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

Citizenship Day, Third Gender Option, & Social Security Cards

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social security card with Citizenship application

Paying Immigrants to Leave Social Security Cards Third Gender Option Citizenship Day Paying Immigrants Sweden is paying immigrants to leave their country. They had been offering up to 10,000 kronor per adult and 5,000 kronor per child since 1984 but it was hardly ever used. Only one person applied for the cash last year according to mynews. Apparently a few European countries have laws to bribe immigrants to leave their country. Denmark pays more than US$15,000 per person, compared to around US$1,400 in Norway, US$2,800 in France and US$2,000 in Germany. SOCIAL SECURITY CARDS U.S. Citizenship and Immigration Services today announced that, starting April 1, applicants filing Form N-400, Application for Naturalization, will have the option to request an original or replacement Social Security number (SSN) or card and update their immigration status with the Social Security Administration (SSA) without having to visit an SSA office. Noncitizens applying for naturalization using the new edition of Form N-400 (edition date 04/01/24) will be able to request an SSN or replacement card when submitting Form N-400. New citizens may no longer need to visit an SSA field office to apply for an SSN or replacement card or to provide documentation as evidence of their new U.S. citizenship status. Note that SSA may request additional information, if needed. Applicants who use the 09/17/19 edition of Form N-400 will not have this option as the SSA questions are only included in the 04/01/24 edition. The 04/01/24 edition of the Form N-400 will be available for online filing on April 1. To file Form N-400 online, applicants must first create a USCIS online account, which provides a convenient and secure method to submit forms, pay fees, and track the status of any pending USCIS immigration request throughout the adjudication process. There is no cost to set up a USCIS online account, which offers a variety of features, including the ability to communicate with USCIS through a secure inbox and respond to Requests for Evidence online. USCIS previously announced our intention to expand the Enumeration beyond Entry program to include applicants who apply for U.S. citizenship in the Interagency Strategy for Promoting Naturalization: First Anniversary Accomplishment Highlights (PDF, 1.79 MB). Third Gender Option We have revised Form N-400, Application for Naturalization, to provide a third gender option, “X,” defined as “Another Gender Identity.” We are also updating guidance in the USCIS Policy Manual accordingly to account for this form revision and other forthcoming form revisions that will add a third gender option; see the Policy Alert. The 04/01/24 edition of Form N-400 will be the first USCIS form to include the X gender option. Applicants filing this edition of Form N-400 on or after April 1, 2024, will have X immediately available as a gender option on their form. Applicants who have a pending Form N-400 using the edition in effect before April 1, 2024, may request to update their gender on or after April 1, 2024, as well. For all other forms, individuals must wait until USCIS revises those forms to include the X gender option. Consult the chart below to determine if the X gender option is available to you. If you want your gender to be reflected as X and… Then… You filed your Form N-400 before April 1, 2024, and your N-400 is still pending If you received a Request for Evidence (RFE) or interview notice: Provide a letter explaining that you request to change your gender to X in response to the RFE or at the interview.If you have an online account:Upload a letter explaining that you request to change your gender to X. Upload the letter as new evidence to the pending application.If you do not have an online account:Email USCIS-updategenderinfo@uscis.dhs.gov and request to change your gender to X.If you have a pending or approved VAWA, T, or U-related case:Refer to the Contact Us webpage (Inquiries for VAWA, T, and U Filings section). You already received your naturalization certificate You must wait until USCIS revises Form N-565 Application for Replacement Naturalization/Citizenship Document to add the X gender option. You must continue to submit the Form N-565 in accordance with form instructions until updated. Once USCIS revises Form N-565, the revised form will allow for a third gender option when applying for a replacement certificate. Form N-400 is the only USCIS form that offers the X gender option at this time. Therefore, until we complete additional form revisions that add the X gender option, naturalization certificates are the only USCIS-issued secure identity documents that can reflect the gender X. The X gender option is not yet available on the Form N-565. If you have other benefit requests pending with USCIS and would like to choose X as your gender, or if you would like to change your existing USCIS-issued secure identity documents to reflect X as your gender, you must wait until we update the relevant forms before you may do so. Once USCIS updates additional forms to offer the X gender option, benefit requestors may follow the instructions on the Updating or Correcting Your Documents webpage to select the X gender option.  Supporting Documentation Not Needed You do not need to provide supporting documentation to select X as your gender initially or to change your gender selection for Form N-400. The gender you select does not need to match the gender listed on your other immigration documents or on supporting identity documents, such as your birth certificate, passport, or state identification. Social Security Card Note that if you select the X gender option on the new Form N-400, you may need to visit a Social Security office for a Social Security card or to update your citizenship status. The Social Security Administration is still developing systems to accept the X gender option. Background Historically, USCIS forms and associated documents have only offered two gender options: “Male (M)” and “Female (F).” This has created significant barriers for requestors who do not identify with either of those options. Limiting benefit requestors to two gender options also creates administrative challenges for USCIS when we receive birth certificates or other official government-issued documents with a gender other than M … Read more

PAROLE IN PLACE POLICY CHALLENGED BY 16 STATES

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In June 2024, the Biden Administration announced its plan to rollout a process called Keeping Families Together, which would extend parole-in-place, which was previously limited to the immediate family members of members of the armed forces, to the spouses of US citizens who had been living in the US for ten years. Immediately after the program went live and started receiving applications on August 19, 2024, Texas and 15 additional states filed a lawsuit, and a Temporary Restraining Order (TRO) asking the court to immediately block the process. The Court previously dismissed a lawsuit brought by Texas challenging another parole program from the Biden administration, the CHNV Parole Program (interchangeably, the “CHNV Parole Program” or the “Program”). The Court in that case found that the States lacked standing to bring the challenge. That parole program had a relatively small number of eligible immigrants compared to the number that qualify under the new Keeping Families Together program. On Aug. 26, 2024, the United States District Court for the Eastern District of Texas, in Texas v. Department of Homeland Security, Case Number 24-cv-306, administratively stayed DHS from granting parole in place under Keeping Families Together for 14 days. Subsequently, the court issued another order and the administrative stay remains in effect through Sept. 23, 2024. Applications for parole-in-place under Keeping Families Together are still being accepted by USCIS. To apply one must submit an Form I-131F to USCIS (this form is only available for online submission). Apply online here. To comply with the district court’s administrative stay, USCIS will: – Not grant any pending parole in place requests under Keeping Families Together. – Continue to accept filings of Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens. – Continue to schedule biometric appointments and capture biometrics at Application Support Centers (ASCs). – The district court’s administrative stay order does not affect any applications that were approved before the administrative stay order was issued at 6:46 p.m. Eastern Time on Aug. 26, 2024. Parole is an exercise of DHS’s discretionary authority under section 212(d)(5)(A) of the Immigration and Nationality Act (INA) to allow certain noncitizen “applicants for admission” to be present in the United States on a temporary, case-by-case basis for urgent humanitarian reasons or significant public benefit. The INA defines an “applicant for admission,” in relevant part, as a noncitizen “present in the United States who has not been admitted.” Noncitizens who are present in the United States without admission or parole may be considered for parole in place under this process because they remain “applicants for admission.” Parole in place is available only for noncitizens who are present in the United States. If granted parole, and if otherwise eligible, these noncitizens may apply for adjustment of status to that of a lawful permanent resident without being required to leave the United States and be processed by a U.S. consulate overseas or obtaining an I-601A waiver.

Court Denies Motion to Vacate & Extends Stay of New Parole in Place Program

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Judge says Hold On

On September 4, 2024, a Federal Court denied the Federal Government’s motion to vacate and extended the stay that was previously put in place to prevent the Department of Homeland Security from granting applications for the new Keeping Families Together (parole-in-place for certain spouses of US citizens). The court extended itstemporary stay and restraining order for an additional 14-day period, such that it expires at the end of September 23, 2024, though it may be extended again. DHS can and will continue to receive applications for the new program but are barred from granting anyone parole under the order. Another hearing was scheduled for September 18, 2024, and deadlines for motions were set for the week prior. The Court said it was moving the case along on an accelerated timeline. The order states, “The rigor of defendants’ recent 60-page filing, however, does convince the court that a hearing on the facts and the law can be scheduled on an even more accelerated schedule than previously anticipated, which the court sets below.” If you are interested in reading the entire order from the Court you can find it below.

United States District Court Puts New Parole In Place Policy on Hold

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On August 26, 2024, the United States District Court for the Eastern District of Texas, in Texas v. Department of Homeland Security, Case Number 24-cv-306 administratively stayed DHS from granting parole in place under Keeping Families Together for 14 days; the District Court might extend the period of this administrative stay. While the administrative stay is in place: USCIS cannot grant any pending parole in place requests under Keeping Families Together. USCIS will continue to accept filings of Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, without adjudicating them. NOTE: The District Court’s administrative stay order does not affect any applications that were approved before the administrative stay order was issued. See USCIS.gov for the most up-to-date information and any updates.