July 17, 2019

Archives for January 2012

Family-Based Immigration: An Introduction to Concepts and Procedures

Family-based immigrant and nonimmigrant visas are one of the major ways foreign nationals enter, remain, and obtain permanent residence in the United States. The policy behind family-based visas is family reunification. All family-based immigrant visas require a petition to be filed in the United States, proving eligibility for the benefit.

  • There are sponsor-based family immigrant visas whereby the petition is only filed by a qualifying family sponsor or petitioner. Such sponsor-based applications involve spouses, parents, children, and siblings of U.S. citizens, and spouses and children of lawful permanent residents (LPRs).
  • There are some petitions that do not necessarily require a family sponsor but require a qualifying family relationship to be eligible for this “self-petition.” Such petitions would involve those exposed to domestic violence who qualify under the Immigration and Nationality Act (INA).
  • Widowers and other qualified family members of deceased petitioners may be eligible as self-petitioners as well.

Whether sponsor-based or self-based, the petition must first be filed and approved. A visa must be available before the foreign national can obtain a visa or adjust status to permanent residence. At this stage, the foreign national applicant must meet certain admissibility requirements to enter on a visa or to obtain permanent residence in the United States, unless waived under certain circumstances. One of these admissibility requirements, public charge, is applicable to all family-based immigrant applications and requires the submission of an affidavit of support. After obtaining permanent residence, some family members are subject to a two-year condition and must take proactive measures in the future to maintain their residence in the United States.

If you are a family law or immigration law practitioner, consider attending this short, 90-minute presentation to get the fundamentals of family-based immigration on February 6, 2012. The program, Family-Based Immigration: An Introduction to Concepts and Procedures, will cover:

  • Qualifying relationships to sponsor a family member
  • The process for those family members sponsored
  • The Affidavit of Support requirement
  • Other options to family sponsorship
  • Conditional Residence Status
  • K-1 Fiancé Visas
  • The concept of admissibility

This program is based on a chapter from the new CBA-CLE book, Immigration Law for the Colorado Practitioner. This indispensable reference, written with the Colorado lawyer in mind, covers a wide range of practice issues, providing the orientation, analysis, and authorities for immigration lawyers and lawyers whose practice overlaps with immigration law. Click here for more information about the book.

A free portion of the Family-Sponsored Immigration chapter, written by the program’s faculty, Catherine O. Brown, is available below for your reference, along with details about the program.

Family-Sponsored Immigration Chapter Segment

CLE Program: Family-Based Immigration – An Introduction to Concepts and Procedures

This CLE presentation will take place on Monday, February 6. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

State Judicial Amends More Forms to Comply with New Civil Procedure Rules and Fee Changes (Part 3)

Colorado State Judicial continues to issue forms that have been amended to comply with fee changes and the new civil procedure rules adopted as part of Rule Change 2011(18), effective as of January 1, 2012. The changes are being made to time calculation requirements in the forms, which now must reflect the “rule of 7″/multiples of a week.

State Judicial is reviewing all JDF forms and instructions, however it is always the Parties’ responsibility to ensure compliance with the Supreme Court rules. It is therefore important to review the time calculation rule changes prior to filing, as many of the forms have not been reviewed and changed yet.

Below is a list of the latest forms to be amended. Earlier amendments can be found here (Part 1) and here (Part 2). Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; Word templates are forthcoming. Download the new forms from State Judicial’s individual forms pages, or below.

Probate

  • JDF 875 – “Instructions for Appointment of Conservator – Adult” (revised 1/12)
  • JDF 887 – “Instructions to File a Petition to Terminate Conservatorship” (revised 1/12)
  • JDF 906 – “Instructions for Probate with a Will” (revised 1/12)
  • JDF 907 – “Instructions for Probate without a Will” (revised 1/12)
  • JDF 957 – “Instructions for Closing an Estate Formally” (revised 1/12)
  • JDF 958 – “Instructions for Closing a Small Estate Informally” (revised 1/12)
  • JDF 959 – “Instructions for Closing an Estate Informally” (revised 1/12)
  • JDF 989 – “Instructions to Re-Open an Estate” (revised 1/12)

Protection Orders

  • JDF 395 – “Instructions for Restrained Person Motion to Modify / Dismiss Protection Order” (revised 1/12)
  • JDF 400 – “Instructions for Obtaining a Protection Order” (revised 1/12)

Small Claims

  • JDF 248 – “Small Claims Instructions” (revised 1/12)
  • JDF 250 – “Notice, Claim & Summons to Appear for Trial” (revised 1/12)

Water

  • JDF 295W – “Standardized Instructions for all Colorado Water Court Divisions” (revised 1/12)

Governor Hickenlooper Signs First Bill of 2012 Legislative Session

On Monday, January 30, 2012, Governor John Hickenlooper signed SB 12-014, the first bill to emerge from the 2012 General Assembly, into law.

  • SB 12-014
    • Sponsored by Sens. Bacon, Roberts,  and Morse and Reps. Levy and B. Gardner. The law moves the date for candidates, committees, and political parties to begin filing biweekly campaign finance disclosure reports from the first Monday in July to the first Monday in May.

e-Legislative Report: Week Three, January 30, 2012

The latest Legislative Video Update recaps Military Day at the Capitol and Phase 2 of the SMART Act. Additionally, it reviews which bills the Legislative Policy Committee moved to support during their January 27 meeting.

Military Day at the Capitol

The Senate and House honored Colorado veterans on Monday with what is affectionately called “Military Day at the Capitol.” Both Houses take time to celebrate service men and women, active and retired, through several joint resolutions. The presentations are a welcome relief from the day to day operations at the Capitol and an appropriate way to say “Thank You” to our veterans. Here is a list of the resolutions:

  • Concerning recognition of Military, Veterans, and MIA/POW Appreciation Day.
  • Concerning recognition of military personnel from Colorado who died during specific military conflicts, including those killed after September 11, 2001, during the War on Terrorism, including but not limited to those killed in Afghanistan and Iraq.
  • Concerning the U.S.S. Pueblo.
  • Concerning the designation of Interstate 70 across Colorado as part of a nationwide system of “Tuskegee Airmen Memorial Trails”.

The presentations are a welcome relief from the day to day operations at the Capitol and an appropriate way to say “Thank You” to our veterans.

SMART Act

Again, the floor was light and the committees of reference were busily working through Phase 2 of the SMART Act review process. In case you missed last week, HB 10-119, or the State Measurements for Accountable, Responsive, and Transparent (SMART) Government Act, was adopted in 2010 and part of the act requires departments of state government to suggest improved efficiency or administration through line item consolidation in the budget bill. The presentations to the committees of reference include information about:

  • The departments’ strategic plan;
  • A review of the departments’ performance-based goals and measures; and
  • A report on actual outcomes.

Phase 2 of the meetings with the committees of reference call for the committees to recommend or vote their support for the various budget priority requests from the departments they oversee; e.g. Judiciary Committees oversee the Judicial Branch (Judicial Branch, Public Defender, Alternate Defense Counsel, Office of Child Representative), Department of Corrections, and the Department of Public Safety. The committees met to discuss recommendations and votes but this process is new and the kinks are being worked out. We are hoping for a comprehensive statement from each committee detailing their votes and recommendations to the Joint Budget Committee (JBC).

As the legislature moves to the fourth week of the session, the committee calendars are starting to look like they are in midsession form in terms of workload.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

At the January 27 meeting of the LPC, the Committee voted to adopt as Bar Sponsored legislation a proposal from the Trust and Estate Section. The proposal is designed to put “guard rails” around the search a personal representative, trustee or their legal counsel is required to undertake when searching for a filed Designated Beneficiary Agreement (DBA). To be effective, DBAs are filed with a clerk and recorder where one of the parties is domiciled. When the law was passed in 2009 the law was silent on the duty to search for a filed DBA; as a consequence, the fiduciary or their attorney could conceivably be required to search all 64 counties in Colorado. The Trust and Estate section is seeking to limit the number of counties being searched and to limit the time frame to make the search. This situation arises when there isn’t actual knowledge of the existence of a DBA.

The LPC also voted to support the study committee or Task Force on Abuse of the Elderly that is contemplated in SB 12-078, Protection of At-Risk Adults. The sponsor of the bill is searching ultimately for a way to move the reporting of elder abuse from the current state of “urge” to “mandatory” reporting. The fiscal impact for such a change has moved the focus from a substantive change in this legislation to finding solutions through the Task Force process.

Click here for the full e-Legislative Report.

Tenth Circuit: Post-Departure Bar from Reviewing Motions to Reopen Filed by Noncitizens Outside the United States Impermissibly Interferes with Congress’ Intent to Afford Such a Statutory Right

The Tenth Circuit Court of Appeals published its opinion in Contreras-Bocanegra v. Holder, Jr. on Monday, January 30, 2012.

The Tenth Circuit granted the petition for review and vacated the Board of Immigration Appeals’ decision. Petitioner, a citizen of Mexico, became a lawful permanent resident of the United States in 1989. Two years later, he received a suspended jail sentence for attempted possession of a controlled substance. In 2004, the Department of Homeland Security detained him upon his return from a visit to Mexico and placed him in removal proceedings on the ground that his conviction rendered him inadmissible. An Immigration Judge ordered him removed from the United States, and the Board affirmed. The Tench Circuit subsequently denied Petitioners’ petition for review. From Mexico, Petitioner filed a timely motion to reopen his removal proceedings based on ineffective assistance of counsel. The Board denied the motion on jurisdictional grounds, “concluding pursuant to the post-departure bar that it lacked authority to review a motion to reopen filed by a noncitizen outside of the United States.” He then “petitioned for review of the Board’s decision, arguing that 8 C.F.R. § 1003.2(d) improperly curtails his right under 8 U.S.C. § 1229a(c)(7) to file a motion to reopen. . . . [T]he panel denied his petition, concluding that it was bound by circuit precedent to uphold the post-departure bar,” relying on Rosillo-Puga, 580 F.3d 1147 (10th Cir. 2009).

The Tenth Circuit granted rehearing en banc to reconsider its decision in Rosillo-Puga, and now overturns it and its progeny. The en banc rehearing considered “whether the so-called postdeparture bar regulation at 8 C.F.R. § 1003.2(d) remains valid in this circuit considering Congress’ 1996 amendment to the Immigration and Nationality Act. The amended Act grants noncitizens the right to file one motion to reopen their immigration proceedings. However, the Board of Immigration Appeals contends that it lacks jurisdiction to consider motions to reopen filed by individuals who have already departed the United States, despite the fact that such a limitation appears nowhere in the statutory text.”

In Rosillo-Puga v. Holder, a divided Tenth Circuit panel upheld the post-departure bar as an authorized exercise of the Attorney General’s rulemaking authority. However, since then, six circuits have consecutively invalidated the regulation. “Rather than stand alone in upholding the post-departure bar, [the Tenth Circuit chose] to overturn Rosillo-Puga, . . . [holding] that the subject regulation impermissibly interferes with Congress’ clear intent to afford each noncitizen a statutory right to pursue a motion to reopen under 8 U.S.C. § 1229a(c)(7).”

Tenth Circuit: Unpublished Opinions, 1/30/12

On Monday, January 30, 2012, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Unpublished

United States v. Matthews

Patillo v. Larned State Hospital

United States v. Croucher

Showalter v. Addison

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Supreme Court: Week of January 29, 2012 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of January 29, 2012.

Tenth Circuit: Stolen Valor Act Is Constitutional; Restricts Only Knowingly False Statements of Fact and Does Not Overreach to Chill Protected Speech

The Tenth Circuit Court of Appeals published its opinion in United States v. Strandlof on Friday, January 27, 2012.

The Tenth Circuit reversed the district court’s decision. Respondent, despite never having served in the armed forces, founded the Colorado Veterans Alliance and frequently told veterans that he graduated from the United States Naval Academy, was a former U.S. Marine Corps Captain, and had been wounded in combat in Iraq. He also bragged of receiving a Purple Heart, which is given to soldiers wounded or killed in action, and he boasted that he had been awarded the Silver Star for gallantry in battle. After discovering the ruse, the government charged Respondent with making false claims about receipt of military decorations or medals in violation of the Stolen Valor Act. Reasoning that false statements are generally protected by the First Amendment, the district court declared the Stolen Valor Act unconstitutional and dismissed the charges against Respondent.

The Court disagreed with the district court’s analysis. “The sole question presented is whether the Stolen Valor Act, a content-based restriction on speech, is facially constitutional.” The Court found that it is and reversed the district court’s decision. “As the Supreme Court has repeatedly asserted, the Constitution does not foreclose laws criminalizing knowing falsehoods, so long as the laws allow ‘breathing space’ for core protected speech—as the Supreme Court calls it, ‘speech that matters.’ . . . [U]nder this legal framework, the Stolen Valor Act survives scrutiny because (1) it restricts only knowingly false statements of fact, and (2) specific characteristics of the statute, including its mens rea requirement, ensure it does not overreach so as to chill protected speech.”

Tenth Circuit: Unpublished Opinions, 1/27/12

On Friday, January 27, 2012, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Unpublished

United States v. Enriquez

Smith v. Comm’r of Internal Revenue

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

SB 12-022: Requiring Counties to Continue Child Care Assistance after Person Exceeds Income Eligibility for Assistance

On January 11, 2012, Sen. S. Williams and Rep. Massey introduced SB 12-022 – Concerning maintaining child care assistance for working families. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under the current law, when a person receiving child care assistance under the Colorado child care assistance program (CCCAP) is ineligible due to exceeding the income eligibility level adopted by the county department of social services, the county department is strongly encouraged to continue providing child care assistance for 6 months and to work with the person to provide a gradual transition off of the child care assistance. This bill eliminates that permissive 6-month option when a person’s income exceeds the county-adopted eligibility level and requires that the county continue to provide child care assistance to the person for a period of 2 years while the person pays a series of incremental increases in the portion of the parental share of the child care.

The bill requires the state board of human services to adopt rules establishing a formula for the scheduled increases in the parental share based on income and on the cost of child care with the goal of the parent becoming more self-sufficient, maintaining stable employment, and taking on more of the cost of child care over the 2-year period. A family that receives child care assistance during the extended 2-year period is required to report any income changes during the 2-year period and is subject to a redetermination of eligibility after the first 12 months.

Summaries of other featured bills can be found here.

SB 12-020: Granting Immunity for Certain Crimes when Person Reports Emergency Overdose in Good Faith

On January 11, 2012, Sen. Aguilar and Rep. Summers introduced SB 12-020 – Concerning immunity from certain criminal offenses when a person reports in good faith an emergency drug or alcohol overdose event. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A person and one or two other persons acting in concert with the person are immune from arrest and criminal prosecution for any of the following offenses if the offense arises from the same criminal episode or course of events from which an emergency drug or alcohol overdose event arose; the person reports the event in good faith to a law enforcement agency or to the 911 system; the person and, if applicable, one or two other persons remain at the scene of the event until a law enforcement officer or an emergency medical responder arrives; and the person and, if applicable, one or two other persons identify themselves to, and cooperate with, the law enforcement officer or emergency medical responder:

  • Unlawful possession of a controlled substance;
  • Unlawful use of a controlled substance;
  • Unlawful distribution, manufacturing, dispensing, or sale of a controlled substance if the offense is based upon the transfer of a controlled substance from the person to another person for no remuneration;
  • Unlawful possession of 12 ounces or less of marijuana or 3 ounces or less of marijuana concentrate;
  • Open and public display, consumption, or use of less than 2 ounces of marijuana;
  • Transferring or dispensing 2 ounces or less of marijuana from one person to another for no consideration;
  • Unlawful use or possession of synthetic cannabinoids or salvia divinorum;
  • Unlawful distribution, manufacturing, dispensing, sale, or cultivation of synthetic cannabinoids or salvia divinorum if the offense is based upon the transfer of synthetic cannabinoids or salvia divinorum from the person to another person for no consideration;
  • Possession of drug paraphernalia; and
  • Illegal possession or consumption of ethyl alcohol by an underage person.

Assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

SB 12-018: Creating Voluntary Alternative Medical Assistance Program for Medicaid-Eligible Elderly

On January 11, 2012, Sen. Lundberg introduced SB 12-018 – Concerning the development of an alternative medical assistance program for the elderly. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a voluntary alternative medical assistance program for the Medicaid-eligible elderly. An eligible participant agrees to receive an amount equal to 70% of the medical assistance benefits that he or she would have received if the participant were enrolled in the state’s traditional Medicaid program in exchange for 2 features currently not allowed under the traditional Medicaid program:

  • The participant can choose any provider; and
  • The state waives the right to pursue all estate recovery methods from the participant’s family after the participant dies.

The participant’s physician assesses the level of care the participant needs. The department of health care policy and financing then determines the expected costs to provide that level of care if the participant were enrolled in and were receiving services under the traditional Medicaid program and allocates 70% of that amount annually to reimburse providers for the participant’s care. The department issues a debit card to the participant that is funded monthly with one-twelfth of the annual amount so allocated to the participant, which the participant uses to pay for medical services while enrolled in the alternative program. The eligible participant purchases long-term care services, assisted living services, home- and community-based services, home health services, prescribed drugs, or any health or dental care service at rates set by the provider, and the participant agrees to provide all additional resources needed for his or her care beyond the 70% Medicaid benefit amount provided through the program. The participant is responsible for researching and selecting the services.

Each year, the department conducts a redetermination of the participant’s eligibility for services and the participant’s physician reassesses the level of care that the participant needs. The department must seek a federal waiver for the program. Assigned to the Health and Human Services Committee.

Summaries of other featured bills can be found here.