Errata and Updates

AILA’s U.S. Citizenship and Naturalization Toolbox

Effective March 1, 2021, USCIS updated guidance in the USCIS Policy Manual regarding the civics test for naturalization. The update provides that USCIS will revert to administering the 2008 civics test to applicants who filed for naturalization before 12/1/20 and after 3/1/21. (Those filing in between with interviews before April 19, 2021 can choose between the 2008 and 2020 tests.) The 2008 civics test requires an applicant to provides a correct answer or alternative phrasing of the correct answer for six of 10 questions selected from a list of 100.

Toolbox documents affected are:

A01 Becoming an American: Requirements for Naturalization and Potential Pitfalls, at p. 7.
B04 Gatekeeping the American Dream: The Importance of the Naturalization Interview to Achieving Citizenship and Full Integration into American Life, at pp. 2-3.

Essentials of Immigration Law, 5th ed. By Richard Boswell

The errata/copyright page (page 4) in the book was not properly printed during the printing process. Access the full, properly printed page here.

Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants, 8th ed. by Mary E. Kramer

Appendix 8C includes an incorrect page (4th page of the applicable text). The full appendix 8C, including the corrected page, can be accessed here.

Correction in writing to chapter 6 - On page 310, the second sentence under caption CRIMES OF VIOLENCE should read: Simple assault and battery offenses will often not be considered crimes involving moral turpitude because they involve a general intent.

Supplement

BIA Decision on September 25, 2019, Regarding Defining the Controlled Substance as an “Element”

Chapters 7 and 8: Defining the Controlled Substance and the Categorical Approach; pages 366 and 424

Mismatched Controlled Substance Schedules

In September 2019, the BIA looked at whether the type of controlled substance is an independent element for purposes of determining removability where the state schedule is overbroad (contains more substances than listed on the federal CSA schedule). The BIA found that the type of drug is an element. Matter of Gonzalez-Lemus, 27 I&N Dec. 612 (BIA 2019). This case involved a charge of removability under INA § 237(a)(2)(B)(i).

Harkening back to Chapter 5’s discussion of the categorical approach, including both divisibility and overbroad statutes, if the type of drug in any given state controlled substance statute is not an element, and the state statute is broader than the federal statute, one must presume the least culpable conduct (the non-removable conduct). Put another way, a controlled substance offense under INA §§212(a)(2) or 237(a)(2) must be “as defined by” the federal CSA. If the state schedule is broader, the adjudicator must assume the drug could have been a non-CSA substance. This is because in a non-divisible statute, one does not look to the record of conviction documents to determine the drug. Hence it would not matter if the charging document references, as in this case out of Iowa, methamphetamine. The defendant-respondent is removable for the “conviction” and unless the drug is an essential element that must be proven to a jury, he gets the benefit of the doubt that he was convicted of the non-CSA item.

However, the BIA determined that the identity of a drug is an element. Noting that Iowa punishes certain drugs with different sentences, the BIA determined that the statute was divisible as to alternative elements. In referring to the state schedule, the Board looked to an alternative statutory provision to find divisibility. It is not clear whether this decision will be appealed.

New Attorney General decisions issues October 25, 2019

Chapter 6 Crimes Involving Moral Turpitude
DRIVING UNDER THE INFLUENCE

Page 318: Although simple DUI is not a crime involving moral turpitude, convictions (or simply arrests) may affect a determination of “good moral character” under INA § 101(f). Relief in the form of cancellation of removal for non-LPRs under INA § 240A(b), as well as naturalization eligibility under INA § 316, require good moral character for a certain time period—the statutory period. In the case of non-LPR cancellation, this period is at least ten years. For naturalization, the statutory period varies based on category of eligibility, but is most often five years (or three years for persons married to and living with an American citizen. In a removal matter involving an application for cancellation of removal, the Attorney General decided that two or more convictions for DUI during the statutory time period raise a presumption that the applicant is not of good moral character. Matter of Castillo-Perez, 27 I&N Dec. 774 (A.G. Oct. 2019). In footnote 3, the AG wrote that adjustment of status is a discretionary benefit and DUI convictions will similarly bode towards a negative discretionary finding. Noting that data shows for every DUI arrest there is probably many other incidents that went undetected, the AG likened DUIs to the phrase involving “habitual drunkards” at INA § 101(f)(1). As often happens, this case was then remanded, hence there will be no immediate petition for review to the court of appeals on the viability of the analysis.

Chapter 2 The Definition of Conviction
Post Conviction Relief Modifying the Sentence Imposed

Page 107: In a significant change to precedent, the Attorney General issued a decision on October 25, 2019, determining that a post-conviction motion in criminal court to modify the sentence imposed must be based on legal error or defect, or a constitutional violation, in order to be valid for immigration law purposes. Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019). Addressed extensively in chapter 2, for 15 years the law has been that a vacatur of a plea and conviction had to be based on legal or constitutional error in order to be honored in immigration court. Matter of Pickering, 23 I&N Dec. 621 9BIA 2003), rev’d, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2003). In comparison, prior to this new decision, modification of a sentence in criminal court (i.e., the period of imprisonment imposed, the amount of loss) could be based on immigration hardship or equities and would be applied in the immigration law context. Based on Thomas and Thompson, the Pickering standard now applies to post conviction modification of sentence. Practitioners will want to carefully draft their motions and court orders to highlight legal error and defect when moving to modify the sentence. Of note, the AG specifically declines to address which party has the burden of proving (or disproving) the viability of a post-conviction action. Application of the burden of proof is discussed at page 98.

AILA’s Asylum Primer, 8th Ed., by Dree K. Collopy

AG Garland Vacates Asylum Precedents That Harmed Victims of Violence

On June 16, 2021, Attorney General Garland issued a decision vacating Matter of A—B— and Matter of A—B— II, as well as a decision vacating Matter of L—E—A— II. DOJ also issued a memo regarding the impact of the vacation of these decisions.

On page 153, in the sentence containing footnote 832, the PSG listed should be corrected and the sentence should read as follows:

It then concluded that the applicant had not demonstrated that her proposed particular social group, “Immediate family members of Honduran women unable to leave a domestic relationship,” was socially distinct.

Immigration and Nationality Act, 2018 Ed.

On page 177, INA §217(h)(3)(B)(iii) should read as follows:

(iii) Sunset of travel promotion fund fee.— The Secretary may not collect the fee authorized by clause (i)(I) for fiscal years beginning after September 30, 2027.

On page 178, the legislative history for INA §217 should contain an additional entry at the end that reads as follows:

P.L. 115-123 (2/9/18), div. C, title II, §30203(a) [revising (h)(3)(B)(iii) to say September 30, 2027]

The Waivers Book: Advanced Issues in Immigration Law Practice, 2nd Ed.

Please view the corrected version of Form I-192, Application for Advance Permission to Enter as a Nonimmigrant on pages 423 through 430 of The Waivers Book.

Immigration Law and the Family, 4th Ed., Edited by Charles Wheeler

Shortly after Immigration Law and the Family was published, DHS, on July 29, 2016, issued a final rule expanding the availability of the provisional unlawful presence waiver to individuals who would be statutorily eligible for an unlawful presence waiver under INA §212(a)(9)(B)(v). The rule also made additional changes to the current provisional waiver process. Charles Wheeler, the book's editor, provides updated information on the provisional waiver program as a supplement to the section in Chapter 7 of the book entitled, "INA §212(a)(9)(B)(v) Waiver for Unlawful Presence."

Thereafter, on October 21, 2016, USCIS issued policy guidance in its Policy Manual on determinations of extreme hardship to qualifying relatives as required by certain statutory waiver provisions. This guidance became effective December 5, 2016, and is controlling and supersedes any related prior USCIS guidance. In the final guidance, USCIS delineated a number of "particularly significant factors" that "often weigh heavily in support of finding extreme hardship." Charles Wheeler provides updated information to supplement the section in Chapter 7 of the book entitled "Extreme Hardship."