Legalization

"Arriving Aliens" & Adjustment of Status

ARCHIVED ISSUE PAGE (LAST UPDATED SEPTEMBER 2008)

In 1997, the former INS adopted a regulation that barred all "arriving aliens" who were in removal proceedings from adjusting status. See former 8 C.F.R. § 245.1(c)(8); § 1245(c)(8). At the same time, INS adopted a regulation broadly defining the term "arriving alien." As a result, under 8 C.F.R. § 245.1(c)(8) and § 1245.1(c)(8), almost all parolees in removal proceedings were barred from adjustment of status. Several courts struck down these regulations barring adjustment as ultra vires to the statute. On May 12, 2006, the government issued an interim rule deleting the absolute bar on an "arriving alien's" ability to adjust status in removal proceedings. Under the interim rule, USCIS has jurisdiction to adjudicate the adjustment application. Litigation under the interim rule has focused on the BIA's blanket denial of all motions to reopen, remand or continue a removal case while USCIS is adjudicating the adjustment application.

Latest Developments|Additional Resources

The American Immigration Council’s LAC would like to hear how USCIS is handling the adjustment applications of “arriving aliens” in removal proceedings who are now eligible to apply for adjustment with USCIS under the interim rule. Please contact [email protected] to let us know what has happened in your clients' cases.

Latest Developments

BIA Requests Briefing on the Issue of Whether USCIS Can and Will Decide an Adjustment Application of an "Arriving Alien" Under a Final Order of RemovalRead more...

Economists say Alabama's tough new immigration law could damage state's economy

Published on Sat, Jul 16, 2011

MONTGOMERY -- Supporters of the state's new immigration law called it a jobs program when it was being debated in the Legislature, but some economists predict it will put the stigma of the 1960s back on Alabama.

In enacting what has been described as the nation's toughest immigration law, some fear the Legislature's action will backfire, possibly driving away industrial prospects as it promises to chase away thousands of Hispanics holding jobs in construction, food service, manufacturing and agriculture.

Dr. Keivan Deravi, an economics professor at Auburn Montgomery and budget adviser to the Legislature, says the law wasn't supported by facts and wasn't based on "real economic theories and research."

"It is the wrong message sent to the rest of the nation and the business world, especially considering the degree of ongoing globalization," he said.

But Sen. Scott Beason, R-Gardendale, the Senate sponsor of the immigration bill, called that view a wish of "something bad on the state."

"A business invests where it gets a good quality product and work force," he said. "I don't believe for a minute that it (immigration law) will keep them from coming here. I do not believe it hurts us on the world stage."

Rep. Micky Hammon, R-Decatur, the House sponsor of the bill, did not return a phone call.

The law is scheduled to take effect Sept. 1, although a coalition of civil rights groups filed a federal class-action lawsuit that asserts it is unconstitutional because it interferes with federal authority over immigration matters.

Dr. Chris Westley, associate professor of economics at Jacksonville State University, said the law raises the "perception factor" about the state and that capital investment "will tend to avoid Alabama relative to other Southern states."Read more...

Published in the Alabama.com

Aiding and Abetting as an Aggravated Felony

Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)Read more...

In a January 17, 2007 decision written by Justice Breyer, the Supreme Court found that a person who aids or abets a theft falls within the scope of the generic definition of theft. The Attorney General had sought certiorari in this Ninth Circuit removal case. The respondent, a permanent resident, was convicted of violating section 10851(a) of the California Vehicle Code. He was placed in removal proceeding and charged with removability based on an aggravated felony conviction, to wit, a theft offense as defined in INA § 101(a)(43)(G). The Ninth Circuit, relying on Penuliar v. Gonzales, 435 F.3d 961 (9th Cir. 2005), which held that the California statute is broader than the generic definition of theft, reversed the finding of removal.

All in the J-1 Family

August, 2008

The Exchange Visitor Program is pleased to announce Juan Morales Cifuentes as August's Exchange Visitor of the Month. Each month, we select an exchange visitor who has made an effort to get involved in his/her community and explore American Culture. Read more...

Rick Perry, immigration enforcement and the Florida Legislature

Published on Fri, Sep 30, 2011

GOP presidential candidate Rick Perry’s statements on immigration in Florida last week and the reaction of immigration enforcement only policy supporters seems to be having an impact on the Florida Legislature.

According to The Miami Herald:

Florida’s Tea Party activists say they will accept nothing short of requiring every employer to check the immigration status of their workers through the federal E-verify program in January when legislators convene in regular session. But armed with the support of Florida’s powerful agriculture and business groups, the same legislative leaders who last year promised Arizona-style immigration reform are now barely offering tentative support for it.

The Herald adds: “House Speaker Dean Cannon, whose chamber proposed but never passed an Arizona-style immigration enforcement plan last year, said that immigration reform may take a back seat to balancing the budget, reapportionment and strengthening the economy.”

Florida Senate President Mike Haridopolis, R-Merritt Island, said last week that his chamber would pass the same immigration bill it passed in the 2011 session. At this year’s RedState Gathering, Gov. Rick Scott said that an immigration enforcement bill “will happen this session.”

According to Numbers USA — an organization that wants “lower immigration levels” — Perry’s results in the Florida straw poll can be blamed on his weak stance on immigration enforcement. The group writes that “Texas Gov. Rick Perry is proving that appearing to be more concerned about illegal-alien workers than about unemployed Americans doesn’t work in Republican primaries.”Read more...

Published in the The Florida Independent

Audio Seminar: The Unwritten Rules of J Visas

Program

Immigration attorneys with clients who are training international personnel find that the J visa can offer many advantages over Hs and Bs: no restrictions on source of income, no USCIS involvement in the application process, priority visa appointments, etc. But the J visa comes with many considerations not readily found in the Department of State Regulations.

This audio seminar will cover "how it works" questions regarding SEVIS, maintaining J status, determining eligibility, determining home residency requirements, etc. It will also address some of the political considerations behind J policies. Read more...

Alumni of the Month: Ignacio De Solminihac Sierralta

February, 2013

In the winter of 2010, Ignacio De Solminihac Sierralta arrived in New York City to start a law internship. He was only in the US for two months, but on the day before his scheduled flight back to Chile, February 27, 2010, the sixth largest earthquake ever recorded hit Chile. The magnitude 8.8 earthquake also set off a devastating tsunami that reached all the way across the Pacific Ocean to Japan. Here’s his story. Read more...

Anchor Baby: A Term Redefined as a Slur

Published on Thu, Dec 08, 2011

What does the term “anchor baby” mean? If you were to look it up in the American Heritage Dictionary, you would find a new definition since last week.

The term was among some 10,000 new words and phrases in the fifth edition of the dictionary, published in November. It was defined as: “A child born to a noncitizen mother in a country that grants automatic citizenship to children born on its soil, especially such a child born to parents seeking to secure eventual citizenship for themselves and often other members of their family.”

But when Steve Kleinedler, the executive editor of the dictionary, read that definition during a radio interview last month, it troubled Mary Giovagnoli, the director of the Immigration Policy Center, a pro-immigration research group in Washington.

The once-obscure term has been used frequently in the recent debate over whether to change the Constitution to deny automatic American citizenship to children born in this country to illegal immigrant parents.

Last Friday morning, Ms. Giovagnoli posted an angry item on the center’s blog, saying the dictionary “masks the poisonous and derogatory nature of the term, a term which demeans both parent and child.” Her item soared into the blogosphere. By Friday afternoon, Mr. Kleinedler had called Ms. Giovagnoli.Read more...

Published in the New York Times

About the Legal Action Center

The Legal Action Center (LAC) is the litigation and legal resources arm of the American Immigration Council. The LAC’s mission is to protect the legal and constitutional rights of noncitizens, and to ensure that immigration law is interpreted and implemented in a manner that is sensible and humane. To this end, the LAC engages in impact litigation, including appearing as amicus curiae, before administrative tribunals and federal courts in significant immigration cases on targeted legal issues. The LAC also works with other immigrants’ rights organizations and immigration attorneys across the country to promote the just and fair administration of our immigration laws. In addition, the LAC is one of the leading providers of litigation-related legal resources for immigration advocates, including in-depth practice advisories, trainings and litigation meetings.

Additional information about what we do and our ongoing litigation and advocacy is available online, including staff biographies and contact information.

To learn more about the American Immigration Council, please see our organizational brochure.