The Supreme Court ruled Thursday, June 18th, that the Trump administration cannot carry out its plan to shut down the Deferred Action for Childhood Arrivals (DACA) program, which has allowed nearly 800,000 young people, known as Dreamers, to avoid deportation and remain in the U.S.
Author: Albert Lewis
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7th Circuit Blocks Public Charge Burden
This decision releases the Supreme Court stay which permitted the Trump administration’s policy against immigrants to become effective. Not the end of the battle, but a victory.
An excellent article discussing the merits of this issue was posted in the Washington Post on Friday:
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Unable to Depart US Due to Pandemic? Avoid Overstay!
Request “Satisfactory Departure”
Were you admitted to the United States under the Visa Waiver Program (VWP)? —> There is no provision of law that would allow you to extend your stay. However, if you are unable to depart before their current period of admission expires due to exigent circumstances, there is an option to request relief in the form of a Satisfactory Departure request. Both U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) have authority to handle these requests which grant an individual a period of 30 days in which to depart the U.S. without being considered to have overstayed their allotted time.
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4th Circuit Finds Domestic Violence can be Legitimate Asylum Claim
The Fourth Circuit issued a published decision (which means it has precedential value which must be followed by judges within the 4th Circuit) which finds a claim of asylum based on the Salvadoran government’s inability to protect a woman from domestic violence is a proper basis for a grant of asylum.
The Case, (Ruth Jeanette Orellana v. William Barr (http://www.ca4.uscourts.gov/opinions/181513.P.pdf) , was in part based on a stipulation by the government that “Salvadoran women in domestic partnerships who are viewed as property” can form a protected social group, and the decision lends substantial support to this position, even though the government apparently is trying to walk back this interpretation, claiming that the stipulation will be withdrawn upon remand.
This is an important development because individual cases of domestic violence are not normally sufficient to create the basis for an asylum claim. In this case, however, the documented failure of the El Salvadoran government, police, and court system was so well described that the Court of Appeals rejected the finding by the Immigration Court judge that the victim could be protected in El Salvador.
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Virginia Law Criminalizing Gang Activity Not Categorically a CIMT
On July 19, 2019 the US Fourth Circuit Court of Appeals issued its decision finding that the Virginia offense of participating in criminal street gang activity is not categorically a crime involving moral turpitude.
The Virginia statute, Va. Code § 18.2-46.2(A), which prohibits participation in a criminal street gang, is as follows:
Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony.
The court reasoned that the statute criminalizes acivity which is not the requisite base, vile, and morally depraved conduct which must be found for it to be a crime of moral turpitude, using, as an example, a situation where a person wearing a gang scarf who trespassed onto property could be found guilty under the statute without any further criminal acts being involved.
This means that a simple conviction under this statute cannot be used as a basis for deportation of a person so convicted.
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Immig Judges’ Authority to Administratively Close Restored
The US Fourth Circuit Court of Appeals has restored Administrative Closure as an inherent power of Immigration Court judges, effectively overruling the current administration’s attempt to preclude this standard procedure. This tool permits adjudication of pending applications by temporarilly suspending immigration court proceedings.
This is a very good decision for persons in immigration court proceedings because when there is potential relief from removal, say when the foreign national has a US wife, or and approved PERM application, the attorney may ask for administrative closure to permit a decision on the green card application and possibly a hardship waiver, so that the foreign national can be granted residency status, or be able to expeditiously return to the United States upon the approval.
This decision overturns the US Attorney General’s recent order trying to stop Immigration Court judges from this procedure, presumably under this Administration’s current policy, which appears to many to be to create dysfunction in the immigration system, delaying applications or procedures that might help legal immigration, assist the undocumented to become documented, or ultimately create new voters out of those who gain legal permanent residence and then citizenship after prolonged court proceedings.
Although the Attorney General normally can set policy guidance for judges, the 4th Circuit determined that the reasoning of the AG was “. . . a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements” and inconsistent with its stated goals of expedition and efficiency. The court also found that the tool of administrative closure was inherent in the power establishing the immigration courts, granted to them by the US code — the power to efficiently administer and adjudicate their proceedings.
The case Romero v. Barr, and is located at: http://www.ca4.uscourts.gov/opinions/181850.P.pdf
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Head of Household
Tax – Head of Household (Considered Unmarried)
Many married people file their taxes as Head of Household in order to save money, not realizing that there are very strict requirments for such a status. In order for you to qualify as “considered unmarried” you must meet the following criteria taken directly from the IRS website:
Considered Unmarried
To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.
- You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.
- You paid more than half the cost of keeping up your home for the tax year.
- Your spouse didn’t live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences , later.
- Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Home of qualifying person , later, for rules applying to a child’s birth, death, or temporary absence during the year.)
- You must be able to claim the child as a dependent. However, you meet this test if you can’t claim the child as a dependent only because the noncustodial parent can claim the child using the rules described later in Children of divorced or separated parents (or parents who live apart) under Qualifying Child or in Support Test for Children of Divorced or Separated Parents (or Parents Who Live Apart) under Qualifying Relative. The general rules for claiming a child as a dependent are explained later under Dependents .
Source: https://www.irs.gov/publications/p501#en_US_2018_publink1000220775Business Law
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Family Can Be Social Group
Family Based Asylum Claim Explained – 4th Circuit
The 4th Circuit held: “The BIA and the IJ improperly focused on whether Gomez’s father and brother were threatened due to a protected reason in order to impute such protection to the whole family. This was in error. The correct analysis focuses on Gomez herself as the applicant, and asks whether Gomez was targeted because of her membership in the social group consisting of her immediate family. “
http://www.ca4.uscourts.gov/Opinions/Unpublished/152576.U.pdf
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
GOMEZ v. SESSIONS Case 15-2576 — Although unpublished, this provides guidance for those seeking asylum based on family persecution.