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    Published on 10-04-2013 10:18 AM

    Analysis of the Final EB-5 Policy Memorandum - What's New

    by Mona Shah and Yi Song

    EB-5 / SEC news

    SEC have charged a Texas-based Regional Center for Securities Fraud


    Mona Shah, Esq. & Yi Song, Esq.

    On October 1, 2013 the Securities and Exchange Commission (SEC) announced fraud charges in U.S. District Court for the Southern District of Texas against a Texas based EB-5 Regional Center USA Now Regional Center LLC for misappropriating the investment funds of 10 investors from Mexico, Egypt and Nigeria. The USA Now Regional Center LLC was approved by USCIS in 2010 and raised $5 million dollars before the SEC brought charges at the federal court.

    The SEC complaints shall serve as a warning to all risky and fraudulent practices in the EB-5 community. The security fraud charges are based on false statements, misrepresentation and improper disclosure made in the Private Placement Memorandum (PPM) by USA Now Regional Center. The SEC has alleged that the Ramirezes told investors that USA Now would hold their investments in escrow until they received USCIS approval. Further, once the funds were released from escrow, they would be used for specific EB-5 business purposes. As ...

    Published on 10-03-2013 05:09 PM

    How a Government Shutdown Likely Affects Immigration Agencies

    by Amy Grenier

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    The government’s fiscal year ends today, and without legislation authorizing spending to continue, whether for the full fiscal year or even a few weeks, many federal offices and services will be shuttered starting tomorrow. Unfortunately, the chances the United States government will avoid a shutdown are low. The Senate has tabled the House-approved spending bill, which defunds the Affordable Care Act, and sent it back to the House, but it is unlikely that a consensus will be found before the midnight deadline. This means that beginning Tuesday, an estimated 800,000 to 1 million federal employees will be furloughed and government offices and national parks will close. Details of the impact of the shutdown are emerging and the situation is fluid, but based on what we do know and what happened the last time the federal government shut down in 1996, here is what likely will happen:

    Beginning Tuesday, an estimated 800,000 to 1 million federal employees will be furloughed and government offices and national parks will close.

    The Department of Homeland Security will still operate. This includes Customs and Border Protection, the Coast Guard, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services (USCIS).  The borders will remain open and USCIS will continue to operate, including processing green card applications, but E-verify will ...
    Published on 10-02-2013 02:24 PM

    212(i) AAO Victory

    byAlan Lee, Esq.

    ...
    Published on 09-30-2013 02:17 PM

    The Status of Immigration Reform in Congress

    by Ann Cun

    Last week, we highlighted some of the legislative bills currently pending in the House as a response to the Senate’s CIR bill S.744.  What progress has Congress (specifically the House of Representatives) made to pass comprehensive immigration reform legislation?  Aside from having introduced a bevy of immigration-related bills, since April-June of this year, the House has not made much progress on immigration reform.  House Republicans, who currently make up a majority, are refusing to support the Senate’s CIR bill S.744.

    Recently, the New York Times (and many other news outlets) reported that illegal immigration to the U.S. may be on the upswing, according to the latest polls from the Pew Research Center Hispanic Trends Project.  Though, Pew cautioned the results aren’t enough for a conclusive confirmation.

    One would think that a potential upswing illegal immigration to the U.S. would be cause for the House to act swiftly on immigration reform.  In celebration of National Hispanic Heritage Month, House Republicans have publicly proclaimed they are committed to immigration reform.  ...

    Published on 09-30-2013 01:59 PM

    Quality of Case Preparation and Presentation Counts for Immigrant Investors or Entrepreneurs

    by Joseph P. Whalen

    (September 24, 2013)

    I. Introduction: Following my posting of the AAO 2013 Non Precedent EB-5 Decision, (most up-to-date version found here), I was contacted by an individual with some observations and questions. This article is written in response to that query.

    II. Rejection vs. Denial/Dismissal: As a preliminary matter, it must be clarified that the legal terms “rejection” and “denial” are not interchangeable.

    a. Rejection means: a filing that is incorrectly submitted as:

    i. Untimely Filed: which is simply that, late, beyond the time afforded by law to file something; or

    ii. Improperly Filed: which may mean:

    1. Filed by someone Without Standing To File: for example, this might be an Appeal or Motion filed by the “beneficiary” of an immigrant petition filed ...

    Published on 09-30-2013 01:39 PM

    Conducting General Solicitation under the New SEC Rules in EB-5 Practice

    by Yi Song, Esq

    Ever since the Securities and Exchange Commission (SEC) lifted the ban this July on general solicitation pursuant to the Jumpstart Our Business Startups Act (JOBS Act), it was expected that the threshold for disclosure would be raised. What does this mean to EB-5 projects and EB-5 regional centers?

    ...
    Published on 09-27-2013 05:31 PM

    Mexican Organized Crime: Background, Updates and Implications for Returnees from the U.S.

    by Thomas Boerman

    Background

    As is well known and extensively documented by the U.S. and Mexican governments, the United Nations, the Organization of American States, numerous international human rights monitoring organizations and the international media, Mexico is embroiled in a catastrophic situation with respect to violence spawned by domestic and transnational criminal organizations (TCO). The principal TCOs operating in Mexico include: the Sinaloa, Tijuana, Juarez and Gulf cartels, Los Zetas, Los Cabelleros Templarios (Knights Templar), and La Familia Michoacána. In addition to these juggernauts, an increasing number of smaller criminal groups now affect the criminal landscape. According to Mexico’s Attorney General, as opposed to the past when there were roughly ten major drug trafficking organizations, there are now as many as 80 now operating throughout the country.[1]

    Along with intra and inter-organizational variables, a contributing factor in the emergence of many of these new criminal groups was former President Calderón’s “Kingpin” strategy, under which leaders were targeted for arrest or death. As leaders were taken out their underlings and competitors scrambled to capitalize on the leadership vacuums which increased levels of violence, contributed to the development of splinter groups that are more difficult to monitor and target, and further diminished the government’s capacity to contain criminal activity and to protect the public.

    It is important to note that beyond their involvement in drug manufacture and distribution, many of these groups have expanded their “criminal portfolios” to include extortion, kidnapping for ransom, arms trafficking, human trafficking, alien smuggling, piracy of copyrighted materials, cybercrime, coerced land and property transfers, and theft of millions of dollars worth of oil from the state owned Petróleos Mexicanos.

    Outcomes Associated with the War on Organized Criminal Activity

    While the Mexican government’s campaign against drug traffickers had its origins in the1990s, President Calderón’s escalation of the fight in 2006, along with tensions within and between criminal groups, ushered in an unprecedented wave of violence that continues unabated. It is commonly recognized that since 2006 the death toll associated with drug and crime related violence exceeds 70,000. Generally speaking, the violence breaks out into four main categories: 1) government action against criminal groups, 2) criminal groups’ actions against the government, 3) intra and inter-gang violence, and 4)criminal groups targeting the public.[2]

    Insofar as it relates to government officials and members of the public, the victims of the violence fall into six broad categories including those who have been: 1) “caught in the crossfire” during shootouts with rival criminal groups and/or police or military personnel; 2) targeted as a means of demonstrating organized criminal groups’ seemingly limitless capacity for audacity and brutality; 3) involved in pro government/anti-crime activities including police officers, prosecutors, judges, appointed officials, political candidates, and elected leaders; 4) subjected to reprisals because they reported crime to police and/or acted as informants against criminal organizations; 5) targeted for extortion, kidnapping, coerced criminal activity and/or land and property seizures; and/or 6) family members of those who have fallen into disfavor with criminal organizations that are victimized as a means of punishing the targeted individual.

    Criminal Groups’ Political Agendas, Strategies and Tactics

    Mexican criminal organizations have blended criminality with tactics generally associated with politically motivated terrorism and warfare including coercion, intimidation, kidnapping, torture and murder of police officers, military personnel, prosecutors and judges. Since 2006, over 1,200 municipal officials and 31 local mayors have been murdered.[3] Between January and June 2013 almost 250 public servants were killed.[4] In addition to outright terror, criminal organizations seek to create a socio-political climate in which they have impunity to expand and operate by manipulating the political system, including bankrolling elections.[5] The basis for criminal groups’ interest in the electoral process is simple: they cannot operate without collusion with government officials at every level. This has become particularly true as TCOs expanded into extortion and kidnapping, where the acquiescence and/or direct involvement of government officials is critical.[6]

    Arguably these strategies of terror and manipulation of the political system have been effective and in many areas organized criminal groups have thoroughly undermined the state’s capacity to fulfill basic functions of governance. Speaking of the political implications of TCO activity, a report from the International Crisis Group concluded:

    "The brutality of their crimes undermines civilian trust in the government’s capacity to protect them, and the corruption of drug money damages belief in key institutions. Cartels challenge the fundamental nature of the state, therefore, not by threatening to capture it, but by damaging and weakening it.[7]

    In February 2012, the Mexican Defense Minister acknowledged that criminal organizations have infiltrated state institutions and that up to forty percent of the country is no longer under effective government control.[8] Within this “governmental void,” organized criminal groups have rendered the state irrelevant in major respects and in many areas TCOs’ operational capacities have evolved to the point that they often act as de facto governments. In addition to providing crime-based employment, criminal groups are also known to build social infrastructure, dispense social services and in some instances have replaced the state as an arbiter of disputes and enforcer of everything from traffic laws to codes of moral conduct.[9] For example, leaders from La Familia Michoacána are known to preside over tribunals in which accused parties are brought before decision makers who impose judgments and sentences. I have interviewed several individuals who reported that they or people they knew had been arrested by police, but rather than being taken to a police station they were turned over to TCO leaders to deal with their alleged wrongdoing.

    The Scope and Implications of Official Corruption

    Aside from organized criminal groups’ seemingly infinite financial resources, sophisticated organizational structures and sheer audacity, the Mexican government’s efforts to control them has been seriously constrained by rampant corruption among police, military, and corrections officials, prosecutors, judges, and elected leaders.

    Thousands of police officers, including high raking officials, have been dismissed from their positions due to corruption. All 190 police officers in the town of Acambaro, Guanajuato were placed under investigation over alleged ties to TCOs while in the nearby town of Tarandacuao, 23 officers, including the chief of police, were arrested for activities that ranged from tipping off criminal groups when law enforcement was in the area all the way up to murder.[10] The entire Veracruz police force—800 officers and 300 administrative personnel—were fired in an effort to purge the department of corruption by starting over.[11] The list of examples of police corruption is nearly endless, and many are so flagrant as to be almost surreal. I’ve interviewed numerous individuals that have described scenes in which uniformed officers carried out abductions with no regard to the presence of witnesses; arrested and turned extortion victims over to drug traffickers, then stood guard over cartel-led tribunals in which the victims were tried, sentenced and tortured; and forced residents out of their homes and off their land, only to have members of criminal groups then occupy the property.

    Although thousands of corrupt officers have been fired, perhaps tens of thousands more remain in their positions and newly corrupted officers are continually coming onto the scene. And the government’s vetting processes, while an important step, are not necessarily proving effective. As of November 2012, eighty percent of the 50,000 officers that had failed confidence tests were still in their positions.[12] To some degree this can be attributed to corruption itself and a lack of political will, but it is also reflects the untenable nature of the situation: if the government were to dismiss en masse all officers known to be corrupt it would effectively drive many of those officers into the waiting embrace of criminal groups that are ready to employ them.

    Corruption is also rampant within the prison system. Corrections officials and guards are known to have facilitated, or at least been complicit in a number of gang-on-gang massacres and frequent mass escapes.[13] In one case authorities released prisoners who then went out and conducted assassinations using firearms provided by the prison staff.[14] Much of the crisis in the prison system is driven by overcrowding, the fact that officials are routinely subjected to violence and are poorly paid; the combination has proven to be a recipe for disaster.

    A major element in the government’s attempt to address corruption is Operación Limieaza (Operation Cleanup) but thus far the outcomes have been disappointing. For example, in 2012 police arrested four retired and active military officials with connections to the Beltran Leyva Organization—three generals and a lieutenant. The government later announced that charges were dropped against all four when cases against them unraveled; in all, charges against ten of the thirteen officers arrested under the much-ballyhooed anti-corruption initiative have been dropped.[15] The inability of the government to prosecute corruption cases has led to allegations and counter-allegations. One on hand, claims that the Calderón administration abused its authority, relied on dubious witnesses and targeted political opponents; on the other, suggestions that the current government is making accommodations for the type widespread corruption that occurred for decades under the Partido Institucional Revoluncionario, President Peña Nieto’s ...

    Published on 09-27-2013 04:39 PM

    How Long Does It Take for AAO and USCIS to Review Something?

    by Joseph Whalen

    The answer to the above seems to be as long or as little time as it takes. Sometimes we get a quick update. That would usually be when USCIS and AAO already had a position and either did not care if there was a different opinion out there or there was no real controversy and they were just going through the motions of asking for comments.

    Yet other times it seems that USCIS and AAO take as much time as it takes for folks to forget that they were waiting ...

    Published on 09-26-2013 04:33 PM

    Mischaracterizations of Evidence, Hyperbolic Rhetoric, Total Fabrications, and Unsupported or Conslusory Assertions of Counsel

    by Joseph Whalen

    How often have you seen the following quotes and citations? I do not feel that I need to do more than point out these increasingly frequent citations but if you cannot figure out the message, then jump to the end of this article when confused.

    …However, the unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984)[1]; Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980)[2]

    Moreover, the AAO declines to expand the beneficiary's work of setting up the petitioner and establishing his family in the United States as work on behalf of the foreign entity. The record and this premise are not substantiated in the record by supporting evidence. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).

    Above from: NOV232005_25B4203.pdf at p.3

    Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972) held:

    Since ...
    Published on 09-25-2013 05:23 PM

    Lipstick on a Pig in Immigrant Investing

    by Joseph Whalen

    “Lipstick on a pig” is a reference to a futile effort to dress something up to appear to be more than it really is. This is an inherent danger in the realm of EB-5 investment offerings. Many investment opportunities are simply unsuitable for EB-5 purposes and no ...

    Published on 09-24-2013 11:54 AM

    Racist State Policy to Deny Citizenship Rights to Mexicans

    by John Wheat Gibson, Sr.

    It is the policy of the Texas Department of State Health Services, Vital Statistics Unit, which issues birth certificates and copies, to deny copies of Texas birth certificates ...

    Published on 09-24-2013 10:22 AM

    Brown Around Town: Immigration Deform

    by Jan H. Brown


    About The Author

    Jan H. Brown is a principal in the Law ...


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