THE LATEST FROM SRW BORDER BLOG

What to know with marijuana becoming legal in Canada next week

SRW Border Lawyers in the News – Zabrina Reich, Managing Partner at Serotte Reich in Buffalo, NY,  recently made an appearance on Buffalo’s Channel 7 evening news to provide insight on the effects of the upcoming legalization of marijuana in Canada.  

CBP Issues Statement on Legalization of Marijuana in Canada and Crossing the Border

U.S. Customs and Border Protection (CBP) recently released  a statement on Canada’s legalization of marijuana  warning that “working in or facilitating the proliferation of the legal marijuana industry in the U.S. states where it is deemed legal or Canada may affect admissibility to the U.S.” Although medical and recreational marijuana may be legal in some states and Canada, the sale, possession, production and distribution of marijuana (or activities the facilitate the same) remain  illegal under U.S. federal law.  CBP unequivocally states that Canada’s legalization of marijuana will not change their enforcement of U.S. federal laws regarding controlled substances. CBP advises that crossing the border or arriving at a U.S. port of entry in violation of this U.S. federal controlled substance law may result in seizure, fines, and/or arrest and impact inadmissibility.  CBP Officers will be responsibility for making determinations on  admissibility  and whether any regulatory or criminal enforcement is appropriate based on the known facts and circumstances. Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a state, the U.S., or a foreign country relating to a controlled substance, is admissible to the U.S.  SRW Border Lawyers will be closely monitoring the impact of the legalization of marijuana in Canada and crossing the U.S. border. We will also be providing supplemental blogs on this hot topic.

U.S. Customs and Border Protection (CBP) recently released a statement on Canada’s legalization of marijuana warning that “working in or facilitating the proliferation of the legal marijuana industry in the U.S. states where it is deemed legal or Canada may affect admissibility to the U.S.”  Although medical and recreational marijuana may be legal in some states and Canada, the sale, possession, production and distribution of marijuana (or activities the facilitate the same) remain illegal under U.S. federal law. CBP unequivocally states that Canada’s legalization of marijuana will not change their enforcement of U.S. federal laws regarding controlled substances. CBP advises that crossing the border or arriving at a U.S. port of entry in violation of this U.S. federal controlled substance law may result in seizure, fines, and/or arrest and impact inadmissibility.  

CBP Officers will be responsible for making determinations on admissibility and whether any regulatory or criminal enforcement is appropriate based on the known facts and circumstances. Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a state, the U.S., or a foreign country relating to a controlled substance, is admissible to the U.S.

SRW Border Lawyers will be closely monitoring the impact of the legalization of marijuana in Canada and crossing the U.S. border. We will also be providing supplemental blogs on this hot topic.

USCIS to Begin Enforcing New Policy Memo on Notices to Appear

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On October 1, 2018, USCIS is set to begin implementing their new policy memorandum for referring cases and issuing Notices to Appear (NTA) in cases involving inadmissible and deportable aliens. USCIS advises that it will be taking an incremental approach to implementing the memorandum which was initially released in June of this year.

A Notice to Appear (NTA) is the first step in initiating removal proceedings and is issued to inform an individual that they are to appear before an immigration judge. Starting October 1, 2018, USCIS may issue NTAs on denied status-impacting applications which include applications to adjust status (Form I-485), applications to extend/change nonimmigrant status (Form I-539), among others.

Pursuant to the new policy memorandum, USCIS will send denial letters for status-impacting applications and if applicants are no longer in a period of authorized stay, and do not depart the US, an NTA may be issued. USCIS advises that they will be providing details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate their departure from the US.

Notably, employment-based petitions and humanitarian applications and petitions are not subject to the June 2018 NTA Policy Memo at this time and USCIS has indicated that existing guidance for these case types will remain in effect. USCIS has also indicated that they will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns and that there has been no change to the current processes for issuing NTAs on these case types.

So, what types of cases does this policy memorandum affect if an individual is deemed removable?

  • Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence that the applicant abused any program related to receiving public benefits.

  • Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability.

  • Cases where USCIS denied a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense. 

  • Cases where an applicant will be unlawfully present in the United States when USCIS denies the petition or application.

What types of cases remain unchanged by the USCIS policy memorandum?

  • Cases involving national security concerns.

  • Cases where NTA issuance is required by statute or regulation.

  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal would result in an individual having no other lawful immigration status.

  • Cases involving deferred action for childhood arrivals (DACA) recipients and requestors when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA. (There is a separate policy memorandum that applies to cases involving DACA recipients and requestors.)

USCIS will be providing updates and information on the implementation of their new NTA Policy Memo on their website.  If you have questions regarding USCIS’ new NTA Policy Memo and/or how it may impact you, please reach out to our office to schedule a consultation.

ICE adds administratively closed cases to the docket

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ICE (Immigration and Customs Enforcement) is planning to restart thousands of deportation cases in accordance with the agency’s new policy. Specifically, ICE’s new policy affects foreign nationals in the U.S. whose cases are currently administratively closed. The initiative could result in the recalendaring of more than 355,000 cases – bringing the already overburdened immigration court backlog to over 1 million cases.

As background, administrative closure is a mechanism used to temporarily pause removal proceedings by removing the case from the immigration judge’s docket. Over the years, administrative closure has proven to be a vital docket-management tool for Immigration Judges across the country.  Both DHS and the immigrant have the ability to request that a case be administratively closed.   

Administrative closure does not terminate removal proceedings and it does not provide a noncitizen with any immigration status. It is merely a temporary measure that effectively tables the matter until either party moves to recalendar (reschedule) the case. Deferring removal hearings can allow the individual an opportunity to find relief that the immigration court cannot provide. During this time, the immigrant could possibly obtain an immigration benefit that is not available while an immigration case is active.

Recently, the highly effective docket-management tool has come under fire.  Thanks to a May 2018 decision issued by Attorney General Jeff Sessions, Immigration Judges and the Board of Immigration Appeals no longer have the authority to administratively close cases.  Additionally, ICE is now responsible for making the decision to recalendar cases that are currently administratively closed.  

Under the new policy, ICE prosecutors are instructed to prioritize the recalandering of cases in the following order:

  1. Cases involving a foreign national being detained.

  2. Cases pertaining to an immigrant with a criminal record.

  3. Cases where ICE’s most recent motion to recalendar was denied.

  4. Cases that were administratively closed over ICE’s objections.

  5. All other cases will be recalendared on a case-by-case basis at the local office’s discretion.

These recently released instructions make it clear that ICE intends to recalander virtually all cases that have been administratively closed. This development will put an already overwhelmed immigration court system even further behind. Currently, the immigration court backlog is at 730,000 cases. With ICE’s new guidance, the backlog will exponentially grow while immigrants with administratively closed cases wait for ICE to determine their fate.

As of today’s date, ICE has already started to recalander affected cases.