Wednesday, December 23, 2009

Changes to the Vaccination Requirements, Adjustment of Status, Form I-693, Report of Medical Examination

Changes to the Vaccination Requirements for Purposes of Adjustment of Status and the Completion of Form I-693, Report of Medical Examination and Vaccination Record.
Download Memo (12-15-2009)

This memorandum advises USCIS officers of the revised vaccination requirements for health-related admissibility under section 212(a)(1)(A)(ii) of the Immigration and Nationality Act (the Act). Effective December 14, 2009, vaccinations against the Human Papillomavirus (HPV) and herpes zoster (zoster) will no longer be required. These changes are applicable to any admissibility determination made under section 212(a)(1)(A)(ii) of the Act on or after December 14, 2009.

Under section 212(a)(1)(A)(ii) of the Act, an individual who seeks to enter the United States as an immigrant or who seeks to adjust status to permanent residence in the United States must show proof of having received vaccinations against vaccine-preventable diseases, as listed in the statute and as recommended by the U.S. Advisory Committee of Immunization Practices (ACIP).
advisory committee to the Department of Health and Human Services (HHS)/Centers for Disease Control and Prevention (CDC) that makes the recommendations on immunizations.

On November 13, 2009, HHS/CDC published a Federal Register notice changing the criteria that govern the vaccination requirements for U.S. immigration purposes. 74 FR 58634.1 Starting December 14, 2009, whenever the ACIP recommends new vaccines for the general U.S. population, CDC will also assess whether these newly recommended vaccines should be required for immigration purposes using the new criteria. Thus, the new criteria provided in the Federal Register notice will be applied only to the ACIP-recommended vaccines that are not specifically named in the Act.

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Wednesday, December 16, 2009

Carachuri-Rosendo v. Holder Supreme Court grants cert on multiple drug possession issue

On whether any second or subsequent drug possession offense must be deemed a drug trafficking aggravated felony. The case is Carachuri-Rosendo v. Holder. Granted December 14, 2009.

Docket: 09-60

The specific question presented to the Court in this case is:

Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.

This case challenges the adverse rulings on this issue of the 5th and 7th Circuits in which these courts found that virtually any second or subsequent state possession conviction may be deemed an aggravated felony for immigration purposes, as well as for federal criminal sentence enhancement purposes.

Mr. Carachuri-Rosendo is represented pro bono by Sri Srinivasan of O’Melveny & Myers and Geoffrey A. Hoffman of the University of Houston Law Center. An amici brief in support of cert was filed in Carachuri-Rosendo v. Holder by the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, the National Association of Federal Defenders, the Immigrant Defense Project, the Immigrant Legal Resource Center, the National Immigrant Justice Center, and the National Immigration Project. The Court should hear argument and decide this issue sometime before the end of the Court’s current term in June 2010.

Initial planning is underway for amicus briefing on the merits. Please contact Manny Vargas at the Immigrant Defense Project (, 212-725-6485) for information about planned amicus briefing.

Also, in order to prepare for amicus briefing seeking to humanize the potential impact of the Court’s ruling on this issue, the NYU Immigrant Rights Clinic is gathering cases and stories involving individuals in immigration proceedings who have two or more drug possession convictions. In particular, the clinic is interested in the stories of people who received some form of discretionary relief (particularly cancellation of removal or asylum) at the IJ level, especially if their grants of relief were reversed by the BIA because of the adverse case law in the 5th and 7th Circuits. The clinic is also seeking cases involving individuals who have not received discretionary relief but present equities that would make them strong candidates, such as people who have served in the U.S. military; people who entered the U.S. at a very young age and have lived most of their lives here; people who have strong family, community and employment ties to the U.S.; people who were convicted of minor offenses or received very light punishments; or people who successfully completed drug treatment. If you know of or are working on such a case, please email Alba Villa or Stephen Kang at and


Benitez Ramos 7th Circuit El Salvador withholding of removal former gang member

Record failed to support Bd.'s denial of alien's application for withholding of removal where alien (native of El Salvador) alleged that he would be persecuted by members of criminal gang on account of his status as former member of gang and as newly converted Christian if he were forced to return to El Salvador since his Christian religion would preclude him from rejoining gang. Bd. failed to give reasoned explanation for why statutory bar for individuals who commit serious crimes applied to former members of gang. Thus, Bd. must determine on remand whether alien actually committed violent acts as member of gang, which would preclude alien from obtaining relief, and whether alien was more likely to be persecuted by gang if returned to El Salvador.

Petition for review a BIA's denial of an El Salvadoran citizen's petition for withholding of removal on the ground that former Salvadoran gang members do not constitute a particular social group, nor can membership in a criminal gang constitute membership in a particular social group, is granted and the Board's decision is vacated and remanded as a gang is a group and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group.

Download case

El Salvador is a constitutional, multiparty democracy with a population of approximately 5.8 million. In 2004 voters elected Elias Antonio Saca of the Nationalist Republican Alliance (ARENA) as president for a five-year term in generally free and fair elections. Civilian authorities generally maintained effective control over the security forces.

Although the government generally respected the rights of its citizens, protection of human rights was undermined by widespread violent crime, including gang-related violence, high levels of impunity from prosecution, and judicial corruption. Other significant human rights problems included harsh, violent, and overcrowded prison conditions; lengthy pretrial detention; violence and discrimination against women; abuses against children, child labor, and forced child prostitution; trafficking in persons; and inadequate enforcement of labor rights.

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Wednesday, December 9, 2009

Matter of Maria del Carmen MARTINEZ-SERRANO

(1) An alien’s conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006) establishes that the convicted alien is removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E (i)(2006).

(2) Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under section 237(a)(1)(E)(i) of the Act.

File A092 340 037 - Florence, Arizona
25 I&N Dec. 151 (BIA 2009)
Decided December 9, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

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Sunday, December 6, 2009

‘Honest services' a key component of U.S. anti-fraud statutes, key issue in Black appeal

Issue: Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.

Conrad Black has tried almost everything to get out of jail – legal appeals, public pleas and even a failed attempt at a presidential pardon. Nothing has worked so far, and while five former executives of Hollinger International Inc. were convicted of fraud, Lord Black is the only one still in jail.

Tuesday, he'll get one last chance to make his case. The U.S. Supreme Court will hold a one-hour hearing on whether to reverse the criminal convictions of Lord Black and two other former Hollinger International Inc. executives (the other two aren't participating). Lawyers for Lord Black and the others will have 30 minutes to make their arguments. Prosecutors will have the same amount of time and a ruling is expected by June.

There is a lot riding on the outcome.

The court's ruling will not only determine Lord Black's fate, it will reshape how U.S. justice officials go after white-collar crime and political corruption. And, it will affect dozens of cases currently before the courts.

The central issue in Tuesday's hearing is a legal theory known as “honest services,” a key component of U.S. anti-fraud statutes. Prosecutors have used the theory in many high-profile cases, including those involving former executives at Hollinger, Enron and former Illinois Rod Blagojevich, which may affect his trial in 2010 (Mr. Blagojevich has denied federal charges of corruption). But many observers say the concept is ill defined and has criminalized conduct that would normally be a civil matter. governor

This Court held in McNally v. United States, 483 U.S. 350 (1987), a public corruption case, that the mail fraud statute could not be used to prosecute schemes to deprive the citizenry of the intangible right to good government. Congress responded in 1988 by enacting 18 U.S.C. § 1346, which expands the definition of a "scheme or artifice to defraud" under the mail and wire fraud statutes to encompass schemes that "deprive another of the intangible right of honest services."

Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant's conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government's bid to have the jury return a "special verdict," a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights.

Docket: 08-876

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Thursday, December 3, 2009

Shielding Illegal Aliens from Detection Prosecution-Bringing in & harboring aliens

In United States v. Ye, 2009 WL 3818340 (7th Cir. 2009), the U.S. Court of Appeals for the Seventh Circuit, affirmed a district court's conviction under INA § 274(a)(1)(A)(iii) [8 USCA § 1324(a)(1)(A)(iii)] (concealing, harboring, or shielding illegal aliens from detection) Held: that the district judge did not err in the jury instructions on the meaning of “shielding.” The Circuit Court rejected the defendant's contentions that the district court's definition of “shielding” was too vague and overbroad and that the evidence was insufficient to prove that he intended to prevent the government from detecting his illegal alien employees.

The defendant was part owner of a restaurant in Springfield, Illinois. In 2005, the restaurant's hiring practices were investigated based on a tip from a former employee that illegal aliens might be working there. This resulted in an indictment under various subsections of INA § 274 for harboring for commercial advantage (a felony) and hiring persons known to be illegal aliens (a misdemeanor). At trial, the jury was presented with evidence that after it was detected that the defendant did not have I-9 employee verification forms for any of his employees, he informed some of his workers that they were fired but could be re-hired if they produced immigration documents. He advised the employees that they could purchase fake documents in Chicago, which he would accept. One worker was rehired even though the documents he produced were not in his name. When immigration officials made a follow-up visit to the restaurant, it was ascertained that it did not have I-9 forms or payroll records for four Hispanic workers, because they did not have social security numbers. The defendant told the officials that the workers were living in an apartment that he was leasing.

A few months later, in December 2005, agents arrested five illegal aliens who were working at the restaurant. It was revealed that the restaurant did not possess I-9s for these workers because they did not have immigration documents. Three Chinese employees testified that they had been hired by the restaurant without producing any immigration documents, and that the defendant had provided housing for them and other illegal aliens. Evidence was presented that the defendant had signed and submitted reports to the Illinois Department of Employment Security that listed only the wages paid to Chinese workers who had social security numbers, but no Hispanic names were on those forms. In his testimony, the defendant admitted knowing that illegal aliens worked at his restaurant, that he had arranged for renting their apartments, and that he provided them with transportation to work. Over the defendant's objection, the district judge provided the jury with definitions of the statutory terms “concealing” and “shielding.” The judge proceeded to define “shielding” as “the use of any means to prevent the detection of illegal aliens in the United States by the government.” After the jury returned its guilty verdict, the district court denied the defendant's motion for a judgment of acquittal, and, alternatively, a new trial, and sentenced him to 33 months' imprisonment.

The Circuit Court considered that the district judge's “use of any means” language in its jury instruction was not unconstitutionally vague and was consistent with the criminal statute, INA § 274(a)(1)(A)(iii), which does not limit the types of conduct that can constitute shielding from detection. It indicated that the statute criminalizes all conduct that fits the definition of “shield,” not merely conduct that “tends substantially to facilitate” an alien's evasion of discovery. In this regard, the Seventh Circuit Court parted company with other Circuits, including the Second, Third and Fifth. It declared that whether the conduct “tends substantially” to assist an alien is irrelevant because the statute requires no specific quantum or degree of assistance. In concluding that the evidence was sufficient to support the conviction, the court stated that a reasonable jury could have concluded that the defendant's poor paperwork management was indicative of an intention to prevent the government from discovering the illegal aliens. In addition, it considered that the defendant's provision of apartments for the illegal aliens also served to permit the aliens to keep their identities under wraps.