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).

Ninth Circuit

RELIEF - POLITICAL ASYLUM - WITHHOLDING OF REMOVAL --PARTICULARLY SERIOUS CRIME - ENUMERATING OF AGGRAVATED FELONIES AS PARTICULARLY SERIOUS CRIMES DOES NOT PRECLUDE ATTORNEY GENERAL FROM IDENTIFYING OTHERS


Delgado v. Mukasey, 546 F.3d 1017 (9th Cir. Oct. 8, 2008) (Congress' statutory designation of certain aggravated felonies as per se "particularly serious" crimes did not preclude the Attorney General from deciding, on a case-by-case basis, that any other crime was also "particularly serious" so as to render noncitizen ineligible for withholding of removal).

NOTE: Judge Berzon wrote a lengthy and well-reasoned dissent, in which she reasons:

First and most important, neither of the majority's two holdings concerning the "particularly serious crime" provisions of 8 U.S.C. 1158(b)(2)(B) and 1231(b)(3)(B) can be reconciled with the most basic principles of statutory interpretation. The majority concludes that the "particularly serious crime" exclusions for asylum and withholding of removal mean nearly the same thing, substantively and procedurally, even though the language, structure, purpose, and context of the two sections are all quite different. That simply cannot be. For the reasons I discuss below, the only viable construction of the "particularly serious crime" provision of 1231(b)(3)(B), the withholding version, is that only aggravated felonies can be "particularly serious crime[s]." And the only viable interpretation of the asylum "particularly serious crime" provision, 1158(b)(2)(B), is that the Attorney General can make non-aggravated felonies "particularly serious crimes" only through regulation, not on a case-by-case basis.

Second, as to the jurisdictional issues, the majority's conclusion that 8 U.S.C. 1252(a)(2)(B)(ii) withdraws our jurisdiction to review the Board of Immigration Appeals' ("BIA's") asylum decision is directly in conflict with Morales v. Gonzales, 478 F.3d 972 (9th Cir.2007). Morales held that asylum issues generally are reviewable, even when committed to the Attorney General's discretion, because of an express statutory provision pertaining only to asylum decisions. The majority holds the opposite. Moreover, the majority does not recognize that some of the specific claims Delgado seeks to raise regarding the determination that his convictions constitute a "particularly serious crime" are, substantively and procedurally, "legal questions related to th[is] determination," Id. at 980. Because they are, we have jurisdiction to decide them even with regard to withholding of removal. Id.

Third, the majority properly relies on Matsuk v. INS, 247 F.3d 999 (9th Cir.2001), to hold that the BIA's determination that a crime is "particularly serious" for withholding purposes is discretionary and so not reviewable. But Matsuk rests on faulty premises, recently rejected by the Second and Third Circuits in convincing opinions. In my view, Matsuk should be reconsidered by this Court sitting en banc.

These issues may therefore be reconsidered en banc by the Ninth Circuit.

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - CIRCUIT SPLIT - JURISDICTION TO REVIEW WHETHER OFFENSE CONSTITUTES PARTICULARLY SERIOUS CRIME
Delgado v. Mukasey, 546 F.3d 1017 (9th Cir. Oct. 8, 2008) (court of appeal lacked jurisdiction to review BIA determination whether particular offense constituted "particularly serious crime"), following Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir. 2001) (particularly serious crime determination by BIA is discretionary, with no governing statutory standards, and so unreviewable by court of appeals); Ali v. Achim, 468 F.3d 462, 468 (7th Cir. 2006), cert. granted, ___ U.S. ___, 128 S.Ct. 29, 168 L.Ed.2d 806, cert. dismissed, ___ U.S. ___, 128 S.Ct. 828, 169 L.Ed.2d 624 (2007) (same); Tunis v. Gonzales, 447 F.3d 547, 549 (7th Cir. 2006) (same); Matter of NAM, 24 I. & N. Dec. 336 (BIA 2007); contra, Alaka v. Attorney General of U.S., 456 F.3d 88, 94-101 (3d Cir. July 18, 2006); Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir. 2008).

RELIEF - FAMILY UNITY PROGRAM - CANCELLATION OF REMOVAL - CONTINUOUS PRESENCE - FAMILY UNITY PROGRAM STATUS CONSTITUTES BEING ADMITTED IN ANY STATUS
Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. Jul. 24, 2006) (BIA's determination that noncitizen's beneficiary status under family unity program does not render him "admitted in any status" for purposes of cancellation of removal was not entitled to Chevron deference, and was in error). http://caselaw.lp.findlaw.com/data2/circs/9th/0373930p.pdf

RELIEF - WAIVER - 212(H) WAIVER - FAMILY UNITY
Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. Apr. 24, 2006) (lawful permanent resident was able to show lawful residence in the United States for purposes of INA 212(h) relief despite out of status period because she was prima facie eligible for Family Unity treatment, and the out of status period was caused in part by an improper denial of the relief by the INS; any period under the Family Unity program is not to be counted as unlawful presence. INA 212(a)(9)(B)(iii)(III)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0372005p.pdf