The Fifth Circuit Court of Appeals recently held that a person who was granted voluntary departure by an immigration judge and left in compliance with that order was considered to have “voluntarily deported” for purposes of a sentencing enhancement following a subsequent immigration crime conviction. In U.S. v. Murillo Acosta, individual in question pled guilty to using a fraudulent visa to enter the U.S. in violation of federal laws. The sentencing judge increased his offense level under the U.S. Sentencing Guidelines by two levels. The sentencing enhancement provision used applies to an individual who is in the U.S. without authorization and “has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense.” The issue before the Fifth Circuit was whether Murillo-Acosta’s voluntary departure constitutes a “voluntary or involuntary” deportation. In a three-page opinion, the court held that it does not matter whether a formal order of removal was issued: a voluntary departure is treated as a deportation for purposes of the sentencing guidelines.
The U.S. District Court for the Western District of Washington has held that a grant of Temporary Protected Status (TPS) by U.S. Citizenship and Immigration Services (USCIS) is an "Admission" for purposes of Adjustment of Status - the process of applying for Permanent Residence or a "green card" in the United States.
The Fifth Circuit issued a published decision holding that a person seeking to adjust status to Permanent Resident who has committed fraud under INA § 212(a)(6) may not adjust status under § 245(i). The applicants in question were seeking to adjust status to permanent resident based on an approved employment-based petition, but had originally entered the U.S. with visas bearing other people's names. This is considered fraud under INA § 212(a)(6). Thus, while the applicants' time out of status might have been waiver under § 245(i) and an illegal entry would have been waived under § 245(i), the fraud committed when entering the U.S. is a separate matter. If the applicants had also been eligible for fraud waivers under INA § 212(i), they might have been able to adjust status in the United States.
Yesterday, U.S. Citizenship and Immigration Services (USCIS) indicated in correspondence to stakeholders that it will reopen "all I-601A waiver applications that were denied prior to January 24, 2014, solely because of a prior criminal offense, in order to determine whether there is reason to believe the prior criminal offense might render the applicant inadmissible."