<![CDATA[Immigration Briefs

<![CDATA[Immigration Briefs - Blog]]>Sat, 11 May 2024 11:22:06 -0700Weebly<![CDATA[How do executive orders interplay with Congressional law]]>Tue, 23 May 2017 18:22:21 GMThttp://antonetti-law.net/blog/how-do-executive-orders-interplay-with-congressional-lawIt is obvious that the president cannot through executive orders change the operations of the Immigration and Nationality Act by fiat. But what he can do under the separation of powers is to determine how the Act is to be implemented. Thus President Obama was constitutionally able to determine that he would no longer accept Cubans applying for asylum at the border by simply paroling them into the United States. If paroled Cuban applicants could for residence under the Cuban Adjustment Act of 1966. Now Cubans applying for admission must undergo the same procedure as other asylees which includes detention and a hearing while detained to determine if they fit the statutory definition of asylees. This procedure may result in immediate removal after the hearing since few Cubans now have legitimate asylum claims.

However the executive orders must still pass constitutional muster. Thus executive orders banning persons from several countries that are primarily Muslim runs afoul of the First Amendment. Therefore executive orders must still fit within the separation of powers without which there can be no democracy.

So the bottom line is that executive orders are really nothing more than administrative or prosecutorial decision as to how to apply the Immigration and Nationality Act. decisions by the ]]><![CDATA[Circumstance-specific approach applied to determine nature of conviction for domestic violence]]>Sat, 28 May 2016 17:26:19 GMThttp://antonetti-law.net/blog/circumstance-specific-approach-applied-to-determine-nature-of-conviction-for-domestic-violence

Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016)

(1) In analyzing whether a conviction is for a crime of domestic violence under section
237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i)
(2012), the circumstance-specific approach is properly applied to determine the
domestic nature of the offense.
(2) Where the respondent’s original sentence for his Georgia conviction was ambiguous
as to whether he was sentenced to probation or a probated term of imprisonment, a
clarification order issued by the sentencing judge to correct an obvious discrepancy in
her original order will be given effect in determining whether the respondent was
sentenced to a term of imprisonment of at least 1 year.

]]><![CDATA[Certain returning LPRs inadmissible in Ninth Cir.]]>Sat, 28 May 2016 17:22:23 GMThttp://antonetti-law.net/blog/certain-returning-lprs-inadmissible-in-ninth-cirMatter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016)

Within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a
returning lawful permanent resident who has a felony conviction for solicitation to
possess marijuana for sale is inadmissible under section 212(a)(2)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), even though that
section refers only to attempt and conspiracy to commit a crime involving moral
turpitude, and is therefore properly considered to be an arriving alien under section
101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2012). Matter of Vo, 25 I&N
Dec. 426 (BIA 2011), clarified.

]]><![CDATA[When does an offense qualify as an aggravated felony under Sec. 101 (a)(43)(T) of the INA]]>Sat, 28 May 2016 17:16:03 GMThttp://antonetti-law.net/blog/when-does-an-offense-qualify-as-an-aggravated-felony-under-sec-101-a43t-of-the-inaMatter of Garza-Olivares , 26 I&N Dec. 736 (BIA 2016)

In assessing whether an offense qualifies as an aggravated felony under section
101(a)(43)(T) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(T) (2012),
the categorical approach applies to decide if the offense relates to an alien’s failure to
appear before a court, but the circumstance-specific approach applies to determine if the
failure to appear was (1) pursuant to a court order (2) to answer to or dispose of a charge
of a felony (3) for which a sentence of 2 years’ imprisonment or more may be imposed.

]]><![CDATA[Under 245A an alien must establish admissibility to become a temporary resident and to adjust status]]>Thu, 17 Mar 2016 17:07:37 GMThttp://antonetti-law.net/blog/under-245a-an-alien-must-establish-admissibility-to-become-a-temporary-resident-and-to-adjust-statusMatter of Villalobos, 26 I&N Dec. 719 (BIA 2016)

The BIA has jurisdiction to decide whether a respondent is removable under section 237(a)(1)(A) of the Act as an alien who was inadmissible at the time he adjusted status under section 245A(b)(1) of the Act. The provisions of 245A make clear that an applicant must establish admissibility, not only to initially become a temporary resident, but also to adjust status to that of a permanent resident. An alien who was inadmissible at the time he was granted adjustment of status under section 245(A)(b)(1) is ineligible for 212(c) relief because he or she has not been lawfully admitted for permanent residence.

]]><![CDATA[Assault may not be a crime of violence]]>Fri, 26 Feb 2016 21:52:46 GMThttp://antonetti-law.net/blog/assault-may-not-be-a-crime-of-violenceMatter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016)

The Board held that regardless of the name of the statute it is not a crime of violence unless an element of the crime is the use, attempted use or threatened use of violent physical force. The Board withdrew Matter of Martin, 23 I&N Dec. 491 (BIA 2002).

Thus a conviction for the crime of aggravated battery under the Puerto Rico Penal Code is not a crime of violence because it does not require the use of physical force.]]><![CDATA[Confinement in a Substance Abuse Facility Equivalent to Term of Imprisonment]]>Fri, 12 Feb 2016 20:33:52 GMThttp://antonetti-law.net/blog/confinement-in-a-substance-abuse-facility-equivalent-to-term-of-imprisonmentMatter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015)

Respondent was convicted of aggravated assault under Section 22.02(a)(2) of the Texas Penal Code and as a condition of probation was sentenced to a term of confinement in a substance treatment facility. The BIA held that confinement in a treatment facility constituted a term of confinement under section 101(a)(48)(B) for purposes of determining if an offense is a crime of violence under section 101(a)(43)(F) of the Act

]]><![CDATA[N.Y. Child Endangerment Held to be Categorical Offense]]>Fri, 12 Feb 2016 19:24:30 GMThttp://antonetti-law.net/blog/recent-bia-casesMatter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016)

The BIA found that because the offense of endangering the welfare of a child in violation of section 260.101(1) of the New York Penal Code requires knowingly acting in a manner likely to be injurious to the physical, mental or moral welfare of a child is categorically a crime of of child abuse, child neglect or child abandonment pursuant to section 237(a)(2)(E)(i) of the Immigration and Nationality Act.

Any state statute which defines child abuse as requiring actual knowledge and the likelihood of harm rather than the possibility of harm will following this case constitute a categorical crime of child abuse. To fall outside the categorical definition Respondent must prove that there are convictions under the pertinent statute that do not constitute child abuse under the Act.]]>