Recent Wins

Carpenter & Capt has enjoyed significant victories on behalf of foreign nationals from Mexico, Canada, Poland, the UK, Kyrgyzstan, Poland, Morocco, Jordan, Peru, India, Lithuania, Venezuela and Germany in the last 60 days. The approvals ranged from marriage-based visas to embattled naturalization and adjustment of status cases, which required federal court intervention. The breakdown of the cases is as follows.

Two involved long-battled removal defense cases in front of the Chicago EOIR. In both, retiring Judge Glenn Bower granted the relief sought by Robert Carpenter. The first involved a long-time permanent resident convicted of a misdemeanor (trespassing) that the government alleged comprised a removable offense because it involved 'moral turpitude'. The matter was briefed on several occasions over the years; the IJ held that the conviction did not involve moral turpitude, citing a case offered in Carpenter & Capt's brief written by the late John Mug in 1996. Mr. Mug was an associate for Carpenter & Capt at the end of his career, and added so much to our office, both in terms of ability and intellect, as well as his levity of spirit in fighting for our clients. The case he cited was Matter of G, 1 I&N Dec. 403 (BIA 1943). It isn't every day that a winning citation comes from the first volume of the I&N series! The case was terminated on our re-filed Motion to Terminate.

The other removal matter involved another long-time permanent resident (20+ years), who had 5 U.S. citizen children, and a U.S. citizen wife. He was charged with being removable for a conviction for unlawful possession of a handgun nearly 25 years ago. He sought to re-adjust his status to that of a permanent resident, and successfully did so after a five year battle in immigration court. He and his family are extremely pleased to be able to continue educating their now college-aged kids and run their restaurant businesses.

Another victory occurred with a naturalization appeal for an applicant who was arrested on suspicion of shoplifting years ago. The evidence was so thin at the time of the arrest, the state refused to prosecute, and released the applicant without charge. The government denied the applicant's naturalization application on the grounds that the arrest negated the 'good moral character' required by the statute. The problem with the denial was that without a conviction, a mere arrest for a misdemeanor without a charge, much less a conviction, could not be a legal basis for denying a naturalization application. A supervisor at the Chicago office of CIS agreed, and after reading our brief, granted the appeal.

Other notable victories included very old labor certification cases/employment-based petitions that were approved after years of waiting for the slow-moving bureaucracy of the Departments of Labor and Homeland Security to come to fruition. The approvals were for positions ranging from a Food and Beverage Manager at a well-known country club, to a Mosaic Tiler who worked as a contractor on the homes of the rich and famous, to a psychiatrist specializing in troubled teens. Finally, the firm received an approval for a professional baseball manager with exceptional ability. The MLB team and the manager are thrilled.

We also received an approval on a highly contested case involving marriage-based visa for a Jordanian national. It deserves it's own blog entry, as its winding history involved multiple agencies, and overt discrimination and prejudging, in ways that should be as foreign to this country as they are offensive. Rather than transition to the negative aspects of that case now, the approval, after extensive litigation and travels to Florida for an interview with the DHS, is welcome news. More on it, and other significant cases, including fabulous work by Brian Sather, the newest addition to our office, next.

AAO Reverses CIS Denial of Professional Manager

We recently received welcome news of an appeal having been granted by the Administrative Appeals Unit of the U.S. CIS. The case involved a permanent resident petition in the EB-2 category for an 'exceptional ability' worker - in this case, a professional baseball manager for a Major League affiliate.

The government originally denied the case, holding that the manager's abilities weren't exceptional because his record was perhaps only in the 70th percentile of MLB managers. On appeal, we argued that the relevant pool of workers against which his record, salary and other objective signs of achievement should be measured, was not MLB and affiliate managers; we instead argued his abilities should be measured against all professional baseball managers - those who earn a living managing the game of baseball. We calculated that pool to include more than 550 managers at the major college, minor league and MLB levels. Amongst that pool, the applicant was surely 'exceptional' as that term has been defined by the law, in terms of his record, but especially because he was turning out MLB stars with regularity.

Our brief stated, in part,

The Service has been chastised by the courts and Board with regard to misapplying the extraordinary ability level for dismissing Nick Price’s petition, as well as NHL players Stu Grimson and Craig Muni’s petitions for EB-1 status. See Matter of Price, 20 I&N Dec. 953 (BIA 1994)(where the Board found that his ranking of 10th internationally on the PGA tour qualified him for EB-1 status; as an aside, Mr. Price has turned out to be nothing short of a legendary PGA player); Grimson v. INS, 1995 WL 134755 (N.D. Ill. 1995)(where the Court remanded the case to the NSC with instructions on how to apply the EB-1 standard after it denied Stuart Grimson’s petition; as an aside, Stu Grimson became an icon of Chicago defensemen in the 1990s, both as an enforcer and as a checking, stay-at-home defenseman); Muni v. INS, 891 F.Supp. 440 (N.D. Ill. 1995)(where the Court, after the NSC denied an EB-1 petition, found that Craig Muni was a very good professional hockey player considered to be at the top of his field, as he was voted as the top hitting defenseman and most underrated player at his position). It appears that your office is in danger of making the same mistakes with respect to the EB-2 standard operative here....

The government, to its credit, understood and accepted the argument, reversing the Regional Service Center that had issued the denial.

Lawyering at every level, and perhaps especially within immigration law, requires thinking about problems in new ways. Anyone can research a question and regurgitate legal holdings. Changing the perspective of an analysis is hard work, but nearly always necessary, to successfully represent immigration clients against the government. This decision reflects that reality.

Now Tweeting

I found it frustrating to update this blog so infrequently; that infrequency was due to the fact that blogs are best suited for in-depth writing, which of course, requires time. I promise, and swear, under penalties of perjury, that I will write more frequently the remainder of this year and beyond; in the meantime, follow us on twitter.com. We are chicagoimmatt. http://twitter.com/chicagoimmatt. I'll be posting snippets about immigration developments and firm results (anonymously, of course) each day. Happy reading!

Persecuting Those Who Help Immigrants

We've all heard disturbing stories of over-reaching, over-zealous government actions in the last decade or so. It is perhaps the first time in many, many generations that ordinary, law-abiding citizens have reason to fear their own government. Especially if you happen to help immigrants.

First, there was the story of Brandon Mayfield, an immigration lawyer in Portland, Oregon, whose life was turned upside down when he was arrested on terrorism charges by the FBI. Only he wasn't a terrorist. He was simply a hard-working immigration lawyer.

Now, the government has decided to indict and convict a landlord. That's right, a person who owns a building in which undocumented foreign-nationals happen to reside.

The American Immigration Lawyers Association reports as follows:

US District Court Rules in Favor of Kentucky Landlord

Cite as "AILA InfoNet Doc. No. 08070968 (posted Jul. 9, 2008)"

On 06/27/08, William Jerry Hadden, a Kentucky landlord who faced 62 charges in US District Court of renting apartments without verifying the immigration status of the future tenants, was found not guilty on all charges.

The trial is thought to be the first time the federal government has prosecuted a landlord for renting to undocumented immigrants, defense attorneys said in court filings.

Hadden's defense attorneys steadfastly maintained his innocence and claimed that the federal government was twisting the intent of harboring laws, which they say were intended to target human traffickers or employers who are trying to hide their work forces. They further noted that it is not illegal to rent to undocumented immigrants, and Hadden therefore had no legal obligation to check any tenant's immigration status.

The court agreed with the defense and ruled that there had to be evidence that the defendant intended to violate the immigration laws by concealing or hiding tenants.

Fortunately, our judiciary has said enough. But that doesn't stop the government from continuing to try to broaden its reach and punish those who help immigrants.

All of this begs the question, what in the world have we become? And, is it time for a change yet?

Location, Location, Location

A simple, relatively unspoken reality exists within immigration law. Location can be the difference between winning and losing in removal proceedings, no matter whether the case involves an asylum claim, cancellation of removal, or any other asserted defense. TRAC, an agency dedicated to monitoring immigration judges' rates of asylum denials, recently published decision statistics for every immigration judge in America. You can check your immigration judge here.

The statistics tell a disturbing story. The story is one of preference to people who are lucky enough to live in certain cities. The often random fate of geographic location should not play a prominent role in their odds of success on an asylum application. But it clearly does. Consumers of immigration legal services, or attorneys looking to hire another lawyer to help a client in need of those services, can sometimes better their chances of success by simply.........moving.

There is no law or regulation that prevents a person from moving to take advantage of a better forum in the EOIR or agency context. A forum can increase the odds of success in several ways - immigration judges may be more disposed to granting application for relief, or better law might exist on a particular issue in a given jurisdiction. The latter is true because while immigration law is indeed federal, it is not uniform. There are many instances where federal appellate law differs from Circuit to Circuit in the morass of tangled laws and regulations that make up the black letter immigration and nationality law in the U.S.

The most favorable Circuits are the Ninth and Seventh, in that order (depending on the issue at hand). The lesson? If you live in the Midwest, consider moving to Indiana, Southwest Wisconsin or Illinois to avail yourself of the Seventh Circuit decisions and of the Chicago Immigration Judges, who are far more likely to grant an asylum case (and every other kind of relief in my experience) than the very conservative immigration judges in Detroit. Similarly, the Sixth Circuit, while showing signs of following its sister circuit in Chicago, is historically much less apt to remand a case to an immigration judge on appeal.

Immigrants often feel helpless in the face of removal efforts instituted by the government. Rarely is that true. Relocating to a favorable jurisdiction may make it more likely that relief is available.

The Dream Act

Mark Brown, a columnist with the Chicago Sun-Times, recently wrote about the plight of many school-age kids who have no status. They typically entered the U.S. at a young age with their parents.

No matter your position on relief for foreign nationals who are in the U.S. unlawfully, it is difficult to argue that children who came with their parents unlawfully should suffer the consequences of those actions. Even to those who would argue they should go home, I'd say this: We need the ideas of bright, ambitious young people, no matter where they happen to be born. Our country thrives on that influx of intellect and diversity. It always has.

I was asked to comment on Mark Brown's article on WGN Radio in Chicago, and enjoyed the live conversation. I tried to give a backdrop to the discussion that ensued between host John Williams and listeners. I explained that the inequity of imposing the penalty of having no chance to regularize a teen's status, thereby preventing her from attending college, is exactly what The DREAM Act legislation seeks to remedy.

Call your Senator today to voice your support for this bill.

Full Speed, uh, Reverse!

The US CIS has reversed course on refusing to accept EB-based adjustment of status filings in July. This is welcome news for many people who faced having to leave the U.S. because of the broken promise caused by the CIS's shutting down the EB categories an hour into July.

The agency will now accept all EB filings that were current under the original July Visa Bulletin until the close of business on August 17, 2007. The extra time has been allotted to atone for the previous closure, which the agency evidently decided was not a defensible action when faced with litigation.

More information will be provided later.