Law Office of Joseph Muller

New BIA Decision in Matter of Y-I-M-

Last updated on December 26, 2019

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The BIA published a new decision on December 12, 2019. Matter of Y-I-M-, 27 I&N Dec. 724 (BIA 2019), discusses findings of adverse credibility in the context of an asylum application in removal proceedings. The BIA held that:

(1) An Immigration Judge may rely on inconsistencies to support an adverse credibility finding as long as either the Immigration Judge, the applicant, or the Department of Homeland Security has identified the discrepancies and the applicant has been given an opportunity to explain them during the hearing.

(2) An Immigration Judge may, but is not required to, personally identify an obvious inconsistency where it is reasonable to assume that the applicant was aware of it and had an opportunity to offer an explanation before the Immigration Judge relied on it.

In essence, this decision makes it easier for an immigration judge to find, and the BIA to uphold, adverse credibility decisions. The BIA declined to adopt more stringent requirements for what a judge must do before determining that an applicant for asylum has not been credible.

Read the full decision here.

USCIS Adopts Decisions on Good Moral Character

Last updated on December 26, 2019

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On December 10th, 2019, USCIS announced that it was going to adopt two decisions from the Attorney General relating to good moral character. These decisions had already been announced previously, but with USCIS formally adopting them they will become directly applicable to benefits such as naturalization for people applying for US Citizenship.

Specifically, USCIS adopted the decisions Matter of Castillo-Perez and Matter of Thomas and Thompson. Those decisions relate to DWI or DUI convictions and how they affect good moral character determinations, as well as the length of a criminal sentence for immigration purposes. It’s especially important for individuals with prior convictions of any kind to discuss their case with an immigration attorney before filing for any benefits. Convictions involving alcohol are mentioned directly, but they are not the only type that will cause problems for citizenship or other benefits.

Read the full announcement below:

WASHINGTON—U.S. Citizenship and Immigration Services today announced new policy guidance implementing two decisions from the attorney general regarding how two or more DUI convictions affect good moral character (GMC) requirements and how post-sentencing changes to criminal sentences affect convictions and sentences for immigration purposes.

On Oct. 25, the attorney general decided in Matter of Castillo-Perez that two or more DUI convictions during the statutory period could affect an applicant’s good moral character determination. When applying for an immigration benefit for which GMC is required, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses. The term DUI includes all state and federal impaired-driving offenses, including driving while intoxicated, operating under the influence, and other offenses that make it unlawful for an individual to operate a motor vehicle while impaired.

Also on Oct. 25, the attorney general decided in Matter of Thomas and Thompson that the definition of “term of imprisonment or a sentence” generally refers to an alien’s original criminal sentence, without regard to post-sentencing changes. Post-sentencing orders that change a criminal alien’s original sentence will only be relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.

“In response to two decisions from the attorney general, USCIS has updated policy guidance on establishing good moral character for immigration purposes,” said USCIS Deputy Director Mark Koumans. “As the attorney general directed, this guidance enhances public safety by ensuring that USCIS adjudicators consider driving under the influence convictions with the appropriate standard of scrutiny.”

Under U.S. immigration law, there are consequences for criminal convictions and sentences that could render applicants inadmissible, deportable, or ineligible for an immigration benefit. Also, certain immigration benefits require an applicant to demonstrate that an alien has GMC to be eligible for the benefit. For example, naturalization applicants must demonstrate GMC. To find more information about this update, view the USCIS Policy Manual.

Recent USCIS Changes to Special Immigrant Juvenile Status

Last updated on January 5, 2020

On October 15, 2019, USCIS issued a notice of changes to the requirements for Special Immigrant Juveniles. This announcement follows shortly after USCIS adopted three decisions that will impact pending cases for anyone seeking Special Immigrant Juvenile, also known as SIJ classification. Those adopted decisions are:

Read the full announcement below.

USCIS Clarifies Special Immigrant Juvenile Classification to Better Ensure Victims of Abuse, Neglect and Abandonment Receive Protection

Release Date: Oct. 15, 2019
WASHINGTON—U.S. Citizenship and Immigration Services today clarified requirements regarding the Special Immigrant Juvenile (SIJ) classification. To ensure consistency surrounding this classification, USCIS is issuing three Administrative Appeals Office (AAO) adopted decisions. Through these adopted decisions, USCIS clarifies that it requires evidence of a court’s intervention to provide relief from abuse, neglect or abandonment beyond a statement that the juvenile is dependent on the court. This level of intervention from the court serves as an indicator as to whether the SIJ classification is sought for its intended purpose of relief from parental abuse, neglect or abandonment and not primarily to obtain an immigration benefit. Many juvenile court orders already contain this level of detail.

USCIS also clarifies that it will consider qualifying orders from state courts, provided the petitioner met the applicable definition of a juvenile under state law when the order was issued and the court determined the juvenile was subject to parental abuse, neglect, abandonment or similar maltreatment. These clarifications will provide guidance to adjudicators in evaluating juvenile court orders issued under different state laws in the adjudication of petitions for federal SIJ classification.

Additionally, USCIS is no longer requiring evidence that a state court had the authority to place a petitioner in the custody of an unfit parent in order to make a qualifying determination regarding parental reunification for purposes of SIJ classification.“Through these clarifications, USCIS adjudicators will help ensure those who are victims and truly need protection from abuse, neglect, abandonment or a similar basis under state law receive the assistance they need,” said USCIS Acting Director Ken Cuccinelli. “These new clarifications will better protect deserving juvenile immigrants while also promoting program integrity and upholding our laws. Congress needs to address loopholes in the SIJ program to better protect children.”

USCIS will also reopen the comment period for the proposed rule, Special Immigrant Juvenile Petitions, for 30 days to gather more information so it can clarify SIJ requirements by rulemaking. USCIS will accept comments through Nov. 15, 2019. In recent years, the SIJ classification has increasingly been sought by juvenile and young adult immigrants solely for the purposes of obtaining lawful immigration status and not due to abuse, neglect or abandonment by their parents. Through this rulemaking, USCIS seeks to realign the SIJ classification with congressional intent, implement statutorily mandated changes and address shortcomings in the regulations that threaten the integrity of the SIJ program.

USCIS acknowledges the potential for reliance interests; however, these three adopted AAO decisions do not create legally binding rights or change substantive requirements. They will go into effect on Oct. 15, 2019 and will apply to pending and future petitions. Related materials are available to the public: the three adopted AAO decisions, and the Special Immigrant Juvenile Petitions proposed rule, 76 FR 54978 (PDF).The SIJ classification was established by Congress in 1990 to provide a pathway to legal status for children in the U.S. foster care system who required court intervention to protect them from parental abuse, abandonment or neglect. While there is no limit on the number of SIJ petitions that USCIS is able to approve each year, there is a limit to the number of SIJ-based adjustments that USCIS may approve due to visa availability. For the past several years, USCIS has granted approximately 5,000 SIJ adjustments each year.

https://www.uscis.gov/news/uscis-clarifies-special-immigrant-juvenile-classification-better-ensure-victims-abuse-neglect-and-abandonment-receive-protection