Raj & Smith Law Blog

This case illustrates the need for diligence and accuracy in Immigration matters. This case also shatters the truism that discretion is an ally in Immigration law.

Procedural History

In Ilic-Lee v. Mukasey, sometime after entering the U.S. on a non-immigrant visa, Zlata Ilic-Lee married an American Citizen. Zlata’s husband filed an I-130 petition, and filed an adjustment of status application.

The Department of Homeland Security requested her husband to submit an amended marriage certificate to resolve a discrepancy in the petition. Failing to respond to the request; Zlata’s I-130 petition was denied. Soon after, she was charged with removability for overstaying her visa, and Zlata filed a motion to reopen the I-130 petition.

At the MTR hearing, Zlata requested two forms of relief: a request for an adjustment of status, and in the alternative, a request for a voluntary departure. She also requested a continuance to allow adjudication on her I-130 motion. The Immigration Judge denied her request for continuance. The Judge, however, scheduled a hearing seven months ahead to permit Zlata time to prepare and submit her necessary applications for relief.

Seven months later, at the next hearing, Zlata’s I-130 motion was still pending, and she requested a renewed request for continuance. The Immigration Judge denied her request. Zlata ’s husband filed a second affirmative I-130, Zlata appealed to the Board of Immigration Appeals, and she filed a motion to reopen with the Immigration Judge.

1. The Immigration Judge denied the motion,
2. The BIA denied Zlata ’s appeal,
3. and vacated the Immigration Judge’s denial of her motion to reopen for lack of jurisdiction.
4. Zlata’s subsequent [second] motion to reopen with the Board was also denied.

The 6^th Circuit Review

The Court, inter alia, had two issues before them: 1) whether the the BIA abused its discretion in affirming the Immigration Judge’s denial of Zlata ’s motion for continuance, and 2) whether the BIA abused its discretion in denying her second motion to reopen. The following were their conclusions.

1) The BIA did not abuse its discretion in affirming the Immigration Judge’s denial of Zlata ’s motion for continuance

In Subhan v. Ashcroft, (7th Cir. 2004), similar to Zlata, Petitioner’s labor certification remained pending. The Seventh Circuit held that the Immigration Judge abused his discretion, in denying a continuance, because the Immigration Judge’s statement that the Petitioner “may be able to eventually acquire lawful permanent resident status by virtue of his employment…was not a reason for denying the motion…, but merely a statement of the obvious….”

In the same vein, in Benslimane v. Gonzales, (7th Cir. 2005), the Seventh Circuit found the Immigration Judge’s denial of a continuance, pending adjudication of an I-130, an abuse of discretion when the decision was based on Petitioner ’s failure to submit a copy of the pending I-485 to the Immigration Judge. In other words, in both cases, the court found the Immigration Judges abused their discretion because their reasonings lacked sound, reasonable, and legal decision-making skills.

Conversely, in El Harake v. Gonzales, (6th Cir. 2006), the Sixth Circuit did not find the Immigration Judge’s denial of a continuance, where an I-130 was pending, to be an abuse of discretion. The court reasoned that “no evidence was presented to show that the I-130 would be successful.” Emphasis added. The court distinguished Subhan, stating that the Immigration Judge in that case provided no reason at all for the denial. The court also distinguished Benslimane, stating that the Immigration Judge in that case simply provided an arbitrary reason.

The court likened Zlata’s case to El Harake, reasoning that she had failed to submit any evidence in support of her continuance request. At the time of the hearing, Zlata ’s I-130 and I-485 had been denied, and she had not submitted any additional applications for relief. Therefore, the court concluded that the Immigration Judge’s denial was not an abuse of discretion.

2. The BIA did not abuse its discretion in denying her second motion to reopen

The Board denied Zlata’s motion to reopen on the grounds that she had not established prima facie eligibility for an adjustment of status. The Board reasoned that, inter alia, Zlata’s documentation had failed to establish a bona fide marriage. This despite Zlata submission to the court of:

1. an affidavit from her husband,
2. a corrected copy of their marriage certificate,
3. two expired Green cards for her children,
4. a letter from a mortgage company confirming that the couple applied for a loan,
5. and multiple photographs,The 6^th Circuit held that the BIA did not abuse its discretion in determining that Zlata failed to establish the existence of a bona fide marriage. The court explained that the evidence submitted demonstrated a “legal marriage” at best, but failed to show that it was entered into in good faith.

This case is a perfect example that an Advocate and Petitioner often has one shot - sometimes two – at success. The goal, therefore, is always to get it right at the first serve.

Reprint and Source: ATLA. Revised and Edited: Glen Nicholas Raj

Today, Christmas came early to the Federal Criminal Defense bar thanks to the United States Supreme Court. The Court issued two decisions concerning sentencing, two of which have been hotly anticipated by civil rights attorneys. Each of the cases deal with the application of the recent change in federal criminal sentencing law brought on by a series of cases in 2005, namely Blakely v. Washington, Apprendi v. New Jersey, and U.S. v. Booker. The cases decided today demonstrate how the Court will continue to apply the Booker decision in light of the recent changes to the Supreme Court bench.

In Kimbrough v. United States (.pdf), the Court considered the disparity between the federal sentencing guidelines as they apply to those convicted of cocaine and crack-cocaine charges. Historically, crimes involving crack-cocaine carried a heavier sentence. Arguably, this targets individuals with a lower socio-economic status because of the relatively low cost of crack-cocaine compared with cocaine. The resulting operation of the federal sentencing guidelines was the imposition of longer sentences against offenders of a lower socio-economic status. After Kimbrough, this is no longer the case. The Court determined that the trial court properly assessed a sentence within its ability under Booker, reinforcing the advisory nature of the sentencing guidelines as outlined by Booker.

In Gall v. United States (.pdf), the Court considered a similar issue with regard to a drug crime and the imposition of a light sentence based on the suggestions of the guidelines. Though not as pervasive as Kimbrough in its application, this decision also reinforces the Court’s decision in Booker, demonstrating that a high degree of deference will be given to lower courts in sentencing matters. The important distinction here came from the mitigating facts of the case, and the clear attempt by the Defendant/Petitioner to become a productive member of society after being involved in a drug distribution conspiracy. The important aspect of this case, like Kimbrough, is the Court’s demonstration that sentencing issues will be subject to an abuse of discretion standard on appeal.

As previously stated, these decisions reinforce the change in sentencing law brought about in 2005. Based on these decisions, the Court will continue to apply a deferential standard in reviewing these cases. In addition, Kimbrough appears to rectify an inequity in the application of the law, or at least provides trial judges with the ability to do so.

A new bill, the Secure America with Immigration and Enforcement, the “SAVE Act” (H.R. 4088/S. 2368), was introduced in November 2007 by Rep. Heath Shuler (D-NC) and Sen. Mark Pryor (D-AR). The “SAVE Act” is steadily gaining momentum in both chambers and the official list of House and Senate co-sponsors has already grown to 113 and 2 respectively. The bill’s sponsors are committed to generating more support before the New Year.

The “SAVE Act” is an immigration enforcement-only package that, most notably, would dramatically expand the Basic Pilot electronic employment verification system. Beyond that, the bill seeks to increase the Border Patrol and spend more resources on the southern border, codify recently withdrawn DHS regulations related to the Social Security Administration “no match” letters, expand local police responsibilities to include immigration enforcement, and a number of other enforcement measures. Absent from the bill are any provisions that would address the more than 12 million people in the U.S. without status.

Tell your members of Congress not to co-sponsor this disastrous bill by sending them an email from AILA’s Contact Congress today. Write your Representative at: http://capwiz.com/aila2/issues/alert/?alertid=10628026 Write your Senators at: http://capwiz.com/aila2/issues/alert/?alertid=10628161

Reprinted; Source AILA.org

The 6th Circuit recently decided the appeal from the Eastern District of Michigan in ACLU v. NSA. The decision may be found here (.pdf). Essentially, the decision determines that the plaintiffs lack sufficient standing to bring their claim. The majority also states that the data collected does not sufficiently rise to the level of “electronic surveillance” as defined by 50 U.S.C. 1801(f) of the Foreign Intelligence Surveillance Act (FISA). Interestingly, the opinion contains the perspective all three judges on the panel, with a strong dissent as well. At the very least, this is a good read for privacy advocates pursuing this kind of litigation, it is good to know that demonstrating loss will be difficult in the face of the State’s Secrets Privilege.

There are approximately five million children living in the U.S. with at least one undocumented parent. The well-being of many of these children, many of whom are U.S. citizens and have known no other country but the U.S., has been threatened over the past year due to intensified immigration enforcement activities conducted by Immigration and Customs Enforcement (ICE) through large-scale worksite raids of businesses that hire undocumented workers. By arresting and deporting their parents, these raids have put the children of undocumented workers at great risk of family separation, economic hardship, and psychological trauma, as they are invariably dependent on their parents for protection, education, development, and emotional and financial support.

Sadly, this situation is not likely to improve any time soon. With the collapse of comprehensive immigration reform in Congress, and the all but certain appropriation of additional enforcement resources to ICE, it is likely that the number of worksite actions will increase, and that children will continue to be negatively affected. To better understand this situation, the National Council of La Raza (NCLR), together with the Urban Institute, studied the problem and released a report of their findings last month, based on in-depth study of exactly how these recent immigration enforcement actions have affected children of immigrants in three communities—Greeley, CO, Grand Island, NE and New Bedford, MA. The primary goal of this report, the full text of which is now available online, is to go beyond the human interest stories reported in the media and provide a factual basis for discussing the impact of worksite enforcement operations on children with undocumented parents. The report also provides detailed recommendations to help mitigate the harmful effects of worksite raids on children.

Reprint and Source:

Abstract: http://www.urban.org/publications/411566.html

Full Report: http://www.urban.org/UploadedPDF/411566_immigration_raids.pdf

Please note that only a portion of the notice of proposed rule-making, 8 CFR Parts 100 and 212, is published in this article. A full citation is provided at the end for the reader to review

The Department of Homeland Security (DHS) proposes to amend the regulations pertaining to admission of certain nonimmigrants to the United States. This rule proposes to authorize issuance of certain short-term nonimmigrant visas and temporary admission for aliens who are inadmissible solely due to their infection with the human immunodeficiency virus (HIV). The proposed rule would provide, on a limited and categorical basis, a more streamlined process to authorize these nonimmigrant aliens to enter the United States as visitors (for business or pleasure) for up to thirty days, subject to certain conditions to ensure the control and departure of such aliens. Nonimmigrant aliens who do not meet the specific circumstances of these clarifying instructions or who do not wish to consent to the conditions that would be imposed by this proposed rule may still elect a case-by-case determination of their eligibility for a waiver of the nonimmigrant visa requirements for aliens afflicted with HIV. The proposed rule also updates regulatory language to conform to a statutory change brought about by the Immigration Act of 1990.

SUPPLEMENTARY INFORMATION

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposal. Comments that will provide the most assistance to DHS in developing these procedures will reference a specific portion of the proposal, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

II. Intent of the Proposed Rule

This proposed rule, initiated at the direction of the President (see White House, Fact Sheet: World AIDS Day 2006, December 1, 2006) through the Secretary of State (see Section VIII), would establish a more streamlined process for issuance of a nonimmigrant visa and temporary admission to the United States for aliens who are inadmissible to the United States due to HIV infection. DHS is proposing to allow these aliens to enter the United States as visitors (for business or pleasure) for a temporary period not to exceed thirty days, without being required to seek such admission under the more complex (individualized, case-by-case) process provided under the current DHS policy. The proposed rule would provide an additional avenue for temporary admission of these aliens while minimizing costs to the government and the risk to public health. These goals are accomplished by setting requirements and conditions that govern an alien’s admission, affect certain aspects of his or her activities while in the United States (e.g., using proper medication when medically appropriate, avoiding behavior that can transmit the infection), and ensure his or her departure after a short stay. Nonimmigrant aliens who do not meet the specific circumstances of these clarifying instructions or who do not wish to consent to the conditions imposed by this rule may still elect a case-by-case determination of their eligibility for a waiver of the nonimmigrant visa requirements for aliens afflicted with HIV.

III. Current DHS Policy

DHS policy currently allows otherwise inadmissible aliens, pursuant to INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), to apply for admission on a case-by-case basis by employing a balancing test involving several factors (regardless of whether the authorization is applied for before a consular officer, the Secretary of State or directly to DHS). Consideration is given to the risk of harm to society if the applicant is admitted into the United States, the seriousness of any immigration law or criminal law violations (the basis for inadmissibility), and the nature of the reason for travel. See Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). These are general criteria applicable to any application for authorization under INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). This proposed rule would incorporate current policy further developed in a series of instructions from the former Immigration and Naturalization Service (INS) and the Department of Justice.

In cases involving HIV-positive aliens, DHS policy requires that consideration be given to whether: (1) The danger to the public health is minimal, (2) the possibility of the transmission of the infection is minimal, and (3) any cost will be incurred by any level of government agency in the United States (local, state, or federal) without the prior consent of that agency. Consular officers must find (based on evidence provided by the applicant that satisfies reviewing officials) that the former two factors are no more than minimal and that there will not be a cost to an agency absent prior consent.

Other specific instructions clarify that nonimmigrant visas may be granted and temporary admission may be provided to short-term nonimmigrant individuals with HIV who establish that their entry into the United States, for up to thirty days, would confer a public benefit that outweighs any risk to the public health. A sufficient public benefit can include attendance at academic or health-related activities (including seeking medical treatment), conducting temporary business in the United States, or visiting close family members in the United States. Currently, applicants whose situations do not fit the specific circumstances of these clarifying instructions, such as those entering for periods of more than thirty days or for tourism purposes alone, must apply for case-by-case consideration and authorization. These applicants must satisfy the more general criteria of the general policy (risk of harm to society, seriousness of immigration/criminal violations, reason for travel), as these criteria apply to all situations. Determination of the risk of harm to society includes whether the danger to the public health and the possibility of transmission of the infection are minimal and whether there will be any cost incurred by any level of government agency in the United States.

In addition, supplemental instructions provide that DHS may grant authorization for admission whenever the Secretary of HHS advises that attendance at a scientific, professional, or academic conference in the United States is in the public interest, and the alien establishes that his or her visit to the United States is for the purpose of seeking admission to such a designated conference and will not exceed ten days.

Under the current policy, these criteria are applied on a case-by- case basis to applications (or a consular officer’s or the Secretary of State’s recommendation) for authorization for admission. In practice, DHS, the Department of State (DOS), and the Department of Justice (DOJ)(through the former Immigration and Naturalization Service (INS)) have denied very few applications (or recommendations) for authorization for admission when the specific criteria for short stays of up to thirty days were satisfied or when the Secretary of HHS initiated the designated-event waiver for visits of up to ten days. However, some applications have been denied when the applicant failed to meet all relevant criteria, e.g., when an applicant refused to provide adequate assurance that he or she would comply with medical advice against engaging in behavior that would risk transmitting the infection to others.

In addition, under the general criteria, as applied in practice to HIV-positive applicants for admission, these applicants must establish that they are aware of their HIV positive condition, have received (and are following) adequate medical counseling, are currently under medical care, and are traveling to the United States with, or will have access to, a supply of drugs, as medically appropriate, that is adequate to cover the length of the anticipated stay. The applicant also must be able to demonstrate that he or she has adequate insurance, which is accepted in the United States, or other financial means available to cover anticipated medical expenses.

IV. Experience Gained

During the twenty years since Congress directed HHS to add infection with HIV to the list of dangerous contagious diseases, thus adding infection with HIV as a ground of inadmissibility under the INA, the Executive Branch has gained considerable experience in deciding when to allow the admission of nonimmigrant aliens with HIV infection. The history of this period has shown that DHS and the Department of Justice have consistently approved DOS consular recommendations that nonimmigrant visas be granted to aliens with HIV infection when the applicant: Sought to travel to the United States for thirty days or less for a lawful purpose consistent with the business visitor or tourist nonimmigrant classification; had been diagnosed with HIV infection; had received medical counseling; was in compliance with medically-advised behavior and medically-prescribed treatment protocols; was able to demonstrate availability once in the United States of an adequate supply of antiretroviral medications if medically appropriate; and was not likely to require assistance that would result in any cost incurred by any level of government agency in the United States without the prior consent of that agency.

HHS and its components also have gained considerable expertise regarding the threat to the public posed by HIV-positive individuals. HHS has expressed the view that present DHS policy has provided adequate protection to the public health of the United States and HIV- positive aliens who are aware of their medical conditions, receive appropriate medical counseling, and are in compliance with medically appropriate treatment protocols and medically advised behavior have presented little risk to the public health in the United States.

V. The Proposed Rule

DHS is proposing, on a categorical basis under new provisions of 8 CFR 212.4(f), to authorize issuance of visas and admission of nonimmigrant aliens who are currently inadmissible to the United States solely due to their HIV-positive status. DHS is proposing this categorical authorization to allow application for admission to the United States under B-1 (business visitor) or B-2 (visitor for pleasure) status for a period not to exceed thirty days if the applicant establishes specific facts and meets certain conditions.A. Safeguards

This proposed rule does not conflict with Congress’ restriction regarding HIV as a communicable disease of public health significance and is consistent with Congress’ humanitarian purpose in enacting INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). The proposed regulations demonstrate DHS’s recognition of the seriousness of HIV infection and, at the same time, comply with the statute by prescribing “conditions * * * to control and regulate the admission and return of inadmissible aliens applying for temporary admission.” INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). Thus, under the proposed rule, an HIV-positive applicant for a nonimmigrant visitor visa would be required to satisfy criteria designed to ensure that the risk to the public health is minimized to the greatest reasonable extent and that no cost will be imposed on any level of government in the United States (local, state, federal) without prior consent of a government agency. The short duration of admission under the proposed regulations, and the various conditions designed to control the alien’s temporary stay and ensure his or her return, minimize the risk of disease transmission in the United States, as well as the risk of increased burden on our public health resources. HIV-positive aliens not meeting the criteria under the proposed regulations would still be able to seek individualized (case-by-case) consideration for admission pursuant to INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), under current DHS policy.

Specific Conditions of Admission, Control, and Return

The proposed rule includes specific requirements (based in part on criteria discussed above), which are set forth here by type.

(1) Medical etiology. A visa applicant, who has tested positive for HIV, must show a controlled state of HIV infection such that there is no anticipated need for additional medical care during the applicant’s visit to the United States. A controlled state of HIV infection means that the applicant does not exhibit, at the time of application, symptoms indicative of an active AIDS-related condition that is contagious or that requires urgent treatment.

In cases involving HIV-positive aliens, DHS policy requires that consideration be given to whether: (1) The danger to the public health is minimal, (2) the possibility of the transmission of the infection is minimal, and (3) any cost will be incurred by any level of government agency in the United States (local, state, or federal) without the prior consent of that agency. Consular officers must find (based on evidence provided by the applicant that satisfies reviewing officials) that the former two factors are no more than minimal and that there will not be a cost to an agency absent prior consent.

(2) Understanding. The applicant must establish that he or she is aware of, understands, and has been counseled on the nature and severity of his or her medical condition. As part of this process, the applicant also must establish that he or she has been counseled on and is aware of the communicability of his or her medical condition, including the fact that the applicant must not donate blood or blood components.

(3) Limited potential health danger. The applicant must establish that his or her admission to the United States for a short duration poses minimal risk of danger to the public health in the United States. The applicant must establish that his or her admission poses a minimal risk of danger of transmission of the infection to any other person in the United States through demonstration of knowledge of the routes of transmission of HIV, including sexual contact, sharing needles, and blood transfusions.

(4) Continuity of health care. As with existing policy, admission is contingent upon assurances that the applicant will not impose costs on the health care system of the United States. Accordingly, the applicant must establish that he or she has, or will have access to, an adequate supply of antiretroviral drugs if medically appropriate for the anticipated stay in the United States. The Food and Drug Administration (FDA) has developed enforcement policies under which it may exercise its enforcement discretion not to interdict the importation of unapproved medications for personal use in such circumstances. See http://www.fda.gov/ora/compliance_ref/rpm/chapter9/ch9-2.html.

Moreover, the applicant must establish that he or she possesses sufficient assets or insurance, that is accepted in the United States, that would cover any medical care that the applicant might require in the event of illness at any time while in the United States. These two factors lead to a third factor: The applicant must establish that his or her admission will not create any cost to the United States, or a state or local government, or any agency thereof, without the prior written consent of that agency.

(5) Temporary Admission. The proposed categorical treatment, like the individualized treatment under current DHS policy, is designed only for a temporary admission. Accordingly, the applicant must establish that he or she is seeking admission solely for activities that are consistent with the B-1 (business visitor) or B-2 (visitor for pleasure) nonimmigrant classifications. Travel for tourism only is an activity consistent with this categorical admission. The applicant must understand that because of his or her inadmissibility, he or she is not eligible to seek admission under the Visa Waiver Program. INA section 217, 8 U.S.C. 1187. Under current statutes and regulations, all HIV- positive applicants for admission from Visa Waiver Program countries must apply for and be granted a visa to be admitted to the United States. The applicant must also understand and agree that no single admission to the United States will be for more than thirty days. Because the proposed regulations apply to a specific ground of inadmissibility, the applicant must establish that no other ground of inadmissibility applies. Authorization for admission may not be granted if any other ground of inadmissibility exists. If the applicant requires an additional waiver of inadmissibility, the applicant must use the process described in either 8 CFR 212.4(a) or (b), as applicable.

(6) Enforcement of the Authorization Agreement. As this authorization for admission is being granted for a narrow, limited purpose, DHS believes that the applicant must agree to certain conditions. DHS believes that the applicant must understand and agree in writing, once the Department of State issues a waiver form, that he or she, for the purpose of admission pursuant to this waiver, is waiving the opportunity to apply for any extension of nonimmigrant stay, a change of nonimmigrant status, or adjustment of status to that of permanent resident,\1\ whether filed affirmatively with DHS or defensively in response to an action for removal. DHS alternatively solicits comments on whether consular officers may orally advise or provide written notification to the applicant that he or

[[Page 62598]]she has waived the opportunity to apply for any extension of nonimmigrant stay, a change of nonimmigrant status, or adjustment of status to that of permanent resident in lieu of the applicant executing a written waiver of these opportunities. If the applicant chooses not to waive the opportunity to apply for any extension of nonimmigrant stay, a change of nonimmigrant status, or adjustment of status to that of permanent resident, the applicant is not eligible for the streamlined process delineated in this proposed rule. However, the applicant may still elect a case-by-case determination of his or her eligibility for a waiver of the nonimmigrant visa requirements for aliens afflicted with HIV.

Furthermore, under the proposed rule, an applicant must understand and agree that any failure to comply with conditions of admission will make him/her permanently ineligible for authorization for admission under the proposed regulations.

(7) Duration. The nonimmigrant visa issued to the applicant will be valid for twelve months or less and may be used for a maximum of two applications for admission. The authorized period of stay will be for thirty calendar days calculated from the initial admission under this visa. The holder of the nonimmigrant visa will be permitted to apply for admission at a United States port of entry at any time during the validity of the visa if he or she is otherwise admissible in B-1 (business visitor) or B-2 (visitor for pleasure) nonimmigrant status.

Benefit of the Proposed Regulations

An alien inadmissible to the United States due to HIV infection under INA section 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i) (or any other ground of inadmissibility under section 212(a), 8 U.S.C. 1182(a), except (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or (3)(E)(ii)), has been, and is currently, able to apply for admission pursuant to INA section 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), under either 8 CFR 212.4(a) or (b). Although authorization for admission pursuant to 8 CFR 212.4(a) is sought from a consular officer or the Secretary of State, it is an application for issuance of a nonimmigrant visa and temporary admission that requires the approval of the Secretary of Homeland Security. Authorization for admission pursuant to 8 CFR 212.4(b) is applied for, with payment of a fee, directly to DHS (on Form I-192) by an alien who already has a nonimmigrant visa, or for whom the nonimmigrant visa requirement is waived, and is approved at the discretion of the Secretary of Homeland Security.

These existing processes require action by DHS upon submission of eligibility information (the same kind of information that is required under the proposed regulations) that must be reviewed, evaluated, and ruled upon on a case-by-case (or individualized) basis. In contrast, the proposed regulation would authorize a consular officer or the Secretary of State to categorically grant a nonimmigrant visa and authorize the applicant to apply for admission into the United States, notwithstanding an applicant’s inadmissibility due to HIV infection, if the applicant meets applicable requirements and conditions, without the additional step of seeking review and decision by DHS prior to granting of the nonimmigrant visa. Using a categorical authorization would provide a more streamlined and quicker process for obtaining temporary admission under INA section 212(d)(3)(A)(i), 8 U.S.C. 1182(d)(3)(A)(i).

Other Proposed Amendment

DHS also is proposing to amend 8 CFR 212.4(e) to reflect changes in the grounds of inadmissibility brought about by the Immigration Act of 1990. Section 212.4(e) authorizes the temporary admission of a nonimmigrant visitor notwithstanding inadmissibility under INA section 212(a)(1), if the alien is accompanied by a member of his or her family or a guardian. Prior to June 1, 1991, INA section 212(a)(1) made excludable from the United States aliens who were “mentally retarded.” Effective June 1, 1991, the Immigration Act of 1990 reorganized all medical grounds of excludability into a new general provision, INA section 212(a)(1). The references in 8 CFR 212.4(e) to INA section 212(a)(1) were never updated. There is no present ground of inadmissibility for aliens who are “mentally retarded.” However, INA sections 212(a)(1)(A)(iii)(I) and 212(a)(1)(A)(iii)(II), 8 U.S.C. 1182(a)(1)(A)(iii)(I) and 8 U.S.C. 1182(a)(1)(A)(iii)(II), make inadmissible aliens who have, or have had, a mental disorder with associated threatening or harmful behavior. DHS is proposing to amend 8 CFR 212.4(e) by replacing the references to INA section 212(a)(1) with references to the current INA sections relating to the grounds of inadmissibility for aliens with mental disorders, INA sections 212(a)(1)(A)(iii)(I) and 212(a)(1)(A)(iii)(II). As neither the current nor the proposed regulations authorize the granting of a nonimmigrant visa, only aliens who already have facially valid nonimmigrant visas or for whom the nonimmigrant visa requirement is waived would be able to benefit from the proposed amendment to 8 CFR 212.4(e).

\1\ Nothing within this proposed rule would prohibit an alien from applying for an immigrant visa before a consular officer abroad.

Source in part:
[Federal Register: November 6, 2007 (Volume 72, Number 214)]
[Proposed Rules]
[Page 62593-62600]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06no07-15]

Reprinted Source:

AILA InfoNet Doc. No. 07110531 (posted Nov. 6, 2007)

On 11/01/07 two border enforcement bills were introduced into the Congress. Both bills, H.R. 4065 introduced by Representative Sensenbrenner (R-WI) and S. 2294 introduced by Senator Kyl (R-AZ), broadly call for enhanced border security and stricter enforcement of current immigration laws.

Text of the bills is not available at this time, but will be posted as it becomes available.

AILA InfoNet Doc. No. 07110269 (posted Nov. 2, 2007).