Summary of State Bar of Texas meeting with top CDJ Consular Officials
May 29, 2009 by Thomas Esparza
Filed under Attorneys
Summary of State Bar of Texas meeting with top CDJ Consular Officials
April 24, 2009
Camino Real Hotel – El Paso, Texas
Laura Dogu, Deputy Consul General said:
• Visa floor (1st floor) has 87 windows, USC services floor (2nd floor) has 22 windows
• Goal is to get applicants in and out within one hour (not yet accomplished!)
• City of Juarez is building new holding center next door (to get people off the street),
but it’s not done yet. They will eventually have places to sit in this climate-controlled
facility, probably parking, and snacks/drinks. They are in talks about whether this
facility would organize the appts by hour, and then when CDJ radios over that they’re
ready for the next group, this facility would send them over. This is just in the idea
stages right now.
• CDJ is largest U.S. Consulate in the world
• PER DAY, CDJ processes 800 to 1200 IVs, 1000 NIVs, 70 to 150 waivers, & 50 to 100
USC services/Federal benefits
• In 2008, CDJ processed 150,000 IVs and 130,000 NIVs (a record year for them) and
they caught up on their backlog. This means that all IVs that come through NVC are
immediately scheduled for IVs in CDJ.
• CEAC form DS-160 has been released recently – being used in CDJ for NIVs (but NOT
for Ks! K1s are to continue bringing duplicate DS-156s and DS-156K and K3s are to
bring duplicate DS-156s.)
• Eventually they want to make the DS-230s electronic, but not yet.
• Applicants are to arrive 15 mins prior to time of IV. They have a problem with
applicants/family members standing in crowds in front of the Consulate – Attys should
encourage clients NOT to arrive more than 15 mins early for IV!! Paseo de la Victoria
is a busy 6-lane street (two-way traffic)!
• There are greeters outside to help deal w/the applicants who arrive early. They send
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them inside to the security office, where they are issued a numbered ticket.
• As of June 1, 2009, all USCs must have a passport (or passport card if traveling by
land).
• New CDJ Inquiry form on their website – seems to be working pretty well. If they
can’t answer the question right away, they send an email that they are researching
the case and will get back to you.
• To reschedule an IV, you must call the CDJ Call Center.
• If you have Qs about a pending I-601, you must contact Warren Janssen’s unit directly
(cdj.uscis@dhs.gov).
• CDJ prefers that applicants NOT pay in cash. They would rather the applicants pay
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with U.S. Postal Service money order or Visa/Mastercard/Discover/Diners/American
Express. You can get prepaid credit cards or visa gift cards, and they encourage this.
They will take cash, but prefer not to because of security/safety reasons.
• Medical clinics now accept Visa/Mastercard, either credit or debit cards, and prepaid
international Visa/Mastercards (no Discover card or Diners card)
• Administrative processing can mean all sorts of things. A special team does NIV & IV
admin processing. Once the admin processing is done, check the website for your
case number, and then you can go back to CDJ to the Info Window at the front of the
Consulate.
• Don’t come too early, don’t bring family, don’t bring thumb drives (or any other
electronic device)…look at list of items not allowed in, because if you bring them, you
have two options: 1) return to your hotel to leave the item, or 2) you lose it! CDJ
does not have the capability to hold it for you.
• There is a parking lot across the street in the Centro Comercial. Apparently there are
lockers somewhere over there for rent if your hotel isn’t nearby and you have
belongings that are prohibited from CDJ.
• Fraud Prevention Unit….all FPUs from Mission Mexico (meaning all the Consulates in
MX) now work together. If CDJ has a case in another state in MX, they box up the
case and send it to another Fraud unit that’s closer to do the investigation.
• If your case lands in the FPU and it’s a birth issue, CDJ likes to speak with the birth
mother. Communicate w/CDJ to schedule an IV for the birth mother to come in and
speak with a Consular Officer. (FPU schedules appt.)
Roger Rigaud, Director of NIV Unit said:
• CDJ still processes some Third Country Nationals when renewing H/L/Es, but no more
new Es for TCNs.
• Mission Mexico comprises of 11 U.S. Consulates
• Several big changes:
o Switch to DS-160 (since 1/20/09) – responses MUST be in English, must
complete form as thoroughly as possible, only need to bring confirmation
sheet to NIV. Are still working out the bugs in this form.
o Shift to Applicant Service Center (ASC – the location of the old US Consulate).
Right now they have a next-day policy, meaning go in for biometrics at ASC on
one day and have NIV the next day. Soon will do same day service. $26 for
photo/IV/DHL. Take to NIV: receipt for $26 and receipt from Banamex for
$131 NIV fee. Computer Sciences Corp runs ASC. Call CSC to schedule appt
for biometrics. Appt takes 9-15 minutes, so applicants can do it on their lunch
hour or before or after work. Hours of ASC are 7 AM to 6 PM.
o Administrative Processing: see more info above in Laura Dogu’s section.
o NIV also use the pass back system (DHL), so when the applicant goes to the
ASC for biometrics, he/she checks in at the DHL counter to leave an address
where the DHL packet can be sent. Right now, it’s only within Mexico.
Santiago Burciaga, Director of IV Unit said:
• Now have Courier (DHL) pass back of docs. Pay DHL after waiver IV and leave
Consulate. DHL can only deliver to two DHL offices in CDJ at the moment, but they
are working on opening up more options, like to the applicant’s home in MX. DHL’s
800 number tells them which of the two DHL offices in CDJ has their docs.
• Two medical clinics – one at old location, and one at new location. 8-10 doctors and 2
panel psychologists at each one. Are building new medical clinic directly behind the
Clinica Medica Internacional (at the new Consular location), but it’s not open yet. The
old Medical Clinic will move there once the building is ready. Children ages 2 to 14
must plan to do medical exam FOUR days prior to IV because of TB skin test. TB skin
test must be read in 72 hours, which means that they do not do these exams on
Thursdays since it would have to be read on a Sunday, and they are not open
Sundays. They are open Saturdays though, so they will do child medicals M-W and F.
• If applicant has been arrested, CDJ wants arrest reports AND final court dispositions,
not just the court docs.
• If the applicant is 221(g) (missing docs), and if the Officer doesn’t need to speak with
the applicant again, can just drop off docs at Info Window at the front of the
Consulate, and they’ll get their visa thru DHL pass back.
• See Paul Virtue memo re: 212(A)(9)(c) issues for minors – CDJ is taking a tough line
on these minors, unlike before.
• NVC now does all CDJ’s scheduling for initial IVs.
• If a petitioner who is living in MX legally wants to file I-130 for spouse, must do so at
the U.S. Consulate that has jurisdiction over where he/she actually lives (in MX), such
as MX City, Monterrey, etc. CDJ will accept I-130s if the petitioner lives within their
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jurisdiction. I-130s filed at the Consulate are usually processed within 30 to 90 days.
They do require evidence from PR that he/she is legally living in MX (such as utility
bills, rent receipts, etc.)
• Check stateside if a child can derive citizenship from a parent before filing the I-130
and proceeding to Consular Processing. Saves the IV unit time!
• I-601 waivers: If the applicant is denied for an IV because of unlawful presence (or
whatever other reason) and qualifies for a waiver, the Consular Officer will give them
written instructions on how to file waiver. Call CDJ Call Center 48 hrs after IV to
schedule the appt. Day of IV: show confirmation sheet to greeters outside, then go
straight to Cashier inside Consular building to pay $545. Then take a number and wait
to talk to FSN (Foreign Service National) who will check waiver packet to make sure it
is complete. The FSN passes the case on to a CIS Officer who will adjudicate the case
the next day. It is currently taking about 4 business days to receive decision by DHL.
• 18 to 20% of cases are found ineligible for an IV
• ~60% are NOT represented by an atty!
• ~85% of petitioners accompany applicant to CDJ (but are NOT let into the Consulate
unless specifically requested for some reason)
Warren Janssen, Field Office Director for USCIS (I-601 waivers)
• Added 2 new AOs (Adjudications Officers) to Waiver Unit in 2008. Now have a total of
4 AOs.
• There are 9000 to 10,000 pending referred waivers right now!!!
• International Affairs is building new branch office in Los Angeles solely to help CDJ
adjudicate waivers!!!!! Will have 8 new AOs and CDJ will send lots of their pending
referred waivers to LA. In future, the LA office will also support other Posts who need
assistance with adjudicating waivers, so it is permanent.
• As of 6/1/2009, CDJ will send approximately 4000 referred waivers to the Miami
Asylum Office for additional help in adjudicating backlogged waivers. This is just a
temporary solution for just a few months whereas the LA office is permanent.
• LA office will have all new hires. Majority of AOs are asylum officers, and all (including
Miami office) will receive specialized training in adjudicating waivers. Training to start
in a few weeks.
• Goal: process referred waivers within 6 months or less, but might not reach goal until
the end of 2009.
• Best to send translations of any docs not in English since the AOs might not speak
Spanish. They will try to have at least one in LA that speaks Spanish.
• Pilot Program Same Day/Next Day adjudications is permanent fixture now!
• 50% of cases are approved with pilot program.
• Mexico City has been helping adjudicate backlogged waivers. Approval rate is 30%.
• When FSN goes over waiver packet w/applicant, will ask applicant Qs about unlawful
presence dates, and maybe a few other Qs for clarification
• Atty/petitioner will probably NOT be notified if/when case is transferred to LA or Miami
• If we need to mail more evidence of hardship, should just continue to send it to P.O.
Box in El Paso, and it should get forwarded on to LA or Miami (wherever case has been
TF’d)
• CDJ processes about 100 waivers per day (with 3 Officers) – not enough to keep up
with demand. That’s why it’s taking several days to receive decision by DHL.
• 2 month backlog before applicant can get waiver IV (from date of IV)
• 19,000 waivers were processed in 2008.
• An atty asked Janssen what constitutes a good waiver, and he was reluctant to
answer, but did give us this:
o Medical issues are typically the strongest factor
o Family ties in the U.S.
o Ability to relocate to Mexico
o Psych evaluations are given some weight (depending on what they cover in
the eval)
o Financial issues (when combined with other factors)
o Psych issues that stem from separation of applicant and USC/LPR spouse are
given less weight than pre-existing psych issues (so if your petitioner has a
history of depression, include supporting docs of this!!)
Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation
May 29, 2009 by Thomas Esparza
Filed under Attorneys
U.S. Citizenship and Immigration Services
Service Center Operations
Washington, DC 20529-2060
May 20, 2009
Memorandum
TO: Service Center Directors
FROM: Barbara Q Velarde /s/
Chief, Service Center Operations
SUBJECT: Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care
Occupation.
1
Purpose
This memorandum clarifies the standards for adjudicating H-1B petitions filed on behalf of
beneficiaries seeking employment in a health care specialty occupation.
Adjudicators, as a starting point, can consult the U.S. Bureau of Labor Statistics’ Occupational
Outlook Handbook (OOH) to determine whether the position being offered qualifies as a
specialty occupation as defined by Section 214(i)(1) of the Immigration and Nationality Act
(INA or Act), consistent with the requirements found in INA 214(i)(2). Adjudicators should be
mindful, however, that in certain instances, other authoritative sources exist that indicate whether
the position in question qualifies as a specialty occupation (e.g., State licensing board standards).
Thus, the OOH is not determinative in all cases. Whenever more than one authoritative source
exists, an adjudicator should consider all of the evidence presented to determine whether a
beneficiary qualifies to perform in a specialty occupation. Specific guidance on health care
occupation standards is included below.
Guidance for Petitions in Which the Beneficiary Is in Possession of a License2
This guidance applies to H-1B beneficiaries in possession of either an unrestricted or a restricted
license to practice a health care occupation in the state of intended employment. If the petitioner
provides documentary evidence that the beneficiary has a valid license to practice a health care
1
For purposes of this memorandum, “health care occupation” refers to those professions enumerated under 8 CFR
212.15(c)
and meet the definition of specialty occupation, as defined at 8 CFR 214.2(h)(4)(ii)(4
).
2
If the beneficiary has a license to practice the health care occupation in a state other
than the state in which he/she
will be working, the adjudicator should refer to the section of this memorandum entitled “Guidance for Petitions in
Which the Beneficiary Is Not in Possession of a License”.
May 20, 2009
U.S. Citizenship and Immigration Services
Service Center Operations
Washington, DC 20529-2060
http://www.ilw.com
ILWCOM
PROVIDED BY
The leading
immigration
law publisher
Guidance on Determining the Requirements for Beneficiaries Seeking H-1B Nonimmigrant
Visas to Practice Health Care Occupations in the United States
Page 2
occupation in the state in which the beneficiary will be employed, the adjudicator should not
look beyond the license. The beneficiary will be considered to meet the qualifications to perform
services in a specialty occupation as outlined in 8 CFR 214.2(h)(4)(iii)(C)(3). However, the
petitioner will still need to provide evidence that the beneficiary is admissible under Section
212(a)(5)(C) of the Act.
3
This guidance applies regardless of whether the beneficiary is in possession of a bachelor’s
degree, master’s degree, or doctoral degree in the health care occupation.
If the beneficiary is in possession of an
unrestricted
license, and the petition is otherwise
approvable, an adjudicator should approve the petition for the full H-1B period requested — up to
three years — but may not approve the petition beyond the validity of the labor condition
application (LCA). Please be advised most states require a license to be renewed periodically. If
the beneficiary is in possession of an unrestricted license, the renewal date should not be
considered when determining the validity period of the approval.
If the beneficiary is in possession of a
restricted
license (e.g., license approved except for
mandatory supervised practice), and the petition is otherwise approvable, an adjudicator should
approve the petition for a period of one year, or the duration of the restricted license, whichever
is longer.
4
Guidance for Petitions in Which the Beneficiary Is Not in Possession of a License
In order to perform in a health care occupation, the beneficiary must obtain a license from the
state in which he/she will be working. As such, the beneficiary must meet the licensure
provisions for H classifications.
5
If the petitioner states that the beneficiary cannot obtain a
license to practice the health care occupation in the state in which the beneficiary will be
employed due to the fact that the state’s statutes mandate possession of a social security card
6
and/or a valid immigration document as evidence of employment authorization,
7
the adjudicator
must ascertain the requirements for licensure (including educational degree requirements) in the
health care occupation in that state to determine whether the beneficiary is qualified to perform
3
All aliens who wish to enter the United States to practice in a health care occupation other than as a physician must
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be found to be admissible under Section 212(a)(5)(C) of the Act. If the petitioner fails to provide evidence that the
beneficiary received a certificate from a recognized credentialing organization as outlined in 212(a)(5)(C) of the
Act, the beneficiary may still qualify for classification as an H-1B non-immigrant. If the beneficiary is seeking to
extend status or change status, and the petitioner fails to provide the requisite credentialing evidence, the request for
extension or change of status should be denied as the beneficiary is inadmissible under Section 212(a)(5)(C) of the
Act. If the beneficiary is seeking a non-immigrant visa at a consulate, Department of State (DOS) must be informed
of the potential inadmissibility issue.
4
See 8 CFR 214.2(h)(4)(v)(E)
5
See 8 CFR 214.2(h)(4)(v).
6
See Memorandum From Thomas E. Cook, Acting Assistant Commissioner, Office of Adjudications, INS, “Social
Security Cards and the Adjudication of H-1B Petitions,” HQ 70/6.2.8 (November 20, 2001).
7
See Memorandum From Donald Neufeld, Deputy Associate Director, Domestic Operations, USCIS “Adjudicator’s
Field Manual Update: Chapter 31: Accepting and Adjudicating H-1B Petitions When a Required License is not
Available Due to State Licensing Requirements Mandating Possession of a Valid Immigrant Document as Evidence
of Employment Authorization,” HQ 70/6.2.8 (March 21, 2008).
Matter of Andres GUZMAN-GOMEZ
May 12, 2009 by Thomas Esparza
Filed under Attorneys
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
824
Matter of Andres GUZMAN-GOMEZ, Respondent
File A076 692 898 – San Diego, California
Decided May 8, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The terms “child” and “parent” defined at section 101(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(c) (2006), do not encompass stepchildren and
stepparents.
(2) A person born outside the United States cannot derive United States citizenship under
section 320(a) of the Act, 8 U.S.C. § 1431(a) (2006), by virtue of his or her relationship
to a nonadoptive stepparent.
FOR RESPONDENT: Thomas A. Lappin, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kerri Harlin, Assistant Chief
Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
FILPPU, Board Member:
In a decision dated November 24, 2008, an Immigration Judge ordered
the respondent removed from the United States pursuant to sections
237(a)(2)(A)(i) and (iii) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1227(a)(2)(A)(i) and (iii) (2006). The respondent has appealed from that
decision, arguing that the proceedings should be terminated because he is a
United States citizen. The Department of Homeland Security (“DHS”)
opposes the appeal. The appeal will be dismissed.
The respondent was born in Mexico in July 1986. In February 2000, when
he was 13 years old, the respondent was admitted to the United States as a
lawful permanent resident, apparently on the basis of an immediate relative
petition filed by his mother’s husband, a United States citizen by birth who
married the respondent’s mother in 1994. After his admission to the United
States, the respondent evidently resided with his mother and stepfather in
California, although no explicit evidence was presented on that point. The sole
issue on appeal is whether the respondent automatically derived United States
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
1 On December 22, 2004, the respondent was convicted of second-degree robbery in
violation of section 212.5(c) of the California Penal Code and was sentenced to a term of
imprisonment of 2 years. There is no dispute that this conviction renders the respondent
removable if he is an alien.
2 Section 320 was enacted in its current form pursuant to section 101(a) of the Child
Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631, 1631, and applies to
individuals who satisfied all of its requirements on or after February 27, 2001. Id. § 104, 114
Stat. at 1633; see also Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001).
825
citizenship through his stepfather pursuant to section 320(a) of the Act,
8 U.S.C. § 1431(a) (2006).1 We agree with the Immigration Judge that he did
not.
Section 320 of the Act provides as follows, in its entirety:
Children Born Outside the United States and Residing Permanently in the United
States; Conditions Under Which Citizenship Automatically Acquired
(a) A child born outside of the United States automatically becomes a citizen of the
United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by
birth or naturalization.
(2) The child is under the age of eighteen years.
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(3) The child is residing in the United States in the legal and physical custody
of the citizen parent pursuant to a lawful admission for permanent residence.
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(b) Subsection (a) of this section shall apply to a child adopted by a United States
citizen parent if the child satisfies the requirements applicable to adopted children
under section 101(b)(1).2
The respondent was not adopted by his mother’s husband, so section 320(b)
of the Act is inapplicable. Furthermore, the respondent’s mother did not
become a United States citizen before his 18th birthday. Thus, if the
respondent derived United States citizenship at all under section 320(a) of the
Act, he did so through his stepfather.
Because the respondent was born abroad, he is presumed to be an alien
and must come forward with the evidence to prove his citizenship claim.
Matter of Hines, 24 I&N Dec. 544, 546 (BIA 2008). To establish derivative
United States citizenship under section 320(a) of the Act, the respondent must
prove that he qualifies as the “child” of his United States citizen stepfather and
that his stepfather qualifies as his “parent.” Furthermore, if the respondent
satisfies that threshold requirement, he must also prove that he resided in his
stepfather’s “legal and physical custody” after being admitted as a lawful
permanent resident in February 2000. Section 320(a)(3) of the Act.
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
3 The United States Court of Appeals for the Ninth Circuit has held that a child can acquire
citizenship at birth through a person who is neither a biological nor an adoptive parent if that
person was legally married to one of the child’s biological parents at the time of the birth.
Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005); Scales v. INS, 232 F.3d 1159 (9th
Cir. 2000). We have no occasion to opine as to the merits of these precedents, which arose
in the context of “acquired citizenship,” rather than “derivative citizenship,” at issue here.
We note, however, that the statutes being construed in those cases, sections 301 and 309(a)
of the Act, 8 U.S.C. §§ 1401 and 1409(a) (2000), do not employ the statutory term “child.”
In any event, it is sufficient for present purposes to observe that the respondent’s stepfather
was not married to the respondent’s mother at the time of the respondent’s birth.
Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 2009) (distinguishing Solis-Espinoza and
Scales where the citizen stepparent was not married to one of the child’s biological parents
at the time of his birth).
826
For purposes of section 320(a), the terms “child” and “parent” are defined
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by section 101(c) of the Act, 8 U.S.C. § 1101(c) (2006), which provides as
follows:
As used in title III–
(1) The term “child” means an unmarried person under twenty-one years of age
and includes a child legitimated under the law of the child’s residence or domicile, or
under the law of the father’s residence or domicile, whether in the United States or
elsewhere, and, except as otherwise provided in sections 320 and 321 of title III, a
child adopted in the United States, if such legitimation or adoption takes place before
the child reaches the age of 16 years (except to the extent that the child is described
in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1), and the child is in the legal
custody of the legitimating or adopting parent or parents at the time of such
legitimation or adoption.
(2) The terms “parent”, “father”, and “mother” include in the case of a posthumous
child a deceased parent, father, and mother.
Obviously, the respondent is not his stepfather’s biological child.
Moreover, as previously noted, he was never adopted by his stepfather. Nor
has any evidence been submitted to suggest that the respondent was born out
of wedlock in Mexico, such that he could have been “legitimated” by his
stepfather under the law of Mexico or California.3 Thus, the question we must
decide is whether the terms “child” and “parent,” as defined in section 101(c)
of the Act, encompass stepchildren and stepparents. For the reasons that
follow, we conclude that they do not.
At the outset, the plain language of section 101(c), viewed in isolation,
is silent and therefore ambiguous as to whether it embraces the
“stepchild-stepparent” relationship. In such cases, where Congress’s intent is
not plainly expressed, it is our obligation to fill the statutory gap by adopting
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
827
a reasonable interpretation of the language in question. Negusie v. Holder, 129
S. Ct. 1159, 1163-64, 1167-68 (2009); Matter of Nwozuzu, 24 I&N Dec. 609,
612 (BIA 2008). To be reasonable, our interpretation must take into account
the language and design of the Immigration and Nationality Act as a whole,
because the meaning of an ambiguous term may only become evident when
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placed in its broader statutory context. National Ass’n of Home Builders
v. Defenders of Wildlife, 551 U.S. 644 (2007) (citing FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)).
With the foregoing principles in mind, we begin by observing that the terms
“child” and “parent” bear different meanings in citizenship cases than they do
in other cases arising under the Act. Specifically, section 101(c) defines those
terms in citizenship cases, while section 101(b) defines them for all other
purposes, such as those involving the allocation of visas or the establishment
of eligibility for certain forms of relief from removal that require a showing of
hardship to a “child.” Notably, section 101(b)(1)(B) specifically defines the
term “child” to include “a stepchild, whether or not born out of wedlock,
provided the child had not reached the age of eighteen years at the time the
marriage creating the status of stepchild occurred.” (Emphasis added.)
Further, section 101(b)(2) defines a “parent” to include a stepparent, since the
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status of stepparent “exists by reason of any of the circumstances” that make
one a “child” under section 101(b)(1). Yet such an explicit reference to
stepchildren and stepparents is notably absent from section 101(c) of the Act.
The foregoing comparison of sections 101(b) and (c) shows that when
Congress wants the term “child” to encompass stepchildren for some purpose
under the Act, it knows how to make its intention clear in that regard. Cf.
Matter of Briones, 24 I&N Dec. 355, 368 (BIA 2007). Furthermore, it is well
established that a negative inference may reasonably be drawn from the
exclusion of language from one statutory provision that is included in other
provisions of the same statute. Hamdan v. Rumsfeld, 548 U.S. 557, 578
(2006). As the United States Supreme Court has stated, “‘[W]here Congress
includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion.’”
INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (quoting Russello
v. United States, 464 U.S. 16, 23 (1983)). We see no reason why this
presumption should not apply here. Indeed, the legislative history of sections
101(b) and (c) contain substantial evidence that Congress deliberately defined
the term “child” to encompass stepchildren for visa allocation purposes, but
not for purposes of derivative citizenship.
As to stepchildren, the definitions in sections 101(b) and (c) of the Act find
their origin in the Immigration and Nationality Act of 1952, Pub. L. No.
82-414, 66 Stat. 163. Prior to the 1952 Act, a stepchild was not considered a
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
4 See Nationality Act of 1940, ch. 876, § 102(h), 54 Stat. 1137, 1138; Immigration Act of
1924, ch. 190, § 28(m), 43 Stat. 153, 169. Between 1855 and 1922, the general rule was that
an alien woman who was herself eligible for naturalization acquired United States citizenship
automatically upon her marriage to a United States citizen. See Act of February 10, 1855,
ch. 71, § 2, 10 Stat. 604; see also Kelly v. Owen, 74 U.S. 496, 498 & n.2 (1868). In turn, the
minor children of such a woman would derive United States citizenship automatically
through their mother—whether they were related to her new husband or not—pursuant to
the Act of April 14, 1802, ch. 28, 2 Stat. 155, which stated in relevant part that the children
of naturalized citizens were to be treated as citizens themselves. In re Roberston, 179 F. 131,
132 (D.C. Pa. 1910); United States ex rel. Fisher v. Rodgers, 144 F. 711, 712 (D.C. Pa.
1906); United States v. Kellar, 13 F. 82, 84-85 (C.C. Ill. 1882). Thus, in some sense these
children could be viewed as having derived citizenship through their United States citizen
stepfathers, albeit at several removes. However, the law that conferred automatic citizenship
on the alien wives of United States citizens was repealed in 1922. See Act of September 22,
1922, ch. 411, 42 Stat. 1021. Consequently, after that date the children of such women
ceased to derive citizenship, by extension, through their stepfathers. See S. Rep. No.
81-1515, at 707.
828
“child” under the immigration law for either derivative citizenship or visa
allocation purposes. S. Rep. No. 81-1515, at 707 (1950) (“Stepchildren do not
derive citizenship through the naturalization of a stepparent.”); Int’l Mercantile
Marine Co. v. Elting, 67 F.2d 886, 888 (2d Cir. 1933) (holding that a stepchild
could not be admitted as an immigrant by virtue of his relationship to his
stepfather); Weedin v. Mon Hin, 4 F.2d 533, 534 (9th Cir. 1925) (same); see
also Margaret M. Mahoney, Stepfamilies in the Federal Law, 48 U. Pitt.
L. Rev. 491, 514-34 (Winter 1987) (discussing the evolution of the treatment
of stepchildren under the immigration laws).4
In April 1950, a Senate subcommittee that was charged with the task of
examining the immigration system and making recommendations for its
improvement issued a comprehensive report discussing, among other
things, how children (including stepchildren) had historically been treated
under the immigration law. S. Rep. No. 81-1515, at 467-68, 706-09. The
subcommittee report noted at the outset that stepchildren had traditionally been
ineligible under our laws to obtain visas or derivative citizenship through
their stepparents. Id. at 468, 707. In the visa context, the subcommittee
recommended that the law be liberalized to grant “nonquota status” (roughly
the equivalent of “immediate relative” status under current law) to some
stepchildren of United States citizens. Id. at 468. When it came to derivative
citizenship, however, the subcommittee affirmatively disclaimed any intention
to change the existing law, which then provided that “[s]tepchildren do not
derive citizenship through the naturalization of a stepparent.” Id. at 707; see
also id. at 712-13.
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
5 In view of this fact, we have no occasion to decide whether the respondent was in his
stepfather’s “legal and physical custody” after being admitted as a lawful permanent resident,
as required by section 320(a)(3) of the Act.
829
Like the Supreme Court, we consider S. Rep. No. 81-1515 to be a valuable
historical resource for understanding the meaning of the 1952 Act. See, e.g.,
United States v. Mendoza-Lopez, 481 U.S. 828, 835 n.10 (1987); Saxbe
v. Bustos, 419 U.S. 65, 78 (1974); United States v. Menasche, 348 U.S. 528,
531 (1955). The report is of particular value in this case, because the
definitions of the term “child” ultimately embodied in sections 101(b) and (c)
of the 1952 Act appear to have sprung quite directly from the subcommittee’s
recommendations.
Finally, we observe that the DHS’s United States Citizenship and
Immigration Services (“USCIS”) has formally taken the position that
stepchildren cannot derive United States citizenship through their stepparents
under section 320(a) of the Act. See USCIS, DHS, Adjudicator’s Field
Manual, ch. 71.1(b) & app. 71-7 (2007), available at http://www.westlaw.com
(find by citation to “FIM-ADJFMAN 71.1” and “FIM-ADJFMAN APP
71-7”); see also Letter of Rosalina Lacot, Acting Director, Business Process
and Re-engineering, INS Immigration Services Division, Dep’t of Justice, to
Mr. Alan Lee (Aug. 8, 2001), reprinted in 78 Interpreter Releases, No. 32,
Aug. 20, 2001, app. III, at 1350, 1370. DHS memoranda and internal guidance
do not have the force and effect of law in removal proceedings, but the policies
contained in such memoranda can be adopted by the Board when appropriate.
Matter of M/V Saru Meru, 20 I&N Dec. 592, 595-96 (BIA 1992) (citing
Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980)).
In light of the foregoing, we agree with the Immigration Judge that an
alien cannot demonstrate derivative citizenship under section 320(a) of the
Act through a nonadoptive stepparent.5 Consequently, the respondent has
failed to rebut the presumption of alienage that arises by virtue of his foreign
birth, and the DHS has satisfied its burden of proving that the respondent
is an “alien.” The respondent is therefore subject to the jurisdiction of the
Immigration Court and this Board. He has made no argument on appeal as to
the validity of the charges of removability. Nor has he requested any form of
relief from removal. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
UUMV Not A Crime of Violence
May 12, 2009 by Thomas Esparza
Filed under Attorneys
No. 08-983
In the Supreme Court of the United States
JOSE ANGEL SERNA-GUERRA, PETITIONER
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT
ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney
General
DONALD E. KEENER
ROBERT N. MARKLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
(I)
QUESTION PRESENTED
Whether the Texas offense of unauthorized use of a
motor vehicle qualifies as a “crime of violence” under 18
U.S.C. 16 and is therefore an “aggravated felony” under
8 U.S.C. 1101(a)(43)(F ).
(III)
TABLE OF CONTENTS
Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TABLE OF AUTHORITIES
Cases:
Armendariz-Moreno v. United States, 129 S. Ct. 993
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Begay v. United States, 128 S. Ct. 1581 (2008) . . . . . . . . . . 5
Castillo-Lucio v. United States, 129 S. Ct. 993 (2009) . . . . 5
Chambers v. United States, 129 S. Ct. 687 (2009) . . . . . . 5, 6
Leocal v. Ashcroft, 543 U.S. 1 (2004) . . . . . . . . . . . . . . . . . 3, 4
Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009) . . . 5
United States v. Sanchez-Garcia, 501 F.3d 1208 (10th
Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statutes:
Armed Career Criminal Act of 1984, 18 U.S.C.
924(e)(2)(B)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Immigration and Nationality Act, 8 U.S.C. 1101 et seq. . . . 2
8 U.S.C. 1101(a)(43)(F) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4
8 U.S.C. 1101(a)(43)(G) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
8 U.S.C. 1227(a)(2)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
18 U.S.C. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4
Texas Penal Code Ann. § 31.07(a) (Vernon 2003) . . . . . . . . 2
IV
Miscellaneous: Page
Letter from Tim Johnson, Acting U.S. Atty, to Hon.
Charles R. Fulbruge III, Clerk, U.S. Court of
Appeals for the Fifth Circuit, regarding United
States v. Armendariz-Moreno, No. 07-40225 (Mar.
30, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Letter from Tim Johnson, Acting U.S. Atty, to Hon.
Charles R. Fulbruge III, Clerk, U.S. Court of
Appeals for the Fifth Circuit, regarding United
States v. Castillo, No. 07-40752 (Mar. 30, 2009) . . . . . . . 5
(1)
In the Supreme Court of the United States
No. 08-983
JOSE ANGEL SERNA-GUERRA, PETITIONER
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-10a)
is not published in the Federal Reporter but is reprinted
in 285 Fed. Appx. 110. The orders of the Board of Immigration
Appeals (Pet. App. 11a-12a, 13a-15a) are unreported.
The decision of the immigration judge (Pet.
App. 16a-22a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
May 30, 2008. A petition for rehearing was denied on
November 3, 2008 (Pet. App. 23-30a). The petition for a
writ of certiorari was filed on February 2, 2009 (a Monday).
This Court’s jurisdiction is invoked under 28
U.S.C. 1254(1).
2
STATEMENT
1. Under the Immigration and Nationality Act
(INA), 8 U.S.C. 1101 et seq., an alien may be removed
from the United States if he has been convicted of an
“aggravated felony” at any time after his admission.
8 U.S.C. 1227(a)(2)(A)(iii). The INA defines the term
“aggravated felony” to encompass numerous categories
of offenses, including “a crime of violence (as defined in
section 16 of title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least
one year.” 8 U.S.C. 1101(a)(43)(F). Section 16, in turn,
defines a “crime of violence” as:
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.
18 U.S.C. 16. The term “aggravated felony” also includes
“a theft offense * * * for which the term of imprisonment
[is] at least one year.” 8 U.S.C.
1101(a)(43)(G).
2. Petitioner is a citizen of Mexico who was admitted
to the United States in 1983 as a lawful permanent resident.
In 1986, petitioner pleaded guilty in a Texas court
to the felony offense of unauthorized use of a vehicle
(UUV) in violation of Texas Penal Code § Ann. 31.07(a)
(Vernon 2003), which provides that “[a] person commits
an offense if he intentionally or knowingly operates another’s
* * * motor-propelled vehicle without the effective
consent of the owner.” Petitioner was sentenced
to five years of imprisonment, but that sentence was
3
suspended, and he was placed on five years of probation.
Pet. App. 14a, 18a.
3. In 2005, United States Immigration and Customs
Enforcement (ICE) brought removal proceedings
against petitioner based on the Texas conviction. ICE
charged petitioner with being removable under Section
1227(a)(2)(A)(iii) because, after his admission, he had
been convicted of an aggravated felony. ICE alleged
that petitioner’s crime of conviction is both a crime of
violence, under Section 1101(a)(43)(F ), and a theft offense,
under Section 1101(a)(43)(G). Pet. App. 16a-17a.
An immigration judge in San Antonio, Texas, ordered
that petitioner be removed. Pet. App. 16a-22a. The immigration
judge found that petitioner’s conviction for
UUV is an aggravated felony because it is both a crime
of violence and a theft offense. Id. at 18a-21a.
Petitioner appealed to the Board of Immigration Appeals
(Board), which dismissed the appeal. Pet. App.
13a-15a. The Board affirmed the immigration judge’s
determination that petitioner is removable under Section
1227(a)(2)(A)(iii) as an alien convicted of an aggravated
felony because the Texas UUV offense is a crime
of violence. Id. at 15a. The Board did not address whether
UUV is also a theft offense. See id . at 13a-15a.
Petitioner sought review of the Board’s removal order
in the United States Court of Appeals for the Fifth
Circuit. The Attorney General filed a motion to remand
the case to the Board for reconsideration in light of this
Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004),
which held that driving under the influence (DUI) is not
a crime of violence under 18 U.S.C. 16 because DUI involves
negligent conduct that does not constitute the
sort of violent, active crime to which Section 16 is directed.
Petitioner did not oppose the motion to remand.
4
Administrative Record (A.R.) 52-56. The court of appeals
remanded the case to the Board. Id. at 51.
On remand, the Board reaffirmed its prior ruling.
Pet. App. 11a-12a. Relying on Fifth Circuit precedent,
the Board concluded that the Texas offense of UUV is a
crime of violence under 18 U.S.C. 16 and that petitioner
therefore is removable as an aggravated felon. Pet.
App. 12a.
4. The court of appeals summarily affirmed the
Board’s ruling. Pet. App. 1a-10a. The court held that it
was bound by Fifth Circuit precedent to conclude that
UUV is a crime of violence under Section 16 and therefore
an aggravated felony under Section 1101(a)(43)(F ).
Id. at 1a-2a. Judge Jolly concurred in only that part of
the court’s opinion. Id. at 1a n.*. In the remainder of
the opinion, Judges Dennis and Prado urged the full
court to rehear the case en banc and to overrule the controlling
precedent. Id. at 2a-10a.
Petitioner sought rehearing en banc, but the court of
appeals denied his petition. Pet. App. 23a. Judge Dennis,
joined by Judges King, Wiener, and Prado, dissented
from the denial of rehearing en banc. Id. at 24a-
30a. The dissenting judges argued that the Fifth Circuit’s
precedent holding that the Texas UUV offense is
a “crime of violence” under Section 16 is incorrect and
conflicts with Leocal v. Ashcroft, supra, and United
States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir.
2007). See Pet. App. 24a-30a.
DISCUSSION
Petitioner argues (Pet. 7-15) that this Court should
grant plenary review because the Texas UUV offense of
which he was convicted is not a “crime of violence” under
18 U.S.C. 16, and because the court of appeals’ deci5
sion upholding his removal conflicts with decisions of
this Court and the United States Court of Appeals for
the Tenth Circuit. In the alternative, petitioner argues
(Pet. 7-8, 13, 27, 28) that this Court should grant the
petition for a writ of certiorari, vacate the decision of the
court of appeals, and remand for further consideration
in light of Chambers v. United States, 129 S. Ct. 687
(2009). The Court in Chambers held that a failure to
report for weekend confinement is not a violent felony
under the Armed Career Criminal Act of 1984 (ACCA),
18 U.S.C. 924(e)(2)(B)(ii), because it does not present a
serious potential risk of physical injury to another. Respondent
agrees that the Court should grant, vacate,
and remand in light of Chambers.
As petitioner notes (Pet. 7-8), following the decision
in Chambers, this Court granted certiorari, vacated the
judgments below, and remanded for further consideration
in three cases from the Fifth Circuit raising the
same issue that petitioner raises here. See Castillo-
Lucio v. United States, 129 S. Ct. 993 (2009); Armendariz-
Moreno v. United States, 129 S. Ct. 993 (2009);
Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009).
The United States subsequently filed letter briefs in two
of those three cases, informing the Fifth Circuit that, in
light of Chambers and Begay v. United States, 128 S. Ct.
1581 (2008), which held that DUI is not a violent felony
under the ACCA, the government no longer adheres to
its prior position that UUV is a crime of violence under
Section 16. See Letter from Tim Johnson, Acting U.S.
Att’y, to Hon. Charles R. Fulbruge III, Clerk, U.S.
Court of Appeals for the Fifth Circuit, regarding United
States v. Armendariz-Moreno, No. 07-40225 (Mar. 30,
2009); Letter from Tim Johnson, Acting U.S. Atty, to
Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Ap6
peals for the Fifth Circuit, regarding United States v.
Castillo-Lucio, No. 07-40752 (March 30, 2009).
In light of the remands and the government’s change
of position, the Fifth Circuit may well reconsider its prior
rulings on the issue and bring itself into alignment
with the Tenth Circuit. Plenary review of the issue by
this Court would therefore be premature at this time.
Instead, the Court should follow the same approach here
that the Court took in Castillo-Lucio, Armendariz-
Moreno, and Reyes-Figueroa.
CONCLUSION
The petition for a writ of certiorari should be
granted, the decision of the court of appeals should be
vacated, and the case should be remanded for further
consideration in light of Chambers v. United States, 129
S. Ct. 687 (2009).
Respectfully submitted.
ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney
General
DONALD E. KEENER
ROBERT N. MARKLE
Attorneys
MAY 2009
Summary of State Bar of Texas meeting with top CDJ Consular Officials
May 6, 2009 by Thomas Esparza
Filed under Attorneys
April 24, 2009
Camino Real Hotel – El Paso, Texas
Laura Dogu, Deputy Consul General said:
· Visa floor (1st floor) has 87 windows, USC services floor (2nd floor) has 22 windows
· Goal is to get applicants in and out within one hour (not yet accomplished!) Diamond Dawgs full
· City of Juarez is building new holding center next door (to get people off the street), but it’s not done yet. They will eventually have places to sit in this climate-controlled facility, probably parking, and snacks/drinks. They are in talks about whether this facility would organize the appts by hour, and then when CDJ radios over that they’re ready for the next group, this facility would send them over. This is just in the idea stages right now.
· CDJ is largest U.S. Consulate in the world
· PER DAY, CDJ processes 800 to 1200 IVs, 1000 NIVs, 70 to 150 waivers, & 50 to 100 USC services/Federal benefits
· In 2008, CDJ processed 150,000 IVs and 130,000 NIVs (a record year for them) and they caught up on their backlog. This means that all IVs that come through NVC are immediately scheduled for IVs in CDJ.
· CEAC form DS-160 has been released recently – being used in CDJ for NIVs (but NOT for Ks! K1s are to continue bringing duplicate DS-156s and DS-156K and K3s are to bring duplicate DS-156s.)
· Eventually they want to make the DS-230s electronic, but not yet.
· Applicants are to arrive 15 mins prior to time of IV. They have a problem with applicants/family members standing in crowds in front of the Consulate – Attys should encourage clients NOT to arrive more than 15 mins early for IV!! Paseo de la Victoria is a busy 6-lane street (two-way traffic)!
· There are greeters outside to help deal w/the applicants who arrive early. They send them inside to the security office, where they are issued a numbered ticket.
· As of June 1, 2009, all USCs must have a passport (or passport card if traveling by land).
· New CDJ Inquiry form on their website – seems to be working pretty well. If they can’t answer the question right away, they send an email that they are researching the case and will get back to you.
· To reschedule an IV, you must call the CDJ Call Center.
· If you have Qs about a pending I-601, you must contact Warren Janssen’s unit directly (cdj.uscis@dhs.gov).
· CDJ prefers that applicants NOT pay in cash. They would rather the applicants pay with U.S. Postal Service money order or Visa/Mastercard/Discover/Diners/American Express. You can get prepaid credit cards or visa gift cards, and they encourage this. They will take cash, but prefer not to because of security/safety reasons.
· Medical clinics now accept Visa/Mastercard, either credit or debit cards, and prepaid international Visa/Mastercards (no Discover card or Diners card)
· Administrative processing can mean all sorts of things. A special team does NIV & IV admin processing. Once the admin processing is done, check the website for your case number, and then you can go back to CDJ to the Info Window at the front of the Consulate.
· Don’t come too early, don’t bring family, don’t bring thumb drives (or any other electronic device)…look at list of items not allowed in, because if you bring them, you have two options: 1) return to your hotel to leave the item, or 2) you lose it! CDJ does not have the capability to hold it for you.
· There is a parking lot across the street in the Centro Comercial. Apparently there are lockers somewhere over there for rent if your hotel isn’t nearby and you have belongings that are prohibited from CDJ.
· Fraud Prevention Unit….all FPUs from Mission Mexico (meaning all the Consulates in MX) now work together.
If CDJ has a case in another state in MX, they box up the case and send it to another Fraud unit that’s closer to do the investigation.
· If your case lands in the FPU and it’s a birth issue, CDJ likes to speak with the birth mother. Communicate w/CDJ to schedule an IV for the birth mother to come in and speak with a Consular Officer. (FPU schedules appt.)
Roger Rigaud, Director of NIV Unit said:
· CDJ still processes some Third Country Nationals when renewing H/L/Es, but no more new Es for TCNs.
· Mission Mexico comprises of 11 U.S. Consulates
· Several big changes:
o Switch to DS-160 (since 1/20/09) – responses MUST be in English, must complete form as thoroughly as possible, only need to bring confirmation sheet to NIV. Are still working out the bugs in this form.
o Shift to Applicant Service Center (ASC – the location of the old US Consulate). Right now they have a next-day policy, meaning go in for biometrics at ASC on one day and have NIV the next day. Soon will do same day service. $26 for photo/IV/DHL. Take to NIV: receipt for $26 and receipt from Banamex for $131 NIV fee. Computer Sciences Corp runs ASC. Call CSC to schedule appt for biometrics. Appt takes 9-15 minutes, so applicants can do it on their lunch hour or before or after work. Hours of ASC are 7 AM to 6 PM.
o Administrative Processing: see more info above in Laura Dogu’s section.
o NIV also use the pass back system (DHL), so when the applicant goes to the ASC for biometrics, he/she checks in at the DHL counter to leave an address where the DHL packet can be sent. Right now, it’s only within Mexico.
Santiago Burciaga, Director of IV Unit said:
· Now have Courier (DHL) pass back of docs. Pay DHL after waiver IV and leave Consulate. DHL can only deliver to two DHL offices in CDJ at the moment, but they are working on opening up more options, like to the applicant’s home in MX. DHL’s 800 number tells them which of the two DHL offices in CDJ has their docs.
· Two medical clinics – one at old location, and one at new location. 8-10 doctors and 2 panel psychologists at each one. Are building new medical clinic directly behind the Clinica Medica Internacional (at the new Consular location), but it’s not open yet. The old Medical Clinic will move there once the building is ready. Children ages 2 to 14 must plan to do medical exam FOUR days prior to IV because of TB skin test. TB skin test must be read in 72 hours, which means that they do not do these exams on Thursdays since it would have to be read on a Sunday, and they are not open Sundays. They are open Saturdays though, so they will do child medicals M-W and F.
· If applicant has been arrested, CDJ wants arrest reports AND final court dispositions, not just the court docs.
· If the applicant is 221(g) (missing docs), and if the Officer doesn’t need to speak with the applicant again, can just drop off docs at Info Window at the front of the Consulate, and they’ll get their visa thru DHL pass back.
· See Paul Virtue memo re: 212(A)(9)(c) issues for minors – CDJ is taking a tough line on these minors, unlike before.
· NVC now does all CDJ’s scheduling for initial IVs.
· If a petitioner who is living in MX legally wants to file I-130 for spouse, must do so at the U.S. Consulate that has jurisdiction over where he/she actually lives (in MX), such as MX City, Monterrey, etc. CDJ will accept I-130s if the petitioner lives within their jurisdiction. I-130s filed at the Consulate are usually processed within 30 to 90 days. They do require evidence from PR that he/she is legally living in MX (such as utility bills, rent receipts, etc.)
· Check stateside if a child can derive citizenship from a parent before filing the I-130 and proceeding to Consular Processing. Saves the IV unit time!
· I-601 waivers: If the applicant is denied for an IV because of unlawful presence (or whatever other reason) and qualifies for a waiver, the Consular Officer will give them written instructions on how to file waiver. Call CDJ Call Center 48 hrs after IV to schedule the appt. Day of IV: show confirmation sheet to greeters outside, then go straight to Cashier inside Consular building to pay $545. Then take a number and wait to talk to FSN (Foreign Service National) who will check waiver packet to make sure it is complete. The FSN passes the case on to a CIS Officer who will adjudicate the case the next day. It is currently taking about 4 business days to receive decision by DHL.
· 18 to 20% of cases are found ineligible for an IV
· ~60% are NOT represented by an atty!
· ~85% of petitioners accompany applicant to CDJ (but are NOT let into the Consulate unless specifically requested for some reason)
Warren Janssen, Field Office Director for USCIS (I-601 waivers)
· Added 2 new AOs (Adjudications Officers) to Waiver Unit in 2008.
Now have a total of 4 AOs.
· There are 9000 to 10,000 pending referred waivers right now!!!
· International Affairs is building new branch office in Los Angeles solely to help CDJ adjudicate waivers!!!!! Will have 8 new AOs and CDJ will send lots of their pending referred waivers to LA.
In future, the LA office will also support other Posts who need assistance with adjudicating waivers, so it is permanent. Hot Shots! on dvd
· As of 6/1/2009, CDJ will send approximately 4000 referred waivers to the Miami Asylum Office for additional help in adjudicating backlogged waivers. This is just a temporary solution for just a few months whereas the LA office is permanent.
· LA office will have all new hires. Majority of AOs are asylum officers, and all (including Miami office) will receive specialized training in adjudicating waivers. Training to start in a few weeks.
· Goal: process referred waivers within 6 months or less, but might not reach goal until the end of 2009.
· The Sicilian psp Best to send translations of any docs not in English since the AOs might not speak Spanish. They will try to have at least one in LA that speaks Spanish.
· Pilot Program Same Day/Next Day adjudications is permanent fixture now!
· 50% of cases are approved with pilot program.
· Mexico City has been helping adjudicate backlogged waivers. Approval rate is 30%.
·
When FSN goes over waiver packet w/applicant, will ask applicant Qs about unlawful presence dates, and maybe a few other Qs for clarification
· Atty/petitioner will probably NOT be notified if/when case is transferred to LA or Miami
· If we need to mail more evidence of hardship, should just continue to send it to P.O. Box in El Paso, and it should get forwarded on to LA or Miami (wherever case has been TF’d)
· CDJ processes about 100 waivers per day (with 3 Officers) – not enough to keep up with demand. That’s why it’s taking several days to receive decision by DHL.
· 2 month backlog before applicant can get waiver IV (from date of IV)
· 19,000 waivers were processed in 2008.
· An atty asked Janssen what constitutes a good waiver, and he was reluctant to answer, but did give us this:
o
Medical issues are typically the strongest factor
o Family ties in the U.S.
o Ability to relocate to Mexico
o Psych evaluations are given some weight (depending on what they cover in the eval)
o Financial issues (when combined with other factors)
Psych issues that stem from separation of applicant and USC/LPR spouse are given less weight than pre-existing psych issues (so if your petitioner has a history of depression, include supporting docs of this!!)
