Catholic Legal Immigration Network, Inc. On Immigration Law
Editor's Note: The following are the materials for this seminar.
"Solving Today's PERM Puzzle"
From Lori A. Pinjuh
Definition of child - INA 101(b) explains child, step-child, legitimated child, out-of-wedlock child, adopted child, and orphan.
Because I made an error when speaking, I want to clarify that "child" definition for step-child purposes is recognized if the marriage of one parent occurs when the natural child is under 18. Whereas for adoption purposes, the adoption must occur while the child is under 16, for the "child" definition to be met.
Public Law 106-139, signed on Dec 7, 1999, affecting the age of a "child" under INA definition for natual siblings who are adopted by same parent(s), age 16 is the normal adoption requirement, but if natural sibling also adopted, under age 18 will be considered child (see attached)
FAM 42.21 notes 12 and 13 - absolute necessity for anyone considering international adoptions (explains process)
Child Citizenship Act 2000 - adopted children who enter as LPR (IR3 or IR7) are automatic US citizens upon entry so long as at least one parent is USC, child under 18, adoption is full and final, child is "admitted" into the US (attached info); CAREFUL - those who enter as LPR's but require adoption to be completed in US (IR4 and IR8) do not gain this benefit until adoption is completed in full and if all other requirements are met
Humanitarian grounds to not revoke I-130 when death of sponsor Family Sponsor Immigration Act 2001 - ability to use other than original sponsor's I-864 Aff of support, allows alternative close famly sponsor to provide I-864 (attached material)
TSC answered the jurisdictional question of who has right to accept humanitarian applications for I-130's not to be revoked (answer: place that adjudicated the I-130), AILA Infonet 03100141 (Posted Oct 1, 2003)
Also, question posed by one of the other speakers, would adopted child of alien be considered step-child of USC spouse? I would have to amend my answer from yes, to yes only if the adopted child meets the definition of child (2 yrs legal and physical custody) where child fully adopted outside US.
From Mary Holper
NA 240(c)(3)(A); 8 C.F.R. 1240.8(a)(burden of proof to show by clear and convincing evidence that person is deportable is on ICE)
8 C.F.R. 1240.8(d)(burden of proof on the respondent to show eligibility for relief)
Shepard v. U.S., 125 S. Ct. 1254 (2005); Matter of Texeira, 21 I&N Dec. 316 (BIA 1996)(police reports are not part of the record of conviction)
INA 240(c)(3)(B); 8 C.F.R. 1003.41 (what is part of the record of conviction)
Cruz-Garza v. BICE, 396 F.3d 1125 (10th Cir. 2005)(burden on ICE to show the conviction was vacated for immigration purposes only when ambiguout record of vacatur)
Matter of Cota, 23 I&N Dec. 849 (BIA 2005)(sentence can be reduced for immigration purposes only, even though conviction can't be vacated for immigration reasons only)
Matter of Luna, A74-317-521 (BIA Index Dec. 2000) (ICE has burden of showing returning LPR is seeking admission under INA 101(a)(13)(C) because he or she has been convicted of an offense described in INA 212(a)(2)) (I-213 record of inadmissible/deportable alien was insufficient evidence without bringing INS officer in to testify)
From Paromita Shah
The Real ID Act changed section INA §240(c) - adds new section making it INA Sec. 240(c)(4)
PRE-REAL ID CREDIBILITY CASES (asylum mostly)
Dorosh v. Ashcroft, 398 F.3d 379 (6th Cir. 2004), El-Sheik v. Ashcroft, 388 F.3d 643 (8th Cir. 2004), Diallo v. INS, 232 F.3d 279 (2d Cir. 2000), Abdulai v. Ashcroft, 239 F.3d 342 (3d. Cir. 2001), Mutagwanya v. Gonzales, 2005 U.S. App. LEXIS 7583 (5th Cir. 2005)
BUT see Balogun v. Ashcroft, 375 F.3d 492 (7th Cir. 2004) - grave concerns about S-M-J
9th Circuit rejected S-M-J,
Ladha v. INS, 215 F.3d 889 (9th Cir. 2000)
Non-asylum 9th Circuit cases: Vera-Villegas v. INS, 330 F.3d 1222 (9th Cir. 2003). See also Lopez-Alvarado v. Ashcroft, 381 F.3d 847 (9th Cir. 2004)
Charles Wheeler, Jill Sheldon, et al. are the speakers for the Catholic Legal Immigration Network, Inc. On Immigration Law seminar.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.