On October 11, 2019 the Board of Immigration Appeals (“The Board” or the “the BIA”) decided the Matter of Eduardo Urias-Velasquez reversing the rescission of the respondent’s lawful permanent residence (meaning allowing him to keep his status). The immigration court had taken away his status on the premise he was not eligible for such status at the time it was granted. In other words, even though the Department of Homeland Security (“DHS”) granted the respondent a green card, the DHS was entitled to take that status away even though it made a mistake in the first place. This provision of law is amongst the most traumatizing because a person does not realize a mistake has been made, builds a life based on the status, and then has it ripped away, often with little or no recourse.
Mr. Urias-Velasquez was granted adjustment of status to lawful permanent resident (“LPR” or “Green Card”) after qualifying as a Special Immigrant Juvenile based on findings by a Family Court in Texas when he was 20 years old. The immigration court held the Texas court did not have jurisdiction over Mr. Urias-Velasquez when it entered its findings because he was 20 years old and Texas law did not provide authority for that specific court over persons 18 years old or older. The BIA reversed the decision on four grounds: firstly, the immigration courts must respect the decisions of the state courts and cannot second guess the state courts on state law matters; secondly, because the immigration judge placed the burden on the respondent to prove he was entitled to his status rather than placing the burden on the DHS to show why he was not entitled to his status; thirdly, because rescission of status is normally only permitted in cases of fraud of findings of new facts, neither of which applied to this case, and lastly, because if there is any ambiguity in the application of law, the rule of lenity requires interpreting the law in the respondent’s favor.
This decision is an important one for many immigrants who obtained green cards as special immigrant juveniles and those seeking to do so now. Within the last few years, the DHS had begun making it very difficult or impossible to obtain special immigrant juvenile status and for special immigrant juveniles to adjust status to permanent residency. The DHS was basing their hostility on state juvenile courts not having jurisdiction over persons 18 years old or older even though the state courts explicitly have such jurisdiction. This decision should put an end to this practice by the DHS, though it can never be assured the issue won’t arise.
While this case arose out of Texas, the BIA decision establishes controlling law nationwide—so even in New Jersey and New York, the DHS is precluded from challenging a state court order unless the DHS believes that order is fraudulent. Previously, in the Third Circuit, which covers New Jersey, Pennsylvania and Delaware, there was some protection for green card holders (regardless of the legal basis for receiving the green cards) who had their status for more than five years because Third Circuit caselaw says that if more than five years had elapsed since the DHS error in granting the green card, the DHS could not rescind the green card. However, for those with less than five years of status, there were no protections. This decision expands the protection for another section of the population.
This case illustrates the complexity of immigration law, how it intersects with other State and Federal law, and how important it is to ensure that each and every step of the immigration process is done perfectly and correctly so the DHS cannot try to rescind status later. The best way to protect yourself, or a loved one, is to hire a lawyer experienced and specializing in the specific area of law with which you need help. The Jersey City immigration lawyers at the Law Office of Eric M. Mark are experienced with special immigrant juvenile cases, as well as many other types of immigration proceedings.