The 9th Circuit Clarifies When A Person Should be Mandatory Detained After Their Release From Criminal Custody

on Aug 8, 2016 in News | 0 comments

In Preap v. Johnson, the 9th Circuit held that the mandatory detention provision of § 1226(c) applies only to those criminal aliens detained promptly after their release from criminal custody, not to those detained long after. This is great news for individuals being held without bond due to the violation of a mandatory detention offense that occurred several years prior to their current detainment.

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Newsletter Vol II #4

on Dec 1, 2013 in News | 2 comments

Hello friends!  The significance of Holly and Ivy during Christmas  Holly and ivy have always been considered magical plants because they are evergreens. They represent eternal life and the cycle of nature. They were used in ancient European rites because Holly represents the masculine and Ivy the feminine elements of nature. Holly also represents Saturnalia, the ancient Roman winter festival. The first Christians also remembered Christ with Holly because the sharp leaves felt like his crown of thorns and the red berries looked like drops of his blood. This Christmas let’s remember its true meaning and share our bounty with a spirit of compassion. Merry Christmas from Jonathan, Lisa, and Lizette! You may recall how happy I was to share the news about a great change in law. Specifically, I was sharing the outcome of a case called Mayorkas v De Osorio; a 9th Circuit Court of Appeals decision that held that children who turn 21 while waiting for the their parents visa do not have to reapply for a visa. Unfortunately, the United States Citizenship and Immigration Services (USCIS) appealed the decision favoring De Osorio to the United States Supreme Court. USCIS has stated on its website that while De Osorio is on appeal, it will only recognize the opposing case, Matter of Wang. The reason the immigration service has appealed the decision is to obtain a decree that the “Child Status Protection Act” does not apply to children that are only named derivative beneficiaries. Current and former members of congress submitted written argument in support of De Osorio. On November 4, 2013, congressmen submitted written argument asserting congress intended the “Child Status Protection Act” to promote family unity. It is my opinion, that the more reasonable interpretation of congressional intent when it passed the “Child Status Protection Act” was De Osorio’s interpretation. I am hopeful that the Supreme Court will uphold the 9th Circuit’s ruling and declare that children who turn 21 do not need to re-apply for a visa. At least one Supreme Court Justice, Justice Breyer, has already previewed his inclination against the government’s interpretation. Below is a portion of the oral argument. JUSTICE BREYER: “Your interpretation (only) applies to a tiny subset of people....

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Newsletter Vol II #3

on Oct 1, 2013 in News | 0 comments

It seems the Chinese horoscope was right. 2013, the year of the snake, has been a year of constant mystery and change. We have wondered if the country’s economic recession is really over, if we are really starting another war in Syria, and if immigration reform will really happen. But not everything has been a mystery. We also saw favorable changes such as a rise in home values, a drop in unemployment, the federal government recognizing same sex marriages, and California becoming the 10th state to issue drivers licenses to undocumented individuals. Law Offices of Jonathan Dunten has also experienced positive changes in 2013. We bought an office building, moved our operations to Oakland, and replaced our legal assistant. It was sad saying goodbye to Lourdes after 3 years of faithful service, but when one chapter ends another begins. Meet our new legal assistant Ms. Lizette Franco! Besides having a positive and pleasant attitude, Lizette also has a big heart. For several years, she has volunteered at La Comunidad Unida where she tutored low-income families and Napa Emergency Women’s Services where she helped run the shelter. She also holds a Bachelor of Science in Legal Studies from the University of California Santa Cruz. Lizette is perfectly bilingual in English and Spanish and is waiting to take your next call. Before 1993, proving citizenship was not required to obtain a California driver’s license. Afterward, new registration requirements kept thousands from renewing. Fast forward 20 years and find California home to over 1 million unlicensed motorists. California Traffic officials declared 2010 the “Year Of The Checkpoint’, and according to UC Berkeley-TREC, police impounded six cars for every one DUI arrest. Most of the impounded cars belonged to an undocumented driver. “Illegal immigrants might have accounted for as much as 70 percent of vehicle seizures at DUI checkpoints”, says Gabrielson-California Watch 2011. Impounding an undocumented driver’s car became business for local governments and towing companies alike, while the undocumented driver was referred to Immigration and Customs Enforcement. The law now comes full circle as California becomes the 10th State to grant undocumented motorists licenses once more. In September of 2013, the California Legislature passed what is known SB60, a law that will permit...

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Newsletter Vol II #2

on Aug 1, 2013 in News | 0 comments

Hello friends!  Here we are, settled into our new Oakland offices! Besides a couple pieces of undeliverable mail and a few furniture scratches, the transition went smoothly. It was business as usual within the first week. Our new facilities are still just one block from Lake Merritt BART and just a few more blocks from the 880 freeway exit. Law Offices of Jonathan Dunten owns the building it now occupies, so expect Oakland to be our principle and permanent location! I say principle because plans are being made for the opening of a San Francisco satellite office near the courts and consulates this autumn as well! United States Senators have worked very hard these last couple of months preparing an immigration reform bill. Later this month, that bill will be presented to the full senate for vote. The bill as it is currently written creates a 13 year path to citizenship. It also prohibits same-sex couples from filing family visa petitions for one another. However, the bill has not yet been approved and it could still take months before its outcome is certain. While the proposal slowly makes its way towards the president’s desk for signing, I suggest you begin collecting the following documents for your case: To prove your identity:  Original or certified copy of your birth certifi-cate and a valid government issued ID with photo such as a passport, consular ID card, school ID card, etc. To prove your first and last dates of entry into the United States: Immigration arrival records such as an I-94, admission stamp on passport, copy of airplane or bus tickets with your name, as well as medical or school records created recently after your arrival. To prove ongoing residence Internal records or notarized declarations from community, civic, or religious institutions proving the date and length of your involvement with them. Financial records demonstrating transactions such as purchase receipts, bank account or credit card statements; rental agreements, utility bills, insurance policies. Medical records demonstrating doctor visits. School records demonstrating academic attendance. To show you are current in your tax liability:  Tax returns or transcripts of previous years or receipts of an ongoing payment plan. If you need copies of your previous tax filings,...

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Newsletter Vol II #1

on Apr 1, 2013 in News | 0 comments

At last! The provisional waiver we have been talking about and waiting for since last summer is now in full effect. However, its limitations are greater than anticipated. For example, unlike the traditional waiver that considers extreme hardship on either a parent or spouse, the provisional waiver will only consider hardship on the spouse. Another limitation is that unlike the traditional waiver that accepts the extreme hardship of either a legal permanent resident or citizen spouse, the provisional waiver demands the spouse be a United States citizen. Probably the most esoteric limitation is the inability to rely on two family members at the same time. For example, under the traditional waiver, you could be petitioned by an adult citizen son, but then demonstrate an extreme hardship on your permanent resident father. The new and more restrictive provisional waiver re-quires the petitioner to be your citizen spouse and it will only consider his or her hardship. The only variation of this rule is if you are between 17 and 20 years of age and your parent is a citizen. If the aforesaid limitations have not already frustrated your case, now consider that if your case has been pending with the National Visa Center (NVC), since before January 3, 2013, you might not qualify for the provisional waiver! Another requirement of the provisional waiver is that the United States Department of State (DOS) hasn’t already schedule your appointment at a US consulate. The NVC is responsible for coordinating cases with the consulates abroad, so if you already paid the required fees to the NVC before January 3, your case was likely scheduled for an interview. If the NVC moved to schedule your case before January 3, 2013, regardless of the interview date, you are prohibited from filing the provisional waiver. Fortunately, if you are disqualified on this basis, your relative can always file a new petition for you and if approved, continue with the provisional waiver. Even If your I-601A waiver of unlawful presence is approved, consider there is no interim benefit such as work authorization; it does not grant lawful status, it does not waive the requirement to depart the US, nor is it a guarantee that a visa will ultimately be is-sued....

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Newsletter Vol I #4

on Dec 1, 2012 in News | 2 comments

Our Christmas wish for you: Peace & Happiness Have a healthy and prosperous 2013! Sincerely, Jonathan, Lisa, & Lourdes It used to be that every person who wanted to immigrate to the US but needed an I-601 “pardon” for previous immigration or criminal violations, had to file their “pardon” at the US Consulate handling their case. Beginning December 5, 2012, individuals who are currently abroad and need such a “pardon” must now file it through a special USCIS office in Phoenix Arizona instead of the US consulate. This new process is separate from the proposed “provisional waiver” announced on March 30, 2012 that would permit people who need pardons for unlawful presence to file it while they are still in the United States. However, this is the strong evidence I was referring to in our previous newsletter that indicates immigration is getting the procedures ready for the “provisional waiver”. How dare you turn 21! For many years this is what the Department of Homeland Security basically said to thousands of children who were planing on immigrating to the US with their parents, but who turned 21 before they could get their “green card(s). The painful consequence of turning 21 years old was the inability to immigrate with one’s parents because they were no longer considered a “child”. However, that rule recently changed for the better. Let’s look at the Ninth Circuit Court of Appeals case called, De Osorio v Mayorkas, decided September 26, 2012 which made the favorable change. Rosalina Cuellar de Osorio’s citizen mother filed a petition for an F3 visa (for a married daughter of a citizen) on her behalf in May 1998. Cuellar de Osorio’s son, who was then thirteen, was listed on the petition as a derivative beneficiary. Cuellar de Osorio’s visa was approved in June 1998, but her priority date did not become current until November 2005. By then, her son was twenty-one and as a result was ineligible for a derivative visa. AILA In-foNet Doc. No. 12092653.  The court in Osorio’s case eventually decided that the plain language of INA §203(h)(3) unambiguously grants automatic con-version and priority date retention to aged-out derivative beneficiaries, including F3 and F4 derivative beneficiaries. What this means is that children who...

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Newsletter Vol I #3

on Aug 1, 2012 in News | 0 comments

By now, you must have heard about “Deferred Action”, the process that prevents certain eligible people from being placed into removal proceedings or removed from the United States. According to DHS to be considered for deferred action under this process, an individual must: Have come to the United States under the age of sixteen; Have continuously resided in the United States for at least five years preceding June 15, 2012 and have been physically present in the United States on June 15, 2012; Currently be in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; Not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; Be under 31 years of age as of June 15, 2012 You must prove your identity and that you were under age 31 on 06/15/12. You will need at least one valid, government-issued photo ID for the process. For example: Certified copy of your birth certificate Valid consular ID card Valid passport Expired passports Expired consular ID cards Valid school ID Expired school IDs Photo ID documents Any other official photo ID You must prove you came to the United States before age 16, have continuously resided in the United States since June 15, 2007, and evidence you were in the United States on 06/15/12. For example:  Complete school records (cumulative transcripts should be particularly helpful) Medical records (including vaccination records) Financial records (including bank statements/checks; rent, utility or credit card bills) Employment records (including tax returns) Military records Other records (cell phone records; sports or academic club records; union records; church records, including baptism, communion, or confirmation records) Names of people who can provide declarations to support your case You must prove you are in school, graduated from high school, have a GED, or have been honorably discharged from the military. For example:  Diploma GED certificate Report cards School transcripts Military records If you have ever been cited or arrested as a juvenile or as an adult you must obtain:  Results of a California Department of...

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Newsletter Vol I #2

on May 1, 2012 in News | 1 comment

In our January issue I notified you of the government’s intention to change the way it processes certain waivers of inadmissibility, “pardons” for people who are currently in the United States illegally. The purpose for these changes is to reduce the hardship of family separation and relieve the bureaucratic strain. For example, the United States Consulate General in Ciudad Juarez, the largest in the world, processes 23,000 waiver/pardon applications per year with only 10 officers. Furthermore, applicants waiting abroad may be separated from their loved ones in the US for over a year. These new changes if approved will be called “provisional waivers.” This month, the government published a detailed proposal of those contemplated changes and invites you to comment until June 1st of this year, for more information go to Other related proposals by the government, which I discuss below, are further evidence of the likelihood a provisional waiver taking effect later this year. Last month, I attended a teleconference with US Citizenship and Immigration Services (USCIS) and discovered that that the new filing location for I-601 waivers/pardons for people who are currently abroad, will be Phoenix Arizona. The government anticipates this new location will begin accepting I-601 applications in late spring or early summer. This does not mean that the provisional waiver we have all been waiting for will be in effect by then. What it means is, by this summer, if you are applying for a visa and need a waiver/pardon, you will no longer present the waiver/pardon personally to the consular officer, rather, you or your representative will mail it to the Phoenix lockbox. Once the new rule is in effect, there will be a six month window for immigrants currently in process to choose between the old or new way. As I said, the change in filing location, expected by summer, does not mean the provisional waiver process will be in effect then. We can however see these related changes as strong evidence that the provisional waiver we are all anticipating will likely occur. Eligibility for the Provisional Unlawful  Presence Waiver  i. Their sole ground of inadmissibility is unlawful presence. ii. They are the beneficiary of an approved Form I-130 classifying them as immediate...

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Newsletter Vol I #1

on Jan 1, 2012 in News | 0 comments

Bernardo Mendez-Lugo Trade and Business Consul, Mexican Consulate in San Francisco I met Jonathan Dunten in San Francisco and as Mexican Trade Consul during my San Francisco tenure 2001-2006, I had to ask Jonathan for advise in a wide range of legal issues and he was speaker in different business workshops that I organized at the Consulate and other venues in the Bay Area. I highly appreciate his professionalism and excellent command of Spanish as a native speaker. I know that Attorney Dunten is a member of the American Bar Association and was a media liaison for the Northern California Chapter of the American Immigration Lawyers Association. For several years Mr. Dunten has been an attorney advisor for the Department of Protection and Legal Affairs at the Consulate General of Mexico in San Francisco and loves to teach and to be a Mentor. He is also a former professor of immigration and criminal law at East Bay Law School in Oakland, California. Happy New year! Welcome to our quarterly newsletter, Immigration Advantage! Our news capsules will contain simplified case law summaries and legislative updates of the ever-changing immigration laws, including articles on “how-to” file for various benefits with United States Citizenship and Immigration Services, USCIS, what to expect at interviews, conduct affecting one’s immigration status, confronting state and federal law enforcement, and many other topics to help guide you through the labyrinth called immigration law. Many immigrants share similar aspirations and problems, both before and after they obtain permanent residence. Consequently, we will also offer solutions and inspiration through reader contributed articles and letters to the editor that discuss the cultural, political, and economic aspects of immigrant life in the U.S. Additionally, we will host a general law forum and ask our professional colleagues to answer our readers questions concerning life’s other problems , not just immigration. We regularly receive questions regarding, adoption, child custody, divorce, employment, health, property, and retirement. We hope the Immigration Advantage Forum becomes the first place you turn to when preparing to stage a legal endeavor. There is no substitute for an individual, uninterrupted, consultation with a licensed attorney that specializes in your needed area of law. This is why Immigration Advantage will contain a...

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