Zero-Tolerance Policy for illegal entry or attempt to illegally enter the U.S. along the Southern Border

On April 6, 2018, U.S. Attorney General issued a memorandum to all U.S. Attorney’s offices along the South Border, announcing a new “Zero-Tolerance Policy” for offenses under  8 U.S.C. § 1325(a). 

According to ‘Zero-Tolerance Policy” an alien who illegally enters or attempts to enter into the U.S. will be criminally persecuted.  An alien who commits such offense for the first time, will be fined or imprisoned not for more than 6 months or both, and for a subsequent commission of such offense, will be fined or imprisoned for not more than 2 years or both.

8 U.S.C. § 1325(a) states that  “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.“

A new Zero-Tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border for Southern District of California, for District of Arizona, for District of New Mexico, for Western District of Texas, and for the Southern District of Texas to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent practicable.

What should I do? Where should I go? Helpful Itinerary for Lost/Stolen Documents Or What you should do if your Passport, Visa, and Arrival/Departure Records (Form I-94) were Stolen or Lost.

Passports, Visas, and Arrival/Departure Records (admission stamp or paper Form I-94) are official travel documents that foreign citizens coming to the U.S. must have in their possession to show their country of citizenship and legal status in the United States.

We are always encourage travelers to make copies of the passports and visas, along with a Form I-94, promptly upon their arrival to the U.S. and although copies are not substitute for original documents, having copies could be of tremendous help if your original document are stolen or lost.

Oftentimes, we are getting phone calls from foreign visitors or foreigner workers crying for help in situation when their identity documents such as passports, visas and Form I-94 were stolen or lost.

First, we ask the caller to calm down. If the traveler is temporarily in the United States, and loses his/her U.S. visa, he/she can remain for the duration of his/her authorized stay, as shown on his/her admission stamp or paper Form I-94, Arrival/Departure Record. If foreign national was issued a paper Form I-94 and it was lost or stolen, he/she must get it replaced immediately.

Surely, foreign national needs a valid passport to depart the United States and to enter another country.

If the passport, visa and a Form I-94 were stolen or lost, there are a number of steps that must be taken:

1.  Police Report.  

Promptly visit the local police station and report lost or stolen documents. You will be getting a police report detailing the incident. Don’t forget to make a copy of the police report.  

2.      Request Replacement of a Stolen/Lost Arrival and Departure Record (Form I-94).
      New visitors may retrieve their arrival records by visiting Customs and Border Protection  website at  https://i94.cbp.dhs.gov/I94/request.html . In some situations, if the admission record occurred prior to automation, you will be required to file for replacement with U.S. Citizenship and Immigration Services (USCIS) at www.uscis.gov. Unfortunately, it will be time consuming and will require a fee.

3.      Report Stolen/Lost Passport to Your Embassy. 

      Contact nearby embassy or consular for the country of your citizenship to obtain information about the procedure to replace a lost or stolen passport.

4.      Report Stolen/Lost Visa to U.S. Embassy or Consulate abroad.                                       

      To report your visa lost or stolen, email the Consular Section at the U.S. Embassy or Consulate outside the United States which issued your visa. When emailing to the U.S.  Embassy or Consulate include your full name, date of birth, place of birth, address in the United States, and an e-mail address. Specifically state whether the visa was lost or stolen. If you have a copy of the passport or visa, scan and email this to the embassy or consulate. Otherwise, if known, report the category of visa, and the passport number from  the lost/stolen visa.

Please Note that If you have already reported your visa lost/stolen to the U.S. Embassy or Consulate, and then you later find your misplaced visa, then your visa will be invalid for future travel to the United States.  Therefore, in that situation you must apply for a new visa at the U.S. Embassy or Consulate.

5.      Apply for a Visa Replacement.

Unfortunately, if U.S. visa was lost or stolen, you will have to apply for a Visa replacement at a U.S. Embassy or Consulate abroad. When applying for replacement, you will need to apply in person, have a written documents pertaining the loss of passport/visa and include a copy of the police report.

Hint, if you don’t have a copy machine to make a copy of your passport, visa, admission stamp and a Form I-94, use your cell phone camera to have a photo of your valuable documents.

Having this practical Itinerary, an access to the Internet and if possible a cell phone with a camera, You will not be lost in the United States.  

The Change is in the Air, because America merits the Best

The Change is in the air, first in June, 2012 we had DACA with a glimpse of happiness to young Dreamers, then in March of 2013, a provisional waiver went into effect, assisting to preserve family unity. On June 26, 2013, U.S. Supreme Court ended discrimination, striking down DOMA and paving way to equal rights of marital couples. Today, June 27, 2013, U.S. Senate passes Immigration Reform Bill With Strong Majority, however, the real challenge is ahead of us, as it heads to the House. Immigration Law Offices of Tsirina Goroshit is watching closely the developments and changes in Immigration arena, stay tuned, the land of opportunities-America that was built by Immigrants, prosperous and successful due to talents and hard work of Immigrant merits the real change.  

By: Tsirina Goroshit   

Same sex-marriage Immigration? Yes, You may, because we are born equal.

Long expected change is here due to June 26, 2013, Supreme Court decision in United States v. Windsor ending gay marriage discrimination.

Now legally married same sex couples may be eligible to apply for the U.S. nonimmigrant visas and for green cards based on the marriage.

Department of Homeland Security Secretary Janet Napolitano said she was pleased to see the justices strike down parts of the Defense of Marriage Act. She said her agency, which oversees the visa application process for all foreigners, will now allow U.S. citizens to petition for their same-sex couples just like other married couples.

"This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits," Napolitano said in a statement. "Working with our federal partners, including the Department of Justice, we will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."

Same sex married couples must be legally married and proof their bona fide marriage. They would be eligible for non immigrant visas to follow their spouse and to apply for immigrant visas if their spouse is a U.S. citizen or U.S. lawful permanent resident, however many couples might be required to present heavy proof of bona fide marriage.

By: Tsirina Goroshit

Immigration Provisional Waiver becomes effective on 3/4/2013

WASHINGTON— Secretary of Homeland Security Janet Napolitano has announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin.

The process will be effective on March 4, 2013.  In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad.  The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.

Despite, new provisions in process of obtaining a waiver, due to unlawful presence only, demonstration of extreme hardship would be nevertheless required.  

For detailed evaluation of your matter,  please contact us at  (212)880-1538 or in case of emergency at (347)249-1311.

I got my Advance Parole. Can I travel and return to USA?

A new BIA decision in the Matter of Arrabally and Yerrabelly, decided on April 17, 2012, provides an interesting and favorable interpretation of a section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act.

In that case a couple, a husband and a wife were admitted to the United States temporarily, on December 15, 1999, and October 29, 2000, respectively, they overstayed their authorized stay, thus remaining for about 5 years without lawful status.  Nevertheless, a husband became beneficiary of an approved employment based immigration visa petition with a priority date of April 27, 2001. On June of 2004, they applied for adjustment of status under section 245(i). At the time of applying the application was prima facie approvable but was held in abeyance awaiting visa availability. In the meanwhile, couple had a need to attend their aging parents abroad. A couple filed for advance parole, got it approved, travelled abroad and was paroled on numerous occasions. After their last return from abroad, they were informed that their applications for adjustment of status were denied, because they had departed this country (under grant of advance parole) after having been “unlawfully present” here for 1 year or more and were seeking admission less than 10 years after having departed, a set of circumstances that rendered them inadmissible under section 212(a)(9)(B)(i)(II) of the Act. Subsequently notices to appear were issued and a couple appeared before Immigration Judge that found them inadmissible under 212(a)(7)(A)(i)(I) and 212(a)(9)(B)(i)(II) of the Act and not eligible under 212(i). 

On Appeal a Board of Immigration Appeals was presented with the question whether a person, who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in his inadmissibility under section 212(a)(9)(B)(i)(II).

BIA examined an INA 212(a)(9)(B)(i)(II) that provided that “Any alien (other than an alien lawfully admitted for permanent residence) who—. . .

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible”. BIA concentrated on the meaning of the word “departure” and was guided by common sense, taking into account Congress’ intention to enact “a symmetrical and coherent regulatory scheme” in which all parts are fit into a harmonious whole and has decided that “An alien who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a “departure . . . from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006).

It is further clarified that as its name implies, “advance parole” is simply parole that has been requested and authorized in advance based on an expectation that the alien will be presenting himself for inspection without a valid visa in the future.8 C.F.R. § 212.5(f). Advance parole can be requested from abroad or at a port of entry, but typically it is sought by an alien who is already inside the United States and who wants to leave temporarily but fears that he will either be excluded as an inadmissible alien upon return or be deemed to have abandoned a pending application for an immigration benefit.

BIA summarized that an undocumented alien’s departure under a grant of advance parole was qualitatively different from other departures, because it presupposed both that he would be permitted to return to the United States thereafter and that he would upon return, continue to pursue the adjustment of status application he filed before departing.

As BIA stated “ We do not believe that Congress intended an alien to become inadmissible under section 212(a)(9)(B)(i)(II) and, by extension, ineligible for adjustment of status solely by virtue of a trip abroad that (1) was approved in advance by the United States Government on the basis of an application demonstrating the alien’s qualification for and worthiness of the benefit sought,

(2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status. Applying section 212(a)(9)(B)(i)(II) to such an alien vindicates none of the purposes for which the statute was enacted, largely defeats the regulatory purpose of preserving advance parolees’ eligibility for adjustment of status, and has the paradoxical effect of transforming advance parole from a humanitarian benefit into a means for barring relief.”

Accordingly, Board of Immigration Appeals, by majority has decided that an alien who has left and returned to the United States under a grant of advance parole has not made a “departure . . . from the United States” an thus is not inadmissible pursuant to section 212(a)(9)(B)(i)(II) of the Act.

This interesting and favorable case is undeniably helped to achieve justice to a couple in the instant matter.  It is also, reversed a long standing policy that departure under Advance Parole pursuant to adjustment of status and return may trigger the unlawful presence bar under 212 (a)(9)(B).  This matter will be of much help to adjustment of status applicants who left under advance parole and returned to resume their adjustment of status application, as a departure and return on Advance Parole would not trigger the 212 (a)(9)(B) bar.

At the same time as this decision addressed advance parole in adjustment of status context and only in “unlawful present” ground context, it is prudent to discuss circumstances of each individual case with an experienced Immigration counsel.

Have you been a member of the Communist or any Other Totalitarian party?

A question of a membership in the Communist party or Other Totalitarian party appears in various immigration applications,such as Form DS-230,Form I-485 and Form N-400; however for the purpose of this article we will only concentrate on application for an immigrant visa and on application for adjustment of status.  
Typically, an immigrant from country controlled by Communist Party or other totalitarian party finds this question challenging. Will an answer “yes” immediately make an applicant inadmissible? According to Immigration and Nationality Act Section 212 (a)(3)(D)(i), in general.-Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible, unless qualifying for an exception. The applicant immigrant has a burden of proof to establish that he falls under one of enumerated exceptions. Nevertheless, section 212 (a)(3)(D) provides a few generous exceptions such as for involuntary membership, when the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes, see INA section 212(a)(3)(D)(ii); an exception for past membership, provided that the membership or affiliation terminated at least 2 years before the date of such visa application or 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and  the alien is not a threat to the security of the United States INA section 212(a)(3)(D)(iii).

In addition, judicially-created rule provides: an exception to inadmissibility in cases where the applicant lacks “commitment to the political and ideological convictions of communism.”  9 FAM 40.34 N5 (March 21, 2008) 

The leading Supreme Court Case on the point is Rowoldt v. Perfetto, 355 U.S. 115 (U.S. 1957). In that case a man fell within the exception, he paid dues to the U.S. Communist Party, attended meetings, petitioned the government related to unemployment laws and the government budget, worked at a party bookstore, and stated that his purpose in joining the party was to get jobs, food, clothes, and shelter for the people. He denied opposing democratic principles, denied any commitment to violence and denied that violence was discussed at  any meetings he attended. His party membership ended only when he was arrested. The Court held that he qualified for the non-meaningful association exception because of his "unilluminating understanding of" party's principles and the "dominating impulse" of his affiliation with the party was "wholly devoid of any political implications".

Thus the Court in Rowoldt held that an alien's connection to Communist party must constitute a meaningful association and that Communist Party membership is not present when the dominating impulse to the affiliation is "wholly devoid of any political implications". See Rowoldt v. Perfetto, 355 U.S. 115 (U.S. 1957) and Matter of Rusin, 20 I&N Dec.128 (BIA) 1989.

In the alternative, if an applicant is not falling under provided exceptions or judicially created rule of “non meaningful association”, an applicant may be eligible for an exception available for close family members, such as parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence, in form of a waiver for humanitarian purposes, family unity and when it is otherwise in the public interest and if the immigrant is not a threat to the security of the United States INA section 212(a)(3)(D)(iv).

The conclusion is when facing a matter of an immigrant applicant who was or is a member or affiliated with Communist party or other totalitarian party, it is crucially important to present all facts of the case to an experienced immigration attorney for detailed case evaluation in order to find if an applicant is qualified for one of exceptions.  

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