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Immigration Reform by Executive Action – Were the President’s Actions Lawful?

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Some time has now passed since President Obama announced on November 20, 2014 his intention to go it alone to “fix” of our “broken immigration system.”  Since that announcement, lawyers such as myself were hopeful that we could start working with clients on their applications for expanded relief under Deferred Action for Childhood Arrivals (“DACA”), and later this Spring under the President’s new “deferred action” program for the parents of U.S. citizens and lawful permanent residents (“LPR’s), commonly known as “DAPA”.

That all came to a screeching halt on February 16, 2015, when Texas federal district Judge Andrew S. Hanen granted a temporary injunction against the implementation of President Obama’s executive action regarding the DAPA program and the expansion of the President’s June 2012 DACA initiative.  The injunction temporarily blocks President Obama’s executive action aimed at providing administrative relief from removal to millions of immigrants.  President Obama has vowed to appeal.  This, of course, begs the question of whether the President’s actions were lawful.  I think they were.

A (Very) Brief History of Previous Exercises of Discretionary Relief

President Obama’s administrative action was but the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations.  According to the American Immigration Council, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together.  So why all the fuss now?

Prosecutorial Discretion, the Immigration Law and Regulations, and the Supreme Court

DACA was established by executive action in June 2012, and was expanded by the President’s announcement in November 2014.  DAPA was first announced by the President in November 2014.  Prosecutorial discretion generally refers to the authority of the Department of Homeland Security (“DHS”) to decide how the immigration laws should be applied, and it is a legal practice that has existed in law enforcement for quite some time.

For example, the Immigration and Nationality Act (“INA”) and its implementing regulations are replete with examples where DHS will either refrain from an enforcement action, like electing not to serve and thereafter file a charging document (commonly known as a Notice to Appear) with the Immigration Court, as well as well as decisions to provide a discretionary remedies when an immigrant is already in removal proceedings, such as granting stays of removal, granting parole, or granting deferred action.

The INA itself authorizes the President’s legal authority to exercise prosecutorial discretion, including by prohibiting judicial review of three (3) types of actions involving the exercise of prosecutorial discretion (i.e., the decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders).

Congress has also legislated deferred action in the INA itself as a means by which the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of crime, abuse, or human trafficking.

Notably, the INA also has a specific provision which recognizes the President’s authority to authorize employment for non-citizens who do not otherwise receive it automatically by virtue of their particular immigration status. See INA § 274A(h)(3).  It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA (and would do so again under expanded DACA and DAPA).

Beyond this, memoranda issued by federal agencies authorized to implement and enforce our nation’s immigration laws recognize prosecutorial discretion too, including a seminal one issued by legacy-Immigration and Naturalization Service “INS”) Commissioner Doris Meissner in 1990 to her senior agency staff.  There are earlier memoranda as well opining as to the legality of prosecutorial discretion too.

Finally, the Supreme Court held in Arizona v. United States that a “[a] principal feature of the [deportation] system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [deportation] at all . . . .” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).

As a result of all of the above (i.e., the INA and its implementing regulations, Supreme Court decisions, and agency memoranda), there have been at least thirty nine (39) instances since 1956 where a president has exercised his executive authority to protect aliens, generally in the interest of simply keeping families together.

So What Happens Now?

Our history is replete with examples of U.S. presidents, in the name of prosecutorial discretion, issuing directives that provided for deferred action (or whatever they may have called it at the time) to non-citizens of the United States, and indeed Judge Hanen, in his written decision, affirmed the executive branch’s right to exercise prosecutorial discretion.

Previous lawsuits against similar executive actions have failed in the past.  Indeed a similarly politically motivated lawsuit was thrown out in December 2014 when Maricopa County Sheriff Joe Arpaio argued that President Obama’s announcements were unconstitutional.  In 2012, the State of Mississippi challenged the legality of DACA in a case similar to the current Texas lawsuit, and that case was dismissed because the judge found the perceived economic hardship the state claimed was purely speculative.

As I have previously argued and substantiated in this blog, studies have shown that deferred action initiatives, apart from being the right thing to do, are economically beneficial to our country.  In his decision, Judge Hanen cites the government’s “failure to secure the borders” and then goes on to support the plaintiffs’ position of supposed costs to the states without any evidence whatsoever in the record. The American Immigration Lawyers Association (“AILA”) and others have argued that Judge Hanen disregarded information submitted by the government and AILA as to the widespread economic and social benefits that the expanded DACA and DAPA programs would provide.  They’re right.

Again, the Obama Administration has indicated it will appeal, and at the same time seek a stay to the enforcement of Judge Hanen’s order.  I am cautiously optimistic that the government will prevail.  In the meantime, it’s noteworthy to point out that those who have previously been granted DACA are not at all affected by Judge Hanen’s ruling.  This ruling only delays the start of DAPA and the expansion of DACA.

Immigration Reform by Executive Action – What Else Did the President Do?

imm_4OK, to close the proverbial loop on President Obama’s administrative “fix” of our “broken immigration system”, here’s a few other things that the President announced on November 20, 2014.  For more details on all aspects of this Executive Action, please see my two previous blog posts.

Provisional Waivers.  This was a biggie, and just about the day after the President’s announcement, I had someone walk into my office who will benefit under this provision (once implemented).  The President has decided to expand an earlier program his administration put into place which provides for “provisional waivers” of the 3- and 10-year unlawful presence bars on the admission of aliens who have accrued more than 180 days of unlawful presence in the United States.  Currently, this program only assists the spouses, sons, or daughters of U.S. citizens. Under the President’s proposed expansion, it will now also benefit qualifying relatives of lawful permanent residents (i.e., Green Card holders).

Miscellaneous.  The President also announced several other initiatives, not all of which can be neatly categorized I have done in earlier blogs.  First, the President announced some personnel reforms involving immigration and customs officers.  He also is trying to promote naturalization for eligible Green Card holders by, for example, directing U.S. Citizenship and Immigration Services (“USCIS”) to start accepting credit cards for paying naturalization fees, to consider partial waivers of naturalization fees in its next biennial fee study, and to launch a comprehensive media campaign to promote naturalization.  He also is establishing an interagency task force on “New Americans” so as “increase meaningful engagement” between immigrants and the communities where they settle.  Finally, the President is also establishing an interagency working group to address the interplay of immigration and employment law.  I personally think it will be interesting to see what develops out of this last one.

As I have previously said, it seems clear to me that what President Obama announced was very necessary and very welcome, even if the manner in which it did it was controversial (along obviously with what he did).  Last week, the House of Representatives passed a funding bill for the U.S. Department of Homeland Security that defunded his initiatives.  Although the measure passed, interestingly, 26 Republicans voted against Rep. Marsha Blackburn’s amendment which would have defunded the President’s original 2012 Deferred Action Against Childhood Arrivals (“DACA”) initiative.  This bill is now on to the Senate, where I doubt it will pass, but it certainly create a forum for debate that may very well impact the 2016 presidential elections.  Let’s see what happens.

Obama’s Immigration Executive Action: Some Lawful Immigration Changes

So of course the centerpiece of President Obama’s administrative “fix” of our “broken immigration system” are his initiatives to grant “deferred action” to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here.  But the President did much more when he announced on November 20, 2014 several other initiatives which affect lawful immigration, and which are supposed to assist our country’s high-skilled businesses and workers.  Here’s a brief overview.

 1.  Immigrant Visa Issuance.  The President wants to ensure that all available immigrant visas (basically, “Green Cards”) are used each year, and the President has created a new interagency task force to modernize and streamline the immigrant visa system.  Because of delays in processing applications for immigrant visas, some visas going unused each fiscal year.  Given the unbelievable backlogs in some of the family- and employment-based immigrant visa categories, this is clearly unacceptable.  The President’s action is an attempt to ensure that all immigrant visas available for issuance in a year are used.

 2.  Optional Practical Training.  The President announced that he would expand the duration of any “optional practical training” (commonly known as “OPT”) engaged in by foreign national students who studied science, technology, engineering, and mathematics (commonly known as “STEM” fields) at institutions of higher education in the United States on F-1 nonimmigrant student visas.  The President also proposed to expand the degree programs eligible for OPT.

Presently, foreign national students studying in the United States on F-1 nonimmigrant visas may request 12 months of post degree temporary employment, or OPT, in their field of study.  In 2008, regulations were promulgated which permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT.  However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months.

3Aliens Whose Admission to the United States is in the National Interest.  The President proposes to expand the use of the immigrant visa category which allows aliens with advanced degrees or “exceptional ability” to obtain an immigrant visa without a sponsoring employer if their admission to the United States is in the “national interest.”

 4.  Inventors, Researchers, and Founders of Start-up Enterprises.  The President proposes to use the authority granted to the executive branch in the Immigration and Nationality Act (“INA”) to “parole” foreign nationals into the United States when there is a “significant public benefit” to allow some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa.

5.  L-1B Specialized Knowledge Aliens.  For companies who wish to hire foreign nationals as “intra-company transferees” using the L-1B nonimmigrant visa program, the President’s proposal seeks to clarify and standardize the meaning of “specialized knowledge” for purposes of the L-1B visa program.  The L-1B nonimmigrant visa allows companies to transfer certain employees who are executives or managers, or have “specialized knowledge” of the company or its processes, to the United States from the company’s foreign operations.

 6.  I-140 Portability under AC21 §106(c).  The President seeks to clarify what is meant by the “same or similar job” for purposes of INA §204(j), which provides that employment-based immigrant visa petitions remain valid when the foreign national employee changes jobs or employers so long as the new job is in the “same or similar occupational classification” as the job for which the original petition was filed.

 7.  Labor Certification (“PERM”) Modernization.  The President seeks to review the Labor Certification program (commonly called “PERM”), whereby the U.S. Department of Labor (“USDOL”) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers.  More particularly, the President wants to identify methods for aligning domestic worker recruitment requirements under the PERM regulations with demonstrated occupational shortages and surpluses.

 8.  Human Trafficking and Crime Victims.  The President announced that the USDOL will certify (a) applications for T nonimmigrant visas for foreign nationals who have been victims of human trafficking, as well as (b) applications for U nonimmigrant visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that the USDOL detects in the course of its workplace investigations.

The President announced other initiatives too (which I will write about at a later time).  As you can see from the above, not everything the President announced was controversial (even though some feel how he went about it was).  It seems clear to me, however, that what he announced was very necessary and very welcome (by most, anyway).

Immigration Reform by Executive Action: What Did Obama Actually Do?

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So, the President finally did it.  On November 20, 2014, President Obama announced a series of actions (not executive orders as it turns out) that his administration is taking to “fix” what he has repeatedly described as a “broken immigration system.”  These actions involve, among other areas, border security, providing a temporary status (commonly called “deferred action”) for some aliens who are currently unlawfully present in the United States, and future legal immigration.  So what did the President actually do?  I’m glad you asked.

Border Security.  Likely to placate those on the right, and certainly consistent with this Administration’s record level of deportations, the President announced he is implementing a “Southern Border and Approaches Campaign Strategy” which the Administration argues will “fundamentally alter” the way in which it marshals resources to the border.  We’re informed that this will involve the U.S. Department of Homeland Security (“DHS”) commissioning of three (3) task forces, consisting of various law enforcement agencies, which will focus on the southern maritime border, the southern land border and West Coast, and investigations to support the other two task forces. The primary objectives of this new strategy is increasing the risk of engaging in or facilitating illegal transnational or cross-border activity, interdicting people who attempt to enter illegally between ports of entry, and preventing the illegal exploitation of legal flows (e.g., alien smuggling at ports of entry).

Aliens Unlawfully Present in the United States.  The centerpiece of President Obama’s announcement, and no doubt the most controversial, is to grant deferred action (basically temporary relief from removal) to some aliens who are unlawfully present in the United States (i.e., those who were brought to the United States as children and raised here, or those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”)).

In addition, President Obama expanded a program his administration announced in June 2012, known as Deferred Action for Childhood Arrivals (“DACA”).  That program allowed aliens who were unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization.  DACA, as originally proposed, expressly excluded aliens who were unlawfully present aliens and who were over 31 years old, or who had entered the United States on or after June 15, 2007.  Under President Obama’s recent action, aliens who are over 31 years old, or entered the United States between June 15, 2007, and January 1, 2010, could receive deferred action.  The President’s recent initiative would also extend the duration of grants of deferred action (and work authorization) received by DACA beneficiaries from the current two years, to three years.

As noted above, aliens who are unlawfully present in the United States who have children who are U.S. citizens or LPR’s will also be eligible for deferred action (and employment authorization) provided they can show (1) “continuous residence” in the United States since before January 1, 2010, (2) physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they apply for deferred action, (3) not being an enforcement priority under the administration’s newly announced priorities, and (4) they present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.  Individuals who are granted deferred action pursuant to the President’s initiatives, or otherwise, are eligible for employment authorization provided they can show “an economic necessity for employment.”

There were other provisions which addressed aliens who are unlawfully present in the United States too, but these are the big ones.

Legal Immigration.  The President also announced certain initiatives intended to affect aliens who are lawfully present in the United States, and which was described by the President as supporting high-skilled business and workers.  One such provision is to ensure that all immigrant visas (basically “Green Cards”) which are authorized by Congress in a given fiscal year are actually issued.

Yet another initiative that the President announced is expanding the duration of “optional practical training” (“OPT”) available to F-1 nonimmigrant students in the United States studying science, technology, engineering, and mathematics (“STEM”) fields at institutions of higher education in the United States, as well as expanding the actual degree programs that are eligible for OPT.

Again, there were other provisions which the President announced in this category.

I realize the President’s actions are very controversial, and a lot of people are unhappy with them.  As I’ve said before, and I’ll say it again, our immigration system is broken and it desperately needs to be fixed.  In a perfect world, Congress would pass meaningful, comprehensive and bipartisan legislation, and send it to the President for his signature.  That has not happened for way too long. So I suppose this is the next best thing.

Election Afterthoughts and Immigration Reform by Executive Action

imm_2I’ve taken some time to digest the 2014 midterm election results, and specifically in terms of what they mean for the prospect of comprehensive immigration reform.  At first blush, it doesn’t look great.  At second blush too.

Last week, however, the New York Times published (in my opinion) an excellent editorial, making the case why President Obama should go it alone and use his executive authority to give temporary protection to potentially millions of aliens unlawfully present in the United States.  I am well aware that this is a hotbed issue, and people have legitimately strong arguments on both sides of it.  I think the President should go for it, and it looks like he’s about to, perhaps as early as this week (and we’re informed not later than the end of the year).

To be honest, I have mixed emotions about President Obama.  But the reality is, the New York Times is absolutely correct in saying that “[s]ix fruitless years is time enough for anyone to realize that waiting for Congress to help fix immigration is delusional.”  It’s actually been longer than six years.  President George W. Bush tried for comprehensive immigration reform during his presidency, and that fell apart.  Others before him have tried and failed as well.

I’ve made this point before, but it really is worth repeating.  Our immigration system is broken.  Is it really practical to think that we’re going to deport 11 to 13 million aliens who are unlawfully present in the United States?  No.  Does it make sense that we educate foreign nationals at some of our best institutions of higher education, and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to?  No. Our immigration system is broken, and our national leaders, with the input of relevant stakeholders, should discuss, debate and implement comprehensive immigration reform.

Unfortunately, a legislative fix does not appear in the offing.  Thus, we’re now hearing (and reading) that President Obama may use his executive power to prevent the removal (commonly known as deportation) of anywhere between 3 and 5 million aliens who are unlawfully present in the United States.  The specifics are apparently still being worked out, but I’m hearing that those who are the parents of U.S. citizen children, or the spouses of U.S. citizens, will be allowed to remain in the United States, and even obtain permission to work, indefinitely.

Just so I am clear.  These individuals will not be afforded lawful permanent residence (i.e., a Green Card), nor will they be put on a path to citizenship.  Only Congress has the ability to make those types of changes (with, of course, the signature of the President).

This is not a perfect solution.  These individuals would (potentially) only be receiving a temporary reprieve from deportation.  Congress could change the law, or a future president could cancel President Obama’s program.  If that were to occur, those who participated in the program would be out in the open and thus exposed to removal.  Nevertheless, I think it’s a step in the right direction, and worth the risk for those aliens who would participate in it.

As the New York Times stated in its editorial, “[t]here will surely be intense debate when [President] Obama draws the lines that decide who might qualify for protection. Some simple questions should be his guide: Do the people he could help have strong bonds to the United States? Does deporting them serve the national interest? If it doesn’t, they should have a chance to stay.”  I agree.

Back to School, but Congress Still as Unproductive as Ever

I rec????????????????????????????????????????????????????????????????????????????????????????????????????????????????ently took my five year old to his first day of kindergarten. He was pretty excited (and so was I for him). Now that the summer is officially behind us, our summer vacations are but a distant memory, our children are now back to school, and we are back to work.

I’m sure most of you know that our children must be in school no less than 180 days during the school year. I’m sure most of you, like me, work no fewer than 5 days a week (and often more). Do you know how many days Congress has been in session this year? Do you know how many days Congress has actually worked this year?

I remember when I used to work on Capitol Hill. Summertime at the office was fairly quiet as a rule. My boss would spend most of this time back in New York, occasionally coming back to Washington for one thing or another. It was pretty rare. Times have not changed, but our legislators certainly have.

When I worked on the Hill, I was admittedly a geek. I would go sit in the Senate gallery after work and watch bills being debated. Let me set the scene. If you’ve ever watched Congressional proceedings on C-SPAN, you might think that all the Senators or Representatives are intently listening to their colleague debate the merits of a bill. Nothing could be further from the truth. Typically the only people in the Senate or House chambers are the person speaking about a particular bill, a staffer sitting behind that particular legislator, one or two stenographers, a few congressional pages, whoever happens to be sitting in the chair person’s seat, and a few administrative folks who actually work for the Senate or the House. I imagine that if I was working on Capitol Hill today, I might have to find something else to do after work given that no Congress in modern history has passed fewer laws (to date anyway) than this one.

I read an interesting piece on the NBC News website recently that this particular Congress has been the least productive in modern history. Just prior to its August recess, “just 142 public bills [had] become law in this current Congress (2013-2014) – down from the 906 the 80th “Do-Nothing” Congress passed in 1947-48, and the 333 that were enacted during the Newt Gingrich-led 104th Congress of 1995-96.”

After coming back from their summer recess, Congress took care of a few things, and according to a recent article from NBC News, they’re now gone until November! “The U.S. House has been in session for roll call votes a total of 92 days in 2014 – or 35% of the year up until now. (They had “pro forma” sessions – without any legislative business – for an additional 25 days.) … The Senate’s been working slightly less, holding roll call votes on just 87 days this year, with an additional 30 days of “pro forma’ sessions, when most lawmakers aren’t in Washington.”

What about you and I? According to NBC News, “[t]hose of us working a typical 5-day work week, with public holidays, would have been clocking in for a total of somewhere around 181 days during that time.”

Incumbency is still a big plus for a legislator running for re-election, although arguably it’s a little less meaningful these days than it was before. We have important national issues that need our Congress’s attention, not the least of which is … wait, wait for it … Comprehensive Immigration Reform (CIR). The Los Angeles Times reported recently that although House Speaker John Boehner noticeably left immigration out of a speech made recently about the economy, he acknowledged during questions afterward that he thought that “immigration reform would help our economy.” Duh. So why can’t he get his party’s support in the House to pass meaningful immigration reform?

Instead, we’re left to wonder whether, and if so, when, President Obama will take executive action in lieu of congressionally passed (and supported) CIR. We can debate whether executive action in lieu of legislation is a good idea. Doing nothing, however, is a bad idea.

Can’t We Just Deport Justin Bieber?

Justin Bieber?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????OK, so my apologies ahead of time to those of you who have children who like Justin Bieber or enjoy his music.  My children are still (mercifully) way too young to know who he is or the shenanigans he gets himself involved in.

What I did not know until his recent arrest in Miami is that the young Mr. Bieber is not a U.S. citizen; rather, I am informed that Mr. Bieber is in the United States as a nonimmigrant (perhaps in an O-1 nonimmigrant status, which status is reserved for foreign nationals of extraordinary ability).  In Mr. Bieber’s case, the standard for an O-1 nonimmigrant is actually a lower standard; that is, instead of proving to U.S. Citizenship and Immigration Services (“USCIS”) that he’s an alien of extraordinary ability, because he’s an “artist or entertainer” (so they say), the standard is showing that he’s an alien of “distinction.”  But I digress.

My understanding is that Mr. Bieber and R&B singer Khalil Sharieff were arrested on January 23 while drag-racing in Miami Beach.  According to news reports, Mr. Bieber was charged with driving under the influence (“DUI”), resisting arrest and using an expired driver’s license.  He has pleaded not guilty to all charges.

Some news outlets also reported that Mr. Bieber initially resisted arrest, cursed at police officers, and also told police that he had consumed alcohol, pot and prescription drugs (this all according to the police).  His next appearance in court is May 5.

Of course, the arrest (and related arrogance) of a young pop star consumed the media for days, if not weeks.  What was more interesting to me, however, is when some media outlets started reporting that people were calling for Mr. Bieber to be deported (actually, officially called “removed”) from the United States.

For example, a petition was lodged with the White House to have Mr. Bieber deported.  The petition was created the day of his arrest, and it urged the White House to revoke Mr. Bieber’s permission to be in the country.

We the people of the United States feel that we are being wrongly represented in the world of pop culture. We would like to see the dangerous, reckless, destructive, and drug abusing, Justin Bieber deported and his green card revoked. He is not only threatening the safety of our people but he is also a terrible influence on our nation’s youth. We the people would like to remove Justin Bieber from our society.

First off, as noted above, I don’t believe that Mr. Bieber has a “green card”.  But apart from that, over 100,000 people have signed on to the petition.  Even Sen. Mark Warner, a Democrat from Virginia, is on board. “As a dad with three daughters, is there someplace I can sign?” he asked with a laugh, when prodded by the hosts of Chesapeake-based FM99’s “Rumble in the Morning.”  The White House is obligated to respond to petitions that reach more than 100,000 names.  Still waiting on their response at this point.

OK, so this all got me thinking.  Could Justin Bieber actually be removed from the United States as a result of this incident?

Immigration consequences attach to foreign nationals who have been “convicted” of certain crimes, as well as sometimes even to foreign nationals who admit to committing certain crimes for which they were not convicted, or whom the government has “reason to believe” are involved in certain criminal activities.  Because Mr. Bieber (I presume) is lawfully in the United States, he would be subject to the grounds of deportability under section 237 of the Immigration and Nationality Act (INA), as amended, and possibly even the bars to a finding of good moral character at under section 101(f) of the INA.

I’ve had an opportunity to review Mr. Bieber’s Complaint / Arrest Affidavit (and I must admit, it makes for some very interesting reading if you don’t mind the “f” bomb).

Mr. Bieber was charged with violating section 316.193 of Florida Statutes, which generally relates to DUI offices.  This section of law includes several subsections, and it’s not clear from the Complaint / Arrest Affidavit under which subsection he was charged.  Nevertheless, as no one was hurt or (thankfully) killed in the incident, it seems reasonable to conclude that he was charged under a subsection that would not result in his being convicted of, e.g., an aggravated felony (for immigration purposes)[1] or a crime involving moral turpitude.[2]  The other two charges likely do not have negative immigration consequences as well.  So, he appears safe, as far as these charges go anyway.

However, if the young Mr. Bieber did admit to police that he abused drugs, this could be a big problem for him.  The INA that provides that “[a]ny alien who is, or at any time after admission has been, a drug abuser or addict is deportable.”

Of course, I don’t wish any ill-will on Mr. Bieber, but if all this was the case, my children might not ever ask me whether they can see him at the Times Union Center or SPAC as they’re growing up!


[1] The term “aggravated felony” is defined at section 101(a)(43) of the INA, and now includes some 50 different offenses. While some of these offenses, such as murder, rape, and kidnapping, would sound like aggravated felonies to the layperson, a good number of the offenses in the definition do not readily appear heinous enough to be termed “aggravated felonies,” and based upon case law, some DUI violations can be considered aggravated felonies.

[2]  The Board of Immigration Appeals (“BIA”) defines a Crime Involving Moral Turpitude as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”

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