Olsi Vrapi for TX Chapter Secretary

Dear Chapter Members:

I was recently honored and humbled to receive the nomination for Chapter Secretary. I am writing to ask for your vote and support in the upcoming chapter elections. I believe to be the best candidate for the job. Here are some of my ideas for the chapter and some of my qualifications.

I have several ideas which I believe will benefit Chapter members individually and the Chapter as a whole.

· Institute a mentor program within the Chapter akin to the AILA Mentor Program. 43% of TX Chapter members are new members. The chapter is a great source of support to its members, but I believe it can do more.

· Encourage Chapter unity. Our chapter is quite big both in numbers and geographically. I personally practice in NM. Because of the geographical spread our Chapter tends to have certain areas isolated from the rest such as El Paso/NM which comprise a small percentage of Chapter membership. I intend to encourage fostering greater Chapter unity and collaboration so that every member from every corner of the Chapter's geographical spread has a chance to contribute to the mission of our chapter and AILA as a whole.

· Continue to provide excellent conferences. I have served on the planning committees of several conferences including the last two annual conferences. The Chapter organizes great conferences and I intend to continue that trend and provide leadership in raising the bar.

I have served in various capacities at AILA which has given me the leadership skills to be able to be an effective leader in our Chapter. I have served or am currently serving as follows:

AILA Amicus Committee Member 2009-2010

AILA Publications Committee Member 2009-2010

AILA Criminal Removal Conference Committee Member 2009-2010

AILA Publications Committee Chair 2010-2011

AILA Annual Conference Planning Committee Member 2010-2011

AILA Annual Conference Planning Committee Due Process Track Chair 2011-2012

AILA EOIR Liaison Committee Member 2011-2012

AILA I-601 Provisional Waiver Comment Team Member 2012

AILA Albuquerque ICE liaison 2010-Present.

Speaker at every AILA Annual Conference since 2009

Speaker at various other TX Chapter and other conferences

TX Chapter Spring 2012 Conference Accommodations Chair.

I was also honored by AILA National with two awards. The 2010 Jack Wasserman Award for Excellence in Litigation for my work as part of the AILA Amicus Committee and most recently I am being awarded the 2012 Joseph Minsky Young Lawyer Award at the upcoming AILA Annual Conference in Nashville, TN.

My track record speaks for itself. I have given much to AILA and want to continue to give to our Chapter just as the Chapter has given to me. For this I ask for your vote in the upcoming election.

Thank you!

Olsi Vrapi

I-601 Lockbox Filing

At a recent stakeholders' teleconference, USCIS announced a change in the I-601 waiver world which is lockbox filing. This announcement took place on March 9, 2012. This change is certain to occur and is expected to roll out in late Spring, early Summer 2012. Under this new system all foreign filed waivers will be centralized at the Nebraska Service Center to be adjudicated by a core of 26 adjudicators. Initially there will be 13 adjudicators, a number which will eventually reach approximately 26 when the program is fully phased in. Presently, USCIS International Operations adjudicates around 23,000 per year with about 17,000 of that being filed in Cd. Juarez. With this new core of adjudicators it appears that each officer will adjudicate approximately 1,000 per year. This means that each adjudicator will have about 2 hours to dedicate to each waiver packet. This is a considerable difference to the current triage process at Cd. Juarez where there are only 4 officers reviewing more than 4 times as many waivers per adjudicator thus giving them less than 30 minutes to review a waiver packet.

The waivers will be filed at the Phoenix lockbox which will eventually forward the waiver to the Nebraska Service Center after initial processing. The waiver can be filed as soon as the consular interview has occurred and the client found inadmissible by a consular officer. The waiver cannot be filed prior to the consular interview at this time. If this is done the waiver will be denied as no inadmissibility finding has been made at the time of filing. If the concurrent filing of waivers is implemented this will likely change in some respects.

When the waiver is received at the NSC the USCIS officer will review the computer system which is linked to the Department of State database. This system will reveal to the USCIS officer the ground of inadmissibility applied by the consular officer. Upon approval, the decision will be communicated to the Department of State for issuance of a visa. A question arises; what happens if the consular officer applies a ground of inadmissibility we disagree with, especially one that has no waiver available such as false claim to U.S. citizenship? USCIS has stated that it is working with Department of State to establish protocols where the two agencies would confer to come to a decision. Ultimately, the consular officer is the gatekeeper so the USCIS position is that it cannot order DOS to apply or not apply a certain ground of inadmissibility.

For the first few months of the new process being rolled out applicants will have the option of filing either abroad or with the lockbox. If a waiver is filed in both locations the two files will be matched up and be adjudicated at the NSC. USCIS announced that the current backlog is unlikely to move to the NSC for adjudication.

There will be no initial triage like there is now at the Cd. Juarez office. All waivers will receive full consideration in due course. USCIS estimates that waiver adjudications at the NSC will take 6 months or less.

There are several reasons for this change, such as cost and consistency. The Department of State charges USCIS approximately $275 for each waiver it accepts and forwards to the overseas USCIS with jurisdiction over the applicant’s residence. This change will funnel all filing fees to USCIS instead of giving almost half to DOS. USCIS has stated that it is looking to provide consistent adjudication in waivers. FY 2010 statistics from the Department of State show that among all grounds of inadmissibility applied worldwide, 85% of unlawful presence waivers, 30% of criminal waivers and 25% of fraud waivers were approved. This is so even though the standard is the same: extreme hardship. Will the same approval levels be maintained by NSC? It remains to be seen.

I-130/I-601 concurrent filing?

Since the USCIS Ombudsman's recommendation on June 10, 2010 on the concurrent filing of I-130s and I-601s for those who have to process their immigrant visas abroad, there has been a lot of joy, hope, speculation, anxiety and exasperation (in that order) from those of us who handle a substantial amount of those cases. The response from USCIS in late 2010 to that recommendation was "USCIS is considering this recommendation."

Where does that leave us attorneys and the public? It has been over a year since the recommendation and USCIS response.

Some events that have occurred that are not necessarily readily apparent to those who do not practice in this field are instructive. Taking these events into account, I am thinking there will be a major change coming up soon.

In early 2011, Warren Janssen, who was the Field Office Director at USCIS Cd. Juarez was transferred and promoted to Deputy Director of the Nebraska Service Center. One should think that that was Mr. Janssen's reward for combat duty in Cd. Juarez for so many years. I don't dispute that. Mr. Janssen has sacrificed a lot in Cd. Juarez and he deserves his new post. I think he is an excellent civil servant. However, I suspect the move emcompassed some strategic reasons as well. Mr. Janssen's move came after the Ombudsman's recommendation and the USCIS announcement of a working group on the concurrent filing issue.

For a while this issue went dormant until the late summer of 2011. USCIS had given several indications that something was in the works; however, to our disappointment, all signs pointed to a centralization of foreign filed I-601 adjudications to the United States, but this was to be done after the consular interview. This meant no concurrent filing. If anything, this would make things worse for Mexican cases since they would now have to wait normal processing and the rapid adjudication program in Cd. Juarez would be officially over. This centralization was scheduled to start implementation in November 2011. November came and went and nothing was announced one way or the other.

At around this time USCIS appears to have reduced adjudicatory staff in Cd. Juarez. It appears they reduced something like 75% of adjudicators there. This change appears to have been consistent with the USCIS plan to centralize I-601s adjudications in the U.S. We all felt the reduction in adjudicators at USCIS last year since cases were taking forever even for rapid adjudication. Rapid wasn't so rapid anymore.

A question arises: why would USCIS reduce staff at USCIS in anticipation of centralization only not to implement centralization and leave the new Field Office Director, Yolanda Miranda, hanging with no help for considerable time after the November plan?

The answer I suspect: the Administration had a change of heart and decided to go with the Ombudsman's recommendation and I have a feeling it will announce concurrent filing of I-130s and I-601s pretty soon.

What does concurrent filing mean for your clients? It means that the I-601 will be adjudicated while your client is still in the U.S. (for those who are already here, obviously). That shortens the time the immigrant will have to wait abroad from months to a couple of weeks to pick up the immigrant visa. In addition, any denials of the I-601 will give the immigrant two options, drop the process while still in the U.S., or appeal while still being home for dinner every night during the 2-3 years it takes AAO to adjudicate these appeals. This is not a guaranteed system however as the consulate can always discover new grounds that apply to the client which would necessitate a new waiver post-consular interview, but that's an issue for another blog.

I have my fingers crossed and I'm hoping USCIS will have an announcement soon. After all, elections are coming in about 10 months and the President needs the Latino vote.

Our firm in the news: ICE wrongfully detains U.S. citizen.

ICE does it again.  They picked up a U.S. citizen.  ICE was informed by client that his parents were U.S. citizens and thus was on notice that he was likely a U.S. citizen, but detained him nonetheless.  Giving credit when credit is due, when our firm contacted ICE with documentation about the derived citizenship, ICE released client in a relatively short period of time.  However this was about 13 days after client was originally detained.

http://www.santafenewmexican.com/Local%20News/Citizens-rounded-up

There are a lot of U.S. citizens out there who don't even know about their U.S. citizenship.

Business as usual. Rant on the new prosecutorial discretion guidelines.

There has been a lot of hoopla about the prosecutorial discretion memos issued by ICE Secretary John Morton and the recent White House announcements on the same issue.  A lot of immigrants, immigration attorneys and activists got riled up and we all started to see some light at the end of the tunnel.

Not for long however.

I soon realized that the timing of this announcement was too perfect.  The election season is barely starting for the president and he is badly hurting for the Hispanic vote.

Furthermore, thinking like a bureaucrat, this new memo has no chance of ever seeing the results it promises.  Allow me to illustrate.  Last week our local immigration attorneys had a liaison meeting with ICE officials from the Albuquerque Field Office.  Present at the meeting were also the Chief Counsel and the Assistant Field Office Director for ICE El Paso.  The resounding answer from parties involved was: business as usual.  ICE officials at least in the El Paso/Albuquerque offices do not see any new guidance coming out of the memo.  They simply consider it as a compilation of old memos.  This means that fugitive operations will still do a sweep and come back with a van full of people when they only had one target and that stay-at-home moms or even DREAMers without any criminal record whatsoever will still be placed in removal proceedings.

I at least appreciate their honesty.

I really did not have much hope in anything changing.  What the memo proposes is unworkable in the real world viewing the situation from the perspective of the government.  Dan Kowalski did a superb job in his blog about this issue and hit the nail on the head.  If there is no real incentive on ICE employees to apply this memo, nothing will change.  By incentive I mean to get rid of numbers as the yardstick and instead engaging in smart enforcement where ICE employees are rewarded for successful application of priorities.  In the words of an ICE official, "if you don't give me a peg to hang my hat on, I"m going to be doing the same thing as before."  The administration has not given its employees a real peg to hang their hat on.  I didn't expect one to come any time soon either.  After all, the administration got the publicity it wanted so who cares about the rest.  Now it's up to us to explain to the numerous clients asking us about the new "Obama law" that nothing will change and to watch out from unscrupulous characters who will undoubtedly do a lot of damage taking advantage of an already vulnerable population. 

Matter of Alyazji, can we stretch it beyond adjustment of status?

For a lawful permanent resident to be deportable for having committed a single crime involving moral turpitude (CIMT), the CIMT must be committed within 5 years of admission.  In a recent decision, Matter of Alyazji, 25 I&N Dec. 397 (BIA Feb. 2, 2011), the Board overruled Matter of Shanu, 23 I&N Dec. 754 (BIA 2005) and decided that when an alien has an admission pursuant to which he or she resided in the United States and a subsequent admission to LPR status, it is the earlier admission that serves as the reference point for purposes of INA 237(a)(2)(A)(i).  The most typical example is when someone enters as a non-immigrant visitor and remains in the United States for many years and at some point adjusts status. 

So the issue of someone entering with a visitor visa and adjusting status later on is settled.  What about those relatively rare cases where someone obtained admission through an immigrant visa and not adjustment of status?  My take is that Alyazji still applies since an immigrant visa and adjustment of status are both considered “admissions” by the Board.

The Board decided that when an alien has multiple admissions, only one of them can be considered for calculating the 5 year clock.  Alyazji, at 405.  It further stated, “given that section 237(a) is focused on admission plus presence, we find that the most natural reading of section 237(a)(2)(A)(i) is that the phrase ‘the date of admission’ refers to the date of the admission by virtue of which the alien was present in the United States when he committed his crime.”  In Alyazji, the Board unequivocally held that adjustment of status is an admission, however if the alien was residing in the United States pursuant to a prior admission, the latter admission to LPR status does not serve as a new reference point from which to calculate the 5 years.  Instead, the Board held, the new admission to LPR status serves a mere extension of an existing period of presence that was “sufficient in and of itself to support the alien’s susceptibility to the ground of deportability.” Alyazji, at 406-07.  The Board made no distinction between an immigrant visa admission and an adjustment of status.  If anything, the Board’s unequivocal holding that an adjustment of status qualifies as an admission is support for the fact that the two are essentially equally valid for this rule of law.

Since the Board considered the adjustment of status admission as merely extending the presence which was established by the prior non immigrant admission, it found that the earlier admission was the reference point. 
The Board’s main concern with this new rule was that not any prior admission would qualify as a reference point.  Using the Board’s example, a two week visit to Disneyland 20 years prior would not be sufficient.  Therefore, the Board’s concern was a temporal one, not a procedural one.  The Board would consider an earlier admission as the reference point only if by virtue of it the alien established a residence in the United States that was merely extended by admission to LPR status. 


There is further support for the proposition that the Board treats an immigration visa admission and an adjustment of status equally.  The Board made a reference to Martinez v.Mukasey, 519 F.3d 532 (5th Cir. 2008) in footnote 4 and distinguished it.  By distinguishing this case, it is evident that the Board makes no legal distinction between an immigrant visa and adjustment of status for purposes of the “mere extension” of the residence already established through the prior admission.  Martinez is generally read narrowly to apply only to the 212(h) context. 


The inspiration for this blog came from a recent case I had where I filed a motion to terminate based on the above argument and it was granted.  Hopefully ICE won't appeal so my client can be released and return home to his family after almost a year of detention.  If you have had any cases in this context, please discuss results in the comments section.  

Statiscally speaking, the ground of inadmissibility your client is charged with has a lot of weight on the outcome of the waiver.

The standard for many waivers of inadmissibility is extreme hardship to a qualifying relative.  However, statistics from USCIS international operations included here show that although the standard is the same, the approval rates of the different waivers are very different.  Take for example the most common waivers, unlawful presence (INA 212(a)(9)(B)), fraud or misrepresentation (INA 212(a)(6)(C)(i)) and crimes (INA 212(a)(2)).  In fiscal year 2010, 21,688 applicants for immigrant visas were charged with the unlawful presence bar and 18,497 overcame it, an almost 85% approval rate.  In contrast, 6,088 IV applicants were charged with the misrepresentation bar and only 1,450 of them overcame it, a mere 23.8% and even worse than criminal grounds of inadmissibility.  

A table of these statistics is attached here.  If the quality of this attachment is not very good, AILA members can access them though the AILA website here: http://www.aila.org/content/default.aspx?docid=34082 (scroll down to the end of the document), AILA InfoNet Doc. No. 11010669. (Posted 1/7/11).  Again, this is only for international operations.  It does not include domestic filed waivers.

This is a clear lesson in not forgetting to address the discretionary factor.  As shown here, the discretionary factor can have a huge impact on the chances of approval or denial of a particular type of waiver.  Advise your clients properly.