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BIA’s Decision in Matter of Thakker

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September 20, 2024, the Board of Immigration Appeals issued a decision in Matter of THAKKER, 28 I&N Dec. 843 (BIA 2024). Matter of Jurado, 24 I&N Dec. 29 (BIA 2006), aff’d sub. nom. Jurado-Delgado v. Att’y Gen. of U.S., 498 F. App’x 107 (3d Cir. 2009), overruled in part. In Matter of Thakker, the Board of Immigration Appeals (BIA) addressed whether convictions for retail theft under r retail theft under section 3929(a)(1) of title 18 of the Pennsylvania Consolidated Statutes qualified as crimes involving moral turpitude (CIMT) for immigration purposes rendering the Respondent removable under section 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. 8 C.F.R. § 1003.1(d)(3)(ii) (2024). The BIA ultimately concluded that those convictions were not CIMTs. The BIA began by recognizing the long-held principle that theft offenses are only considered CIMTs if they involve an intent to permanently deprive the owner of their property, citing to Matter of Diaz-Lizarraga. The BIA acknowledged that its prior decision in Matter of Jurado had established an assumption that retail theft offenses inherently included this intent to permanently deprive. However, the BIA determined that this assumption, which stemmed from a desire to distinguish between significant and minor property deprivations, was incompatible with the categorical approach established by the Supreme Court in Descamps v. United States, 570 U.S. 254 (2013). The categorical approach dictates that the BIA must focus solely on the elements of the crime as defined by the statute of conviction, rather than on the specific facts of the case. The BIA then examined the relevant Pennsylvania retail theft statute at issue in Matter of Thakker and found that it did not explicitly require an intent to permanently deprive as an element of the offense. Since the statute lacked this essential element, the BIA held that convictions under this statute could not be categorically classified as CIMTs. The BIA distinguished this case from its prior decision in Matter of Diaz-Lizarraga, where it found that shoplifting under a specific Arizona statute was categorically a CIMT. The BIA highlighted that the Arizona statute defined “deprive” in a way that encompassed an intent to permanently deprive, unlike the Pennsylvania statute. The BIA concluded that Matter of Jurado needed to be partially overruled because its assumption regarding intent to permanently deprive in retail theft cases conflicted with the categorical approach mandated by the Supreme Court. This decision emphasizes the BIA’s obligation to adhere to the categorical approach when determining whether a crime involves moral turpitude for immigration consequences. The BIA clarified that it cannot rely on assumptions about criminal intent that are not explicitly stated within the elements of the offense outlined in the relevant statute. The Respondent’s convictions for retail theft under section 3929(a)(1) of title 18 of the Pennsylvania Consolidated Statutes, all of which predate the Board’s decision in Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), are categorically not for crimes involving moral turpitude because the statute does not require an intent to permanently deprive the victim of property. 

USCIS Extends Green Card Validity After Filing For Renewal

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Extension to Automatic Renewal of Green Card After Filing for Replacement or Renewal on Form I-90

Effective Sept. 10, 2024, U.S. Citizenship and Immigration Services automatically extended the validity of Permanent Resident Cards (also known as Green Cards) to 36 months for lawful permanent residents who file a Form I-90, Application to Replace Permanent Resident Card.    A Form I-90 receipt notices had previously provided a 24-month extension of the validity of a Green Card.    Lawful permanent residents who properly file a Form I-90 to renew an expiring or expired Green Card may receive this extension. USCIS has updated the language on Form I-90 receipt notices to extend the validity of a Green Card for 36 months from the expiration date on the face of the current Green Card for individuals with a newly filed a Form I-90 renewal request. On September 10, 2024, USCIS began printing amended receipt notices for individuals with a pending Form I-90 application.    These receipt notices can be presented with an expired Green Card as evidence of continued status. This extension is expected to help applicants who experience longer processing times, because they will receive proof of lawful permanent resident status as they await their renewed Green Card.   Evidence of Green Card If you no longer have your Green Card and you need evidence of your lawful permanent resident status while waiting to receive your replacement Green Card, you may request an appointment at a USCIS field office by contacting the USCIS Contact Center, and we may issue you an Alien Documentation, Identification, and Telecommunications (ADIT) stamp after you file Form I-90.    For more information, visit our Replace Your Green Card page.    When Must a Green Card be Replaced? If you are a lawful permanent resident, you must replace your Green Card if: If you are a conditional permanent resident, you must replace your Green Card if: Old Versions of LPR Card That are No longer Valid If you have a previous version of the noncitizen registration card (for example, USCIS Form AR-3, Form AR-103 or Form I-151), you must replace it with a current Green Card. LEGAL AUTHORITY Section 264 of the Immigration and Nationality Act (INA) states, “Every alien in the United States . . . shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations . . .” It also says, “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him . . .. Any alien who fails to comply with [these provisions] shall be guilty of a misdemeanor…” The specific requirements and procedures for applying to replace a Green Card are contained in the Code of Federal Regulations (CFR) at 8 CFR section 264.5. WHAT IS A USCIS FORM I-551? A Form I-551 is the physical card that is issued as proof of a person’s legal permanent resident status. It is the actual “green card.” It has changed several times of the years so it is no longer green but it is still referred to as a green card by most. <- 2017 Card The 2011 Edition of the Form I-551 An LPR can also get an I-551 or AUDIT Stamp in their passport as temporary proof of status while waiting for a new card. 1960’s Green Card

BORDER PATROL FALSELY IMPRISONED 9 & 14-YEAR-OLD US CITIZEN SIBLINGS

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In 2019, a 9-year-old girl, Julia, and her 14-year-old brother, Oscar were in a car returning to the United States with their mother’s friend. They had to return to San Diego after a brief trip in order to attend school. When they arrived at the border at 7am the traffic was moving very slowly through the customs checkpoint according to an article published by Telemundo. The brother and sister and two two other children got out of the car to walk across the border since it would be hours quicker than if they waited to go through in the car. The adult they were traveling with was ordering an Uber to pick the children up on the US side and bring them to school. Julia and Oscar both had valid US passports with them when they arrived at the border checkpoint. The other two children they were with went through to the US without an issue. Julia and Oscar were taken aside for a secondary inspection where they searched their backpacks and then took Julia to a separate room. The officers question them separately and according to court records, and Julia was questioned in a room alone with an officer who was “known for getting confessions.” They allege that Julia is not his sister but actually his cousin using Julia’s passport. He says that he told the officers that Julia was indeed his sister and not his cousin multiple times. Despite Julia and Oscar both telling the officers they were wrong. The officers continued to interrogate the two minors without a parent present. Eventually the officers threaten to take Oscar to jail for human trafficking and he might be charged with sex trafficking a minor unless he signs a statement which says that Julia is his cousin. They held Oscar until the following day before releasing him but they did not release Julia. Her mother was not allowed to see Julia or speak with her because they said she was not the girl’s mother. Not knowing what to do she contacted Telemundo who contacted CBP and the Mexican Consulate. It was not until almost 48 hours later that the minor was released from custody. According to an article in the Los Angeles Times, “The two children remain distressed following the incident. Oscar’s grades declined and his parents sought therapy for him. Julia, who was also in therapy following her detention, also suffered insomnia and nightmares that have continued for years, [Judge] Curiel wrote in his ruling.” “No employee interviews were conducted. All audio and video evidence was deleted. CBP simply put out a press release blaming the children and swept the rest under the rug, If CBP will try to hide the truth when U.S. citizen children are treated so outrageously, imagine how often misconduct against undocumented children will go on uncorrected. I find that deeply troubling.” Joseph McMullen, Attorney for the Family In 2022 the family brought a lawsuit against CBP for unlawfully detaining the two US citizen children, improperly interrogating them, and intentionally inflicting psychological harm. In a 2024 decision the Judge ruled in their favor and criticized the officers in his ruling for failing to interview family members who could have provided proof of the girl’s identity and not reviewing documents in the girl’s backpack that could have quelled their suspicions. “Common sense and ordinary human experience indicate that it was not reasonable to detain Julia for 34 hours to determine her identity or to detain Oscar for about 14 hours to determine whether he was smuggling or trafficking his sister when multiple means of investigation were available and officers unreasonably failed to pursue them,” Judge Curiel wrote in his decision. The Judge awarded $250,000 to the children’s mother, $175,000 to Oscar and $1.1 million to Julia. The attorney for the family said he appreciated the ruling and thanked the Judge for allowing “the opportunity to examine at trial, the high-level CBP officials who were complicit in this outrageous conduct” according to the Las Angeles Times Article. Unfortunately, this is not an isolated incident. Despite the stats posted by DHS it is not uncommon for US citizens and even US citizen children to be wrongfully detained for extended periods of time by immigration officials. In the same year (2019) an eighteen-year-old US citizen high school student who was born in Texas was jailed for weeks by CBP without being charged according to an article from CNN. He was held in atrocious overcrowded conditions that were so bad that he lost 28 pounds during the 27 days he was detained. There were 70 other men being detained in the same cell with only a single toilet that had no door or wall or privacy of any kind. They were given wipes “every few days” to clean themselves. The teen said that the wipes were useless because they were covered in so much dirt. He said that when told the officers he had the right to call an attorney he was told, “you have no rights.” His attorney said he was given the run around by ICE. After he provided ample proof of the teen’s US citizenship including his full birth certificate, ICE continued to detain him two weeks and initiated removal proceedings against him trying to deport him. The teen did not bring legal action against CBP or ICE and has remained remarkably positive about the experience of being kidnapped by his own government for three weeks. In the interview he did with CNN he said, “It’s made me stronger. I see life differently after seeing how other people have been suffering. It’s made me understand many things like how you can live your life while others are suffering.” “It’s made me stronger. I see life differently after seeing how other people have been suffering. It’s made me understand many things like how you can live your life while others are suffering.”

Process to Promote the Unity and Stability of Families (PIP Expansion)

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update

USCIS sent out an email regarding the Biden Administrations recent executive action to allow the spouses of US citizens who have been living in the US for ten years and who entered without inspection to get parole in place in order to become eligible for adjustment of status allowing them to bypass the need of obtaining an I-601A. The announcement refers to the program as the “Process to Promote the Unity and Stability of Families.” The Department of Homeland Security (DHS) had announced this on On June 18, 2024. There are no details available yet about the process beyond the basic eligibility criteria. We still don’t know the process for applying, how the applications will be adjudicated, or anything else. The email states that USCIS will begin accepting applications on August 19, 2024. It says that if you apply before August 19, 2024, USCIS will reject the application. To get the details about eligibility and the application process will all have to wait for the final rule to be published in a forthcoming Federal Register notice. When will the Expanded Parole In Place Program begin? August 19, 2024 Who is Eligible? To be considered for a discretionary grant of parole, on a case-by-case basis, under this process, you must:     YOU CANNOT FILE ANYTHING YET AND YOU SHOULD NOT LISTEN TO ANYONE WHO IS TELLING YOU THAT YOU CAN. THE FINAL RULE HAS NOT BEEN RELEASED AND NO ONE KNOWS THE PROPER PROCEDURES AT THIS TIME. USCIS WILL NOT ACCEPT ANY APPLICATIONS BEFORE AUGUST 29TH. What You Can Do Now  Although we are not currently accepting applications, you can begin to prepare to file a parole application by gathering evidence of your eligibility, such as:   For noncitizen children of requestors, evidence of eligibility could include:  — Evidence of the child’s presence in the United States as of June 17, 2024. — Evidence of the child’s relationship to the noncitizen parent, such as a birth certificate or adoption decree;  — Evidence of the noncitizen parent’s legally valid marriage to a U.S. citizen as of June 17, 2024, such as a marriage certificate; and  — Evidence of the child’s presence in the United States as of June 17, 2024.   GO TO THE OFFICIAL USCIS WEBSITE FOR INFORMATION https://www.uscis.gov/keepingfamiliestogether

SCOTUS DISGARDS CHEVRON DOCTRINE

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In the decision issued on Friday, June 28, 2024, the Supreme Court significantly weakened the power of federal agencies to implement and enforce regulations. The court’s decision written by Chief Justice Roberts, overturns the Court’s 1984 finding in Chevron v. Natural Resources Defense Council and will have a major impact on the Federal Government’s ability to regulate everything from climate change to artificial intelligence to labor and immigration. It marks a huge win for corporations, as it will be significantly harder for the government to restrict their ability to dump toxic waste into rivers, treat their workers horribly, make children’s toys with known carcinogens, and fix prices on products people need. This also gives the Courts a lot more power and control over how regulations are interpreted and enforced. In Chevron, the Supreme Court granted the federal government broad deference to enact regulations without judicial interference under the idea that the specialists who write environmental regulations for the EPA or immigration policy or DHS, should be assumed to know what they are talking about. Ultimately it allowed for agencies to enact regulations without having to wait for the courts to weigh in, unless the regulation was an unreasonable interpretation of the underlying law enacted by Congress that delegated regulatory authority to that agency. “ rule of judicial humility gives way to a rule of judicial hubris. In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar… The majority disdains restraint, and grasps for power.” Justice Kagan in LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, SECRETARY OF COMMERCE

Department of State v. Muñoz

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no right to marriage

In State Department v. Muñoz, the U.S. Supreme Court ruled against a U.S. citizen who said her constitutional rights were violated by the federal government when it denied a visa to her Salvadoran husband. Munoz and her husband, who she married in 2010 and has a child with, have been separated since 2015 while they were going through the visa process. After several interviews, a consular officer denied Asencio-Cordero’s application, citing a provision that renders inadmissible a noncitizen whom the officer believes seeks to engage in unlawful activity. Asencio-Cordero and Muñoz sued the Department of State, claiming that it had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the “unlawful activity” bar, because the consulate did not provide any further explanation for the decision. Visa denials are not reviewable in court unless the government violates an applicant’s constitutional rights in the process.The Supreme Court on Friday rejected Munoz’s claim that the delay in explaining the denial violated her due process rights by interfering with her fundamental right to marry. The claim “involves more than marriage and more than spousal cohabitation — it includes the right to have her noncitizen husband enter (and remain in) the United States,” Justice Amy Coney Barrett wrote for the court. Justice Sotomayor (joined by Justices Elena Kagan and Ketanji Brown Jackson) wrote, “There is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision.”