THE LATEST FROM SRW BORDER BLOG

Breaking News: Supreme Court Strikes Down “Crime of Violence” Definition as Vague

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In the much-anticipated Sessions v. Dimaya case, the Supreme Court, in a 5-4 decision, invalidated a provision of federal law requiring the deportation of immigrants convicted of a “crime of violence” holding that it is too vague to enforce. This decision will limit the mandatory deportation of individuals convicted of certain crimes.

This ruling applies to a category of crimes that carry a prison term of more than a year, but do not easily fit in an extensive list of “aggravated felonies” that could get any noncitizen deported – lawful permanent residents included. The length of time they have lived in the U.S. is inconsequential.

The Immigration and Nationality Act (INA) defined a “crime of violence” as an offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense.” This loosely-defined term could be used to include burglary (whether or not it actually included violence) as well as possession of certain “dangerous weapons,” even if they are kept under lock and key and do not function.

Speaking regarding the impact of the ruling, Dimaya’s attorney, E. Joshua Rosenkranz states, “This decision is of enormous consequence, striking down a flawed law that applies in a vast range of criminal and immigration cases and which has resulted in many thousands of immigrants being deported for decades in violation of their due process rights,” said E. Joshua Rosenkranz, a lawyer for the immigrant at the center of the case.

If you have a criminal conviction on your record and want to find out more about the way this decision will affect your case, please contact us on our website or by phone at (716) 854-7525. This ruling has the potential to work in your favor.

USCIS updates plan for L-1 pilot program

In a previous post, we reported on a pilot program for Canadian L-1 visas that would temporarily affect applications presented at the border for adjudication at the Blaine, Washington state port of entry. U.S. Citizen and Immigration Services (USCIS) has provided new details on the program, which is a joint initiative by (USCIS) and Customs and Border Protection (CBP). It will only be conducted at the Blaine, Washington port of entry, and is intended to identify procedural issues and increase efficiency.

USCIS has confirmed that the pilot program will last for six months (April 30 to October 31, 2018) and further explains the process, according to a press release on the agency’s website:

  • First, Canadian L-1 petitioners will submit Form I-129 and supporting evidence to the USCIS California Service Center. Fees also will be submitted to USCIS.
  • USCIS emphasizes that this submission – and all correspondence related to the L-1 application – must include a cover sheet that says “Canadian L.” This is supposed to “ensure quick identification.”
  • The USCIS California Service System will issue the Form I-797C receipt notice and make a decision.
  • If a request for evidence (RFE) is necessary, it will be sent to the applicant by USCIS.
  • After approval from USCIS, applicants must bring a copy of the approval notice to present to CBP officers at the Blaine, Washington port of entry.
  • It should be noted that “CBP will continue to make the final determination on whether a Canadian L-1 applicant is admissible to the United States.”

USCIS adds that participation in the pilot program is optional for Canadian L-1 applicants at the Blaine, Washington, port of entry. CBP officers at the Blaine POE will accept the petition, but it will be adjudicated at the nearest Class A Port of Entry. (The closest ones in Washington State are at Point Roberts, Sumas, and preclearance at the Vancouver International Airport.)

Petitioners participating in the pilot program are “strongly encouraged” by CBP and USCIS to file Canadian L-1 applications with USCIS “as far in advance of travel as possible.”

Pilot program may have lasting effect on L-1 process for Canadians

Will applying for an L-1 visa at the border soon become a thing of the past? If the pilot program starting on April 30, 2018 is any indication, change may be on the horizon.

U.S. Citizen and Immigration Services (USCIS) and Customs and Border Protection (CBP) have joined forces to launch a pilot program at the port of entry in Blaine, Washington, estimated to last six months. Currently, a Canadian L-1 applicant may present their petition at any U.S. border crossing for immediate adjudication by a CBP officer. This will no longer be an option at the Blaine, Washington, port of entry for the duration of the pilot program.

Instead, applicants in the Blaine Washington State area will need to submit their L-1 applications (Form I-129 and supporting evidence) for processing at the USCIS California Service Center before CBP can admit them into the U.S. Applicants cannot seek admission in L-1 status until they receive USCIS’s approval. According to USCIS, expedited service will be provided to L-1 applicants affected by the pilot program. The specifics of the process are still being solidified but is projected that a decision -- an approval or Request for Evidence (RFE) -- will be issued within 2-3 business days of receipt. In an effort to accelerate the process, USCIS is expected to have an email address devoted to the processing of these L-1 applications to provide case updates, and it could be possible for admission to be sought upon an email confirmation of approval.

Through the preliminary pilot program, the goal is to develop a strategy that will lessen lengthy process delays and make adjudication for L-1 applications more consistent. Additionally, through the change in process, CBP officers can give their full attention to inspections and admissibility issues instead of dedicating time to on-the-spot adjudications.

Things you should know about the pilot program:

  • It is currently for L-1 applications only.
  • CBP will continue to allow Canadian L-1 applicants to apply for “on the spot” adjudications at all other ports of entry.

What has yet to be determined:

  • Clarification regarding potential changes to the RFE process and response time. Will it decrease the number of superfluous RFEs (as intended)?
  • If the pilot program is deemed successful, will this new process be nationally implemented – and how quickly will it happen?
  • Will the processes for other types of applications eventually be affected?

Updates will be made as new developments arise and Serotte Reich will be keeping you posted. Questions or concerns? Contact us at 716-854-7525 or http://srwlawyers.com/contact

Travelers beware: CBP can search your electronic device

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As the number of border searches of electronic devices performed by United States Customs & Border Protection (CBP) continues to increase, it is imperative that travelers remain informed about the current policies in place.

In January, CBP issued a new 2018 customs directive that clarifies that officers may not to use your device to access information that is solely stored remotely (such as on the cloud) during a basic search. Additionally, without reasonable suspicion of criminal behavior or a national security concern, they should not copy the data on your device or connect it to an external device to analyze the contents. Officers are also instructed to take care not to make changes to the content of your device during a search.

When you cross the border, what can you expect during an inspection performed by a CBP officer? According to Secretary of Homeland Security Kirstjen Nielsen, officers are free to ask for your cell phone, laptop or tablet -- and your passcode. They can request that you turn over your unlocked phone and refusing to comply will not prevent CBP from confiscating your device. If you do refuse, you could possibly be detained for an indeterminate amount of time while they review and analyze the contents of your device. CBP can also retain your device for further review; they are not required to return it to you before you leave the port of entry.

Although the directive introduced in January includes guidelines for what CBP should or should not do, there is still considerable leeway when it comes to the search and seizure of electronic devices. The Electronic Frontier Foundation, a nonprofit organization devoted to defending civil liberties in the digital world, pointed out in a recent report that this policy is “full of loopholes and vague language” that allows officers to encroach upon travelers’ constitutional rights. As the directive is written, if “reasonable suspicion” exists, CBP officers are permitted conduct what is considered an advanced search. In this case, an officer can connect external equipment to a traveler’s electronic device and review, copy and/or analyze its contents.

If you are alarmed by the potential violation of your privacy while crossing the border, you’re not alone. Neema Singh Guliani, legislative counsel to the American Civil Liberties Union (ACLU), noted that “this policy falls far short of what the constitution requires – a search warrant based on probable cause.”

As it stands, here are measures that travelers can take prior to crossing the border in an effort to protect their privacy:

      • Review what is on your phone – photos, apps, search histories – before crossing the border, taking into consideration that anything stored on your device is fair game in the event that an officer requests it. Store anything sensitive or private on a secure cloud storage account.
      • Only bring what’s necessary with you. If you can avoid traveling without your laptop or tablet, leave it at home.
      • Bring a travel-only phone (a blank “burner” phone) or laptop that does not contain any sensitive information.
      • Set your phone to airplane mode prior to crossing the border. The new directive instructs CBP to disable network connectivity as they are to avoid intentionally retrieving information that is solely stored remotely. They are supposed to ask you to disable connectivity or do so themselves. Err on the side of caution and change your settings ahead of time.
      • Know your rights. Supervisory approval is required in order for a CBP officer to detain your device after you depart the port of entry. A supervisor is also supposed to approve and, if at all possible, be present for an advanced search.
      • If you have provided your passcode for an officer to inspect your electronic device, be sure to change it afterword. CBP is directed to delete or destroy passcodes after a search is conducted. However, it is advisable to change all passcodes to ensure that your information stays secure.

    For further information:

    Visit CBP's official website: https://www.cbp.gov
    Find updates from civil liberties advocates:
    The Electronic Frontier Foundation: https://www.eff.org
    American Civil Liberties Union: https://www.aclu.org