DHS announced the rollout of Temporary Protected Status for Afghanistan effective May 20, 2022, to November 20, 2023. The designation allows eligible Afghan nationals (and individuals having no nationality who last habitually resided in Afghanistan) who have continuously resided in the United States since March 15, 2022, and who have been continuously physically present in the United States since May 20, 2022 to apply for TPS.
In Matter of German Santos, 28 I&N Dec. 552, (BIA 2022), the Board held that: (1) Any fact that establishes or increases the permissible range of punishment for a criminal offense is an “element” for purposes of the categorical approach, even if the term “element” is defined differently under State law. Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022), followed, and (2) Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which punishes possession with intent to deliver (PWID) a controlled substance, is divisible with respect to the identity of the controlled substance possessed, and the respondent's conviction under this statute is one for a controlled substance violation under section 237(a)(2)(B)(i) of the Immigration and Nationality Act.
Not a great outcome for many noncitizens with a criminal record reflecting this conviction, but this is the nature of the categorical approach versus modified categorical approach word salad. It does not seem to have been taken to the Third Circuit yet on a petition for review, but I would expect it to be filed within the thirty day period following May 5, 2022, so by June 4, 2022. Because June 4, 2022, is a Saturday, the alien has until June 6, 2022, to file the petition.
On May 5, 2022, the Third Circuit issued a decision in an immigration case, Ibrahim v. Att'y Gen., 2022 WL 1449178 (3d Cir. May 5, 2022) (not precedential). The decision shows the importance of clearly laying out one's grounds for an appeal to the Board of Immigration Appeals. Here, this particular panel of the Third Circuit cited the following:
“We do not, however, apply this [exhaustion] principle in a draconian fashion.” Lin v. Att’y Gen., 543 F.3d 114, 121 (3d Cir. 2008). “As this Court has recognized, ‘so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted [his] administrative remedies.’” Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006) (quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)).
However, the Court seemingly failed to apply that liberal take on the exhaustion principle since the Respondent did indeed notify the Board that Third Circuit law should apply to his case and not the Fifth Circuit case that the immigration judge in his case had applied. The Third Circuit states that because "nowhere did he [Ibrahim] criticize, or even comment upon, the IJ’s inclusion of an addendum of law based on Fifth Circuit precedent," his case has a fatal deficiency. Thus no jurisdiction and Ibrahim's petition for review was dismissed.
As expected, on March 3, 2022, DHS announced that Ukraine would be designated for Temporary Protected Status.
"Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS. Ukraine’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks."
With so many attorneys willing to engage in fraudulent, unethical, or unprofessional activity, it is important to remember that if it sounds too good to be true, then it probably is. On February 23, 2022, the U.S. Attorney in New Jersey posted news of the arrest of Steven G. Thomas of New Hope, Pennsylvania. Thomas was arrested and charged with visa fraud. Just a few years ago, another local lawyer, David Piver, was charged with similar criminal conduct and ended up pleading guilty to aiding and abetting false statements. On April 19, 2021, the Board of Immigration Appeals suspended yet another local lawyer for one year and one day. The BIA acted after the Pennsylvania Supreme Court suspended Tahir Mella for one year and one day on March 14, 2021. In Mella's case, the suspension was imposed on account of his violation of various rules of professional conduct and federal regulations. Even if you hire a lawyer to handle your case, it remains your responsibility to be informed on what is happening with your case.
Current options for Ukrainians wishing to come to the United States include 1) seeking a non-immigrant visa (e.g., tourist visa) from a United States Embassy (Consulate) in a third country (such as Poland, Romania, Hungary, etc.), 2) seeking humanitarian parole into the United States (usually only granted if a non-immigrant visa has been denied), 3) arriving in the United States by whatever means and seeking asylum, 4) using a previously granted visa to come to the United States. In the near future, the United States may also designate Ukrainians located abroad for refugee status. There maybe other options available depending on the particular circumstances of the immigrant in question.
With the Russian invasion of Ukraine ongoing, the United States is likely to roll out Temporary Protected Status to Ukrainian citizens and those who last habitually resided in Ukraine before reaching the United States. Temporary Protected Status, if published and put into effect, would permit those eligible to receive it to lawfully remain in the United States even if ordered removed or even if no other path to lawful status exists. Currently, the following countries are designated for TPS: Yemen, Haiti, Syria, Burma, El Salvador, Honduras, Nepal, Nicaragua, Venezuela, Somalia, South Sudan, and Sudan. Although not yet available, TPS for Ukraine is likely to come into effect based on current U.S. foreign policy.
As of August 12, 2021, ICE will cease to house immigration detainees at the York County Prison. Apparently, this is a result of ICE being unwilling to pay for a high enough number of beds per day to make it economical for the prison to continue to house immigration detainees. Unfortunately for future ICE detainees in the Philadelphia area, the end result will be for them to be held in detention centers farther away from where they live including in out-of-state facilities anywhere in the country. The York Immigration Court will also be closing. It remains to be seen if the York Court will move to a new location in the York area or potentially to the Pike County Correctional Facility.
A series of memos (King, Trasvina, Pekoske, and Johnson) have been issued within DHS, ICE, and EOIR which all point to DHS' ability to exercise its discretion just as a criminal prosecutor would do at a district attorney's office. There's nothing new here except now DHS is being pushed to return to how it behaved during the Obama terms. Also, some of the DHS' priorities are more refined which means that any given foreign national is more likely to obtain some form of relief either through affirmative action or even by ICE reviewing cases sua sponte. Possible relief includes dismissal of cases, joint motions, stipulation to eligibility for relief, agreement not to appeal, rescission of notices to appear, and many more. It remains to be seen if ICE will offer deferred action as a form of PD.
On May 5, 2021, the Third Circuit overturned the Board of Immigration Appeals decision in Matter of Castro-Tum, which greatly reduced the use of administrative closure in the immigration courts and at the Board. With the Third Circuit's decision, various avenues of relief are possible again including the provisional waiver. The former Attorney General's decision in this case highlighted the need for immigration courts to become Article I courts akin to bankruptcy courts which are mentioned in the same line as naturalization in the U.S. Constitution. There are many pitfalls to administrative closure so its grant is not always a victory.