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With a few exceptions, immigration authorities must use the “categorical approach” to determine whether a criminal conviction triggers a ground of removal. Expert use of the categorical approach may be the most important defense strategy available to immigrants charged with or convicted of crimes. This Update of our long-running article includes discussion of Pereida v. Wilkinson, 141 S.Ct. 754 (2021).

There have been many recent developments regarding the litigation challenges to the Department of Homeland Security enforcement priorities. This brief guide provides a quick summary to help you keep up. In short, the Enforcement Priorities are currently still in effect, although a change could come within the next few weeks. Below you will additionally find the Fifth Circuit’s temporary stay of the lower federal district court’s preliminary injunction order. While these issues are quickly moving, this update is current as of September 2021.

Mortality from COVID-19 meant that many immigrant families grieved over lost family members, and simultaneously were faced with the loss of an immigration benefit that may have depended on the deceased relative. This practice advisory will explore the options that may remain for a surviving relative who has lost someone to COVID-19 where an immigration benefit was also involved. The three possible remedies are: Survivor benefits for widow(er)s of U.S. citizens (USCs) under INA § 201(b)(2)(A)(i); other benefits for certain surviving relatives under INA § 204(l); and humanitarian reinstatement of an approved I-130 petition.

The Violence Against Women Act (VAWA) allows certain noncitizens (regardless of gender) abused by a family member to seek immigration relief by "self-petitioning" based on the abusive relative's immigration status, without having to involve that abusive family member in the immigration process, and based on that VAWA designation, apply for lawful permanent resident status (a "green card"). Obtaining lawful permanent resident status through VAWA is generally a two-step process: one, filing the VAWA self-petition and two, filing the application for adjustment of status based on VAWA. This practice advisory goes through the second step, filing an adjustment application based on VAWA. VAWA adjustment applicants have slightly modified requirements from other family-based adjustment applicants, including less rigorous general requirements and certain special exceptions and waivers to some of the grounds of inadmissibility.

The Liberian Refugee Immigration Fairness Act (LRIF) created a limited-term program allowing many Liberians living in the United States to apply for permanent residence. Initially, LRIF’s application period opened on December 20, 2019 and was set to expire on December 20, 2020. On January 3, 2021, however, Congress passed the Consolidated Appropriations Act 2021, extending the application period for LRIF for another year, until December 20, 2021.

While the immigration field has long explored how to provide legal services to underserved communities, determining how to deliver high quality services remotely became a universal concern during the COVID-19 pandemic. Now, as organizations gradually return to in-person services, some are exploring how to integrate remote practices into this changed landscape. In this practice advisory, we review the ongoing impact of the pandemic on immigrant communities, U.S. Citizenship and Immigration Services (USCIS), and immigration legal service agencies. We also provide lessons learned from agencies across the country that are continuing to think expansively about how to incorporate remote services to meet clients’ needs.

In June 2021, the U.S. Supreme Court issued a decision in Sanchez v. Mayorkas that addressed a circuit split regarding whether a grant of TPS was an “admission” such that it allowed an applicant for permanent residence to meet the threshold “inspected and admitted or paroled” requirement to adjust status within the United States. Previously, the Sixth, Ninth, and Eighth Circuit Courts of Appeal had held that it did, whereas the Eleventh, Fifth, and Third Circuits had held that it did not. In Sanchez, the Supreme Court found that a grant of TPS is not an “admission” for adjustment purposes. This practice alert provides a brief summary of the Sanchez decision, discusses who is and is not impacted by the decision, and provides some suggestions for next steps and other resources.

T visas are a crucial but often underutilized form of relief for youth who have survived trafficking. This advisory gives an overview of special considerations practitioners should keep in mind when screening youth for T visa eligibility. It gives helpful tips that practitioners can use to ensure that they fully assess a child’s eligibility while minimizing retraumatization.

For many family members, being a derivative on a U petition may be the only way they will be able to get legal status in the United States. Because of this, it is important to understand when a derivative can be included on a petition and USCIS’s current interpretation of age-out protections. ICWC and ILRC wrote this advisory to address a changed interpretation of age-out protections for U visa derivatives.

California has passed four bills in recent years concerning access to the U visa, an important form of immigration status. Although the federal government decides who receives a U visa, the state can increase access to the remedy by creating processes for noncitizens to obtain a U visa certification from law enforcement, a necessary part of the U visa petition. All of the bills address U visa certification. This advisory describes the California bills, who they apply to, and how practitioners can use them to advocate for U visa clients.

Children and youth compose a significant portion of the U.S. immigrant population and often qualify for various forms of immigration relief, many of which involve an application filing fee. Under the Trump administration, USCIS promulgated a final rule intended to dramatically raise fees for many immigration application forms, including those available to young people, and would have limited access to fee waivers. The rule was blocked by federal courts, and after President Biden took office, the Department of Justice decided not to defend the rule, so it never took effect and for now immigration filing fees remain at the previously set amounts. This advisory reviews some of the main forms of immigration relief available to children and youth and the current fees for each, and summarizes the litigation and related efforts that ultimately defeated the Trump fee rule.

A conviction of a crime involving moral turpitude (CIMT) may or may not hurt an immigrant, depending on a number of factors set out in the Immigration and Nationality Act:  the number of CIMT convictions, the potential and actual sentence, when the person committed or was convicted of the offense, and the person’s immigration situation. A single CIMT conviction might cause no damage, or it might cause a variety of penalties ranging from deportability to ineligibility for relief to mandatory detention.

ICE enforcement priorities have changed under the Biden administration, signaling a return to the use of prosecutorial discretion. On May 27, 2021, the ICE Principal Legal Advisor issued guidance for OPLA attorneys about how and when to exercise prosecutorial discretion during various stages of removal proceedings. EOIR subsequently issued its own memo discussing EOIR policies related to the enforcement priorities. Building upon our previous practice advisory, Advocating for Clients under the Biden Administration’s Interim Enforcement Priorities, this practice alert from ILRC and NIPNLG provides immigration practitioners with a summary of the OPLA and EOIR guidance, including key information, practice tips, and takeaways.

On January 1, 2021, multiple California criminal reform laws took effect. These laws were passed to help all defendants regardless of immigration status, but they can be of special help to noncitizens. Advocates should understand how these laws may help a client’s immigration case. They include: 

Most H-4 spouses of H-1B nonimmigrants are ineligible for employment authorization and thus are financially dependent on the principal visa holder spouse. This dependence can be used as a tool for abuse and control in relationships and exacerbate domestic violence situations. INA § 106 allows survivors of domestic violence who are spouses of certain nonimmigrant visa holders to be eligible for work authorization independent of their spouse. This advisory provides an overview of employment authorization eligibility under INA § 106 for H-4 spouses of H-1B visa holders who are survivors of domestic violence.

This updated guidance, written with our partners Kids in Need of Defense (KIND) and Legal Services for Children (LSC), includes recommendations for what information to include in state court predicate orders for Special Immigrant Juvenile Status (SIJS) in California. It includes sample predicate orders from family, probate, dependency, and delinquency courts.

Immigration law has its own definition of what constitutes a criminal conviction. The Board of Immigration Appeals (BIA) and other courts have held that certain types of pretrial diversion and intervention agreements that result in dismissal under state law can still constitute a conviction for immigration purposes. Practitioners must pay close attention to the structure of such agreements, and the variety of available diversion programs, when evaluating a client’s criminal history and advising about the potential immigration consequences of criminal offenses and dispositions. This advisory discusses when such diversion agreements and programs will constitute a conviction for immigration purposes, strategies to avoid triggering an immigration conviction, and tips for advocating for “immigration-safe” agreements.

In this practice advisory co-drafted with Public Counsel, we answer common questions on how to tackle disclosure of juvenile adjudications and dissemination of court records for individuals interested in applying for DACA. It also includes a sample DACA request packet, which shows various ways to disclose juvenile adjudications and comply with state confidentiality laws.

This practice advisory reviews the general eligibility requirements for DACA, as well as issues advocates should look out for when determining eligibility.  There has been a lot of interest from community members and advocates in the DACA program since the program was reinstated by a federal court for DACA initial applications in November of 2020. This advisory offers information to guide advocates as they determine eligibility.

In Pereida v. Wilkinson, 141 S.Ct. 754 (March 4, 2021), the Supreme Court issued another opinion on the categorical approach, which is the analysis authorities use to decide whether a criminal conviction triggers removal grounds.  Pereida focuses on the “modified” categorical approach, which is how courts approach a conviction under a statute that sets out multiple, separate, offenses (a “divisible” statute). Pereida overruled Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc).

The Liberian Refugee Immigration Fairness  Act (LRIF) created a limited-term program allowing many Liberians living in the United States to apply for permanent residence. Initially, LRIF’s application period opened on December 20, 2019 and was set to expire on December 20, 2020. On January 3, 2021, however, Congress passed the Consolidated Appropriations Act 2021, extending the application period for LRIF for another year, until December 20, 2021.

This practice advisory from the ILRC, NIPNLG, and IDP advises criminal defense attorneys on new immigration enforcement policies and how to use the new guidance to defend clients in criminal proceedings.

ICE enforcement policies have changed under the Biden administration, and opened new opportunities to defend your clients from arrest, detention, and deportation.  This practice advisory from the ILRC, NIPNLG, and IDP provides immigration practitioners with an overview of the interim enforcement priorities and other key policy changes described in recent DHS and ICE memos, and discusses strategies to use these priorities to advocate for prosecutorial discretion.

In 2020 and 2021, USCIS changed its interpretation of discretion in adjudication of immigration benefits in three separate releases of policy manual guidance.[i] These chapters add voluminous positive and negative discretionary factors that adjudicators are instructed to analyze in more than a dozen types of immigration benefits, including many categories of employment authorization, adjustment to permanent residence, temporary protected status and change of status applications.

The Biden administration announced the designation of Venezuela for TPS, effective March 9, 2021 through September 9, 2022. TPS provides protection from removal, work authorization, and the option to request permission to travel abroad. The 180-day registration period is currently open through September 5, 2021. This advisory provides an overview of the requirements and application process for TPS for Venezuela. It also includes a brief summary of Deferred Enforced Departure (DED) for Venezuela which is also currently in effect through July 20, 2022.

Certain criminal convictions are bars to eligibility for DACA.  However, if these convictions can be “expunged,” they will cease to be an absolute bar. Here, an “expungement” refers to any legal process where a criminal court can withdraw, erase, seal, or otherwise eliminate a conviction under a state statute, based on the fact that the person completed probation or other requirements, or for humanitarian reasons. Note that while DACA government materials call this an “expungement,” different state laws may use different terms for this kind of rehabilitative relief. An expungement is not given effect for most immigration purposes – but it does work for DACA.  For example, a misdemeanor conviction for driving under the influence is a bar to applying for DACA as a “significant misdemeanor.” If  the person has the conviction “expunged,” however, they are not barred from applying, and if they have enough positive equities they may well be granted DACA.

The Trafficking Victims Protection Reauthorization Act of 2008 confers initial jurisdiction over asylum claims filed by unaccompanied children (UCs) to the asylum office. The Board of Immigration Appeals’ decision in Matter of M-A-C-O-, as well as policy changes by the Trump administration have sought to strip away this crucial protection from many child asylum seekers. Because of these changes and legal challenges by immigrant youth advocates, the current landscape of initial UC asylum jurisdiction is in flux. This practice advisory provides an overview of the current state of UC asylum jurisdiction following the Matter of M-A-C-O- decision and issuance of the Lafferty Memo. It also discusses the ongoing JOP v. DHS litigation and gives some arguments and tips for practitioners to help them advocate for their UC clients to receive the statutory protections afforded by the TVPRA. 

In October 2020, DHS and DOJ published a final regulation that sets out wide-ranging and draconian bars to applying for, and bases to terminate a grant of, asylum. For example, the bars include conviction of any felony, any controlled substance offense, a single DUI with injury, a DUI with a DUI prior (regardless of injury), and domestic violence bars based on the underlying conduct.