Aggravated Felonies

            Any conviction of an aggravated felony, controlled substance or firearms offense, or of a single felony or three misdemeanors, will disqualify a noncitizen from Family Unity.

Many parents entered the United States through amnesty, the Special Agricultural Worker’s program, or as a Cuban or Haitian, but the children came to the U.S. too late to do so.  The Family Unity program[177] established by the Immigration Act of 1990[178] is designed to help such families by providing temporary lawful status and work authorization to the non-legalized relatives until those relatives can adjust status through family visa petitions filed by the amnesty recipients.

The Family Unity program has the following requirements:

(a)        It applies to the spouse or child under 21 years old (as of May 5, 1988)

of a noncitizen legalized through an amnesty program,

(b)        who entered the U.S. (and in case of spouse, married) by May 5, 1988,

(c)        who was not convicted of one felony or three misdemeanors,

(d)        who is not within the bars to withholding (i.e., not convicted of a  particularly serious crime, aggravated felony, or serious crime outside the United States, and has not persecuted others),[179]

(e)        who is not deportable under any grounds of deportation, except INA § § 237(a)(1)(A) (inadmissible at time of entry or adjustment), (B) (present in violation of law), (C) (violated nonimmigrant status), or (3)(A) (change of address), and

(f)         who is not deportable under INA § 237(a)(1)(A) for being inadmissible under INA § 212(a)(2) (crimes), or 3 (security) at entry or adjustment of status.

In a significant departure from the rule against using juvenile delinquency dispositions in immigration proceedings, IIRAIRA denies Family Unity benefits to persons who “commit an act of juvenile delinquency which if committed by an adult” would be a felony involving violence or the threat of physical force.[180]   The new rule applies to benefits “granted or extended” after September 30, 1996.[181]   The new rule arguably applies only to acts committed on or after September 30, 1996, because there is a general presumption against retroactive application of the laws and because the statute uses the present-tense verb “commit.”[182]

[177] 8 C.F.R. § § 236.10-236.18.

[178]  Immigration Act of 1990, § 301.

[179] See INA § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B).

[180]  IIRAIRA § 383 amends the Immigration Act of 1990 § 301(e)(3) to bar from Family Unity a person who “(3) has committed an act of juvenile delinquency which if committed by an adult would be classified as–  (A) a felony crime of violence that has an element the use or attempted use of physical force against another individual, or (B) a felony offense that by its nature involves a substantial risk that physical force against another individual may be used in the course of committing the offense.”

[181]  IIRAIRA § 383.

[182] See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).