528

Pageviews last month

June 6, 2016

Visa Bulletin For June 2016


A. STATUTORY NUMBERS
This bulletin summarizes the availability of immigrant numbers during June for: “Application Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.
Unless otherwise indicated on the USCIS website at www.uscis.gov, individuals seeking to file applications for adjustment of status with U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security must use the “Application Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the "Dates for Filing Visa Applications" charts in this Bulletin. Applicants for adjustment of status may refer to USCIS for additional information by visiting www.uscis.gov.
1.  Procedures for determining dates. Consular officers are required to report to the Department of State documentary qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by May 6th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.
2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES.
4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: 
FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.
A.  APPLICATION FINAL ACTION DATES FOR
     FAMILY-SPONSORED PREFERENCE CASES
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)
Family-
Sponsored 
All Chargeability 
Areas Except
Those Listed
CHINA-mainland 
born
INDIAMEXICOPHILIPPINES 
F115JAN0915JAN0915JAN0922FEB9522DEC04
F2A08NOV1408NOV1408NOV1401SEP1408NOV14
F2B22OCT0922OCT0922OCT0908SEP9501JUN05
F301DEC0401DEC0401DEC0422OCT9401FEB94
F408AUG0301JAN0301JAN0115APR9701DEC92
*NOTE: For June, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority datesearlier than 01SEP14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01SEP14 and earlier than 08NOV14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
B.  DATES FOR FILING FAMILY-SPONSORED
     VISA APPLICATIONS
The chart below reflects dates for filing visa applications within a time frame justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.
The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.
Visit www.uscis.gov/visa for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS. 
Family-
Sponsored 
All Chargeability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIAMEXICOPHILIPPINES 
F101OCT0901OCT0901OCT0901APR9501SEP05
F2A15OCT1515OCT1515OCT1515OCT1515OCT15
F2B15DEC1015DEC1015DEC1015MAY9601JAN06
F301AUG0501AUG0501AUG0501MAY9501AUG95
F401MAY0401MAY0401MAY0401JUN9801APR93
5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 
EMPLOYMENT-BASED PREFERENCES
First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      
Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".
Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.
Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.
A.  APPLICATION FINAL ACTION DATES FOR
     EMPLOYMENT-BASED PREFERENCE CASES
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlierthan the cut-off date listed below.)
Employ-
ment
based
All Charge-
ability 
Areas Except
Those Listed
CHINA-
mainland 
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIAMEXICOPHILIPPINES
1stCCCCCC
2ndC01JAN10C01OCT04CC
3rd15FEB1601JAN1015FEB1622SEP0415FEB1601NOV08
Other Workers15FEB1622APR0715FEB1622SEP0415FEB1601NOV08
4thCC01JAN10CCC
Certain Religious WorkersCC01JAN10CCC
5th
Non-Regional
Center
(C5 and T5)
C15FEB14CCCC
5th
Regional
Center
(I5 and R5)
C15FEB14CCCC
*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
B.  DATES FOR FILING OF EMPLOYMENT-BASED
     VISA APPLICATIONS
The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.
The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which isearlier than the listed date may file their application.
Visit www.uscis.gov/visa for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. 
 
Employment- 
based
All Chargeability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIAMEXICOPHILIPPINES 
1stCCCCC
2ndC01JUN1301JUL09CC
3rdC01MAY1501JUL05C01JAN10
Other WorkersC01AUG0901JUL05C01JAN10
4thCCCCC
Certain Religious WorkersCCCCC
5th
Non-Regional
Center
(C5 and T5)
C01MAY15CCC
5th
Regional
Center
(I5 and R5)
C01MAY15CCC
6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF JUNE
Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2016 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.
For June, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
RegionAll DV Chargeability Areas Except Those Listed Separately 
AFRICA34,400 
ASIA8,000
Except:
Nepal:      6,200
EUROPE34,000 
NORTH AMERICA (BAHAMAS) 10 
OCEANIA1,100 
SOUTH AMERICA,
and the CARIBBEAN
1,175 
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2016 program ends as of September 30, 2016. DV visas may not be issued to DV-2016 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2016 principals are only entitled to derivative DV status until September 30, 2016. DV visa availability through the very end of FY-2016 cannot be taken for granted. Numbers could be exhausted prior to September 30.
C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN JULY
For July, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
 
RegionAll DV Chargeability Areas Except Those Listed Separately 
AFRICA43,825 
ASIA10,550Except:
Nepal:      6,725
EUROPECURRENT 
NORTH AMERICA (BAHAMAS) CURRENT 
OCEANIACURRENT 
SOUTH AMERICA,
and the CARIBBEAN
CURRENT 
D.  RETROGRESSION OF SEVERAL FAMILY-SPONSORED AND
     EMPLOYMENT-BASED FINAL ACTION DATES FOR THE     MONTH OF JUNE
FAMILY-SPONSORED:
CHINA F4:  The increased level of applicant demand being received has necessitated retrogression of the June final action date, in an effort to hold number use within the overall China Family-sponsored annual limit. At this time, it is not possible to predict whether this date will advance prior to the end of the fiscal year.
INDIA F4:  The increased level of applicant demand being received has necessitated retrogression of the June final action date, in an effort to hold number use within the overall India Family-sponsored annual limit. This date is not expected to advance prior to the end of the fiscal year. 

EMPLOYMENT-BASED:
INDIA E2:  During the past two months, there have been extremely high levels of Employment-based demand for adjustment of status cases filed with U.S. Citizenship and Immigration Services.  This has necessitated retrogression of the Second preference final action date for the month of June in an effort to hold number use within the FY-2016 annual limit. This date is expected to advance slowly during the last three months of the fiscal year, at a pace consistent with that of the India Employment-based Third preference date.    
CHINA E2 and E3:  During the past two months, there have been extremely high levels of Employment-based demand for adjustment of status cases filed with U.S. Citizenship and Immigration Services.  This has necessitated retrogression of both the Second and Third preference final action dates for the month of June in an effort to hold number use within those FY-2016 annual limits. Neither of these dates is expected to advance prior to the end of the fiscal year.     

Item D of the May Visa Bulletin advised readers that such corrective action might be necessary to control future number use during the coming months.  Every effort will be made to return the retrogressed dates to those listed in the May 2016 Visa Bulletin as quickly as possible, once the FY-2017 annual limits take effect October 1, 2016.  Speculation on how quickly, or when, a full recovery might occur might not be possible until late summer. 

March 23, 2016

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Europe Travel Alert

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Europe Travel Alert: LAW OFFICES OF NORKA M. SCHELL, LLC The State Department alerts U.S. citizens to potential risks of travel to and throughout Europe f...

Europe Travel Alert

LAW OFFICES OF NORKA M. SCHELL, LLC

The State Department alerts U.S. citizens to potential risks of travel to and throughout Europe following several terrorist attacks, including the March 22 attacks in Brussels claimed by ISIL.  Terrorist groups continue to plan near-term attacks throughout Europe, targeting sporting events, tourist sites, restaurants, and transportation.  This Travel Alert expires on June 20, 2016.
U.S. citizens should exercise vigilance when in public places or using mass transportation. Be aware of immediate surroundings and avoid crowded places. Exercise particular caution during religious holidays and at large festivals or events.
U.S. citizens should also: :
  • Follow the instructions of local authorities, especially in an emergency.
  • Monitor media and local information sources and factor updated information into personal travel plans and activities.
  • Be prepared for additional security screening and unexpected disruptions.
  • Stay in touch with your family members and ensure they know how to reach you in the event of an emergency.
  • Register in our Smart Traveler Enrollment Program (STEP).
European governments continue to guard against terrorist attacks and conduct raids to disrupt plots. We work closely with our allies and will continue to share information with our European partners that will help identify and counter terrorist threats.
For further information:
  • See the State Department's travel website for the Worldwide Caution, Travel Warnings, Travel Alerts, and Country Specific Information.
  • Enroll in the Smart Traveler Enrollment Program (STEP) to receive security messages and make it easier to locate you in an emergency.
  • Call 1-888-407-4747 toll-free in the United States and Canada or 1-202-501-4444 from other countries from 8:00 a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday (except U.S. federal holidays).

March 6, 2016

Matter of Y-S-L-C-



Decided November 23, 2015 
U.S. Department of Justice Executive Office for Immigration Review 
Board of Immigration Appeals 

(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.

(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge. 

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Matter of Henry Javier MENDOZA OSORIO

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Matter of Henry Javier MENDOZA OSORIO: LAW OFFICES OF NORKA M.SCHELL, LLC 11 Broadway, Suite 615 New York, New York 10004 Tel(s). (212)564-1589        (973)621-9300 ...

Matter of Henry Javier MENDOZA OSORIO

LAW OFFICES OF NORKA M.SCHELL, LLC

11 Broadway, Suite 615
New York, New York 10004
Tel(s). (212)564-1589
       (973)621-9300

Website: www.lawschell.com

Decided February 9, 2016 
U.S. Department of Justice 
Executive Office for Immigration Review 
Board of Immigration Appeals

The offense of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law, which requires knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child, is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).

I. FACTUAL AND PROCEDURAL HISTORY 

The respondent is a native and citizen of Ecuador and a lawful permanent resident of the United States. The record reflects that he was convicted on December 10, 2013, of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law. On the basis of that conviction, the Department of Homeland Security (“DHS”) charged the respondent with removability under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), as an alien convicted of a “crime of child abuse, child neglect, or child abandonment.” The Immigration Judge found that the respondent is removable as charged and that he did not seek any relief from removal. 

Martinez v. U.S. Att’y Gen., 413 F. App’x 163 (11th Cir. 2011). But see Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013). The alien in Florez, who was also convicted under section 260.10(1), conceded that our definition of the phrase “crime of child abuse” was sufficiently broad to encompass a violation of that section. Therefore the court did not reach the question whether such a violation is categorically a “crime of child abuse, child neglect, or child abandonment.” Florez v. Holder, 779 F.3d at 209−10. Because this issue has been raised by the respondent, we address it here. Section 260.10(1) of the New York Penal Law provides:

A person is guilty of endangering the welfare of a child when:

1. He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health . . . .

Although contained in a single sentence, section 260.10(1) is phrased in the disjunctive and defines two discrete offenses: (1) taking action that is likely to be harmful to a child’s welfare, and (2) allowing a child to work in a dangerous occupation. See Florez v. Holder, 779 F.3d at 210 (stating that section 260.10(1) “can be violated in two conceptually distinct ways”); United States v. Beardsley, 691 F.3d 252, 268 n.11 (2d Cir. 2012) (noting that “the statute does create two offenses”).

The respondent has not claimed that he was convicted of the second part of section 260.10(1) or specifically explained how conduct punished under that part of the statute would fall outside of our definition of a crime of child abuse. Furthermore, he has not cited to any reported decision where a defendant was convicted under that part of the statute, and we are unaware of any decisions that explicitly discuss this aspect of section 260.10(1). Under these circumstances, we are unpersuaded that the offense of directing a child to engage in an occupation that involves a substantial risk of injury or illness does not define a categorical crime of child abuse or neglect. We therefore focus our inquiry on the first offense in the statute. 

In employing the categorical approach to determine if a State crime is comparable to a removable offense under the Act, we look to whether the State statute defining the crime categorically fits within the Federal definition of the corresponding offense. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). The respondent argues that the offense of endangering the welfare of a child under section 260.10(1) is not categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Act because the New York statute is broad that it encompasses conduct that falls outside of that phrase, as it was defined in Matter of Soram and Matter of Velazquez-Herrera. However, to establish that the New York offense is not a categorical crime of child abuse, the respondent must do more than merely invoke the statute’s breadth in general terms. He must show that there is a “realistic probability” that the statute is, in fact, applied to punish conduct that does not qualify as child abuse under the Act. See Moncrieffe v. Holder, 133 S. Ct. at 1684−85 (stating that the “focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense” and that “there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime’” (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007))). 

A conviction for endangering the welfare of a child under the first part of section 260.10(1) requires a showing that the defendant knew that his actions were likely to result in physical, mental, or moral harm to a child. People v. Portorreal, 939 N.Y.S.2d 805, 809 (N.Y. Crim. Ct. 2009). To act “knowingly” under New York law, the defendant must have been “aware” of the nature of his conduct and of the fact that his actions had the potential for harm. See People v. Johnson, 740 N.E.2d 1075, 1076 (N.Y. 2000); see also People v. Simmons, 635 N.Y.S.2d. 373 (N.Y. App. Div. 1995) (holding that it was error to convict based on what the defendant “should have known” because section 260.10(1) requires “actual knowledge”). There must also be proof that the harm was “likely to occur, and not merely possible.” People v. Hitchcock, 780 N.E.2d 181, 183 (N.Y. 2002). 

These elements—a knowing mental state coupled with an act or acts creating a likelihood of harm to a child—fit within our definition of a “crime of child abuse, child neglect, or child abandonment” in section 237(a)(2)(E)(i) of the Act. However, the respondent argues that the New York statute is overly broad because it proscribes a wide range of conduct that is not specifically delineated, claiming that it therefore criminalizes actions that were not contemplated to be child abuse or neglect under the Act. We disagree.

The respondent claims that various New York cases support his argument that section 260.10(1) criminalizes conduct that is not within our definition of child abuse because it does not constitute maltreatment of a child. He mentions leaving a child unattended for a short period, driving with a suspended license in the presence of a child, and committing petit larceny in the presence of a child, but he has not provided citations to any cases involving these circumstances. He did cite cases that he claims fall outside our definition, but none of them resulted in a successful prosecution because the defendant’s conduct did not constitute endangering the welfare of a child under the New York statute. Since there was no conviction in any of these cases, they are unpersuasive in establishing that there is a realistic probability that section 260.10(1) would be successfully applied to conduct outside our definition of child abuse.  

See Matter of Francisco-Alonzo, 26 I&N Dec. 594, 601 (BIA 2015) (finding neither support for the contention that the State statute “could be successfully applied to conduct” outside the Federal definition of a crime of violence nor evidence of “any such successful prosecutions”); Matter of Ferreira, 26 I&N Dec. 415, 420 (BIA 2014) (finding no support for the contention that the State statute was “actually used to successfully prosecute” offenses involving antique firearms).

The fact that there are numerous reported cases finding the offender’s conduct insufficient to support a conviction shows that the breadth of section 260.10(1) has significant limits. People v. Hitchcock, 780 N.E.2d 181, a case involving guns decided by the highest court of New York, illustrates that while section 260.10(1) potentially covers a broad range of conduct, acts that risk harm or actually result in harm to a child may still not meet the statute’s threshold requirement that the offender knowingly acted in a manner likely to be harmful to a child’s welfare. 5 The case involved two defendants, Hitchcock and Duenas, both of whom were charged with endangering the welfare of a child following accidents in which one child used the defendant’s gun to shoot another child. Hitchcock had 23 firearms in his home, including semiautomatic weapons and an assault rifle, most of which were openly accessible. At least one weapon was loaded, and ammunition for the others was nearby. Hitchcock testified that he had shown a 14-year-old living in his home how to load and shoot the guns and that he suspected they had been tampered with in his absence. The court took these facts into consideration in concluding that the evidence was legally sufficient to convict Hitchcock because it was reasonable for the jury to infer that he knowingly kept guns in a manner likely to be injurious to children living in or near his home. In contrast, Duenas had only one gun in his home and had made a significant effort to conceal it. There was no evidence that anyone else in the household knew about the gun, and Duenas was unaware that his younger brother had secretly seen him cleaning it in his bedroom. In these circumstances, the court found that the evidence was legally insufficient to conclude that Duenas was aware that his conduct would likely be injurious to a child. Thus, although both defendants possessed handguns that resulted in harm to a child, Duenas’ conduct did not meet the legal requirements for conviction under section 260.10(1). This case demonstrates that there are, in fact, significant limits to the sweep of the statute, contrary to the respondent’s assertion. Prior to our decision in Matter of Soram, the Second Circuit issued an unpublished opinion, noting that the statute was broad and remanding for us to clarify whether the minimal conduct encompassed by a conviction under section 260.10(1) constitutes a crime of child abuse or neglect. Guzman v. Holder, 340 F. App’x 679 (2d Cir. 2009). The court listed a number of New York cases, some of which the respondent has also cited. In our view, each of the cases cited in Guzman involved conduct that the defendant knew would pose a substantial risk of harm to a child in the totality of the circumstances and would therefore qualify as a crime of child abuse or neglect. See, e.g., People v. Manon, 640 N.Y.S.2d 318 (N.Y. App. Div. 1996) (sustaining the conviction of a mother who kept her infant son in extremely unsanitary conditions without necessary medical attention, which resulted in his death from malnutrition and dehydration); People v. Afia, 843 N.Y.S.2d 906 (N.Y. Crim. Ct. 2007) (convicting a school minibus attendant who was responsible for the safety of special needs children and knowingly failed to check for sleeping students, as instructed, which left a 7-year-old passenger alone on the bus for several hours in an unfamiliar location miles away from school).  

The respondent raises issues that were noted in Guzman, arguing that because section 260.10(1) does not require that there be any actual harm to a child or that the conduct be directed toward the child, the statute prohibits conduct that is broader than the Federal crime of child abuse defined by our precedent decisions. This argument is unavailing, however, because we addressed the question of harm subsequent to Guzman and held that our definition of child abuse is not limited to offenses that require proof of harm or injury to the child. Matter of Soram, 25 I&N Dec. at 381. Furthermore, the Second Circuit has approved our conclusion in this regard. Florez v. Holder, 779 F.3d at 212.

In Florez, the court noted that Guzman had questioned whether our definition of child abuse was broad enough to include child endangerment statutes like section 260.10(1), which criminalize conduct that did not actually harm a child. Id. at 211. The court observed that this definition is intentionally expansive, “consistent with the legislative purpose behind” section 237(a)(2)(E)(i) of the Act. Id. at 213. However, it explained that under Soram, the definition is not unlimited because “a state child-endangerment statute qualifies as a ‘crime of child abuse’ under the [Act] only if it requires, as an element of the crime, a sufficiently high risk of harm to a child.” Id. at 212. The court upheld our definition because it includes the required level of risk of harm to a child, recognizing that this limitation ensures that our treatment of such statutes “remains within the realm of reason.” Id.

Although Florez did not specifically address the issue of conduct that was not directed at a child, we have reviewed New York cases that involved defendants who were convicted under section 260.10(1) for committing acts that were not directed at a child. See, e.g., People v. Johnson, 740 N.E.2d at 1075−76 (children witnessed the defendant knock their mother down in the street and drag her home, then listened to him beat and yell at her for 10 hours while she screamed); People v. Meseck, 860 N.Y.S.2d 263 (N.Y. App. Div. 2008) (children witnessed the defendant confine their mother for 4 hours while he yelled at her, called her names, and threatened to kill her with a baseball bat); People v. Spickerman, 762 N.Y.S.2d 470 (N.Y. App. Div. 2003) (children witnessed the defendant beat their mother, breaking her jaw and rupturing her eardrums); People v. Brooks, 705 N.Y.S.2d 349 (N.Y. App. Div. 2000) (defendant stabbed his estranged wife in the presence of their 3-year old son); People v. Parr, 548 N.Y.S.2d 121 (N.Y. App. Div. 1989) (defendant forcibly sodomized a 5-year-old child’s mother in the child’s presence). In these cases the defendant was aware of the presence of the child when he committed severe acts of violence against the child’s mother. Witnessing such acts of domestic violence is likely to cause serious psychological and developmental damage to children, even if they are not themselves subjected to physical abuse. People v. Johnson, 740 N.E.2d at 1077. Therefore, even though the defendant’s conduct was not directed at a child, we would consider it to be child abuse within our definition, given the high risk of harm to the childWe recognize that there are child endangerment statutes that do not require a sufficiently high risk of harm to a child to meet the definition of child abuse, neglect, or abandonment under the Act. For example, the child endangerment statute at section 273a(b) of the California Penal Code criminalizes conduct that places a child “in a situation where his or her person or health may be endangered.” (Emphasis added.) In Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), the Ninth Circuit held that this statute did not categorically define a “crime of child abuse” within the meaning of the Act. The court observed that the statute does not “require that the circumstances create any particular likelihood of harm to a child” and punishes “conduct that creates only the bare potential for nonserious harm to a child.” Id. at 1037−38. In this regard, the court cited as an example of facts that did not meet our definition of child abuse the case of a parent “placing an unattended infant in the middle of a tall bed without a railing, even though the child was never injured.” Id. Based on the facts as construed by the court, we would agree that they do not, alone, define a crime of child abuse or neglect. A conviction under section 260.10(1) at issue here requires that the defendant “knowingly engaged in conduct likely to be injurious to a child.” People v. Hitchcock, 780 N.E.2d at 184. In reviewing this statute, we have considered the totality of the circumstances presented in each case, rather than viewing certain facts in isolation.7 The New York cases that resulted in a successful prosecution under the statute are those where the defendant had an awareness that his conduct posed a sufficiently high risk of harm to a child to qualify the offense as a crime of child abuse or neglect under section 237(a)(2)(E)(i) of the Act. Thus, while there are child endangerment statutes that do not meet our definition, we conclude that section 260.10(1) is not one of them.

To be continued.













February 13, 2016

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: DEFERRED ACTION

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: DEFERRED ACTION: LAW OFFICES OF NORKA  M. SCHELL, LLC 11 Broadway, Suite 615 New York, New York 10004 Tel. (212)564-1589/ (973)621-9300 Website: ...

DEFERRED ACTION


LAW OFFICES OF NORKA  M. SCHELL, LLC

11 Broadway, Suite 615
New York, New York 10004
Tel. (212)564-1589/ (973)621-9300
Website: www.lawschell.com 


The U.S. Department of Homeland Security ("DHS") - U.S. Citizenship and Immigration Services ('USCIS") does bring removal proceedings against every alien whom it suspects of being deportable. For one thin, it recognizes that there are certain cases in which extraordinary sympathetic factors would make removal unconscionable. For another, the DHS could not remove all deportable alien even if it wanted to. Removal proceedings require apprehension, investigation, proceedings, possible detentions, prosecution, adjudication, removal, and recording-keeping. Like any other government agency, the DHS has limited resources. It has to decide how it can most efficiently allocate those resources (a) between law enforcement functions and other functions, and (b) within law enforcement.

For some time the DHS policy has been to refrain from initiating removal proceedings in certain unusually compassionate cases.That policy has been given different names over the years: "prosecutorial discretion", "nonpriority status", and most commonly today, "deferred action". Whatever the name, the theory has been that the case is simply put on the back burner. Technically the DHS remains free to proceed against the alien in the future if its workload or its priority change, realistically, since the actual reason for holding back is the presence of exceptionally sympathetic factor, relief will typically be permanent unless those individual factors change. 

February 5, 2016

Matter of Alcibiades Antonio PENA, 26 I&N Dec. 613 (BIA 2015)




An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the INA, if he or she does not fall within any of the exception in section 101(a)(13)(C) of the Act. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) distinguished. 

Matter of Miguel Angel CASTRO-LOPEZ

U.S. Department of Justice 
Executive Offices of Immigration Review 
Board of Immigration Appeal

Cite as 26 I&N Dec. 693 (BIA 2015) 

Interim Decision #3854 693

The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2) (2015) for aliens seeking special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), should be measured from the alien’s most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).

H-2B Returning Workers Exempted from the H-2B Cap for Fiscal Year 2016

          H-2B Employers Urged to Identify Returning Workers when Filing Petitions
Effective December 18, 2015, H-2B workers identified as “returning workers” are exempted from the fiscal year (FY) 2016 annual H-2B cap of 66,000 visas. See Immigration and Nationality Act (INA) §214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), as revised by Consolidated Appropriations Act of 2016 (Public Law 114-113).
A returning worker is defined as an H-2B worker who was previously counted against the annual H-2B cap of 66,000 visas during FYs 2013, 2014, or 2015. This means:
  • In general, if you (the employer) submit a petition requesting an employment start date in FY 2016 (from October 1, 2015 – September 30, 2016) for an H-2B worker, the H-2B worker can only be considered a returning worker if he or she had been previously issued an H-2B visa or provided H-2B status between October 1, 2012, and September 30, 2015.
  • If the prospective worker is in the United States in H-2B status, and is seeking to extend his or her stay, change employers, or change the terms and conditions of employment, then the worker would not be counted toward the H-2B cap and you would not need to request that the person be classified as a returning worker.
  • Any prospective H-2B worker who does not qualify as a returning worker will be subject to the FY 2016 H-2B cap unless he or she has previously been counted toward the H-2B cap or is cap-exempt.
Under this legislation, the returning worker program only applies to petitions pending or approved on or after December 18, 2015, requesting named H-2B workers with an employment start date beginning in FY 2016.