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The purpose of this advisory is to provide service providers with an update on the status of the Deferred Action for Childhood Arrivals (DACA) program and how to counsel clients now. In it we include information on the current status of the DACA program, what to tell clients, factors to consider in deciding when and if to renew DACA, and ideas for what people should do now if they have never had DACA.

This advisory explains how some DACA recipients may be eligible to adjust their status to permanent residents after travellng outside the United States on advance parole. We explain what is required for advance parole, what is required for adjustment of status, and how those two are related for certain DACA recipients who entered the United States without inspection. Although the advisory is focused on DACA, most of the analysis will also apply to TPS holders.

USCIS recently issued updated guidance on when it will refer a person to Immigration & Customs Enforcement (ICE) or issue a Notice to Appear (NTA, the charging document that begins a case in immigration court). Advocates must consult this memorandum in evaluating the risk of referral in individual cases, as it now requires USCIS to issue an NTA in any case in which, “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” This Practice Advisory answers common questions about the risks of filing affirmative SIJS cases for youth in a variety of scenarios, such as when the youth has a delinquency history, the youth is over the age of 18, or the youth is alleged to be gang-involved.

In August 2018, the Ninth Circuit published an opinion holding that methamphetamine as defined under California law is not a controlled substance for federal immigration purposes.  In January 2019, however, the court withdrew the published opinion, and issued a non-published opinion that came to the same conclusion.  See Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018), withdrawn by Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), and unpublished decision at Lorenzo v. Whitaker, 752 F. App'x 482 (9th Cir. Jan. 17, 2019). The case has been remanded to the Board of Immigration Appeals.  At this time, California defenders must assume that California methamphetamine is a controlled substance for immigration purposes. Immigration advocates in removal proceedings have no precedent to rely upon, but they can make the Lorenzo argument and cite to the unpublished case, while also aggressively pursuing other defense strategies.

The BIA has held that that it will not give retroactive effect to California Penal Code § 18.5(a) on convictions from before January 1, 2015. It will consider a California misdemeanor conviction from before January 1, 2015 to have a potential sentence of up to one year, while a misdemeanor conviction on or after that date will have a potential sentence of up to 364 days. Having a potential sentence of just 364 days can help some immigrants who are convicted of a crime involving moral turpitude. (Note that this decision does not affect how immigration treats a sentence that actually was imposed. It only concerns the maximum possible sentence.) Advocates will appeal this decision.

This practice advisory covers how to prepare consular processing clients for questions at the immigrant visa interview about alien smuggling, receipt of public benefits, drug use, tattoos, and other issues.

Males living in the United States between the ages of 18 and 26, including naturalization applicants, must register for the Selective Service. While failure to register for the Selective Service is not a statutory or regulatory bar, it may still stop a person from naturalizing. This practice advisory will look deeper into the Selective Service requirements, how USCIS will evaluate the case depending on the good moral character time period, and discuss possible strategies for overcoming a failure to register.

This advisory focuses on defense strategies for naturalization applicants who are in removal proceedings, especially within the Ninth Circuit Court of Appeals.

USCIS's Policy Memorandum of June 28, 2018, provides new guidance for when USCIS will issue a Notice to Appear (NTA) to applicants requesting immigration benefits. This practice advisory outlines the NTA Memo’s impact on naturalization cases.  Specifically, this advisory discusses the NTA Memo’s particular directives for naturalization cases; provides the legal context for when a naturalization applicant can be placed in removal proceedings; discusses best practices for preparing a naturalization application under the new NTA Memo; and offers practice tips if your naturalization client is placed in removal proceedings.

The master calendar hearing is the first hearing in removal proceedings before an immigration judge of the Executive Office for Immigration Review, during which serious substantive decisions can be made in an immigrant’s removal case. Advocates must be well prepared and have a clear case strategy in mind prior to the master calendar hearing, as well as a detailed plan for how to advocate during this hearing. This advisory and accompanying checklist are designed to provide a quick guide for advocates to flag the issues that need to be addressed when representing clients at a master calendar hearing.

The Child Status Protection Act (CSPA) was devised to protect intending immigrant children from “aging-out” while undergoing the lengthy process to status. This advisory discusses how CSPA protects children of U.S. citizens in their applications for permanent residency. This is one of three advisories in a series detailing the benefits and limitations of the CSPA in the immigration process. For more information on the CSPA, see our advisories, “The CSPA and Children of Permanent Residents” and “The CSPA and Asylees.”

Noncitizens who are seeking to obtain Lawful Permanent Residence via family members can do so using two processes—consular processing at a United States consulate or embassy in the person’s home country, or through adjustment of status at a United States Citizenship and Immigration Services (“USCIS”) office in the United States. For those already in the United States, adjustment of status is preferable because they do not have to worry about traveling abroad, triggering the unlawful presence inadmissibility grounds that are triggered by a departure, separating from their family, and are able to benefit from an appeal or review process not available to consular processing cases. Often individuals present in the United States who have a family member who can submit a family-based petition for them, are prevented from adjusting status because of the manner they entered.

In the past, denaturalization proceedings were rare and usually brought only against alleged war criminals and in other extreme cases. However, continuing their assault on immigrants, families, and communities of color, the Trump administration has increased resources dedicated to pursuing denaturalization in an effort to strip citizenship from naturalized citizens and there are concerns this number will continue to grow. This practice advisory will briefly describe these recent efforts to increase denaturalizations, the legal grounds and process for denaturalizing a citizen, and the consequences of denaturalization. 

This advisory gives an orientation to the deportation process for community members and new advocates. It breaks down the process into four steps that typically happen in an immigrant’s experience with the deportation system, providing a basic overview of ICE enforcement, the court system, and the effect of a removal or deportation order.

In July 2018, USCIS issued a new policy memorandum that limits the circumstances in which it will issue Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). This practice advisory provides an overview of the law governing RFEs and NOIDs, outlines the changes to USCIS policy announced in the July 2018 policy memo, and sets forth a six-step process to follow when responding to requests for additional evidence. The advisory also includes sample arguments to make when responding to common RFE and NOID scenarios in the SIJS context.

It has always been important to screen naturalization applicants thoroughly to ensure that they are, in fact, eligible for naturalization, and to assess any potential issues that could cause them to denied or deported. While the laws governing how and when someone is eligible to naturalize and how and when someone is deportable have not changed, the importance of screening applicants has increased in light of the new NTA Memo. This packet is meant to assist practitioners in screening naturalization applicants for any issues that may cause them to be denied and deported. It includes a Red Flag Checklist, an Annotated Red Flag Checklist, a Guide for Legal Reviewers, and a Review Cheat Sheet for Workshops. 

This advisory explains unlawful presence under INA § 212(a)(9)(B) and the differences between the I-601 and I-601A waivers of unlawful presence. It covers who needs a waiver of unlawful presence, what are the requirements for a waiver of unlawful presence, and which waiver process to use depending on the applicant’s circumstances.

This practice alert provides a brief overview of some of the main changes practitioners can expect with the proposed change to fee waiver eligibility and process, most significantly by eliminating receipt of means-tested benefits as a basis for requesting a fee waiver. Given that these significant changes to the fee waiver process will make it more difficult and time-intensive to establish inability to pay an immigration filing fee, we urge practitioners to advise clients who are eligible for a fee waiver based on receipt of means-tested benefits to apply as soon as possible, before this option is eliminated.

This advisory covers three possible immigration remedies that beneficiaries might be able to pursue if a family member dies during the immigration process.

Under the Immigration and Nationality Act (INA), any noncitizen who “within five years from the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.” In current practice, this ground of deportability rarely comes up in pending removal proceedings or as a reason for the initiation of removal proceedings.

Over the last month, some practitioners have reported that USCIS has issued a number of NTAs in connection with denied U and T visa applications. Given these reports, ILRC, ASISTA, CAST, Freedom Network USA, American Association of Immigration Lawyers (AILA), and Asian Americans Advancing Justice-Los Angeles created a practice update to address some of the actions practitioners can take in individual cases as well as to support policy-level advocacy efforts.  

This advisory is the second in a two-part series on unlawful presence and unlawful presence waivers. This advisory covers the requirements and process for the provisional waiver, as well as updates and pitfalls to avoid in light of recent changes that have made pursuing the provisional waiver process more challenging. These include: State Department updates to public charge guidance and increased visa denials based on public charge inadmissibility at the consulate, Attorney General decisions in Matter of Castro-Tum and Matter of S-O-G & F-D-B- making it more difficult to pursue the provisional waiver in removal proceedings, heightened risk pursuing the conditional I-212 option as part of the provisional waiver expansion given updated enforcement priorities, and new considerations for preparing and filing provisional waiver cases in light of new USCIS policy memos on RFEs/NOIDs and Notices to Appear.

Noncitizen victims of violence, serious crimes, and persecution may be eligible for certain forms of immigration protection and status.  These options are often referred to as Humanitarian Forms of Relief.  They include: T nonimmigrant status, U nonimmigrant status, VAWA self-petition, asylum, and special immigrant juvenile status.

This practice advisory provides an overview of ways to advocate with USCIS and DHS components for solutions to individual case problems and systemic issues.

In a flawed but significant decision, the Ninth Circuit held that California Penal Code § 243(d), battery with injury, is a crime of violence. United States v. Perez (9th Cir. July 11, 2019). Because of Perez, criminal defenders must assume that § 243(d) is a crime of violence and seek other dispositions when necessary.  Immigration advocates should appeal adverse decisions and preserve the argument on appeal.  See this Advisory for a discussion of the decision, alternative pleas, and suggestions for arguments.

In certain immigration cases, you may want to submit a Freedom of Information Act (FOIA) request to the U.S. Department of State (DOS), such as to try to find information about previous visa applications and passport records. This Practice Advisory will go over the DOS FOIA process in detail and provide practice tips for obtaining personal records from them, including best practices.

This practice advisory is the second resource in a two-part series on Humanitarian Forms of Relief for noncitizen victims of violence, serious crimes and persecution. They include: T nonimmigrant status, U nonimmigrant status, VAWA self-petition, asylum, and special immigrant juvenile status.   The first advisory focused on giving an overview of VAWA, U, and T Visas.  Including, eligibility requirements and some factors to consider before applying.  This practice advisory will focus on giving an overview of asylum and special immigrant juvenile status (SIJS), including their eligibility requirements and some factors to consider before applying. 

This practice advisory summarizes the immigration benefits for same-sex spouses after the U.S. Supreme Court decision in United States v. Windsor declared section 3 of DOMA (Defense of Marriage Act) unconstitutional.  It covers family-based petitions (including VAWA) and nonimmigrant visas for same-sex spouses and children.

While the best-case scenario would be for United States Citizenship and Immigration Services (USCIS) to approve a person’s naturalization application, receiving a denial after a naturalization interview is not the end of the road. If USCIS denies the naturalization application, persons can seek a USCIS hearing to appeal the denial by submitting form N-336 (informally known as an administrative appeal). Although the process is simple, many do not take advantage of this process. 

Sanchez v. Sessions was a landmark Ninth Circuit ruling on suppression of evidence and termination of removal proceedings.  This advisory explains the decision, lays out the different legal standards for suppression and termination in immigration court, and highlights key holdings that practitioners can use to better defend their clients.