Dec. 3, 2007

The following is from an e-mail from USCIS:

"U.S. Citizenship and Immigration Services (USCIS) and the Federal Bureau of Investigation (FBI) are working together to process name checks as quickly as possible without compromising security or public safety. To this end, we have examined the existing name check system and acted to address the problem through two strategies:

• First, USCIS and the FBI conducted a joint risk assessment which resulted in process improvements that permit us to focus on cases of concern.
• Second, USCIS and FBI have allocated additional resources to the process. Over the next year, USCIS is planning to commit a total of $15.5 million to address the backlog of FBI name checks.

Please note, however, USCIS continues to require FBI name checks for the same categories of applications and no case will be approved without a cleared name check. We will continue to work with the FBI to reduce waiting times; but, not at the expense of national security and public safety."

---DHS Issues Reminder of New WHTI Requirements in 2008

Dec. 3, 2007

DHS issued a reminder that beginning on 1/31/08 adult travelers will be required to present proof of citizenship and proof of identity when entering the U.S. at land and sea ports-of-entry.

---Ninth Circuit Vacates Preliminary Injunction in I-212, Perez-Gonzalez Class Action; Perez Gonzalez No Longer Law of Ninth Circuit

December 1, 2007

On November 30, 2007, the Ninth Circuit Court of Appeals ruled in favor of the government and vacated the preliminary injunction in Duran Gonzalez v. DHS. Duran Gonzalez v. DHS is a class action challenging the Department of Homeland Security's willful refusal to follow the precedent decision of the Ninth Circuit in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). In Perez-Gonzalez, the Ninth Circuit determined that individuals who have previously been removed or deported may apply for adjustment of status (under INA § 245(i)) along with an accompanying I-212 waiver application.

The district court in Duran Gonzalez had ruled favorably for the plaintiffs. The district court granted class certification and a preliminary injunction protecting class members with pending I-212 waiver applications and individuals whose applications already have been denied. The government appealed the order granting the preliminary injunction.

The Ninth Circuit's November 30 decision vacates the preliminary injunction. However, this decision will not go into effect until the mandate is issued. Thus, until the mandate issues, DHS should not give any effect to a denied I-212 or deny any I-212 waiver application based on the fact that ten years have not elapsed since the applicant's last departure. Currently, the mandate is scheduled to issue on January 22, 2008. The issuance of the mandate would be stayed if a petition for rehearing is filed. Lawyers for the plaintiffs are evaluating the Ninth Circuit's decision and strongly considering seeking rehearing. In the meantime, class members should consider their options in light of this decision.

Although the mandate has not issued and the court's decision has not yet gone into effect, it is important to note that the rule in Perez Gonzalez is no longer the law of the circuit. Unless a panel or en banc court issues a subsequent favorable decision in Duran Gonzalez or another case, noncitizens should not rely on Perez Gonzalez.

--BIA Rules: Individuals Unlawfully Present Who Later Depart the Country Are Inadmissible

Dec. 1, 2007

An individual who is unlawfully present in the United States for a period of 1 year, departs the country, and then seeks admission within 10 years of the date of his departure from the United States, is inadmissible. Matter of Lemus-Losa, 24 I&N Dec. 373 (BIA 2007).