Update on Khalid v. Holder…

Quite a few of our clients have asked us about the Fifth Circuit’s decision in Khalid v. Holder that was issued on September 8, 2011 and the implementation of this decision with U.S. Citizenship and Immigration Service (USCIS). As previously mentioned in the September 2011 newsletter, Khalid decision overturned the Board of Immigration Appeal’s (BIA) precedent decision in the Matter of Wang, 25 I&N Dec. 28 (2009). Section 203(h)(3) of the Immigration and Nationality Act (INA), enacted through the Child Status Protection Act (CSPA), provided the retention of the parents’ original priority date when the child is not protected by CSPA and was not able to accompany the parents. The BIA construed this provision in Wang to mean that the subsequent petition is a new and separate petition and would not be accorded the parents’ original priority date. Therefore, the child will have to wait for at least 8 years for the new visa petition to become current. The BIA based its interpretation because it found Section 203(h)(3) of the INA to be ambiguous; therefore, the BIA looks to the legislative history of CSPA and the petitioning process of the family petition to reach its decision. The 9th Circuit (California) in De Osorio v. Mayorkas (September 2, 2011) and the 2nd Circuit in Li v. Renaud, No. 10-2560-cv (June 20, 2011) agreed with the BIA’s interpretation in Wang. However, the 3 panel appellate judges unanimously in the 5th Circuit disagreed with BIA and opted not to follow Matter of Wang. The decision is effectively immediately and is only controlling in the states of Texas, Louisiana and Mississippi.

Khalid is a huge unexpected decision coming from a very conservative court of appeal. The significant of this decision will reduce a tremendous amount of time that the left-behind child will have to wait for a visa, especially now, the priority date is almost at a stand-still due to an outdated immigration system. On November 14, 2011, USCIS has requested an en banc hearing before the presence of all appellate judges for Khalid. It is still pending for a re-hearing, and there is no stay of this decision. Should the outcome be unfavorable or denied, there is a possibility that an appeal would be taken to the U.S. Supreme Court. Attorneys for the De Osorio and Li have also asked their perspective appellate courts for a rehearing in light of Khalid. The odd of Khalid being overturned is slim. The decision was well written, and they found that there was no ambiguity in the language and the plain language of the statute only lead to the conclusion for the retention of the priority date. There is a good likelihood that other circuits will now follow the 5th Circuit as well. The decision is effective immediately, and the office has requested USCIS to adjust the priority date based on the Khalid decision.

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Posted on January 16, 2012 | Category: Newsletters

As you read this newsletter, our office is  celebrating its 14th year in serving the Vietnamese community in  Houston and the surrounding areas.  Looking back throughout these years, the office has assisted thousands  of people to be with their family members or to become a United States citizen.  In addition, we have represented hundreds of  people before the immigration courts to seek an opportunity to remain in the  United States.  Of course, all of these  years in service would not be possible without the support of our clients.  Thank you for your support and for your  continuing your trust in our office to handle your matters.

To better assist our clients, the office has made  major changes since the beginning of this year.   The first change that you already notice is  the office’s monthly newsletter.  The  newsletter, in English and Vietnamese, is a direct means to reach to our  clients, or prospective clients to inform, or to update of any changes in the  U.S. immigration and nationality law.  It  is also a means to alert our clients of any immigration related matters that  are of utmost importance or time sensitive in nature.  For example, the first alert that was sent  was the Fifth Circuit’s decision in Khalid  v. Holder.

The second change is that the office has produced a  weekly one-hour immigration program that has been airing with Vietface 51.2 in  Houston and 55.2 in Dallas.  In addition,  the archives of these programs can be viewed on our website, www.luatsutuan.com.  We have invested countless hours to produce  the programs that we hope would be educational for our clients and the general  viewers.

Our office’s website underwent a major  reconstruction in November 2011.  We have  created a blog section that allows the office to instantly update any news  information, or to upload video programs and the newsletter, and to blog from  any social media outlets.  We are in the  process of creating the Vietnamese version for the website, and hopefully  within a year, our clients may track the progress of their petitions through  our website.

We have made significant progress, and this  progress is not possible without the support from our clients. Thank you again for your support, and we hope  you have a Merry Christmas and a Happy New Year.

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Posted on December 29, 2011 | Category: Newsletters

As the political stalemate in immigration reform continues in Washington, D.C., more states address the problems of foreign national presence in the United States without lawful status by enacting their own legislation. The first state to enact such legislation was Arizona. With its enactment of SB 1070 on April 23, 2010, Arizona became the first state to try to deter the entry of foreign nationals without legal status and to detect those that were unlawfully present in the state. SB 1070 contains several harsh provisions. Those provisions include that Arizona law enforcement officials inquire the immigration status of foreign national when they are in “lawful contact”. It imposes criminal and civil liabilities for foreign nationals that fail to present immigration documents and for those that work in the state unlawfully as employees or independent contractors. Most, if not all of the SB 1070 provisions, have already existed in the federal law. Soon after SB 1070 is enacted, the U.S. Department of Justice, the ACLU and other private organizations mounted a legal challenge in the federal courts to challenge the constitutionality of the Arizona law under the preemption doctrine. The federal court did enjoin the harshest provisions of SB 1070, and the state has appealed this matter to the 9th Circuit Court of Appeal. Several states have since then enacted similar legislation by copying Arizona’s law. Those states include Georgia, Alabama, Utah, and South Carolina. A similar legislation was introduced in Texas, but the legislation failed to gain support of businesses and was successfully blocked by Democrats in the Texas Senate.

Alabama has taken SB 1070 into a further step with its enactment of HB 56. HB 56 mandates that school official to inquire into the children’s and their parents’ immigration status and to report them to the state. In addition, HB 56 enjoins the Alabama state courts from enforcing any contract when the foreign nationals are unlawfully in the U.S. Much like Arizona, the U.S. Department of Justice and other groups have filed lawsuits in federal court to enjoin HB 56. On October 14, 2011, the 11th Circuit U.S. Court of Appeals in Atlanta ordered an injunction blocking two key provisions of HB 56 from remaining in effect while the appeal of the district court’s ruling continues. The two provisions enjoined are (1) Section 10, making it a state crime to be undocumented in the state of Alabama; and (2) Section 28, requiring public school students to prove their immigration status or be presumed undocumented. The court also allowed two provisions to remain in effect while the legal challenge continues, and they are (1) Section 30, making it a felony for undocumented individuals to enter into business transactions with the state or any subdivision thereof; and (2) Section 12, allowing local law enforcement to stop, detain, or arrest anyone they suspect of being undocumented.

The political stalemate in immigration reform will persist and the likelihood of comprehensive immigration reform is bleak. There will be additional states that will enact their own legislation. Eventually, the U.S. Supreme Court will have to make a critical decision on the boundary of the state’s when its tries to address the problem of undocumented foreign nationals.

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Posted on November 16, 2011 | Category: Newsletters

I am still taken back and trying to come to grasp with the recent Fifth Circuit’s decision, Khalid v. Holder, Cause No. 10-60373 (Decided on September 8, 2011). It is ironic that the most conservative appellate court in the U.S. has ruled in favor of the applicant, while the 9th Circuit and 2nd Circuit Courts of Appeal have ruled the opposite. Normally, favorable immigration decisions are expected to be within the 9th and 2nd Circuit Courts of Appeal. For the past few weeks, I have reviewed most, and if not, all of the clients’ files that may benefit from this decision. For our clients that are eligible, I have called or personally consulted with you about the positive outcome of this decision and have advised on the necessary steps that we need to undertake. If for some reason that you feel that you are within the benefit of Khalid and that I have not contacted you, please do not hesitate to give me a call or send me an email. I am here to assist you in any possible way. Here are a few thoughts that I want to share with you after going through the process of reviewing all the files for Khalid.

The Child Status Protection Act (CSPA) looks simple but the interpretation of this Act is more complex than initially thought. For this reason, I think this is why the Department of Homeland has not come out with the regulations for this Act even though the Act was passed 9 years ago. For an attorney, I have to rely on the recent memorandums from USCIS and court decisions, whether from the Board of Immigration Appeals (BIA) or federal court, for guidance. I can assure you that due to the complexity of CSPA, there will be many more decisions coming from the Courts regarding CSPA. For example, just days ago, the BIA just issued a precedent decision in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (Oct. 6, 2011). See below for additional information.

There is no frame that will “fit all” when it comes to the application of CSPA. There are countless occasions in which I personally saw the inappropriate comparison of CSPA to other family’s child, or the miscalculation, or total misunderstanding of CSPA. The consequence is tremendous for the child that remains behind. For example, on at least 5 occasions, I have seen the U.S. Consulate in Saigon miscalculate or did not adequately consider the additional 45 days under the Patriot Act in the calculation of CSPA for the child’s age. There are occasions in which I’ve seen prospective clients in which their preparer did not “lock” or “freeze” the child’s CSPA age. Therefore, what could have been a simple process has prejudiced the eligibility and future of the child.

I want to remind our clients that when you change your address please inform the office. The office will update your address with the appropriate agency. I understand that as a newly arrived immigrant, your life may not be permanently settled. Sometimes, it is difficult for the office to contact you when it is necessary. In addition, you are required by law to notify your change of address to the Department of Homeland Security. Below is the chart that should help you when you have a change of address.

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Posted on November 14, 2011 | Category: Newsletters

Each month, on the 15th, the office will sent this free e-mail newsletter to current and former clients of our law firm, to those who have specifically asked to receive it, and to those who have contacted our firm for legal advice in the past. If the newsletter is being sent to you in error, please follow the instructions at the bottom of this page and you will immediately be removed from our list of subscribers. If you know someone who might enjoy receiving this free e-mail newsletter, please send us that person’s e-mail address. Please note that your email and privacy are the utmost importance to us. We would not share your e-mail address with anyone else.

The purpose of the newsletter is to keep our readers informed of any and all matters related to the United States immigration and nationality law. In addition, we will try to provide our readers with updated information and resources that would help our readers in their efforts to be united with their family member or for them or their family member to properly comply with all of the requirements by the local, state and federal government. While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ.

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Posted on September 14, 2011 | Category: Newsletters