MurthyBulletin
VOL. XIV, no. 10; March 2008, week 1
Posted : March 07, 2008
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"We know your immigration matters!" SM
The MurthyBulletin is the eNewsletter on immigration from the Murthy Law Firm. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Murthy Law Firm. Full Disclaimer available.
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TOPICS in this Edition of the MurthyBulletin :
1. District Office I-485 Processing Under Revised Name-Check Procedures
2. Murthy Takes Action : Strategy for Applicants with DUI Issues
3. New Developments in Mandamus Lawsuits
4. Costs and Surcharges May Constitute Punishment Required for Criminal Conviction
5. MurthyFoundation Supports Endeavors of SAALT
6. MurthyDotCom : Did You Know the Value of Our Articles?
7. Important Processing Times and Dates
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Engaging the Murthy Law Firm : Our office can conveniently and efficiently represent clients located anywhere in the United States or abroad on U.S. immigration matters.
Consultations with attorneys at the Murthy Law Firm : You may contact our office to schedule a one-time paid consultation with no further obligation. A scheduled consultation with an attorney at the Murthy Law Firm provides you with details and recommendations based on the specific facts of your case. This will help you with making the right decisions based on the legal options and strategies available.
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1. District Office I-485 Processing Under Revised Name-Check Procedures
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MurthyDotCom and MurthyBulletin readers were informed earlier of a significant revision in USCIS procedures for I-485, Application for Adjustment of Status, cases delayed due to name checks. These changes most recently were covered in our February 22, 2008 MurthyBulletin article, Adjustment Cases Delayed by Name Checks-February 2008, which provided some information on the implementation of the changes at the USCIS service centers, as set out in the February 4, 2008 Aytes Memo. However, just how the similar delayed cases will be handled by the USCIS district offices is still unknown. The various district offices have cases for which interviews have been conducted and processing completed, but final action has been delayed due to the name-check problem. Information regarding the Baltimore, MD and Washington DC district offices has reached the Murthy Law Firm that may be helpful and reflective of what is likely to occur at other local USCIS district offices around the U.S.
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Baltimore, MD District Office
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The Baltimore District Office reports approximately 400 I-485 cases involving name-check delays in excess of six months. They arranged for the re-fingerprinting of applicants with expired fingerprints in those cases. The case adjudications began on Saturday, March 1, 2008. They estimate that it will take a few weeks to complete this process. The Baltimore District Office warns that, while many cases may be eligible for approval, some may have issues that require further documentation or other steps.
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Washington DC District Office
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The Washington District Office in Arlington, VA has also identified cases that are covered by the Aytes Memo on security checks, although they do not indicate how many cases are pending at their office. They are taking steps to schedule any new fingerprinting appointments that are needed. They have also started working on adjudicating eligible cases.
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As indicated in previous MurthyDotCom and MurthyBulletin articles, the local office for the Washington DC area notes that the Aytes Memo only applies to cases in which the name check is the sole issue keeping the case from approval. Additionally, it is necessary that a full 180 days have elapsed from a valid, complete name-check request. Thus, if there was any error in the name-check request (such as a data-entry error), then the time would be counted from the correct name-check request. The same is true for cases involving alias names, which were not identified at the time of the initial data entry. It would seem that "other names used," mentioned in the I-485 filing, would have been part of the standard data entry process. This was not clarified specifically, however.
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Conclusion
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It seems that the USCIS service centers and district offices are moving quickly to identify eligible cases for I-485 processing. Individuals who have been waiting, in some cases for years, on name check issues, will start to see the fruits of these efforts outlined in the Aytes Memo.
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2. Murthy Takes Action : Strategy for Applicants with DUI Arrests / Convictions
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As regular MurthyDotCom and MurthyBulletin readers may recall, there was a change as a result of a U.S. Department of State (DOS) cable issued in June 2007 in the procedure for processing a visa application for an individual with an arrest and/or conviction for Driving Under the Influence (DUI). The consulate, apparently, was under the mistaken assumption that the nonimmigrant visa must be denied based on a Class A ineligibility, even with a single incident of DUI. The Murthy Law Firm contacted the DOS Visa Office and the U.S. Consulate in Chennai and the problem has now been solved for any nonimmigrant visa applicant with a referral for assessment due to DUI or related incidents, thanks to our direct efforts to resolve the issue so that any affected person can now benefit and obtain the visa.
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Background of H1B Visa Denials at Chennai, India
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Following the DOS cable, our firm was contacted by a number of individuals who had been denied the H1B visa by the U.S. Consulate in Chennai, India; each for having a single incident of a drunken driving arrest. [See our October 12, 2007 MurthyBulletin article on this in topic, More Visa Delays / Denials at Consulates for Alcohol-Related Offenses, available on MurthyDotCom.] The denial appeared to be contrary to the law and procedures contained in the DOS cable, as there is no automatic inadmissibility or ineligibility for a visa based upon the arrest history of an individual. Inadmissibility requires a finding that one has a mental disease or disorder that may pose or has posed a threat to the property, safety, or welfare of the individual or others. Given the particular history of one with a single arrest, it seemed highly unlikely that such a finding would have been made in a majority of the cases.
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Checking Incorrect Box Results in Medical Ineligibility of Visa
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As explained in our earlier article, an individual with a certain alcohol related arrest and conviction is to be referred to a panel physician for further evaluation. The panel physician determines whether the individual has a disease or disorder that poses a danger, as explained above. Thus, the physician is supposed to exercise independent medical judgment to assess the existence or nonexistence of the dangerous disease or disorder. After significant investigation and effort on the parts of the Murthy Law Firm and Murthy Immigration Services in Chennai, however, we were able to determine that the panel physicians in Chennai were either mistaken or were not making independent decisions, or they were instructed to always check the box indicating medical ineligibility on the medical form. Consequently, even though the medical and psychological evaluations performed on each applicant did not reveal any mental disease or disorder associated with alcohol, the physicians were marking findings of "Class A" medical conditions on the medical forms, indicating mental defect. This finding was incorrectly checked off possibly due to a misunderstanding of the law and despite conflicting notes on the medical form that suggested there was no alcohol-related mental condition. The H1B or other nonimmigrant visas then were denied, based on the manner in which the medical forms were incorrectly indicating the medical ineligibility, and thereby the individuals were not eligible for the visas.
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Murthy Law Firm Makes Efforts to Address the Problem
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In an attempt revise the erroneous practices occurring at the U.S. Consulate in Chennai, India, and possibly at consulates in other parts of the world, the Murthy Law Firm communicated extensively over the course of several weeks with the U.S. Consulate in Chennai, as well as directly with the DOS Visa Office in Washington DC. After a great deal of time, effort, persistence, including alerting the Centers for Disease Control (CDC) of the incorrect practice, and indicating our intent to pursue other remedies, the DOS Visa Office and the Legal Advisory Opinions Section issued revised guidance to the U.S. Consulate in Chennai. This guidance required that the Panel Physician's findings be referred back to the physician for review, consistent with their revised guidance. As a result, all the applicants' visa refusals were overturned and their visas were promptly issued! This indeed was a life-changing event for those who were unfortunate to have been stuck for weeks or months abroad. Likewise, it was rewarding for our firm to have been able to help these people.
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Revised Procedure to Help Similar Cases
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Since resolving these particular cases early in 2008, the Murthy Law Firm has not received reports of any further incidents of this type. It seems that the revised procedures are in place and the system is operating as it should. This does not mean that anyone who has an alcohol related arrest or conviction will be assured of the visa. Each person falling within the terms of the memo, based upon his/her history, will be referred for review by the Panel Physician. Each particular situation will be evaluated on a case-by-case basis.
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Conclusion
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We at the Murthy Law Firm are delighted with this result for our clients, as well as others who would have been affected in the future by this problem. Sometimes, it can be difficult to address matters directly with the consulates. This incident, however, reveals that cooperation from all quarters can result in a desirable resolution when the law and procedures are recent, complex, or unclear, benefiting everyone concerned.
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3. New Developments in Mandamus Lawsuits
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The recent trend of increasing numbers of federal writ of mandamus lawsuits has forced the USCIS to change its operating procedures with regard to some delayed I-485s, Applications to Adjust Status. While we at the Murthy Law Firm applaud this realist approach to the problems presented by the FBI's name-check system, it does not address remaining delays faced by many with citizenship cases still stuck in a 'legal limbo' due to security check delays. We also see this problem, although less frequently, with other types of cases not covered by the revised name-check system.
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As regular MurthyDotCom and MurthyBulletin readers will recall from our December 7, 2007 article, DHS Indicates It Will Expedite Name Checks, applicants and petitioners whose immigration cases have been substantially delayed by criminal and security background checks may benefit from filing a writ of mandamus against the government in U.S. federal courts.
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Steep Increase in Mandamus Lawsuits against DHS/USCIS
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In recent years, the number of mandamus lawsuits filed against the U.S. Department of Homeland Security, and other federal agencies, has skyrocketed. According to USA Today, the USCIS reported that approximately 270 lawsuits were filed against the agency in 2005 over immigration cases that were delayed by name checks. In 2007, that number had increased to more than 4,400 such lawsuits.
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Michael Aytes's Feb 2008 Memorandum Issued in Response
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In response to this avalanche of litigation and, in particular, to a case still pending in the U.S. District Court for the Eastern District of Pennsylvania, the USCIS filed the recently issued Michael Aytes's memorandum dated February 4, 2008. This memorandum was filed as an exhibit in the case of "Mocanu v. Mueller," which involves a mandamus lawsuit against the USCIS to resolve a naturalization case that has been delayed for more than two years. Despite the fact that Mr. Mocanu had not been scheduled for or completed his naturalization interview, the Court ruled that it had jurisdiction to hear the case and denied the USCIS's motion to dismiss the case.
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Muslim Plaintiffs File Mandamus Action
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In another remarkable case, twenty-five foreign nationals from Florida filed a mandamus lawsuit against the USCIS, claiming that their naturalization applications have been delayed because of their Muslim faith. As the St. Petersburg Times reported, this class-action mandamus lawsuit, Adil Amrani v. Dugas, alleges that the FBI failed to complete required name checks, resulting in naturalization delays of up to four years.
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Use of Mandamus Actions in Naturalization Cases
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A writ of mandamus action may be used to resolve a naturalization case that has been pending for an excessive period after the date of the interview, as was described in our September 22, 2006 MurthyBulletin article, USCIS Announces Elimination of Naturalization Backlog, available on MurthyDotCom. Additionally, a writ of mandamus could be attempted for a long-delayed naturalization case for which no interview has been set, if the interview was delayed because of a lack of security clearance. As explained in our May 19, 2006 article, USCIS Delays Certain Naturalization Interviews, the USCIS revised its procedures for setting naturalization interviews in an effort to avoid the clear basis for a mandamus case created by delayed naturalization decisions following naturalization interviews.
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Writs Possible in Other Immigration Cases with Delays
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Writ of mandamus actions are not limited to permanent residency and naturalization cases, but may be successful in correcting delayed government actions that meet the criteria set for in the All Writs Act, 28 U.S.C. §1651,et seq. These may include I-140 petitions and H1B petitions that have been delayed due to security or criminal background checks.
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Conclusion
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Due to pressure from lawsuits over unreasonable delays relating to the name check process, and from pressure from numerous federal court rulings, the USCIS is working to resolve delayed I-485 cases under the February 4, 2008 Michael Aytes's Memorandum. They have set a goal of mid-March 2008 for adjudicating such cases. There still are cases, however, that can benefit from mandamus filings and, hopefully, the pressure from such mandamus lawsuits in time will help resolve the delays in all such cases.
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4. Costs and Surcharges May Constitute Punishment Required for Criminal Conviction
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The Board of Immigration Appeals (BIA) issued a decision on February 27, 2008 specifying that "the imposition of costs and surcharges in the criminal sentencing context constitutes a form of 'punishment' or 'penalty' for purposes of establishing that an alien has suffered a 'conviction'" in the immigration sense. As MurthyDotCom and MurthyBulletin readers will recall from our January 25, 2008 article, Criminal 'Convictions' with Possible Severe Immigration Consequences, the definition of conviction for immigration purposes has two requirements. The first requirement is either that a judge / jury finds the foreign national guilty, or the foreign national enters a guilty / no-contest plea, or the foreign national admits to facts sufficient for a finding of guilt. The second requirement, which also has to be met to result in a conviction for immigration purposes, is that the judge has ordered some form of punishment or restraint on liberty. This article summarizes the BIA decision that clarifies the effect of the imposition of costs and charges in criminal proceedings on a foreign national defendant.
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Criminal v. Civil Penalties
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In determining whether costs and surcharges constitute punishment as required for a conviction, the BIA considered the particular facts of the case, the relevant Florida statutes, and the federal immigration law. The BIA reviewed the criminal case that originated in Florida. In that case, the foreign national defendant entered a no-contest plea (or a plea of nolo contendere) to a charge of possession of a controlled substance. (Thus, the first element for a conviction was met by virtue of the no-contest plea.) The judge withheld adjudication of his guilt and ordered him to pay certain costs and surcharges, which were mandatory under the Florida statutes. The BIA opined that, because it had already been determined by a prior decision entered by the Supreme Court of Florida, the mandated costs and surcharges were "proportionate to the gravity of the offense," they are imposed as restitution, which constitutes a form of punishment. Failure to pay such monetary penalty may subject the defendant to incarceration. This is in contrast to civil monetary penalties which, if not paid, will not subject the defendant to jail time, but only to a judgment lien (i.e. order to pay). The imposition of civil costs and fines does not result in sufficient punishment for the purposes of conviction in the immigration context.
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Another way to distinguish between criminal and civil monetary penalties is to determine whether a judge is precluded from imposing costs on an indigent defendant. The BIA noted that "the fact that a defendant's ability to pay must be considered before enforcing collection of assessed costs does not mean that their imposition is not punishment." Criminal costs and surcharges may be imposed on a defendant regardless of his or her financial status because they constitute "penalty prescribed by law."
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Conclusion
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The February 27, 2008 BIA decision has clarified a fine line between criminal and civil costs and surcharges imposed by a judge in a criminal case. While regular civil court costs generally do not constitute sufficient punishment for the purposes of a "conviction" in the immigration context, imposition of criminal costs and surcharges can meet this requirement. Anyone who is subject to court costs and surcharges, in a criminal context, should consult a knowledgeable criminal defense and/or immigration attorney to receive proper advice on whether a particular sentence may adversely affect one's immigration status.
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5. MurthyFoundation Supports Endeavors of SAALT
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The MurthyFoundation is partnering with South Asian Americans Leading Together (SAALT) to support a series of educational documents and forums on immigration issues. This national, nonprofit, nonpartisan organization, is dedicated to fostering civic and political engagement by South Asians in the United States. With a staffed office in the Washington DC area and a national network of individual members and community-based South Asian organizations, SAALT engages in policy analysis and advocacy on civil and immigrant rights issues, conducts community education, builds coalitions, and develops leadership.
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The MurthyFoundation has supported SAALT’s work on immigrant rights and immigration reform, including writing opinion editorials in South Asian ethnic publications and convening educational forums with South Asians on immigration matters. Funds from the Murthy Foundation helped enable SAALT to conduct a townhall meeting in Northern Virginia that convened more than 60 South Asians to discuss local anti-immigration sentiment, send letters calling for an end to anti-immigrant ordinances and legislation to several city councils in surrounding Virginia and Maryland counties, and to hire a full-time Director of Policy.
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Attorney Sheela Murthy recently was named to the Council of Advisors for SAALT.
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More information on SAALT, is available on their website at http://www.saalt.org/.
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6. MurthyDotCom : Did You Know the Value of Our Articles?
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At MurthyDotCom we provide visitors with articles that help them in immediately practical ways. We have received numerous testimonials from readers over the years who have told us how information from MurthyDotCom or the MurthyBulletin helped them in their immigration cases. We would like to thank our loyal readers for your support and for your input, including questions, suggestions, and comments that you kindly share with us. This is a precious and valuable recognition of our efforts to keep you abreast of ever-changing immigration laws and regulations, as well as providing practical insight on many immigration matters. Read more about the Value of Articles from MURTHY on our WebSite.
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MurthyChat : The next MurthyChat session will be Monday, Mar 17, 2008, 9:00pm Eastern Time (U.S.). Please check the chat page for any necessary changes to the schedule. Meanwhile, search the chat transcripts for answers to your questions.
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7. Important Processing Times and Dates
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Processing Times : For links to processing times for the USCIS Service Centers, district (or local) processing times, the Administrative Appeals Office, Department of State visa bulletin, and Department of Labor dates for the processing of labor certification applications.
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