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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

  • EB-5 Q&A: What qualifies as an EB-5 troubled business?

    Answer:

    A troubled business is defined as a business that has been in existence for at least two years, has incurred a net loss for accounting purposes during the twelve-or twenty-four month period prior to the priority date on the foreign investor’s I-526, and the loss for such period is at least equal to twenty percent of the troubled business’s net worth prior to such loss. You may present your business tax returns, accounting records to show the qualification. In the case of a troubled business, 10 jobs must be preserved, created, or some combination of the two. This means if you currently have 8 full time employee, the new investment need to create additional 2.

  • 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.

    1. You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.
    2. You paid more than half the cost of keeping up your home for the tax year.
    3. 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.
    4. 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.)
    5. 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

  • 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.

  • US 4th Circuit Reverses Deportation based on Virginia Grand Larceny conviction

    Omargharib v. Holder – Dec 23, 2014

    On December 23, 2014, the US Fourth Circuit Ct of Appeals issued its published opinion in Sayed Omargharib v. Eric Holder, Jr.  remanding  to vacate the IJ’s Removal Order based on conviction under Virginia’s  larceny statute.

    IBLF attorney Steffanie Jones Lewis presented oral arguments before the panel on September 16, 2014, and an amicus brief was submitted by the Capital Area Immigrant’s Rights Coalition and the Immigrant and Refugee Appellate Center.  The opinion, authored by Judge Floyd, and joined by Judges Niemeyer and Wynn, granted the petitioner’s motion for review; reversed and remanded with instructions, with Judge Niemeyer writing a separate concurring opinion.

    The central issue before the Fourth Circuit was whether Omargharib’s 2011 grand larceny conviction in Virginia constitutes a “theft offense” as defined by 8 U.S.C. § 1101(a)(43)(G), and thus an aggravated felony under the INA that is grounds for removal.  As a Published Opinion, this decision is now a precedent for the Circuit, and can be cited as such in any similar case.

    Construing Descamps,  the court found the Virginia crime of larceny is indivisible as a matter of law and that the “modified categorical” approach has no role to play in this case.  Instead, the categorical approach applies, and  Omargharib’s grand larceny conviction “does not constitute an aggravated felony under the INA.”  

    Mr. Omargharib, a legal permanent resident for 28 years, was originally convicted in Fairfax County Court of grand larceny of two pool sticks, having extremely poor representation that failed to either call witnesses or present evidence (including the two pool sticks he owned and showed to investigating police officers).  After his trial attorney failed to make any appeal of the conviction, and the conviction became known to immigration authorities, Mr. Omargharib was ultimately detained and remanded to immigration court in Arlington Virginia at which point IBLF became involved and fought the conviction all the way to the Virginia Supreme Court which concluded, rather sadly, that the trial and representation were fully consistent with the requirements of Virginia criminal law. 

    On the immigration court side, IBLF vainly argued appropriate law to the Arlington immigration judge, appealing several times to the BIA prior to obtaining this decision in the US Court of Appeals in Richmond Virginia.  Although he had never been detained for the criminal conviction, Mr. Omargharib was detained by the immigration court for almost 3 years, at great personal and public expense, before finally being released under supervision pending the appellate court decision.  His case demonstrates one of the horrible economic consequences of our broken immigration system and overly aggressive policy in the prosecution of such cases. 

    This decision benefits LPR’s and intending immigrants who have been convicted in Virginia of grand larceny or petit larceny, and subjected by USCIS or Immigration Courts to deportation or other federal consequences.