Immigration: New USCIS Rule Allows Unlawful Presence Waivers for Illegal Aliens with US Relatives

Wassem M. Amin

A new Executive Order by the Obama Administration will make it easier for illegal aliens to obtain permanent residency if they have immediate relatives who are U.S. Citizens.  Scheduled to go into effect on March 4, 2013, illegal immigrants who can demonstrate that time apart from an American spouse, child, or parent would create “extreme hardship” can apply for a visa without leaving the United States.  If approved by USCIS, the applicant would be required to leave briefly in order to obtain the visa from their native country.

According to comment by the Department of Homeland Security, the rule seeks to reduce the time illegal immigrants are separated from their U.S. families while seeking legal status.  Although the rule is currently only applicable to those immigrants with U.S. citizens, according to an article in the L.A. Times, it most likely will be expanded to include relatives of permanent residents as well.

This rule will significantly assist many immigrants previously stuck in a “Catch-22.”  Previously, many illegal immigrants who may have sought a legal adjustment of status refused to do so out of fear that their hardship waiver would be denied, and they would be stuck out of the country.

Extreme Hardship, under the Immigration and Naturalization Act, is a statutory requirement that the applicant must meet to qualify for the waiver.  However, it is not a defined term and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.  When USCIS assesses whether an applicant has established extreme hardship, USCIS looks at the totality of the applicant’s circumstances and any supporting evidence to determine whether the qualifying relative will experience extreme hardship.

Beginning on March 4, 2012, Form I-601A will be available to those seeking to apply for a waiver under this new rule.  The final proposed rule and comments can be read here.

Eligibility Requirements:

  1. Applicant is a beneficiary of an approved I-130 Petition for Alien Relative or I-360 (Special Immigrant) petition which classifies them as an immediate relative.
  2. Alien is solely inadmissible because of unlawful presence for more than 180 days.
  3. Physically present in the U.S.
  4. Alien establishes that U.S. citizen spouse or parent would suffer extreme hardship if denied admission as a permanent resident.
  5. Alien is 17 years or older at time of application filing.


Disclaimer: This article is for informational purposes only and it is not intended as legal advice.  Their are many other factors that may impact an applicant’s eligibility.  Consultation with a knowledgeable Immigration Attorney is important.  For more information, please contact Wassem M. Amin.

SJC Holds that a Headshake is Sufficient to Invoke the Miranda Right to Remain Silent

Criminal Procedure: SJC Departs from the Federal Standard of Pre-Waiver Invocation of Miranda: Commonwealth v. Clarke, SJC-10816

Overview: The Supreme Judicial Court, in determining whether a defendant’s headshake indicating refusal to talk before the defendant waived his Miranda rights during a custodial interrogation, held that such conduct was sufficient to invoke the right to remain silent under the Fifth Amendment of the United States Constitution and Article 12 of the of the Massachusetts Declaration of Rights—leading to suppression of a subsequent confession. In doing so, the SJC departed from the Federal Constitution’s standard enunciated by the Supreme Court in Berghuis v. Thompkins—which held that a defendant must unambiguously invoke their right to remain silent, whether before or after waiver of their Miranda rights. The rule announced by the SJC in this case significantly impacts the Miranda waiver and invocation analysis in Massachusetts, affords criminal defendants substantially higher protection, and divides the analysis into two distinct ‘timelines’ during the custodial interrogation event—pre-waiver and post-waiver.

To properly understand the SJC’s new rule and how it departs from the federal standard, a brief recap of the Supreme Court’s rule in Thompkins is necessary followed by a detailed outline of the SJC’s holding and potential impact on criminal defendants.

Berghuis v. Thompkins: In Thompkins, the Supreme Court held that “[a] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives his right to remain silent by making an uncoerced statement to the police.” Critically, the Court held that “an accused who wants to invoke his or her right to remain silent, [whether pre-waiver or post-waiver], must do so unambiguously.” In Thompkins, the defendant refused to sign a Miranda waiver and, although he did not explicitly invoke his rights, remained silent for about 2 hours and 45 minutes before making an incriminating statement. Therefore, based on the foregoing facts, the Court found that the defendant’s refusal to sign a waiver form and subsequent silence did not meet the heightened requirement of an “unambiguous waiver.” The Court seemed to emphasize only two important aspects necessary to find that the defendant waived his Miranda rights: it must have been knowingly and voluntarily. Put another way, a waiver will not be hard to find as long as the Defendant was fully informed of his Miranda rights and was not coerced into a waiver.

The Court reasoned that while the language in the decision of Miranda indicated that “[i]f an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease;” decisions since then indicated that a waiver must be “unambiguously” announced. Under the Federal Constitution, therefore, an ambiguous or equivocal act will not invoke the right—nor, most critically and perhaps a little contradictory, the act of simply remaining silent. Further, as the Supreme Court’s current jurisprudence stands, the analysis of what act constitutes a waiver is not affected whether the defendant’s statements were made pre-waiver or post-waiver. That distinction is critical because a defendant may still invoke his right to remain silent even after waiving his Miranda rights—and it is a distinction that the Supreme Judicial Court of Massachusetts has emphasized in Clarke.

Commonwealth v. Clarke: In Clarke, the Defendant, during a custodial interrogation, after being explained his Miranda rights and before any waiver, indicated that he did not wish to speak by shaking his head from side to side. However, the interrogating officer kept attempting to clarify the defendant’s invocation of his rights by asking follow up questions until the defendant eventually signed a Miranda waiver form and made incriminating statements. The SJC held that the defendant’s conduct—an explicit headshake in response to a direct question—“was sufficiently communicative as to invoke his right to remain silent.” Therefore, because the officer’s did not “scrupulously honor” that right, all subsequent statements were subject to suppression.

In announcing this rule, the SJC emphasized that what is sufficient to invoke the right to remain silent rests on the critical aspect of whether the invocation was made pre-waiver or post-waiver. In the post-waiver context, it noted that “it makes sense to expect a heightened level of clarity from a suspect who wants to change course and cease interrogation after having already indicated a desire to continue questioning. Pre-waiver, however, the suspect has yet to exercise the choice between speech and silence that underlies Miranda. To require a suspect, before a waiver, to invoke his or her right to remain silent with the utmost clarity, as called for by Thompkins, would ignore this long-standing precedent and provide insufficient protection for residents of the Commonwealth under art. 12.” In addressing potential criticism, the SJC noted that it is not burdensome for law enforcement to stop questioning if the defendant makes an ambiguous invocation and simply ask the defendant to clarify his intent. It went on to warn that clarification should not be mistaken as a green light for badgering or overreaching, whether intentional or unintentional.

Implications: What does this mean for defendants in Massachusetts? Based on the SJC’s holding, it seems that it is much easier for a defendant to invoke his right to remain silent at the outset of a custodial interrogation. In fact, an invocation may be done by an act, rather than speech, or by simply remaining silent. If the defendant chooses to answer questions by the interrogating officer after waiving his Miranda rights, but later changes course and decides to remain silent, the court will require a higher showing of clarity of that post-waiver invocation. It is unclear whether a headshake or another ambiguous act, will suffice to meet that heightened post-invocation standard, but such an argument could be bolstered if the defendant was subjected to overreaching or badgering by the interrogating officers.

–Wassem Amin

Criminal Procedure: SJC Allows Post-Plea Sentencing Reduction

Post-plea sentence reduction allowed: Commonwealth v. Rodriguez , SJC-10825 (January 12, 2012)

Summary: The SJC held that a judge has the authority, sua sponte, to reduce a defendant’s sentence after the Commonwealth and the defendant reached a plea agreement to plead guilty and join the prosecutor’s sentencing recommendation, and after the judge had already imposed the recommended sentence. The Court held that where a judge acts on his own timely motion to revise or revoke a sentence, the judge has the authority to reduce that sentence where “it appears that justice may not have been done” despite whether a plea agreement includes an agreed sentence recommendation.

Issue: The issue, as articulated by the Court, is whether a judge “has the authority under Mass. R. Crim. P. 29(a) to reduce a sentence after the defendant and the Commonwealth entered into a plea agreement in which the Commonwealth agreed not to seek indictments against the defendant on the pending charges, the defendant agreed to plead guilty to the charges and join the prosecutor’s sentencing recommendation, and the judge had imposed the recommended sentence.”

Discussion: The Court held that the judge does have the authority to do so and that neither Mass. R. Crim. P. 12 nor G.L. c. 278 § 18 declare that a plea may be vacated or that the Commonwealth may back out of the plea agreement where a judge imposes a sentence below that recommended by the prosecutor, even where there is an agreed recommendation in a plea agreement. In essence, the SJC reiterated that rule 12 protects “a defendant from the risk that the judge will exceed the prosecutor’s recommendation,” but doesn’t offer reciprocal protection to the prosecutor when imposing a lower sentence.

In reaching that decision, the SJC held that the judge has the discretion to determine a just sentence, determined by various, competing, considerations such as: “the severity of the crime, the role of the defendant in the crime, the need for general deterrence and specific deterrence, the defendant’s prior criminal record, the protection of the victim, the defendant’s risk of recidivism, and the extent to which a particular sentence will increase or diminish the risk of recidivism.” Commonwealth v. Donahue, 452 Mass. 256, 264 (2008).

Justice Spina, in a lengthy dissent, argued against the majority’s decision and asserted that the announced rule encroached upon the principle of separation of powers in the Massachusetts Declaration of Rights.

Impact: It remains to be seen whether the ruling is limited to specific instances similar to the facts of the case or whether it will be broadly used by defense attorneys. In this case, the SJC seemed heavily influenced by what happened during the trial court’s Rule 29 hearing. Specifically, the trial judge learned that the original charge of trafficking in a Class A substance was in error, and that the substance was in Class B. It that mistaken belief that led the judge to accept the original plea agreement, which he later revised. In addition, the judge learned at the rule 29 hearing that the prosecution reduced the charge of trafficking in class A to possession in Class B before the plea agreement was entered into, and, finally, the defendant had a history of mental disorders and substance abuse that was not disclosed prior to sentencing.

Adding credence to the intention by the SJC that the rule be narrowly applied, Justice Cordy, in a separate concurrence, stated: “I have every reason to believe, however, that with rare exception, judges honor the joint recommendations of the parties as the carefully considered product of negotiation by attorneys most familiar with the. . .case and the defendant…” (emphasis added). Justice Cordy, and the majority, also recommended that the rule be referred to the Court’s standing advisory committee on the rules of criminal procedure for further review, assessment, and recommendation.

Wassem Amin

Personal Injury Law: Releases or Waivers Do Not Bar 93A Claims

Tongier, et al. v. EF Institute for Cultural Exchange, Inc., et al., Lawyers Weekly No. 12-266-11

Issue: Was a release signed by students and teachers on an educational tour waiving prospective G.L. c 93A claims valid?

Decision: No, allowing consumers to waive consumer protection rights under 93A violates the public policy underlying the statute.

Discussion: The Court held that a company that marketed and sold educational tours could be sued under Chapter 93A by the estates of four decedents who drowned during the trip despite a signed release of liability by the decedents prior to the trip. The Judge based his decision on the 2011 U.S. District Court holding in Doe v. Cultural Care, Inc. In Doe, the court determined that a waiver of 93A claims was unenforceable because it violated public policy. The 93A claim in Tongier was based on representations made by the Defendant Company that the tours were safe and that the guides were well-qualified.

Procedurally, this case was interesting as well. Initially, the Judge granted the Defendant’s motion for Summary Judgment on the 93A claim, among others. A month later, the Appeals Court denied the plaintiff’s interlocutory appeal on the 93A claim without a hearing. Finally, the Plaintiffs filed a motion asking the Judge to reconsider in light of the Doe case, resulting in the Summary Judgment reversal.

–Wassem Amin

First Circuit: Miranda Revisited

Criminal Procedure: Miranda Revisited: United States v. Rogers, Lawyer’s Weekly No. 01-247-11.

Summary Rule: The 1st Circuit Court of Appeals (Souter, J. sitting by designation) held that police violated a suspect’s rights when they questioned him in his house without giving him the warnings required by Miranda v. Arizona.

Practice Pointer: In determining whether a defendant was “in custody” outside a police station, for the purposes of triggering Miranda, counsel should look to: (1) Influence on the defendant by a superior (such as higher-ranking officer or maybe even boss); (2) whether the defendant was explicitly informed that he was free to leave (even if he was in his own house); and (3) whether the defendant was in the location through his own volition and (4) whether the defendant chose the location.


            Justice Souter authored this opinion.  It should be noted that Souter also wrote the plurality opinion in Missouri v. Seibert, 542 U.S. 600 (2004), a Supreme Court case that held so-called midstream Miranda warnings rendered a defendant’s subsequent statements inadmissible and violated the defendant’s 5th Amendment rights.  Midstream Miranda warnings was the practice where police first obtained an inadmissible confession without giving the warnings, then issued the warnings, and obtained a second confession.

            The case arose when a personal computer the defendant sold was found to contain child pornography.  After the buyer notified local police, state authorities obtained a warrant to search the defendant’s home—and made specific plans to search the home when the defendant, a decommissioned naval officer, was on duty at the naval station.  After being notified by the Naval Criminal Investigative Service, the defendant’s commanding officer ordered the defendant to go home, where another officer reassured him he would not be arrested.  In response to questioning inside the home, the defendant eventually admitted to possessing the pornography and, after being interviewed for 50 minutes, was asked to come to the police station for formal questioning.  There the defendant was told he was free to leave—but received his Miranda warnings. 

            In addressing the defendant’s motion to suppress, Souter held that the Defendant was “in custody” (and therefore entitled to Miranda warnings) because: (1) the Defendant was under the influence of the superior officers; (2) the defendant receiver no notification that he was free to leave; and, most significantly, (3) the military made certain that the defendant did not voluntary confront the police with the free choice of where to be.  Souter, ever the Miranda advocate, noted: “[Defendant] was in the situation that Miranda was meant to address, where the line between voluntary and involuntary response is at least so blurred that the Fifth Amendment guarantee is in jeopardy.”

Wassem M. Amin