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Bloggings On Updates In Immigration Lawby Carl ShustermanEditor's note: Here are the latest entries from Carl Shusterman's blog. January 13, 2010
Federal Courts May Review I-751 Hardship Waiver Denials
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) which severely restricts the ability of Federal Courts to review decisions of the Board of Immigration Appeals (BIA), especially those which are "discretionary" determinations. Many of these discretionary decisions involve whether "extreme hardship" or "extraordinary and extremely unusual hardship" exists in a specific case.
We, therefore, are interested in Federal Court decisions where it is determined that the Courts have the ability to review a ruling by the BIA, particularly where it is determined that the judiciary retains jurisdiction to review administrative decisions regarding whether the required degree of "hardship" exists.
In a recent decision by the U.S. Court of Appeals for the Ninth Circuit, Singh v. Holder, No. 07-73792 (January 8, 2010), the Court held that it has jurisdiction to review a BIA determination as to whether there was "extreme hardship" in the context of an I-751 waiver petition. Although the Court ultimately dismissed the petition for review, the holding is significant.
Here are the facts:
Mr. Singh became a conditional permanent resident through marriage to a U.S. citizen. Nearly two years later, the couple submitted a joint petition to remove the two-year condition. However, at the interview, the citizen wife alleged that the marriage was fraudulent and withdrew from the joint petition.
Mr. Singh was placed in removal proceedings where he submitted an I-751 waiver petition based on "extreme hardship". Although the Immigration Judge found Mr. Singh to be credible, he denied his I-751 after finding that he did not meet the "extreme hardship" standard. The BIA affirmed.
The Appeals Court discussed whether they had jurisdiction to review the BIA's finding that the "extreme hardship" standard had not been met. The Court examined the text of Section 216(c)(4), INA, the I-751 hardship waiver provision. First, the statute provides that the BIA must determine whether the petitioner meets one of three alternative criteria required to establish that "extreme hardship" exists. Second, if the petitioner satisfies any of these criteria, the BIA "may" grant the waiver.
The Court held the question of whether the petitioner has demonstrated "extreme hardship" is a legal standard, and therefore, is reviewable by the Court. Once this standard is met, however, the question as to whether to grant the waiver is purely discretionary, and is not reviewable in Federal Court.
The Court then proceeded to examine whether the BIA failed to find extreme hardship because as the petitioner contended, the Board: (1) did not consider the hardship to other family members; (2) did not define the period of time for which hardship was relevant; and/or (3) failed to consider the hardship factors in the aggregate. The Court found no legal errors in the BIA's decision.
However, the holding in Singh v. Holder is important because it states that under the pertinent statute, the Federal Courts have jurisdiction to review extreme hardship determinations in the context of I-751 waiver applications. It should be noted, however, that the Court did not extend this review authority to hardship determinations in the context of applications for suspension of deportation or for cancellation of removal for nonpermanent residents.
Still, immigrants and their attorneys should be encouraged that the Court recognized that despite the 1996 IIRAIRA law, some hardship determinations are reviewable in the Federal Courts.
We link to Singh v. Holder from our "Green Cards Through Marriage" page at
http://shusterman.com/greencardsthroughmarriage.html
Posted at 12:59 PM in Current Affairs | Permalink | Comments (0) | TrackBack (0) January 11, 2010
EB-5 Regional Center Program: Fast Lane to Permanent Residence
Congress created the EB-5 immigrant investor program in the early 1990s, and set aside 10,000 visas per year for this program, in order to encourage foreign-born persons to invest money in the U.S. economy and to create jobs for U.S. workers. The program requires persons to invest $1 million in a business and to hire a minimum of 10 U.S. workers. If the person invests in a rural area or in an area with high-unemployment, the amount of investment is $500,000. During the first few years, the program failed to attract a large number of investors, so in 1993, Congress amended the law to create the Regional Center Pilot Program. This program which has been renewed on a number of occasions, and which was recently extended until 2014, permits private and governmental entities within the U.S. to establish regional centers and allows foreign investors who invest $500,000 and create, either directly or indirectly, 10 jobs, to qualify for permanent residence in the U.S. EB-5 investors in regional centers are reserved 3000 visas. The procedure for all EB-5 cases requires that the investor who has met the requirements of the law submit an Immigrant Petition by Alien Entrepreneur (Form I-526) to the USCIS. Immediately upon approval of the petition, the investor and his immediate family may apply for adjustment of status if they are present in the U.S. in nonimmigrant status, or for immigrant visas if they are residing abroad. Similar to marriage cases, an EB-5 investor receives a two-year conditional green card. Prior to the expiration of the two-year period, the investor is required to submit a Petition by Alien Entrepreneur to Remove Conditions (Form I-829) after which the USCIS issues a ten-year green card. Until recently, less than 1,000 persons per year were granted permanent resident status in the EB-5 category. Yet, despite the low numbers, a 2003 report by the government's General Accounting Office (GAO) estimated that EB-5 immigrants had invested over one billion dollars in U.S. businesses. In fiscal year 2009, the number of green cards which were granted under the EB-5 program almost tripled from the year before from 1,443 to 4,218. Although this was a dramatic increase from previous years, it represents less than half of the 10,000 visas allocated to the EB-5 program annually. We expect a large increase in EB-5 usage in this fiscal year. Why? Compared with most other family-based and employment-based categories where the backlogs often range from a few years to more than 20 years, those qualifying under the EB-5 category can obtain permanent residence very rapidly. The number of government-designed regional centers has also expanded recently. A 2007 list published by the USCIS contained 20+ regional centers. The latest list which was last updated on the USCIS website on January 5, 2010 lists almost 80 regional centers in more than 20 states. Indeed, there are over 20 government-designated regional centers in the State of California alone. We link to the USCIS Chart listing all approved regional centers from our "Green Cards through Investment" page at
http://shusterman.com/toc-invest.html#1 During our present economic downturn, the EB-5 program has created thousand of jobs for U.S. workers in a wide variety of industries. On December 31, 2009, National Public Radio broadcast a segment entitled "Recession Fuels Spike in Foreign Investment Visas". We link to this broadcast from our "NPR" page at
http://shusterman.com/npr.html Some persons are concerned about whether their I-526 and I-829 petitions will be approved. In the past, the EB-5 program was subject to much controversy and even to federal lawsuits. In 1998, the federal government suddenly, and without advance notice, changed the rules making it more difficult for investors to qualify for green cards under the EB-5 program. Four years later, Congress passed legislation to help investors who were victims of the new rules. The legislation provided that implementing regulations were to be issued in 2003. To date, the USCIS has yet to promulgate these regulations. Despite this checkered history, those who have invested in regional centers during the past few years are gaining permanent residence at a record pace. The USCIS, in a meeting with the American Immigration Lawyers Association held on December 14, 2009, revealed that of the most recent I-526s and I-829s decided by the agency, over 80% had been approved. Some of the regional centers claim that their investors have perfect or near-perfect approval rates. Investors should not depend on solely upon immigration attorneys to guide them in selecting from among the myriad of approved regional centers. Law school did not train us to evaluate investment opportunities. However, once you have selected a regional center to invest in, let your immigration attorney guide you in complying with applicable immigration laws and procedures. If you can afford it, the EB-5 Regional Center Program may be your fast lane to a green card. Posted at 01:39 PM in Current Affairs | Permalink | Comments (0) | TrackBack (0)
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