Kurzban's Immigration Law Sourcebook, 15th Edition

   Corrections, Clarifications, and Selected* Updates

AILA

Introduction

This Web page is a supplement to Kurzban's Immigration Law Sourcebook, containing corrections, clarifications, and selected* updates to the 15th Edition. (For information on purchasing Kurzban, see below.)


Corrections & Clarifications (See also Updates, infra.)

p. 112 (Ch. 3  III.C.2.a)   |  p. 598 (Ch. 3, ¶ X.T.7.bb(1)(d))   |  p. 659 (Ch. 4, ¶ III.A.4.a)   |  p. 957 (Ch. 5, ¶ VI.D.7.b)  |   p. 1136 (Ch. 5, ¶ IX.A.3.c)  |   p. 1502 (Ch. 8, ¶ IV.B.7.m)  |  p. 1963 (Ch. 13, ¶ I.C.3.h)

 

 

p. 112 (Ch. 3 ¶ III.C.2.a). The citation in sentence: "The list of designated drugs are found at Schedules I through V in 21 CFR 1308.1" should be to 21 CFR 1308.11 through .15.

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p. 598 (Ch. 3, ¶ X.T.7.bb(1)(d)). In Chapter 3, in the discussion of in absentia hearings, paragraph (d) on page 598 should read as follows:

(d) The filing of a motion to reopen an in absentia removal order for exceptional circumstances or failure to obtain notice stays removal until the IJ rules. INA §240(b)(5)(C). If an appeal is taken to the BIA, there is no automatic stay of the removal order. Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.7 (5th Cir. 2007) [stay is automatic only until IJ rules]; Bejar v. Ashcroft1, 324 F.3d 127, 132–33 (3d Cir. 2003) [following 8 CFR §1003.23(b)(4)(ii) it was lawful to remove respondent during the 30-day period between IJ's denial of motion to reopen in absentia and the appeal to the BIA because "neither the INA nor the regulations provide for an automatic stay of ... removal during the 30-day period"]; Compare 8 CFR §1003.23(b)(4)(ii) [discussion of automatic stay in removal proceedings only before IJ and not before BIA] with 8 CFR §1003.23(b)(4)(iii)(C) [automatic stay on appeal for a person who was in former deportation proceedings]. There is also no automatic stay even before the IJ if the person was in a former exclusion proceeding. 8 CFR §1003.23(b)(4)(3)(B). Thus, only a person in a former  deportation proceedings will get an automatic stay both before the IJ and the BIA. 8 CFR §1003.23(b)(4)(iii)(C); Matter of Rivera, 21 I&N Dec. 232 (BIA 1996); BIA Practice Manual Chap. ("BIA PM") 6.2. Thus, if a motion to reopen is denied before the IJ for a person who was in removal proceedings, the remedy is to appeal to the BIA and to file a motion to stay removal before the BIA.

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p. 659
(Ch. 4, ¶ III.A.4.a) (clarification). In the citation:

Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996), quoting Matter of Laipenieks, 18 I&N Dec. 433, 456–57 (BIA 1983), rev'd on other grounds, 750 F.2d 1427 (9th Cir. 1985)

the caption for the 9th Circuit case is Laipeniek v. INS.

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p. 957 (Ch. 5, ¶ VI.D.7.b).

The sentence beginning on line 14 of ¶ 7.b should read as follows (deleting the struck-through parenthetical):

If USCIS denies, rejects, or revokes the H-1B petition, the F-1 will have the standard 60-day grace period to depart (and 10 days to continue employment) unless the denial was due to fraud/misrepresentation or an F-1 status violation in which case the F-1 must depart immediately.

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p. 1136 (Ch. 5, ¶ IX.A.3.c). The last citation in this paragraph, referencing Zampetis, should be deleted.

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p. 1502 (Ch. 8 ¶ IV.B.7.m). This paragraph should read as follows:

Application for §212(c) Relief—Waiver submitted on Form I-191 before the IJ or the DD. 8 CFR §§1212.3(a), (b), (e). There is no time limitation for someone to file an I-191 before the DD as long as the plea was before a certain date. 8 CFR §§1212.3 (b), (g), (h). An applicant may only file before the IJ in the course of removal proceedings. 8 CFR §1212.3(a). If approved it is valid indefinitely. 8 CFR §1212.3(d).

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p. 1963 (Ch. 13 ¶ I.C.3.h)
. The citation 22 CFR §51.44(b)(2) should be §51.43(b)(2).

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Selected* Updates

*Caveat: The entries below represent selected items of major importance that occurred since the book was published in June 2016. This section does NOT reflect all decisions and other changes since publication.

Civil Penalties (pp.1907–08, Ch. 12, ¶ IX.A.2)  |  Cuban Adjustment Act (pp. 898 & 899, Ch. 4, ¶ XIV.A.3.e & .i)


Civil Penalties (pp.1907–08, Ch. 12, ¶ IX.A.2)
. The civil penalties for employing unauthorized aliens, as set out in ¶ 2 on pp. 1907–08 has been updated. The section should now read as follows:

2. Civil penalties—For each offense of employing unauthorized aliens (not including paperwork violations):

81 FR 42491-503 (June 30, 2016); 73 FR 10130–37 (Feb. 26, 2008). The regulations also contain inflation adjustments. See 73 FR 10130.

 

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Cuban Adjustment Act (pp. 898 & 899, Ch. 4, ¶ XIV.A.3.e & .i). Reflecting the new Cuba policy set in motion by the Obama Administration, ¶¶ 3.e and 3.i on pages 898 and 899 should now read as follows:

3. Cuban Refugee Adjustment Act

     *  *  *

3.e. EWI Will No Longer Get Benefit Under Cuban Adjustment Act—Prior to the resumption of diplomatic relations with Cuba, a Cuban stopped at the border would not be subject to expedited removal and would normally be paroled into the country to obtain the benefit of the Cuban Refugee Adjust Act. Similarly, a Cuban who entered EWI could qualify for adjustment by obtaining a parole. Memo, Meissner, Comm. "Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a Designated Port of Entry" HQCOU 120/17-P (Apr. 19, 1999), reprinted in 76 No. 17 Interpreter Releases 676, 684–90 (May 3, 1999) [EWI eligible if he surrenders to the Service and the Service paroles him pending a final determination or an IJ releases him under §236]. See also Memo, Renaud, Chief, Field Operations, USCIS (Mar. 4, 2008), AILA Doc. No. 08040132. Although release from incarceration of a Cuban who entered EWI is not a parole, Memo, Bulger, Chief, Office of Field Operations, USCIS, HQ 70/10.10 (Feb. 4, 2009), AILA Doc. No. 09030963, field offices have been directed to exercise their "discretion favorably" and grant parole under INA §212(d)(5) to EWI Cubans, Id. Parole may be granted on temporary files and "must" be granted for 2 years. Memo, Bulger, Chief, Office of Field Operations, USCIS, HQ 70/10.10 (Feb. 3, 2009), AILA Doc. No. 09030962; AFM 40.6.2(a)(4)(ii) [reaffirming memos but noting that a Cuban released on bond is not paroled and not eligible for Cuban adjustment]. However, in light of regulatory changes, an arriving alien from Cuba cannot adjust before the IJ unless he is returning to the U.S. under advance parole. Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009) [Matter of Artigas, 23 I&N Dec. 99 (BIA 2001), superseded by 8 CFR §245.2(a)(1) and 8 CFR §1245.2(a)(1)(ii) eliminating IJ's jurisdiction to adjust arriving aliens unless they are returning on advance parole]. Moreover, DHS has the prosecutorial discretion to place a Cuban in an INA §240 proceeding rather than subject him to expedited removal even if the IJ has no jurisdiction to adjudicate his claim under Cuban adjustment. Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011).

(1) Diplomatic Relations and the End of Special Treatment for Cubans Who Are Arriving Aliens or Subject to Deportation—On Jan. 12, 2017, the governments of Cuba and the U.S. issued a Joint Statement ending the automatic parole of Cubans who sought entry into the U.S., without appropriate documents, after that date. Cubans are now subject to expedited removal at the border and are therefore treated as any person seeking entry. Joint Statement, Governments of Cuba and the United States (Jan. 12, 2017), AILA Doc. No. 17011300; Press Release, Johnson, DHS Sec., Statement by Sec. Johnson on the Continued Normalization of Our Migration Relationship with Cuba (Jan. 12, 2017), AILA Doc. No. 17011309; DHS Fact Sheet: Changes to Parole and Expedited Removal Policies Affecting Cuban Nationals (Jan. 12, 2017), AILA Doc. No.17011361; 82 FR 4769-71 (Jan. 17, 2017); 82 FR 4771-73 (Jan. 17, 2017); 82 FR 4902-05 (Jan. 17, 2017). Cuba has also agreed to replace persons on the list of 2,764 Cubans from Mariel that Cuba originally agreed to accept back into the county. Of the original 2,764 approximately 650 persons were not returned because of death, infirmity or severe illness. Cuba has agreed to substitute others for the approximately 650 "provided they are Cuban nationals who departed for the United States of America via the Port of Mariel in 1980" and were found to have entered or sought entry into the U.S. illegally. In addition, the Republic of Cuba "shall consider and decide on a case-by-case basis the return of other Cuban nationals presently in the United States of America" who before Jan. 12, 2017 had been found to have tried to irregularly enter or remain in the U.S. in violation of U.S. law. Joint Statement, Governments of Cuba and the United States, at ¶¶5-6 (Jan. 12, 2017), AILA Doc. No. 17011300

*  *  *

3.i. Cuban Parole Programs—The U.S. government maintains several different parole programs for Cubans. MOA between USCIS, ICE & CBP, Coordinating the Concurrent Exercise By USCIS, ICE, and CBP of the Secretary's Parole Authority Under INA §212(d)(5)(A)(Sept. 2008), reprinted in 17 Bender's Immigr. Bull. 938, 945-51 (Apr. 1, 2012).

 

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F Visas > Duration of Status > Cap-Gap Relief.

 

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