwise by his parent or guardian.
•Affidavit : The affidavit is found at the end of the application. Insert the proper word to designate the person executing the application. Draw a line through the words “and of attached supplementary pages numbered ( ) to ( ), inclusive” if there are no supplementary pages; otherwise, if any answers have been continued on supplementary sheets, number the pages and insert the numbers in the parenthesis.

Number any corrections and insert the numbers in the parenthesis. If there are no corrections draw a line through the words “and that corrections numbered ( ) to ( ) were made by me or at my request.” Make certain that the person executing the affidavit fully understands the allegations and corrections in the application and supplementary sheets before he signs the affidavit.

•Examination of Person(s) Through Whom Claiming and Other Witnesses . A witness shall be called to testify at the examiner’s option only if that person’s testimony is needed to prove a particular point, and only if alternative proof is unavailable or more difficult to produce than the witness.

When required by the examiner, the best witness is usually a close relative of the applicant, since generally such a relative, particularly an older one, is well qualified to testify to the relationship between the applicant and the person(s) through whom citizenship is claimed.

Unless there are material discrepancies, an issue of fact to be resolved, a question of expatriation, possibility of revocation of naturalization, or criminal prosecution, the written testimony of the person(s) through whom citizenship is claimed, or that of the witness(es) is not required. When material discrepancies or other circumstances require that the testimony be taken and recorded (written), a supplemental report clarifying the discrepancies, explaining the circumstances, or establishing that such d o in fact defeat the claim to citizenship shall accompany the application

(3) Supplementary Actions .

(A) Question-and-Answer Statements and Affidavits . When the evidence of applicant’s eligibility or ineligibility for a certificate of citizenship consists largely of testimony rather than of primary or secondary documentary evidence, it is necessary to record the testimony in a sworn (or affirmed) question-and-answer statement, or an affidavit, preferably the former. Such sworn (affirmed) statements shall be taken also where there is a complex or controversial question of fact, as for example, with regard to applicant’s age or identity. (See Chapter 15.6 of this field manual.)

(B) Blood Tests . The burden is upon the applicant to establish relationship to a United States citizen and ordinarily such proof is easily adduced in the form of primary documentary evidence. In many cases this solid documentary evidence is lacking, and although oral evidence may be received in such cases, it may be appropriate to require reinforcement of such evidence with less fallible proof in the form of blood tests. The officer should follow the policy as set forth in Chapter 21.2(d)(1) of this field manual.

(4) Making a Decision . The burden of proof is upon the applicant to establish his right to the certificate.

(A) Review of Evidence. All of the evidence of record must be reviewed to determine whether the applicant has satisfactorily established all the links in the claim to citizenship. Although this is an administrative proceeding not circumscribed by the rules of evidence applicable to judicial proceedings, it should be kept in mind that the record may subsequently be reviewed in judicial proceedings. The decision on the application, therefore, should be supported by evidence in the record of proceeding.

The evidence submitted by the applicant may be primary or secondary. Essential facts relating to birth, death, marriage, and divorce shall be established by official public records, if available. Only if the officer is satisfied that the applicant has made a reasonable but unsuccessful effort to procure such a record, or has official knowledge that it is unobtainable, may the officer accept as sufficient other secondary evidence that the applicant presents.

A document is most valuable when it is a record created contemporaneously with, or reasonably proximate to, the happening of the event recorded. A delayed or nunc pro tunc record created long after the event does not have the evidentiary value that attaches to a record created contemporaneously with the event. Such a delayed record must be shown to be based upon probative supporting evidence. Where the record contains little or no corroborative evidence, the applicant must produce further, more convincing e vidence. Inquiry should also be made not only into the manner in which the delayed record was created, but also into the reasons for the delay. The likelihood that the facts are as alleged should also be considered in relation to all information developed.

(B) Failure to Appear . The notice to appear for an examination shall be given not less than 2 weeks before the scheduled date of interview. If the applicant fails to appear for the examination, or to otherwise explain his/her absence, or does not request an alternative examination or does not respond to Form N-14 within the allotted time, the application shall be denied in accordance with 8 CFR 103.2(b)(13).

(C) Continuing a Case . Form N-14 may be used to request submission of documentary evidence or additional information from an applicant at any stage of the proceedings. The applicant shall be given a date by which to submit the documentation in accordance with 8 CFR 103.2(b)(8).

(D) Approval . Upon completion of the examination of the applicant (or of the person acting on behalf of an underage applicant) if one is conducted, the officer conducting the examination shall complete the affidavit of the application.

If the appearance of the child has been waived under the words “upon personal appearance” shall be stricken from the opening sentence in the “Report and Recommendation on Application.” No conditional or contingent recommendation is to be made therein. The recommendation shown is to be unqualifiedly either to grant or to deny the application.

The delivery of the certificate shall be withheld until the Form I-151/I-551 (PRC) is surrendered. Be sure to obtain PRC, reentry or other Service or USCIS-issued document. If it is alleged such documents were lost or destroyed, the applicant’s (or his parent’s or guardian’s) claim in this regard should be recorded on a lost PRC affidavit, Record of Sworn Statement (Missing PRC).

You must complete the stipulation regarding the manner in which citizenship has been acquired or derived. For example, if the applicant claims citizenship at birth, the item shall reflect the manner in which the person through whom citizenship is claimed acquired citizenship; whether such person was a United States citizen at the time of the applicant’s birth; whether such person resided or was physically present in the United States prior to the applicant’s birth and, where applicable, the period of such r esidence or physical presence. Appendix 71-5 of this field manual contains sample stipulations representative of cases in various categories. These stipulations do not exhaust the factual situation in which citizenship may be derived or acquired, but they are to be used verbatim when appropriate to the case and will serve as guides in drafting other stipulations to meet different factual situations.

(D) Denial . If the application is denied, notice of the denial and an opportunity to appeal therefrom shall be given to the applicant on Form I-292. If the applicant wishes to appeal the denial, he or she must file the appeal within 30 days of the date of the decision with the office that made the original decision. The notice of appeal must be filed on Form I-290B, Notice of Appeal to the Administrative Appeal Office (AAO). The appeal will be decided by the AAO.

DUI Illinois, Summary Suspension, Lawyer, Driving on a Suspended or Revoked License, Chicago, Illinois DUI Attorney

2008-09-20T13:48:00.001-05:00

The DUI criminal charge in Illinois is separate from the Statutory Summary Suspension, which is an administrative process. In Illinois, Driving under the Influence of Alcohol (DUI) or on a Suspended or Revoked license can have serious consequences.

An officer stops a vehicle at a roadside safety check or for probable cause, reasonable suspicion or unusual operation. The officer observes the driver and requests a driver's license, vehicle registration.

If the officer suspects the driver is under the influence, the driver is requested to submit to field sobriety tests.

If the officer has probable cause based on the field sobriety tests, the driver is placed under arrest for DUI and taken to the police station. The driver is requested to submit to a chemical testing of breath, urine or blood.

If a tested driver's BAC is more than .05 but less than .08 percent and no drugs are found in the system, no Statutory Summary Suspension will apply. However, the associated DUI charge will remain until appropriate action is taken by the court.

If the driver refuses or fails to complete testing, the Statutory Summary Suspension will apply. A repeat offender who refuses testing will not be eligible for a Restricted Driving Permit (RDP) during the three-year suspension. A repeat offender who takes the test and fails is not eligible for an RDP during the 12-month suspension.

If the driver's test results show a BAC of .08 percent or more, or any trace of a drug, illegal substance or intoxicating compound, the driver will be issued a law enforcement sworn report notifying the driver of a Statutory Summary Suspension.

If the driver's license is valid, a receipt is issued that will allow driving for 45 days. The offender is required to post bond and may be detained until bond is posted. The offender's vehicle may be towed, impounded or seized.

Statutory Summary Suspension, Illinois (Effective on January 1, 2009, a new Illinois law mandates car breath test device for first-offense DUIs. Provides that a first offender who receives a statutory summary suspension shall be issued a monitoring device driving permit (rather than a monitoring device driver's license), except under specified circumstances.)

A Statutory Summary Suspension is an administrative procedure providing for the automatic driver's license suspension of a driver arrested for DUI who fails chemical testing (a test showing a BAC of .08 percent or more or any amount of cannabis, controlled substance or intoxicating compound) or who refuses to submit to or fails to complete testing.

Penalty for failing chemical testing:

First offense — mandatory 3-month driver's license suspension
Second offense — mandatory 12-month suspension

Penalty for refusing to submit to chemical testing:

First offense — mandatory 6-month driver's license suspension
Second offense — mandatory 36-month suspension

A Statutory Summary Suspension in Illinois does not apply to an individual who has a BAC of less than .08. If a BAC greater than .05 and additional evidence such as an open container warrants a DUI arrest, the outcome of the court case will determine if penalties apply.

Summary suspensions in Illinois are automatic, effective on the 46th day from the notice date of the suspension. This suspension of driving privileges does not take the place of criminal penalties for a DUI conviction. An offender may request a judicial hearing to challenge the legality of an arrest; however, the request does not stop the suspension from taking effect.

If a commercial driver’s license (CDL) holder receives a Statutory Summary Suspension, his/her CDL privileges will be disqualified for 12 months if a first offender and lifetime disqualification for a second offender. A Judicial Driving Permit (JDP) may be available to qualifying offenders during the suspension period.

Penalties for a DUI Conviction, Driving Under the Influence, Illinois

A first-time or second-time DUI in Illinois is typically charged as a misdemeanor, not a felony. However, a third-time DUI in Illinois or a drunk driving case where someone suffers great bodily harm will be treated as a felony.

A first DUI offender in Illinois can receive court supervision, only once, which will not be viewed as a conviction. The criminal case is dismissed after successful completion of court supervision, but can't be expunged from the public record.

First conviction (under age 21) — Class A misdemeanor with possible 0- 12 months imprisonment; loss of driving privileges for minimum 2 years; 100 hours community service; fines of up to $2,500; eligible for Restricted Driving Permit (RDP) after one year of revocation; may be required to have a BAIID installed in vehicle as part of driving relief.

Underage DUI, Illinois: zero tolerance law penalties apply to drivers in Illinois under age 21 who have any trace of alcohol in their systems or who refuse to submit to chemical testing.
• First offense: 3-month driver's license suspension for a BAC greater than .00; 6-month suspension for refusal to submit to or failure to complete testing.
• Second offense: 1-year driver's license suspension for a BAC greater than .00; 2-year suspension for refusal to submit to or failure to complete testing.
• If a commercial driver’s license (CDL) holder receives a zero tolerance suspension, his/her CDL privileges will be disqualifed for 12 months if a first offender and lifetime disqualification for a second offender.

Offenses Related to Underage Drinking, Illinois

Purchase or Attempted Purchase of Alcohol by a Minor
• Any person under age 21 convicted of violating the Liquor Control Act of 1934 for the illegal purchase, attempting to purchase, accepting, possession or consumption of alcohol will have his/her driving privileges suspended or revoked for 1 year.

Providing Alcohol to a Person Under 21
Class A misdemeanor with possible 0-12 months imprisonment; fines of $500-$2,500.

Parental Responsibility
Applies to parents or guardians knowingly allowing underage consumption of alcoholic beverages at gatherings at a residence. Class A misdemeanor with possible 0-12 months imprisonment; fines of $500-$2,500.

Illegal Transportation
Offenders may have their driving privileges suspended for 1 year for a first offense and revoked for a subsequent offense.

Hotel/Motel Responsibility
Applies to any hotel/motel employee who rents a room to a person under age 21 knowing that alcoholic beverages will be consumed there; or any person age 21 or older paying for a hotel room or facility knowing alcoholic beverages will be consumed there by individuals under age 21.
• Class A misdemeanor with 0-12 months imprisonment; fines of up to $2,500.
• Persons over age 21 paying for the hotel/motel room are held liable for any injuries or damage to persons or property caused by the underage drinker(s).

Accidents Causing Injury or Death
• Any person under age 18 who has been charged with an offense as a result of an accident in which a passenger was seriously injured or killed may be denied a driver's license or license renewal by the Secretary of State's office.

First conviction (over age 21) — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 1 year; 100 hours community service; fines of up to $2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; fines of up to $2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction.

—Within five years of first conviction: Mandatory 5 days in jail or 240 hours community service (terms of imprisonment or community service not subject to suspension/reduction nor is offender eligible for probation); fines of up to $2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; mandatory minimum 10 days in jail or 480 hours community service; fines of up to $25,000; loss of driving privileges for minimum 10 years.

—Within five years of previous conviction: Mandatory minimum 10 days in jail or 480 hours community service (terms of imprisonment or community service not subject to suspension/reduction nor is offender eligible for probation); eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; fines of up to $25,000; lifetime loss of driving privileges; not eligible for any type of driving relief.

Fifth conviction (Aggravated DUI) — Class 1 felony with possible 4-15 years imprisonment; fines of up to $25,000; lifetime revocation of driving privileges; not eligible for any type of driving relief.

Sixth or subsequent conviction (Aggravated DUI) — Class X felony with possible 6-30 years imprisonment; fines of up to $25,000; lifetime revocation of driving privileges; not eligible for any type of driving relief.

Driving Under the Extreme Influence — BAC of .16 or greater, Illinois

First conviction — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 1 year (if under 21, minimum 2 years); 100 hours community service; fines of $500-$2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction.

—Within five years of first conviction: Mandatory 7 days in jail; community service may be awarded in addition to, but not in lieu of jail time; fines between $1,250-$2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction: Mandatory 2 days in jail; fines of $1,250-$2,500; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; mandatory 90 days imprisonment (not eligible for community service); fines of $2,500-$25,000; loss of driving privileges for minimum 10 years; eligible for RDP after one year of revocation; required to have a BAIID installed in vehicle as part of driving relief.

—Within 20 years of previous conviction: Loss of driving privileges for minimum 10 years.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7
years imprisonment (not eligible for probation or conditional discharge);
minimum fine of $2,500.

Driving Under the Influence — Child Endangerment
(driver over age 21 transporting a child under age 16)

First conviction — Mandatory 6 months in jail and 25 days of community service in a program benefiting children; loss of driving privileges for minimum 1 year; fines of $1,000-$2,500; eligible for RDP; may be required to have a BAIID installed in vehicle as part of driving relief.

—If resulting in bodily harm to a child: Class 4 felony with possible 1- 3 years imprisonment; mandatory fine of $2,500-$25,000 and 25 days of community service in a program benefiting children (imprisonment or assignment to community service not subject to suspension); not eligible for probation.

Second conviction — Class A misdemeanor with possible 0-12 months imprisonment; mandatory 6 months in jail and 140 hours community service, 40 hours of which in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; fines of $1,000-$2,500; loss of driving privileges for minimum 5 years if committed within 20 years of first conviction; eligible
for RDP; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction: Class 4 felony with possible 1-3 years imprisonment; mandatory 1 year in jail and 25 hours community service in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; minimum fine of $2,500; eligible for RDP; required to have a BAIID installed in vehicle as part of driving relief.

—Within 10 years of first conviction and resulting in bodily harm to a child: 18 months in jail; 25 days community service in program benefiting children (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; mandatory minimum fine of $5,000-$25,000.

Third conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; 25 days community service in program benefiting children (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; mandatory fine of $2,500-$25,000; loss of driving privileges for minimum 10 years.

—Within 20 years of previous conviction: Class 2 felony with possible 3-7 years imprisonment; mandatory 3 years in jail and 25 days community service in program benefiting children (imprisonment or assignment of community service not subject to suspension); not eligible for
reduced sentence; mandatory fine of $25,000.

Fourth conviction (Aggravated DUI) — Class 2 felony with possible 3-7 years imprisonment; not eligible for probation/conditional discharge; minimum fine of $25,000.

DUI while Suspended or Revoked for Previous DUI; Leaving the Scene of a Personal Injury or Fatal Crash; Reckless Homicide; or Aggravated DUI with a Death.

First conviction — Class 4 felony with possible 1-3 years imprisonment; loss of driving privileges for double the original suspension period or additional 1-year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/reduction); not eligible for probation; fines of up to $2,500; may result in seizure and forfeiture of vehicle.

Second conviction — Class 4 felony with possible 1-3 years imprisonment; mandatory 30 days in jail or 200 hours community service; loss of driving privileges for double the original suspension period or additional 1- year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; fines of up to $2,500; may result in seizure and forfeiture of vehicle.

Third conviction — Mandatory minimum 10 days in jail or 480 hours community service; loss of driving privileges for double the original suspension period or additional 1-year revocation.

—If suspended for previous DUI: Additional 30 consecutive days in jail, 40 days of 24-hour periodic imprisonment or 720 hours community service (terms of imprisonment or community service not subject to suspension/ reduction); not eligible for probation; may result in seizure and forfeiture of vehicle.

Fourth conviction — Class 2 felony with possible 3-7 years imprisonment (not eligible for probation or conditional discharge); fines of up to $25,000; may result in seizure and forfeiture of vehicle.

Additional Consequences of DUI, Illinois
• A DUI conviction is a permanent part of an offender's driving record.
• The offender may lose work time.
• The offender will be required to complete an alcohol/drug evaluation and an alcohol/drug remedial education course or substance abuse treatment program before his/her driving privileges are reinstated.
• The offender must meet the requirements of the Secretary of State's Department of Administrative Hearings prior to obtaining a Restricted Driving Permit.
• The offender's vehicle may be impounded or seized.
• A Breath Alcohol Ignition Interlock Device (BAIID) may be installed in the offender's vehicle as a condition of driving relief.
• The offender is required to carry high-risk auto insurance for 36 consecutive months.
• The offender's vehicle registration will be suspended or revoked.

Penalties for Other DUI-Related Offenses, Illinois

Aggravated DUI
A third or subsequent DUI conviction; a DUI while driving a school bus carrying children; a DUI resulting in great bodily harm, permanent disability or disfigurement; a DUI without a license or permit; a DUI with no proof of insurance; or a DUI after a prior conviction of reckless homicide or Aggravated DUI resulting in one or more details.

Aggravated DUI Involving a Death
A DUI resulting in one or more deaths.
• Class 2 felony with possible 3-14 years imprisonment; fines of up to $25,000.
• Possible 6-28 years imprisonment for multiple fatalities.
• Minimum 2-year revocation of driving privileges.

Reckless Homicide (DUI)
A DUI resulting in the loss of life.
• Class 2 felony with possible 3-14 years imprisonment; fines of up to $25,000.
• Possible 6-28 years imprisonment for multiple fatalities.
• Minimum 2-year revocation of driving privileges.

Possession of Drugs in a Vehicle
Illegal possession of a controlled substance or cannabis by a driver; violations must be entered in court records and reported to the Secretary of State.
• 1-year suspension of driving privileges for a first conviction.
• 5-year suspension of driving privileges for a second conviction within 5 years.

Knowingly Permitting a Driver Under the Influence to Operate a Vehicle
Class A misdemeanor with possible 0-12 months imprisonment and fines of up to $2,500.

Driving on a Suspended or Revoked License, Illinois

First conviction — Class A misdemeanor with possible 0-12 months imprisonment; mandatory 10-day imprisonment or 30 days community service; fines of up to $2,500; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Second conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 30 days in jail or 300 hours community service; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Third conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 30 days in jail or 300 hours community service; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Fourth-ninth conviction — Class 4 felony with possible 1-3 years imprisonment; minimum 180 days in jail; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

10th-14th conviction — Class 3 felony with possible 2-5 years imprisonment; not eligible for probation or conditional discharge; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

15th or subsequent conviction — Class 2 felony with possible 3-7 years imprisonment; not eligible for probation or conditional discharge; fines of up to $25,000; loss of driving privileges for double the original suspension period or additional 1-year revocation; may result in seizure or forfeiture of vehicle.

Dram Shop
An employee or owner of an establishment may be held liable for a crash resulting from the unlawful selling, giving or delivery of alcohol in that establishment to a minor, intoxicated person or person known to be under legal disability or in need of mental treatment.
• Liability is limited to $50,467 for property damage or personal injury.
• Liability extends to $61,682 for a loss of means of support due to death or injury

Illegal Transportation/Open Container
Transporting, carrying, possessing or having any alcoholic beverages in the passenger compartment of a motor vehicle, except in the original container with the seal unbroken, is illegal. Exceptions to the law are limousines, motor homes, mini motor homes and chartered buses not hired for school purposes.
• Maximum $1,000 fine and point-assigned violation on driver's record.
• 1-year driver's license suspension or revocation for a second conviction within 12 months.
• Mandatory 1-year license suspension for an offender under age 21 for a first offense, and mandatory license revocation for a second offense.

Fraudulent IDs and Driver's Licenses
It is illegal to assist in obtaining or to fraudulently obtain, distribute, use or possess a fictitious or fraudulent state ID card or driver's license.The Secretary of State has the authority to suspend (up to 12 months) or revoke driving privileges prior to a conviction for anyone involved in the following offenses:

Class A misdemeanors (subsequent offenses are Class 4 felonies)
• Possessing, attempting to obtain or assisting another in obtaining a fictitious driver's license or permit.
• Allowing another person to use your license or permit.
• Displaying or representing as one's own any license or permit issued to someone else.
• Allowing any unlawful use of one's license or permit.

Class 4 felonies (subsequent offenses may be Class 3 felonies)
• Possessing, attempting to obtain or assisting another in obtaining a fraudulent license or permit.
• Issuing or assisting in the issuance of a fictitious driver's license.
• Manufacturing, possessing or providing any document for the purpose of obtaining a fictitious license.
• Possessing a driver's license-making or permit-making implement.

Judicial Hearings, Illinois

A driver may request a judicial hearing to challenge a summary suspension within 90 days after the notice date. The hearing must be conducted within 30 days of the request or on the first court date scheduled to consider the criminal charges.

Legally, only four issues may be considered:
• Whether the person was properly arrested;
• Whether there were reasonable grounds to believe at the time of arrest that the person was driving or in physical control of the vehicle while under the influence of alcohol or other drugs;
• Whether the driver, after being informed of the impending summary suspension, refused to submit to chemical testing; and
• Whether, after being advised of the summary suspension, the driver submitted to chemical testing that showed a BAC of .08 or greater or any trace of cannabis, a controlled substance and/or intoxicating compounds.

The summary suspension is rescinded if the court rules in favor of the driver. The result of the hearing is entered on the driver's record.

Driving Permits, Illinois

Drivers who have had their licenses suspended or revoked may be granted limited driving privileges. These temporary driving permits are only issued for employment, education and/or medical purposes when no other form of transportation is available. Some offenders may be required to have a Breath Alcohol Ignition Interlock Device (BAIID) installed in their vehicles as a condition for the issuance of a permit.

Judicial Driving Permit (JDP), Illinois
• Drivers under age 18 are not eligible for a JDP.
• First-time DUI offenders may request a JDP from the court to allow limited driving during a Statutory Summary Suspension. (A first-time offender is a driver who has not received a previous summary suspension, been convicted of DUI or assigned court supervision for DUI in this state, or who has not been convicted of DUI in another state within five years.)

Before the court can approve a permit, the offender must prove a hardship exists and provide proof of a current professional alcohol and drug evaluation.
• The JDP does not become effective until the 31st day of suspension.
• A commercial driver’s license (CDL) holder does not qualify for a JDP to operate a commercial motor vehicle. The driver may be eligible for a JDP for base driving privileges if the driver is a first offender.

Restricted Driving Permit (RDP), Illinois

Full driving privileges are lost for a minimum of five years if a driver receives a second conviction for any of the following: DUI; leaving the scene of a personal injury or fatal crash; reckless homicide, or any combination of these offenses in a 20-year period. If a driver receives a third conviction for any of these offenses, regardless of the length of time between convictions, full driving privileges will be lost for a minimum 10 years. If a driver receives a fourth or subsequent conviction, his/her license will be revoked permanently. If a driver is convicted of DUI in another state, Illinois driving privileges will be revoked.

If eligible, those convicted of DUI may apply to the Secretary of State's office for an RDP.
• A multiple offender whose BAC test results are .08 percent or greater or whose chemical test indicates any amount of a controlled substance, is not eligible for an RDP during the summary suspension period.
• A multiple offender who refuses to submit to or fails to complete chemical testing is not eligible for an RDP during the summary suspension.
• A driver under age 16 whose driving privileges are revoked is not eligible for an RDP.
• To obtain an RDP, the offender must prove hardship exists, provide a current professional drug and alcohol evaluation and, when appropriate, provide proof of remedial education or treatment.
• An offender must appear before a hearing officer in the Secretary of State's Department of Administrative Hearings. The driving record is reviewed to ensure that the driver would not threaten public safety if allowed to drive on a limited basis.
• An individual with two or more alcohol related driving incidents on his/her driving record within 10 years is required to have a Breath Alcohol Ignition Interlock Device (BAIID) installed in his or her vehicle for the duration of the RDP. As required by statute, the individual is responsible for the fee required for the BAIID during this period.
• An individual requesting a formal hearing for an RDP or reinstatement of his or her driving privileges will be charged a $50 nonrefundable filing fee when requesting the formal hearing.

Driver’s License Reinstatement, Illinois, Chicago

Statutory Summary Suspension, Illinois
Driving privileges may be reinstated at the end of the Statutory Summary Suspension period unless the court instructs the Secretary of State otherwise.

A person convicted of DUI who lost his/her driving privileges because of a summary suspension will have that time credited to the minimum driver's license revocation period.

Before driving privileges can be reinstated:
• Other suspensions or revocations on the driving record must be cleared.
• A $250 reinstatement fee must be paid to the Secretary of State, $30 of which goes to the Department of Human Services, Office of Alcoholism and Substance Abuse, to help defray the cost of professional alcohol and drug evaluations for indigent offenders.
• In the case of repeat offenders, the reinstatement fee is $500, with $60 going to the Illinois Road Fund, $190 going to the Drunk and Drugged Driving Prevention Fund, and $250 going to the General Revenue Fund.
• The reinstatement of a Statutory Summary Suspension becomes valid when it is entered on the driver's record in the Secretary of State's office provided the provisional termination date has passed.
• Payment for the reinstatement fee may be mailed to: Secretary of State, DUI Section, 2701 S. Dirksen Pkwy., Springfield, IL 62723. If paying by credit card, please call 217-782-3619 (debit cards not accepted).

Revocation

To have driving privileges reinstated in Illinois, a driver convicted of DUI must:
• Have a clear driving record other than the revocation sanction.
• Undergo an alcohol and drug evaluation. If an alcohol or drug problem is indicated, proof of treatment must be submitted.
• Complete an alcohol and drug remedial education program. Even if the evaluation does not recommend treatment, the driver is still required to complete a remedial education program.
• Appear before a Secretary of State hearing officer. For a first offense, aninformal hearing may be conducted by visiting a hearing officer at one of the regional Driver Services facilities. Multiple offenders must request in writing, pay a $50 non-refundable filing fee and attend a formal hearing in Chicago, Springfield, Mt. Vernon or Joliet.
• Demonstrate during the hearing that public safety will not be endangered if driving privileges are restored. The hearing officer considers the seriousness of the offense, the offender's overall driving record and the driver's remedial efforts.
• File proof of financial responsibility prior to reinstatement, pay a $500 reinstatement
fee, pass the driver's license examination (written, vision and driving portions) and pay the appropriate application fee.
• Repeat offenders must pay an additional $500 in reinstatement fees.
• Payment for a revocation may be mailed to: Secretary of State, Traffic Violations Section, 2701 S. Dirksen Pkwy., Springfield, IL 62723. If paying by credit card, please call 217-785-8619 (debit cards not accepted).
• An individual requesting a formal hearing for reinstatement of his/her driving privileges must pay a $50 non-refundable filing fee when requesting the formal hearing.

A reinstatement in Illinois becomes valid when it is entered on the driver's record in the Secretary of State's office.

Secretary of State
Administrative Hearings Dept.
291 Howlett Bldg.
Springfield, IL 62756
217-782-7065
or
17 N. State St., #1200
Chicago, IL 60602
312-793-3862

New Illinois law mandates car breath test device for first-offense DUIs. Illinois DUI lawyer

2008-09-07T09:01:00.001-05:00

Public Act 095-0400, SB0300, 95th General Assembly
This Act takes effect on January 1, 2009.

Download PDF
View html
Bill Status of SB0300

A new Illinois law requires first-time drunk driving offenders to install breath test devices in their vehicles and pass the test every time they try to start their engines.

If the driver's breath exceeds the alcohol limit, the apparatus ensures the car won't start.

Gov. Rod Blagojevich signed the legislation on August 24, 2007, making Illinois the fourth state to mandate the gadget.

The other states that require it are New Mexico, Arizona and Louisiana, according to the National Conference of State Legislatures.

When the law goes into effect in 2009, it will effect approximately 30,000 offenders in Illinois who have had their licenses suspended on DUI arrests, according to the secretary of state's office.

The alcohol ignition interlock devices must be rented and cost about $150 to install. There are also monthly fees.

"We will not tolerate drunk drivers on our streets," Blagojevich said in a statement. "This law ... will help make sure impaired drivers can't get back on the road. But if they do, they'll face tough penalties."

If offenders attempt to drive someone else's vehicle to avoid the breath tests, they could face jail time.

About 3,000 people in Illinois currently have the devices in their vehicles. Most are second-time drunk driving offenders.
__________________________________________

Deletes everything after the enacting clause. Reinserts the provisions of the engrossed bill, with various changes. In the State Finance Act, provides for creation of the Indigent BAIID Fund and the Monitoring Device Driving Permit Administration Fee Fund (rather than the Alcohol Monitoring Device Fund). Provides that a first offender who receives a statutory summary suspension shall be issued a monitoring device driving permit (rather than a monitoring device driver's license), except under specified circumstances. Provides that a person issued a monitoring device driving permit may not drive a commercial vehicle. Establishes other restrictions. Provides that a person who received a judicial driving permit before the effective date of the bill may continue to drive on that permit. Provides that a person who fails to comply with the requirements of a monitoring device driving permit commits the offense of driving on a revoked or suspended license. Provides that a person who holds a monitoring device driving permit convicted of the offense for driving a vehicle not equipped with an ignition interlock device, or a person eligible for a monitoring device driving permit convicted of driving with a drug or alcohol-related summary suspension, is guilty of a Class 4 felony and subject to 30 days of imprisonment. Amends the Unified Code of Corrections. Provides that a person who commits one of these offenses is not eligible for court supervision. 625 ILCS 5/1-144.5 new. Changes the effective date from January 1, 2008 to January 1, 2009.

House Amendment No. 2
Provides that, after a drug- or alcohol-related statutory summary suspension has been imposed on a first offender, the circuit court shall, unless the offender has opted in writing not to have a monitoring device driving permit issued (rather than if requested by the offender), order the Secretary of State to issue the offender a monitoring device driving permit.

Expunging-Sealing Criminal Record-Illinois

2008-08-17T14:47:00.004-05:00

EXPUNGEMENT: When a record is expunged, it is physically destroyed by each law enforcement agency, as if it never existed.

SEALED: When an Illinois State Police record is sealed, it is no longer available to your employer or other members of the public, but can still be seen by law enforcement agencies. When a clerk’s office record is sealed it is no longer available to employers or other members of the public, but can be viewed by members of the public if a judge specifically orders that they can see it.

CASES THAT CAN BE EXPUNGED:

1. Cases in which you were acquitted, released without conviction (including cases in which you were not charged), there was a not guilty finding or no probable cause finding, or nolle prosequi –Petitions to expunge may be filed immediately. If, however, your case was stricken off the call with leave to reinstate (“SOL”) or a non-suit, Petitions to expunge can only be granted 120 days (if demand for trial) or 160 days (if no demand for trial) after the case was SOL, and only if the prosecutor did not reinstate your case during this time period.

2. Cases, other than those listed in section 3, below, in which an Order of supervision was entered and two (2) years have passed since discharge and dismissal of supervision.

3. Cases in which an Order of supervision was entered and five (5) years have passed since termination of supervision for the following charges:

Retail Theft – 720 ILCS 5/16 A-3 Reckless Driving – 625 ILCS 5/11-503 Display of False Insurance – 625 ILCS 5/3-710 Suspended Registration for Non-Insurance - 625 ILCS 5/3-708 Uninsured Motor Vehicle – 625 ILCS 5/3-707

4. Cases in which an Order was entered terminating probation and at least five (5) years have passed since the order of termination was entered, under the following statutes:

Controlled Substance Act (410 Probation) – 720 ILCS 570/410 Cannabis Control Act (First Offender Only) – 720 ILCS 550/10

CASES THAT CANNOT BE EXPUNGED

Convictions, including:

1. A guilty plea, guilty finding, or guilty verdict resulting in a sentence other than probation under the Cannabis or Controlled Substances Acts.

2. Probation (except if you received 410 probation under the Controlled Substance Act or under the Cannabis Act)

3. Cases where the defendant was granted supervision for or was convicted of a sexual offense committed against a minor under 18 years of age (20 ILCS 2630/5(g))

4. Conditional Discharge

5. Time Considered Served

6. DUI/DWI Supervision

Once your record has been expunged, it “may not be considered by any private or public entity in employment matters, certification, licensing, revocation or certification or licensure, or registration,” (20 ILCS 2630/12) Employers are not allowed to ask you if you have had records expunged, and you are not required to disclose this information on employment applications. (20 ILCS 2630/12)

CASES THAT CAN BE SEALED

1. You are an adult or minor prosecuted as an adult for a misdemeanor, or municipal ordinance violation in which you were acquitted; released without being convicted (including cases where you were not charged), your conviction was reversed; or you received a sentence of supervision for a misdemeanor AND you have not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for three (3) years after being acquitted, or released, or your conviction being reversed, or having completed the terms and conditions of your supervision.

2. You are an adult or minor prosecuted as and adult for a qualifying Class 4 Felony or misdemeanor which resulted in a conviction AND you have not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for four (4) years after completing your sentence.

Once your record has been sealed, it “may not be considered by any private or public entity in employment matters, certification, licensing, revocation or certification or licensure, or registration,” (20 ILCS 2630/12) Employers are not allowed to ask you if you have had records expunged, and you are not required to disclose this information on employment applications. (20 ILCS 2630/12).

______________________________________________________________

Expunging and Sealing Criminal Records in Illinois

Cases that CAN be expunged:

a. Cases in which you are acquitted or released without being convicted (including cases in which you have not been charged). Petitions to Expunge may be filed immediately upon acquittal or release without conviction.

b. Cases, other than those listed in section c. below, in which an Order of supervision was entered and two (2) years have passed since discharge and dismissal of supervision.

c. Cases in which an Order of supervision was entered and five (5) years have passed since termination of supervision for the following charges:

• 625 ILCS 5/3-707 - Uninsured Motor Vehicle
• 625 ILCS 5/3-708 - Suspended Registration for Non-Insurance
• 625 ILCS 5/3-710 - Display of False Insurance
• 625 ILCS 5/5-401.3 - Scrap Processor to Keep Records
• 625 ILCS 5/11-503 - Reckless Driving
• 720 ILCS 5/12-3.2 - Domestic Battery
• 720 ILCS 5/12-15 - Criminal Sexual Abuse
• 720 ILCS 5/12-4.3 - Aggravated battery of a Child
• 720 ILCS 5/16 A-3 - Offense Retail Theft

d. Cases in which an Order was entered terminating probation and at least five (5) years have passed since the order of termination was entered, under the following statutes

• 720 ILCS 550/10 - Cannabis Control Act (First Time Offender Only)
• 720 ILCS 570/410 - Control Substance Act (First Time Offender Only)
• 720 ILCS 570/312(j) - Steroid Control Act
• 20 ILCS 305/10-102 or 301/40-10 - Alcohol and Drug Dependency Act

e. Cases in which the Governor has issued a pardon that specifically states that your records should be expunged.

Cases that CANNOT be expunged: Convictions, including:

a. A guilty plea, guilty finding, or guilty verdict which results in a sentence other than probation under the Cannabis, Controlled Substances, Steroid Control, and Alcohol and Drug Dependency Acts (720 ILCS 550/10, 720 ILCS 570/410, 720 ILCS 570/312(j), and 20 ILCS 305/10-102 or 301/40- 10),

b. Probation (except under the Cannabis, Controlled Substances, Steroid Control, and Alcohol and Drug Dependency Acts);

c. Cases where the defendant was granted supervision for or was convicted of a sexual offense committed against a minor under 18 years of age (20 ILCS 2630/5(g));

d. Conditional Discharge; and

e. D.U.I. Supervision (20 ILCS 2630/5).

Cases that CAN be Sealed:

Adult or minor prosecuted as an adult for misdemeanors or municipal ordinance violations which result in an acquittal, release without conviction, conviction reversed, or a sentence of supervision for misdemeanor AND Defendant/Petitioner was not convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for 3 years after the acquittal; or release or reversal of conviction, or completion of the terms and conditions of the supervision.

Adult or minor prosecuted as an adult which results in a conviction for a misdemeanor AND Defendant/Petitioner was not convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for 4 years after the completion of the sentence.

Cases that CANNOT be Sealed:

Pursuant to 20 ILCS 2630/5, the following case types and dispositions are not eligible for sealing of records:

* DUI, 625 ILCS 5/11-501
* Article 11, Criminal Code
* Criminal Sexual Abuse, 720 ILCS 5/12-15
* Violation of Order of Protection, 720 US 5/12-30
* Dog Fighting, 720 US 5/26-5
* Misdemeanor Crime of Violence under Section 2, Criminal Victims Compensation Act
* Class A Misdemeanor, Humane Care of Animals Act
* Sex Offender Registration Act Offenses

_______________________________________________________________________

20 ILCS 2630/5

(g) Except as otherwise provided in subsection (c-5) of this Section, the court shall not order the sealing or expungement of the arrest records and records of the circuit court clerk of any person granted supervision for or convicted of any sexual offense committed against a minor under 18 years of age. For the purposes of this Section, "sexual offense committed against a minor " includes but is not limited to the offenses of indecent solicitation of a child or criminal sexual abuse when the victim of such offense is under 18 years of age.

(h)(1) Applicability. Notwithstanding any other provision of this Act to the contrary and cumulative with any rights to expungement of criminal records, this subsection authorizes the sealing of criminal records of adults and of minors prosecuted as adults.

(2) Sealable offenses. The following offenses may be sealed:

(A) All municipal ordinance violations and misdemeanors, with the exception of the following:

(i) violations of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance;

(ii) violations of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance, except Section 11-14 of the Criminal Code of 1961 as provided in clause B(i) of this subsection (h);

(iii) violations of Section 12-15, 12-30, or 26-5 of the Criminal Code of 1961 or a similar provision of a local ordinance;

(iv) violations that are a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance;

(v) Class A misdemeanor violations of the Humane Care for Animals Act; and

(vi) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act.

(B) Misdemeanor and Class 4 felony violations of:

(i) Section 11-14 of the Criminal Code of 1961;

(ii) Section 4 of the Cannabis Control Act;

(iii) Section 402 of the Illinois Controlled Substances Act; and

(iv) Section 60 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/60]

However, for purposes of this subsection (h), a sentence of first offender probation under Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled Substances Act, or Section 70 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/70] shall be treated as a Class 4 felony conviction.

(3) Requirements for sealing. Records identified as sealable under clause (h) (2) may be sealed when the individual was:

(A) Acquitted of the offense or offenses or released without being convicted.

(B) Convicted of the offense or offenses and the conviction or convictions were reversed.

(C) Placed on misdemeanor supervision for an offense or offenses; and

(i) at least 3 years have elapsed since the completion of the term of supervision, or terms of supervision, if more than one term has been ordered; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(D) Convicted of an offense or offenses; and

(i) at least 4 years have elapsed since the last such conviction or term of any sentence, probation, parole, or supervision, if any, whichever is last in time; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(4) Requirements for sealing of records when more than one charge and disposition have been filed. When multiple offenses are petitioned to be sealed under this subsection (h), the requirements of the relevant provisions of clauses (h)(3)(A) through (D) each apply. In instances in which more than one waiting period is applicable under clauses (h)(C)(i) and (ii) and (h)(D)(i) and (ii), the longer applicable period applies, and the requirements of clause (h) (3) shall be considered met when the petition is filed after the passage of the longer applicable waiting period. That period commences on the date of the completion of the last sentence or the end of supervision, probation, or parole, whichever is last in time.

(5) Subsequent convictions. A person may not have subsequent felony conviction records sealed as provided in this subsection (h) if he or she is convicted of any felony offense after the date of the sealing of prior felony records as provided in this subsection (h).

(6) Notice of eligibility for sealing. Upon acquittal, release without conviction, or being placed on supervision for a sealable offense, or upon conviction of a sealable offense, the person shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records.

(7) Procedure. Upon becoming eligible for the sealing of records under this subsection (h), the person who seeks the sealing of his or her records shall file a petition requesting the sealing of records with the clerk of the court where the charge or charges were brought. The records may be sealed by the Chief Judge of the circuit wherein the charge was brought, any judge of that circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding trial judge at the defendant's trial, if any. If charges were brought in multiple jurisdictions, a petition must be filed in each such jurisdiction. The petitioner shall pay the applicable fee, if not waived.

(A) Contents of petition. The petition shall contain the petitioner's name, date of birth, current address, each charge, each case number, the date of each charge, the identity of the arresting authority, and such other information as the court may require. During the pendency of the proceeding, the petitioner shall promptly notify the clerk of the court of any change of address.

(B) Drug test. A person filing a petition to have his or her records sealed for a Class 4 felony violation of Section 4 of the Cannabis Control Act or for a Class 4 felony violation of Section 402 of the Illinois Controlled Substances Act must attach to the petition proof that the petitioner has passed a test taken within the previous 30 days before the filing of the petition showing the absence within his or her body of all illegal substances in violation of either the Illinois Controlled Substances Act or the Cannabis Control Act.

(C) Service of petition. The clerk shall promptly serve a copy of the petition on the State's Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest.

(D) Entry of order. Unless the State's Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to sealing of the records within 90 days of notice the court shall enter an order sealing the defendant's records.

(E) Hearing upon objection. If an objection is filed, the court shall set a date for a hearing and notify the petitioner and the parties on whom the petition had been served, and shall hear evidence on whether the sealing of the records should or should not be granted, and shall make a determination on whether to issue an order to seal the records based on the evidence presented at the hearing.

(F) Service of order. After entering the order to seal records, the court must provide copies of the order to the Department, in a form and manner prescribed by the Department, to the petitioner, to the State's Attorney or prosecutor charged with the duty of prosecuting the offense, to the arresting agency, to the chief legal officer of the unit of local government effecting the arrest, and to such other criminal justice agencies as may be ordered by the court.

7th Circuit interprets "questions of law" for reopening cases, post-Kucana

2008-07-30T16:26:00.011-05:00

Seventh Circuit Overrules Singh , Holds that 8 USCA § 1252(a)(2)(B)(ii) Bars Review of Decisions Regarding Motions to Reopen

Kucana v. Mukasey, No. 07–1002, 2008 WL 2639039 (7th Cir. July 7, 2008)

In Singh v. Gonzales, 404 F.3d 1024 (7th Cir. 2005), the Seventh Circuit held that the denial by the Board of Immigration Appeals (BIA) of an alien's motion to reopen removal proceedings did not fall within the jurisdiction-stripping provision for discretionary decisions of the Attorney General, INA § 242(a)(2)(B)(ii) [8 USCA § 1252(a)(2)(B)(ii)], because “conspicuously absent” from the statute providing for motions to reopen, INA § 240(c)(6) [8 USCA § 1229a(c)(6)], is any specific language entrusting the decision to the discretion of the Attorney General. Subsequently, in Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), the Seventh Circuit held that under 8 USCA § 1252(a)(2)(B)(ii), it lacked jurisdiction to review a BIA decision affirming the denial of an alien's request for a continuance of his removal proceedings because such a motion is a discretionary decision the authority for which is committed to the immigration judge (IJ) not only expressly by regulation (8 CFR § 1003.29), but implicitly as part of the IJ's plenary authority under 8 USCA § 1229a to control the course of removal proceedings. [FN1]

In Kucana v. Mukasey, 2008 WL 2639039 (7th Cir. July 7, 2008), a panel of the Seventh Circuit, in an opinion written by Chief Judge Frank H. Easterbrook, held that 8 USCA § 1252(a)(2)(B)(ii) deprives the court of jurisdiction to review a BIA decision denying the alien's motion to reopen, and that Singh must be overruled to the extent it holds otherwise.

As background, 8 USCA § 1252(a)(2)(B)(i) provides in part as follows:

except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section 1182(h) [regarding waiver of certain grounds of inadmissibility], 1182(i) [regarding waiver of inadmissibility based on fraud or willful misrepresentation of a material fact], 1229b [regarding cancellation of removal], 1229c [regarding voluntary departure], or 1255 [regarding adjustment of status of nonimmigrant to that of person admitted for permanent residence] of this title.

8 USCA § 1252(a)(2)(B)(ii) provides in part as follows: except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter [Subchapter II, Immigration] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title [regarding applications for asylum].

8 USCA § 1252(a)(2)(D) provides as follows: Nothing in subparagraph (B) ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 USCA § 1252(b)(6) provides: When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.

Chief Judge Easterbrook said:

Recently this circuit addressed the question--on which other courts of appeals are divided--whether § 1252(a)(2)(B)(ii) applies when the agency's discretion is specified by a regulation rather than a statute. After the parties filed their briefs in this case, we held in Ali ... that § 1252(a)(2)(B)(ii) applies to discretionary decisions under regulations that are based on and implement the Immigration and Nationality Act. The discretionary decision in Ali was whether to grant an alien's request for a continuance of a hearing; here the discretionary decision is whether to reopen the proceeding and hold a new hearing. Regulations specify that both decisions are discretionary; both regulations draw their force from provisions in the Act allowing immigration officials to govern their own proceedings. See 8 U.S.C. § 1229a(c)(7) (authority for reopening by Board). It follows that they are equally subject to § 1252(a)(2)(B)(ii).

The panel's view in Singh was that consolidation of proceedings concerning direct and reopening decisions would be pointless, if orders denying reopening never were subject to judicial review. That was true when the panel issued its opinion (April 15, 2005) but is true no longer. On May 11, 2005, the Real ID Act, Pub.L. 109-13 Div. B Tit. I, took effect. Today decisions denying reopening are within our jurisdiction to the extent provided by § 1252(a)(2)(D)... Because discretionary decisions now may be reviewed when they entail “constitutional claims or questions of law”, there's nothing incongruous about the consolidation rule in § 1252(b)(6). Applying § 1252(a)(2)(B)(ii) to orders denying motions to reopen will not make any part of the statute unnecessary.

The Real ID Act not only changed the relation among statutory subsections but also alleviated the principal consideration that had led the judiciary to confine clauses such as § 1252(a)(2)(B)(ii) to the least scope they had to have. Judges were concerned that an elimination of all review would permit the agency to violate statutes and the Constitution at will. The enactment of § 1252(a)(2)(D) eliminates that reason for giving § 1252(a)(2)(B) a narrow reading--and, as the other arguments advanced in Singh also have been overtaken by events, we conclude that Singh must be overruled to the extent it holds § 1252(a)(2)(B)(ii) inapplicable to discretionary reopening decisions.

Chief Judge Easterbrook's opinion was circulated under Circuit Rule 40(e) to all 15 active judges. A majority of them did not favor a hearing en banc. However, five judges (Joel M. Flaum, Kenneth F. Ripple, Ilana Diamond Rovner, Diane P. Wood, and Ann Claire Williams) voted in favor of a hearing en banc.

Judge Ripple, concurring, dubitante: [FN2]

Judge Ripple agreed with the principal opinion that the disposition of the present case appears to be controlled by the court's holding in Ali, which he said “operates as a de facto overruling of our decision in Singh...” He added:

Although I believe that we are bound by the holding in Ali and that the principal opinion represents a logical extension of that holding, I write separately because I continue to be concerned by the breadth of Ali's holding. In Ali, we addressed our authority to hear appeals from the denial of a motion to continue--an interim decision, discretionary in nature, which “derives from 8 U.S.C. § 1229a,” which, in turn, “confers upon immigration judges the plenary authority to conduct removal proceedings.” ... We further observed that “[t]he regulation regarding continuances simply implements the immigration judge's statutory authority to control the course of removal proceedings.” .... Here, however, the rationale of Ali is being applied beyond the realm of procedural rulings; it is being used to deny aliens review of substantive decisions of the Board of Immigration Appeals that are based on a mistake or misunderstanding of the factual basis of the claim--decisions that the Supreme Court has analogized to motions under Federal Rule of Civil Procedure 60(b) [regarding grounds for relief from a final judgment, order, or proceeding]. ... Furthermore, although the present case involves only a motion to reopen, Ali's rationale would appear to apply equally to motions to reconsider--the basis for which must be a mistake or misapprehension of law. ... In short, the rationale of Ali, taken to its logical conclusion, deprives this court of jurisdiction to review the BIA's mistakes of fact and law made during the course of deciding whether an alien should be removed from this country.

Although the result today appears to be dictated by circuit precedent, I respectfully suggest that, had Congress intended to deprive this court of jurisdiction of specific substantive decisions, it would have done so explicitly, as it did in 8 U.S.C. § 1252(a)(2)(B)(i). As Ali spreads its dominion to substantive fields, it is turning this court into a virtual council of revision with respect to settled federal law. Before taking these steps, we should revisit the holding in Ali and determine whether we should chart a course that more closely adheres to the statutory language chosen and enacted by Congress.

Judge Richard D. Cudahy, dissenting:

In Ali ... we adopted a view, which (as that opinion acknowledged) is in a minority one among the circuits, with respect to our jurisdiction over appeals from denials of continuances. Six of our sister courts had concluded that 8 U.S.C. § 1252(a)(2)(B)(ii) did not preclude federal appellate courts from reviewing orders denying such motions. Only the Eighth and Tenth Circuits had held that § 1252(a)(2)(B)(ii) precludes federal courts of appeals from reviewing an immigration judge's denial of a continuance. ... Yet even these courts continue to exercise jurisdiction over motions to reopen. ... The principal opinion would cause us to become a minority within the minority, giving the executive branch the authority to insulate its decisions from judicial review where there is no clear indication in the statute that Congress intended to strip us of our jurisdiction. Our isolated posture in this respect may give us pause here.

Ultimately, the principal opinion rests its rejection of Singh upon the focus of the Real ID Act upon judicial reviewability of “constitutional claims or questions of law.” According to the principal opinion this eliminates the need for a narrow reading of jurisdiction-stripping provisions and meets the judiciary's principal concern in this area. I think this exercise in judicial psychoanalysis must yield to broader principles favoring judicial review of administrative decisions.

As the concurrence points out, the rationale of the principal opinion would bar our review of motions to reconsider, which are based on errors of law and fact. Absent “ ‘specific language or specific legislative history that is a reliable indicator of congressional intent,’ or a specific congressional intent to preclude judicial review that is ‘fairly discernible in the detail of the legislative scheme,’ ” Traynor, 485 U.S. at 542, 108 S.Ct. 1372, 99 L.Ed.2d 618 (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 673, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986)), I am reluctant to broaden the immunity from review of an administrative process not necessarily renowned for its reliability.

Judge Ripple, with whom Judges Rovner, Wood, and Williams join, dissenting from the denial of a rehearing en banc:

This case presents an important issue with respect to the scope of this court's holding in Ali ... In Ali, we addressed our authority to hear appeals from the denial of a motion to continue--an interim decision that is discretionary in nature. ... Here, however, the rationale of Ali is being applied beyond the realm of such a procedural ruling; it is being used to deny aliens review of a motion to reopen, a decision of the Board of Immigration Appeals that is based on a mistake or misunderstanding of the factual basis of the claim. This expansion into the realm of outcome determinative decisions takes us a long way from the statutory language chosen and enacted by Congress. See 8 U.S.C. § 1252(a)(2)(B)(i).

Applying Ali to deny aliens review of the decision whether to reopen crystalizes the importance of revisiting the breadth of that holding: The Supreme Court has analogized motions to reopen to motions under the Federal Rule of Civil Procedure 60(b) .... Indeed, since the panel's consideration of this case, the Supreme Court has characterized motions to reopen as an “important safeguard” designed to “ensure a proper and lawful disposition.” Dada v. Mukasey, No. 06-1181, --- S.Ct. ----, 2008 WL 2404066 at *15, 16 (June 16, 2008). [FN3] This new holding of the Supreme Court should make us pause, take a deep breath and consider anew whether we really want to take the Circuit down a path so contrary to the manifest intent of Congress and to the Supreme Court's understanding of that intent. If we take such a course, our decision will no doubt warrant close scrutiny by the Supreme Court.

Michael R. Lang, Chicago, Illinois, for the petitioner. Kathryn Deangelis, Department of Justice Civil Division, Immigration Litigation, Washington, D.C., for the respondent.

[FN1]. Ali is discussed in 84 Interpreter Releases 2265 (Oct. 1, 2007).

[FN2]. Black's Law Dictionary (8th ed. 2004) defines “dubitante” as indicating that the judge doubts a legal point but is unwilling to state that it is wrong.

[FN3]. Dada is discussed in 85 Interpreter Releases 1789 (June 23, 2008) and 85 Interpreter Releases 1878 (July 7, 2008).

USCIS FOIA Request Status Check-Freedom of Information Act

2008-07-17T17:56:00.007-05:00

USCIS Launches Online Service to Check Status of FOIA Requests, June 30, 2008
FOIA Request Status Check

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) recently launched the online FOIA Request Status Check service providing customers a quick and secure way to check the status of requests they have made under the Freedom of Information Act (FOIA).

Customers can use the online service anytime by entering their assigned control number to receive an immediate response on the status of their FOIA request. The customer will then receive either a ‘pending’ or ‘processed’ response. A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A ‘processed’ request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information.

Customers without Internet access can still obtain information on their FOIA requests by calling the USCIS FOIA Requester Service Center at (816) 350-5785 from 7 a.m. to 2:15 p.m. (Central Time).

As USCIS receives more than 110,000 requests annually for access to immigration records, the agency continues to improve its FOIA procedures and enhance processing times. For example, last year USCIS launched a new ‘Notice to Appear’ track that provides accelerated access of a large portion of FOIA requests from individuals, or their representatives, who have been notified to appear before an immigration court. That new track provides those customers quicker access to their Alien-File (‘A’-File) when it is requested through the FOIA process.

For more information on USCIS’ FOIA program, visit www.uscis.gov or contact the National Customer Service Center at (800) 375-5283 (TTY 800-767-1833).

FOIA Request Status Check

Naturalization Interview Process Changes

2008-07-16T13:32:00.007-05:00

Memorandum

TO: Field Leadership

FROM: Don Neufeld /s/ Acting Associate Director, Domestic Operations

DATE: April 25, 2008

U.S. Citizenship and Immigration Services Office of Domestic Operations Washington, DC 20529 35.2HQ 70/

SUBJECT: Naturalization Interview Process Changes

Introduction: In response to the surge of applications received last summer, USCIS has developed a plan to address the increased naturalization workload by hiring and training several hundred adjudicators over the next several months. While we welcome this much needed infusion of new staff, it is important to recognize and plan for the challenges associated with such rapid growth. That is one reason why we have instructed managers to ensure greater oversight over new staff in general, and specifically with respect to NQP, quality decision review and decisions in general.

How we utilize new and experienced staff as we grow is particularly crucial to maintaining quality. With respect to naturalization, while every aspect of the process is important, we also have the opportunity to use the steps of the process as a way to introduce new officers and staff to the process, initially using them in less complex decision-making. This also lets us focus experienced adjudicators on the final determination of eligibility.

The purpose of this memorandum is to improve the alignment of essential naturalization activities with the skill sets of our workforce. The changes identified hereafter focus on assigning work to Trainee Adjudications Officers and other staff that is both grade appropriate and commensurate with their abilities. This work will assist more senior adjudicating officers in identifying issues that require further examination, and is consistent with our efforts to maintain quality levels as we grow significantly this year by adding a large number of newly trained staff.

Further, this memorandum provides clarification and guidance on various procedural steps associated with conducting a naturalization interview.

Pre-examination check-in process

As applicants arrive at the Field Office for their naturalization examination, consideration should be given to tasks that can be done prior to the applicant’s formal examination; (i.e., signing the photo and distribution of any related informational materials).

In this regard, as applicants arrive, offices are encouraged to provide the applicants an opportunity to review the N-400 Interview Preparation Notice (included). This notice is provided as an advisory to help prepare the applicant to inform the interviewing officer of any events that may have occurred after submitting their N-400 and which may have bearing on the adjudication.

Offices are also encouraged to verify certificate preparation information with the applicant prior to the interview. Offices can utilize the N-400 Interview Preparation Worksheet B (included) for this purpose. A USCIS representative should complete the shaded portion of Worksheet B with the applicant to verify the biographic information that will appear on the naturalization certificate. 1 CLAIMS 4 should be updated at this point with the biographic information.

Effective immediately, applicants are to sign their photos using their normal signature. Normal signature means signature in English unless exempt the English language requirement of 8 CFR 312. Signatures need not be legible and names may be shortened consistent with the applicant’s normal signature. Applicants who are seeking a change of name at the time of naturalization should not sign their photos until after the name change is granted.

Naturalization Testing

When required, USCIS will assess the applicant’s ability to read, write, and speak words in ordinary usage in the English language, and assess whether the applicant has a sufficient knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. USCIS will evaluate the history and civics portion through a naturalization test. USCIS also evaluates English language ability through administration of the naturalization test and the full oral interview.

Once the pre-examination check-in process has been completed, offices are encouraged to consider testing the applicants’ knowledge of American government and history (civics), and their ability to read and write English, separately prior to the interview. This procedure has been successfully utilized in the past. It has provided a means of maintaining the quality of N-400 interviews because the interviewing officer is able to focus on the other eligibility issues. Interviewing officers will continue to determine the applicant’s ability to speak and understand English through the oral interview process.

The only difference from current practice is the sequence – that the English and civics tests can be administered before the interview following the pre-examination check-in process, as opposed to during the actual interview. The tests must be administered by designated and trained personnel. The test questions, test administration, reasonable accommodation requirements and standards for passing remain unchanged.

1 The name, sequence of the name and date of birth will continue to be verified by the interviewing officer.

If an applicant passes the civics test and is able to read and write words in ordinary usage in the English language, the record should be so noted (using the attached Worksheet B), which when executed becomes an addendum to the NQP worksheet. If the applicant passes only the English language portion or only the civics portion of the tests, the record should be so noted (using the attached Worksheet B). The completed Worksheet B should be maintained in the A-file under the N-400 application. This information should also be captured in CLAIMS 4. The Naturalization Quality Procedures (NQP) worksheet (Form N-650) should be initialed and dated by the interviewing officer as appropriate. The interviewing officer will note “See Worksheet B” in the “Remarks” section of the N-650. If the applicant fails either portion of this test administered prior to the interview, the interview should be conducted and the applicant should then be scheduled to be re-tested as required. Wherever possible, scheduling of a follow-up English literacy and civics test should be done at the time of the current examination so that applicants know when they will have their second and last opportunity to take the test.

Applicants claiming exemption from the English literacy requirements may be tested on the civics portion in their native language under these new procedures provided they meet the age and residency requirements. The testing procedures above do not apply to applicants claiming exemption from the English and Civics requirements due to medical disability; for these applicants testing will remain a function of the interviewing officer.

Interview

As directed in Chapter 74 of the Adjudicator’s Field Manual, questioning of an applicant must cover all requirements for naturalization. Questions during the examination should build on the results of the preliminary analysis, such as background check results. If the results of the background checks or other preliminary analysis raise questions of eligibility, or the applicant’s response to questions on the N-400 brings eligibility into question, the officer should focus attention on those issues. Additionally, officers are required to ask each applicant the questions contained in Part 10 H of the N-400. Supervisors should regularly monitor and observe officers to ensure that officers are asking essential or pertinent questions relating to the benefit sought.

Post-Examination process

When an officer has concluded the interview, the case file may be returned to designated non- officer personnel for post examination processing. Post examination processing may include any duties previously performed by the examining official following an interview and include: scheduling of a follow-up appointment for English literacy and/or civics testing; photo and/or certificate signing; CLAIMS 4 decisional updating; and oath ceremony scheduling.

Designations The actual examination of naturalization applicants and the approval of naturalization applications must be conducted by a designated examiner. Immigration regulations (See 8 CFR 332.1(a)) designate immigration examiners,3 and provide that other officers of the Service may be so designated provided that each officer so designated has received appropriate training.4 Through this memorandum we are designating the USCIS officer corps, including Adjudications Officers, Fraud Detection and National Security Officers, Asylum Officers, Application Support Center Managers, Application Adjudicators and Immigration Information Officers,5 for the purpose of administering the civics test and the English language reading and writing proficiency test. The grade level of these officer corps positions are all at or above the range of grades of what was an Immigration Examiner. For example, when an applicant appears for the naturalization interview, offices should consider having an Information Officer, Trainee Adjudications Officer, Applications Adjudicator or ASC Manager administer the reading and writing part of the English test and the civics test.

Through this memorandum we are designating the positions of Adjudications Officers and Application Adjudicators for the purpose of the interview and adjudication of naturalization applications, and are further designating Asylum Officers for this purpose when acting in the role of an Adjudications Officer. In order for officers falling within the aforementioned designated positions to conduct N-400 interviews or adjudicate N-400 applications, they must have completed mandatory training for new officers. This would include BASIC, IOBTC, or OTPIOBTC.

Conclusion

We recognize that given office configurations and currently available personnel, not every office will be able to immediately implement every step described above in advance of the actual interview and examination. However, offices are encouraged to implement these where possible, and to work closely with district and regional management in that respect. As steps are implemented, they must conform to the stipulations of this memorandum. Implementation is designed to increase the quality of the process by focusing the interview on the determination of eligibility. Implementation will also allow for the introduction of newer staff into less complex elements of the process and focus more experienced officers on determining naturalization eligibility.

While this memorandum authorizes specific process and sequence changes, the NQP requirements for quality control and process tracking must continue to be met.

While key areas of the naturalization process have been identified for improvement, there are still other processes that may be improved. Field Offices are encouraged to propose process improvements and forward suggestions and/or ideas through their designated chains of command to the Regional Directors for approval prior to implementation.

3. The position of Immigration Examiner was a discrete type of position within the Immigration and Naturalization Service. Within INS the position existed at the GS-5 through GS-11 grades, with a subsequent change in the journeyman grade to GS-12. The position of Immigration Examiner was subsequently converted to the Adjudications Officer position of today, which similarly exists at the GS-5 through GS-12 grades. 4 Testing standards and procedures are contained in Chapter 74 of the Adjudicators Field Manual. Field Offices must provide instruction in test administration requirements prior to designating an employee for this purpose. 5 Asylum Officers and Fraud Detection and National Security Officers would perform these duties on overtime.

Questions regarding this memorandum should be directed through appropriate channels to Robert Fenwick, Acting Branch Chief, HQ Office of Field Operations.

DISTRIBUTION LIST: Field Leadership

ATTACHMENTS: N-400 Interview Preparation Notice N-400 Interview Preparation Worksheet B
Download Memo

Voluntary Departure, conclusion of removal proceedings

2008-07-07T09:10:00.004-05:00

Supreme Court Holds that Alien Must Be Allowed to Withdraw Request for Voluntary Departure but Voluntary Departure Is Not Automatically Tolled
Dada v. Mukasey, 128 S. Ct. 2307 (U.S. June 16, 2008)

Petitioner, a native and citizen of Nigeria, who had requested and been granted voluntary departure, petitioned for review of Board of Immigration Appeals' (BIA) denial of petitioner's request to withdraw voluntary departure. The Court of Appeals for the Fifth Circuit, 207 Fed.Appx. 425, affirmed BIA's denial of request to withdraw voluntary departure.

Holding: The Supreme Court, Justice Kennedy, held that to safeguard the right to pursue a motion to reopen for voluntary departure recipients, petitioner had to be permitted an opportunity to withdraw a motion for voluntary departure, provided the request was made before the departure period expired. Reversed and remanded.

Justice Scalia, with whom Chief Justice Roberts and Justice Thomas joined, dissented and filed opinion.

Justice Alito dissented and filed opinion.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. 8 U.S.C.S. § 1229a(c)(7). The Act also provides, however, that if the alien's request for voluntary departure is granted after he or she is found removable, the alien is required to depart within the period prescribed by immigration officials, which cannot exceed 60 days. 8 U.S.C.S. § 1229c(b)(2). Failure to depart within the prescribed period renders the alien ineligible for certain forms of relief, including adjustment of status, for a period of 10 years. 8 U.S.C.S. § 1229c(d)(1). Pursuant to regulation, however, departure has the effect of withdrawing the motion to reopen. 8 C.F.R. § 1003.2(d) (2007).

Voluntary departure is a discretionary form of relief that allows certain favored aliens -- either before the conclusion of removal proceedings or after being found deportable -- to leave the country willingly.

When voluntary departure is requested at the conclusion of removal proceedings, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides a voluntary departure period of not more than 60 days. 8 U.S.C.S. § 1229c(b)(2). The alien can receive up to 120 days if he or she concedes removability and requests voluntary departure before or during removal proceedings. 8 U.S.C.S. § 1229c(a)(2)(A). Appropriate immigration authorities may extend the time to depart but only if the voluntary departure period is less than the statutory maximum in the first instance. The voluntary departure period in no event may exceed 60 or 120 days for § 1229c(b) and § 1229c(a) departures, respectively. 8 C.F.R. § 1240.26(f) (2007).

The voluntary departure period typically does not begin to run until immigration administrative appeals are concluded. 8 U.S.C.S. § 1101(47)(B). 8 U.S.C.S. § 1229c(b)(1) provides that the Attorney General may permit voluntary departure at the conclusion of removal proceedings.

An alien involuntarily removed from the United States is ineligible for readmission for a period of 5, 10, or 20 years, depending upon the circumstances of removal. 8 U.S.C.S. § 1182(a)(9)(A)(i), (ii). An alien who makes a timely departure under a grant of voluntary departure, on the other hand, is not subject to these restrictions -- although he or she otherwise may be ineligible for readmission based, for instance, on an earlier unlawful presence in the United States, § 1182(a)(9)(B)(i).

A motion to reopen is a form of procedural relief that asks the Board of Immigration Appeals to change its decision in light of newly discovered evidence or a change in circumstances since the hearing. Like voluntary departure, reopening is a judicial creation later codified by federal statute. The reopening of a case by the immigration authorities for the introduction of further evidence is treated as a matter for the exercise of their discretion; where the alien was given a full opportunity to testify and to present all witnesses and documentary evidence at the original hearing, judicial interference has been deemed unwarranted.

To safeguard the right to pursue a motion to reopen for voluntary departure recipients, an alien must be permitted an opportunity to withdraw a motion for voluntary departure, provided the request is made before the departure period expires; as a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure, or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion. Immigration and Nationality Act, §§ 240(c)(7), 240B(b), (d)(1), 8 U.S.C.A. §§ 1229a(c)(7), 1229c(b), (d)(1).

"The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that--

"(A) the alien has been physically present in the United States for a period of at least one year im- mediately preceding the date the notice to appear was served under section 1229(a) of this title;

"(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure;

"(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and

"(D) the alien has established by clear and convincing evidence that the alien has the means to depart the United States and intends to do so." 8 U.S.C. § 1229c(b)(1).

Child Status Protection Act, CSPA

2008-06-27T17:14:00.005-05:00

On August 6, 2002 President Bush signed the Child Status Protection Act. This new law addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of UCIS processing delays. (when children of U.S. citizens turn 21 years of age, they "age-out" of their immediate relative status to the status of family-first preference: the Fl category.) Public Law (P.L. 107-208), 08/06/02.

The new act provides that the determination of whether an unmarried alien son or daughter of a US citizen is considered an "immediate relative child" (under 21 years of age) will be based on the age of the alien at the time the Petition for Alien Relative (Form I-130) is filed on his or her behalf, rather than on the date the petition is adjudicated, as is the case under current law.

The new law also provides similar determinations in the case of permanent resident parents who subsequently naturalize after having filed petitions for their sons or daughters and citizen parents who file petitions for married sons or daughters where such sons or daughters later divorce. In the first situation, the age determination will be made at the time of the parents' naturalization. In the latter, the alien beneficiary's age will be determined as of the date of his or her divorce.

For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability.

In addition, the new law provides age-out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status.

Finally, the new law provides that the family-sponsored petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized US citizen will be converted to a petition for an unmarried son or daughter of a US citizen, unless the son or daughter elects otherwise.

Because certain aliens are subject to quota restrictions, the law provides for an orderly waiting list, based on the date that the first official step was taken to immigrate the alien. For family based applicants, this is the date the UCIS first accepted the immigrant preference petition filed on the alien's behalf. For employment based applicants, this date is the earlier of the date a labor certification was filed on the alien's behalf, or the date an immigrant preference petition was filed, if no labor certification is required. This date is known as the alien's priority date. A priority date is not "perfected" until the immigrant preference petition is actually approved. Once a preference petition beneficiary receives a priority date, he or she may be able to retain it even if the preference classification changes. For example, employment based immigrants are entitled to retain their EB priority dates even if they change jobs or move switch classifications. Similarly, family based beneficiaries are allowed to retain their priority dates if they automatically convert from one classification to another though marriage, age, or the naturalization of the petitioner.

Revised Guidance for the Child Status Protection Act (CSPA) 30APRIL2008: how the agency interprets the statute to apply to aliens who aged out prior to the enactment date of the CSPA. It also permits those individuals who were ineligible under the prior policy to file a new application for permanent residence. Under certain circumstances, this guidance also permits those individuals who were previously denied for CSPA to file motions to reopen or reconsider without filing fee. It also explains what steps certain aliens who do not automatically benefit from the CSPA can take to protect their status as a child. This guidance contained in the AFM update below replaces the following two memoranda: The Child Status Protection Act, issued September 20, 2002; and The Child Status Protection Act – Memorandum Number 2, issued February 14, 2003.

June 14, 2006 USCIS memo: Clarification of Aging Out Provisions as They Affect Preference Relatives and Immediate Family Members Under The Child Status Protection Act Section 6 And Form I-539 Adjudications for V Status (Opting out under the CSPA: The effect of naturalization in family-based immigration. U.S. Citizenship and Immigration Services issued a memo on June 14, 2006, clarifying that the children of a lawful permanent resident will not automatically lose V-2 or V-3 status when the parent naturalizes).

INS Guidance on Child Status Protection Act (09/20/02).

Department of State Cable on Child Status Protection Act (09/08/02).

Revised Cable on Child Status Protection Act, Department of State ALDAC #2 (01/03/03)(pdf)

Department of State ALDAC #3 (05/03/03) (pdf) PROCEDURAL INSTRUCTIONS.

Department of State ALDAC #4 (05/03/03) (pdf) WHAT CONSTITUTES A "FINAL DETERMINATION" ON AN APPLICATION ADJUDICATED PRIOR TO THE EFFECTIVE DATE.

Section 6 of the Child Status Protection Act, Joe Cuddihy /s/ Director, International Affairs, HQOPRD 70/6, March 23, 2004. Section 6 of the CSPA allows for unmarried sons or daughters of lawful permanent residents (LPRs) to remain classified as second preference aliens, even if the LPR parent naturalizes. The purpose of this memorandum is to provide guidance on adjudicating requests tendered pursuant to section 6 of the CSPA.

CHILD STATUS PROTECTION ACT, PUBLIC LAW 107-208 [H.R. 1209] AUG. 06, 2002.

Illinois Gun Laws: possession, carrying firearms, ammunition

2008-05-30T16:56:00.008-05:00

Illinois Gun laws
Unlawful Use of Weapons

STATE CONSTITUTIONAL PROVISION

“Subject only to the police power, the right of the individual citizen
to keep and bear arms shall not be infringed.” Section 22, Article I of
the Illinois Bill of Rights.4

PURCHASE: A buyer is required to show his Firearms Owner’s Identification Card (FOID) when purchasing any firearms or ammunition. Any seller is required to withhold delivery of any handgun for 72 hours, and of any rifle or shotgun for 24 hours, after the buyer and seller reach an agreement to purchase a firearm. The waiting period does not apply to a buyer who is a dealer, law enforcement officer, or a nonresident at a gun show recognized by the Illinois Department of State Police. The seller must retain for 10 years a record of the transfer, including a description of the firearm (including serial number), the identity of the buyer, and the buyer’s FOID number.

A federally licensed dealer must contact the Department of State Police for a background check, for which there is a $2.00 fee. Any sales at gun shows, including dealers and private parties, must contact the state police for a background check.

Private parties selling firearms at gun shows must ensure the buyer has a FOID card and the buyer must undergo a background check. It is unlawful to sell or give any handgun to a person under 18, or any firearm to a person who is not eligible to obtain a FOID.

REQUIREMENTS FOR FOID

Application for a FOID is made to the Illinois State Police, FOID, P. O. Box 19233, Springfield, IL 62794-9233. Application forms can be obtained online at http://www.isp.state.il.us or by calling the Firearm Owners Identification Program at (217)782-2980. An applicant is entitled to a FOID if he:

• Is over 21 years of age. If under 21, he must have the written consent of his parent or guardian. In such case, the guardian himself must not be ineligible for a FOID, and the applicant must never have been convicted of a misdemeanor or adjudged a delinquent.
• Has never been convicted of a felony.
• Is not a narcotics addict.
• Has not been a patient in a mental hospital in the preceding five years.
• Is not mentally retarded.
• Is not an alien who is unlawfully present in the United States.
• Is not subject to an existing order of protection prohibiting the possession of a firearm.
• Has not been convicted within the past 5 years of battery, assault, aggravated assault, violation of an order of protection, or a substantially similar offense in another jurisdiction, in which a firearm was used or possessed.
• Has not been convicted of domestic battery or a substantially similar offense in another jurisdiction committed on or after January 1, 1998.
• Has not been convicted within the past 5 years of domestic battery or a substantially similar offense in another jurisdiction committed before January 1, 1998.

An applicant for a FOID must consent to the Department using the applicant’s digital driver’s license or Illinois ID card photograph, if available, and signature on the FOID, and must furnish the Department with his driver’s license or Illinois ID card number. The Department must approve or deny the FOID within 30 days, and is authorized to deny the FOID only if the applicant does not meet the listed qualifications. The FOID fee is $5 and it is valid for five years from the date of issuance. The Department shall forward to each FOID holder, a notice of expiration and a renewal notice application, 60 days prior to expiration.

A FOID may be revoked and seized if the holder made a false statement on the application, is no longer eligible, or whose mental condition poses a clear and present danger to self, others, or community. A written notice must be given with the grounds for denial or revocation and seizure.

A person whose FOID has been revoked or seized or whose FOID application was denied or not acted upon within 30 days may appeal the decision to the Director of the Department of State Police, unless it was based upon certain violent, drug, or weapons offenses. In that case, the aggrieved person may petition the circuit court in the county of his residence. If the Director upholds the Department’s decision, the applicant may appeal to the courts. Any judicial review generally will be limited to the question of whether the Department’s decision was “arbitrary and capricious.”

POSSESSION

It is unlawful to possess any firearm or ammunition without a valid FOID.

It is unlawful to possess any rifle having one or more barrels less than 16 inches in length or a shotgun having one or more barrels less than 18 inches in length or any weapon made from a rifle or shotgun, if such weapon as modified has an overall length of less than 26 inches.

It is unlawful for any person under the age of 18 to possess a handgun, or concealable firearm.

It is unlawful for the following persons to possess a firearm or ammunition: 1)under 21 who has been adjudged delinquent or been convicted of a misdemeanor other than a traffic offense; 2)is a narcotic addict; 3)within the past 5 years has been a patient in a mental hospital; 4)is mentally retarded; 5)or a convicted felon.

It is unlawful for any person to possess any firearm with intent to use it unlawfully against another. It is unlawful to possess any firearm in any place licensed to sell intoxicating beverages, or “at any public gathering held pursuant to a license issued by any governmental body,” or at any public gathering (except a gun show) at which an admission is charged. An exception is provided for the owner, manager or an authorized employee of the specified establishments.

An unemancipated minor is not required to have a FOID in order to possess a firearm or ammunition while under the immediate control of a parent, guardian or other person in loco parentis who has a valid FOID. A person with a FOID card can loan a gun to a non-FOID card owner as long as the gun was used at a range and under the supervision of the owner.

It is unlawful to possess firearms or ammunition on the grounds or
building of a school. Exempt are students in firearm training courses,
parades, hunting, target shooting on school ranges, or otherwise with
the consent of school authorities and which firearms are transported
unloaded and enclosed in a suitable case, box, or transportation
package.

NOTE: In Chicago it is unlawful to keep any firearm unless it has been
registered with the Chicago Police at Daley Center. All firearms brought
into the city must be registered. The registration certificate (valid
for 1 year) must be carried simultaneously with the firearm, and
exhibited upon demand of any police officer. Handguns may not be
registered after 1982. So-called assault firearms may not be registered.

CARRYING

It is unlawful to carry or possess any firearm in any vehicle or concealed on or about the person, except on one’s land or in one’s abode or fixed place of business. It is unlawful to carry or possess any firearm on or about one’s person upon any public street, alley, or other public lands within the corporate limits of a city, village, or incorporated town, except when: an invitee thereon or therein; for the purpose of the display of firearms or the lawful commerce in firearms; or when on one’s land or in one’s abode or fixed place of business.

Exceptions are persons using their firearms on established target
ranges; licensed hunters, trappers, or fishermen while engaged in their
licensed activity; transportation of firearms that are broken down in a
non-functioning state or are not immediately accessible (e.g., in the
trunk of a car); and transportation, carrying, or possession of a
firearm which is unloaded and enclosed in a case, firearm carrying box,
shipping box, or other container, by the possessor of a valid FOID.
Under the Wildlife Code, it is unlawful to have or carry any firearm in
or on any vehicle or conveyance unless unloaded and enclosed in a case.

NON-RESIDENTS

A non-resident is permitted to possess a firearm without a FOID if it is
unloaded and enclosed in a case, or if the nonresident is:

• Hunting and has a non-resident hunting license, while in an area where hunting is permitted.
• On a target range recognized by the Department of State Police.
• At a gun show recognized by the Department of State Police.
• Currently licensed or registered to possess a firearm in his state of residence.

Any resident of Iowa, Missouri, Indiana, Wisconsin or Kentucky, who is 18 years of age or older and who is not prohibited by the laws of Illinois, the state of his domicile, or the United States from obtaining, possessing or using a firearm, may purchase or obtain a rifle, shotgun or ammunition for a rifle or shotgun in Illinois. A non-resident who qualifies to possess a firearm under one of the above-listed exceptions may also purchase ammunition.

ANTIQUES AND REPLICAS

An antique firearm which “the Department of State Police finds by reason of the date of manufacture, value, design, and other characteristics is primarily a collectors item and is not likely to be used as a weapon” is exempt from the above regulations on purchase.

MACHINE GUNS

It is unlawful to sell, manufacture, purchase, possess or carry any weapon from which more than one shot may be discharged by a single function of the trigger, including the frame or receiver of any such weapon. bination of parts designed or intended for use in converting any weapon into a machine gun, or any combination or parts from which a machine gun can be assembled.

There is an exception to the above prohibition, providing for the manufacture, transportation, and sale of machine guns to law enforcement and military personnel for official purposes, provided such weapons are “broken down in a non-functioning state or not immediately accessible.”

This prohibition does not apply to persons licensed to manufacture machine guns or ammunition under federal law and who are actually engaged in the business of manufacturing such weapons or ammunition, but only with respect to activities which are in the lawful scope of such business, such as the manufacture, transportation or testing of such weapons or ammunition.

MISCELLANEOUS

It is unlawful for any person to store or leave, within premises under his or her control, a firearm if the person knows or has reason to believe that a minor under the age of 14 years who does not have a FOID is likely to gain access to the firearm without the lawful permission of the minor’s parent, guardian, or person having charge of the minor, and the minor causes death or great bodily harm with the firearm, unless the firearm is: (1) secured by a device or mechanism, other than the firearm safety, designed to render a firearm temporarily inoperable; or (2) placed in a securely locked box or container; or (3) placed in some other location that a reasonable person would believe to be secure from a minor under the age of 14 years.
It is unlawful for a dealer to sell any handgun “having a barrel, slide, frame or receiver which is a die casting of zinc alloy or any other non-homogeneous metal which will melt or deform at a temperature of less than 800 degrees F.”
It is unlawful to alter or obliterate any serial number, maker’s name or other identifying mark on any firearm. Possession of a firearm with an altered or obliterated mark raises a legal presumption that the possessor committed the offense.

Any stolen weapon, if confiscated by police when no longer needed for evidentiary purposes, must be returned to the person entitled to possession, if known.

It is unlawful to carry or possess any firearm when a person is hooded or masked.
It is unlawful to possess, manufacture or use any metal piercing, dragon’s breath shotgun shell, bolo shell, flechette shell, or explosive bullet.
It is unlawful to possess a silencer.
It is unlawful to possess or store any firearm on land supported in whole or in part with state or federal funds administered through state agencies or in any building on such land without prior written permission from the chief security officer for such land or building. The chief security officer “must grant any reasonable request for permission.”

SOURCES:: 430 Ill. Comp. Stat. § 65/1.1 et seq., 520 Ill. Comp. Stat. § 5/2.33(n); 720 Ill. Comp. Stat. § 5/24-1 et seq., and 720 Ill. Comp. Stat. § 5/21-6.

1. Subject to municipal control. Handguns have been banned in some municipalities.
2. Chicago requires registration of all firearms.
3. Carrying a concealed weapon is prohibited entirely. A FOID is required to transport a handgun. See “CARRYING.”
4. The Sixth Illinois Constitutional Conventions Committee on Bill of Rights in their official commentary interpreted this provision in 1970 as a guarantee that “a citizen has the right to possess and make reasonable use of arms that law abiding citizens commonly employ for purposes of recreation or protection of person and property.” Any use of the police power, the Committee said, that “attempted to ban all possession or use of such arms, or laws that subjected possession or use of such arms to regulations or taxes so onerous that all possession or use was effectively banned, would be invalid.”

CAUTION: Firearm laws are subject to frequent change and court interpretation. This summary is not intended as legal advice or restatement of law. This summary does not include federal or local laws, ordinances or regulations. For any particular situation, a licensed local attorney must be consulted for an accurate interpretation. YOU MUST ABIDE WITH ALL LAWS: STATE, FEDERAL AND LOCAL.

U nonimmigrant status, U visa interim rule, Victims of Trafficking and Violence Prevention Act (VTVPA)

2008-04-22T14:10:00.001-05:00

September 5, 2007 - USCIS published an interim rule that grants temporary immigration benefits to certain victims of crimes who assist government officials in investigating or prosecuting the criminal activity.

U visa regulation.pdf (effective October 17, 2007)

The interim final rule establishes procedures for applicants seeking U nonimmigrant status and will take effect 30 days after publication in the Federal Register. The “U” classification was created by Congress in the Victims of Trafficking and Violence Protection Act and offers not only protection and temporary benefits to alien victims but also bolsters law enforcement capabilities to investigate and prosecute criminal activity.

Eligibility for the U nonimmigrant classification is set aside for victims of criminal activity who: suffered substantial mental or physical abuse because of the activity; has information regarding the activity; and is willing to assist government officials in the investigation of the crime. Additionally, the crime must have violated U.S. law or occurred in the United States (including its territories and possessions).

Individuals granted U nonimmigrant status may remain in the United States for up to four years, and may be accompanied by eligible family members (spouse, children, unmarried siblings under 18, and parents). Not only do eligible petitioners obtain legal status to remain in the country, but will also be provided referrals to nongovernmental organizations for assistance and additional resources, and automatic employment authorization. A total of 10,000 U-visas will be available each fiscal year; however, the congressionally mandated cap does not apply to eligible family members.

New forms have been developed for petitioners requesting status under this new classification, including Petition for U Nonimmigrant Status (Form I-918) and Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A).

The interim final rule will be available for public comment at www.regulations.gov until 60 days after publication in the Federal Register.
_________________________________________________________
The U nonimmigrant status allows non-citizen victims of crime to stay in the United States and obtain employment authorization. It was created by the Victims of Trafficking and Violence Prevention Act (VTVPA), enacted in October 2000 and was amended by the Violence Against Women & Department of Justice Reauthorization Act of 2005 (VAWA 2005), enacted in January 2006. The U nonimmigrant status is intended to protect victims of serious crime who have gathered the courage to come forward, report the crime, and assist in its investigation and prosecution. It is available to non-citizens who suffer substantial physical or mental abuse resulting from a wide range of criminal activity, including domestic abuse.

U nonimmigrant status will be conferred upon eligible individuals in the form of a nonimmigrant visa called the U visa. There is an annual limit of 10,000 U visas per year.

After three years in U nonimmigrant status, the non-citizen may be able to adjust status to obtain lawful permanent residency (a green card). There are also provisions to grant derivative U nonimmigrant status and permanent resident status to certain spouses, children, siblings and parents of U visa holders.

1 Pub. L. 106-386, 114 Stat. 1464 (Oct. 28, 2000) [VTVPA].
2 Pub. L. 109-162, 119 Stat. 2960 (Jan. 5, 2006) [VAWA 2005].
3 INA §§ 101(a)(15)(U), 214(p), 245(m). 5 INA § 214(p)(2)(A)

There are four basic eligibility requirements for U visa interim relief:

• The immigrant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity;

• The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) possesses information concerning that criminal activity;

• The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; and

• The criminal activity violated the laws of the United States or occurred in the United States.

Currently, there are three categories of individuals who may be barred from obtaining U interim relief. They are:

1) individuals with aggravated felonies,

2) individuals who are already in valid nonimmigrant status and

3) individuals who fall under one of the grounds of inadmissibility. Potential U interim relief applicants who are in removal proceedings are eligible for U interim relief but must overcome an extra set of hurdles.

USCIS: News Release: U-visa_05 Sept07.pdf
U visa Regulation.pdf
U Visa Interim Regulations Fact Sheet and Guidance .pdf
Adjustment of status for VAWA self-petitioner who is present without inspection
Revisions to Adjudicator's Filed Manual Chapter 39 (AFM)
USCIS Processing update, Nonimmigrant victims of criminal activity, April 10, 2008(AFM)

Chicago Immigration Court, Deportation and Removal

2008-03-28T16:03:00.016-05:00

Immigration updates-New Legislation
Supreme Court cases
Deportation Handbook, 7th Circuit
7th Circuit updates: Opinion Summaries for U.S. 7th Circuit Court of Appeals, Aliens, Immigration
BIA case law summaries
EOIR Chart: Court Decisions Relating to Board Precedents
BIA Precedent Table (Revised 3-26-08) BIA cases published from March 30, 1995 to the present.
Immigration Court Practice Manual: Beginning on July 1, 2008, the Practice Manual will go into effect nationwide, and local operating procedures for immigration courts will no longer be used. The requirements set forth in this manual are binding on the parties who appear before the Immigration Courts, unless the Immigration Judge directs otherwise in a particular case.
Immigration Judge Benchbook (October 2001 | 542 pages 7.8 MB pdf)
Relief Pre-IIRIRA/AEDEPA
Relief from Deportation
Crimes and Immigration Waivers
Immigration Consequences of Criminal Activity (CRS Report-updated 10-23-2006)
Immigration Consequences of Convictions Summary Checklist
Removal Defense Checklist in Criminal Cases
Aggravated Felony practice aid
Immigration consequences of certain Illinois Offenses
Immigration Defense for Defense Counsel, by Lory Diana Rosenberg. January 2003-August 2004.
Immigration Handbook (59 pages | 34 MB pdf)
Submitting I-589, I-485, EOIR-40, EOIR-42A, EOIR-42B with Immigration Court;
Post-Order Instructions for Individuals granted relief from removal by the Immigration Court.
Chicago Deportation Phone Numbers & Officer Dockets (10/18/2006-subject to change).