Category: Adjustment of status

Three reasons that should lead you to hire an immigration attorney

I have been practicing immigration law exclusively since before I passed the Florida Bar (under the supervision of a licensed attorney). I have seen this scenario more times than I care to admit.
A client comes into my office for a consultation. I find out that the client had already filed a petition on his/her own without consulting an attorney. The client now comes in because something has gone VERY wrong. The client’s petition has already been denied, or worse they have landed in removal proceedings because they should not have filed because of something in their past. Or the potential client had filed a petition for permanent residence and the government did not believe that the marriage is real and charged the immigrant with marriage fraud and referred them to immigration court.
Unfortunately, in some cases, it had been too late or it had become much more expensive to deal with the issues because of the Service’s determination. The first reason I give to hire an attorney is the fact that an attorney will always be an advocate on your behalf. Even when I ended up in court on personal matters I always hired an attorney. I believe that the attorney will take the emotions out of the matter and will be able to represent your interests in a more subdued way than you would have. This level of dedication could mean the difference between winning and losing the case.
The second reason I give is that simply you will have one additional witness, especially in cases when you know you will end up in an interview with the Service. Most of the time, the Service, represented by an immigration officer conducting the interview, will be the only other person in the room. Unfortunately, this means that the record will be written by them. Administrative immigration proceedings are not recorded, like a court proceeding, and unfortunately, in some instances, the record will be written against you. In some instances, I have heard that the officer asked questions that should not have been asked. If you were the only person in the room, it would be your word against the officer’s, and it will be very hard to prove that the officer asked these inappropriate questions. So why not have another person in the room, who will be able to prove otherwise?
Lastly, and this is the most important reason, you should hire an attorney because you are not one, or even if you are, you should still hire one as discussed above. Just like a doctor, and I hope that you are not self-medicating, the attorney will be able to diagnose the legal problem, and prescribe the best legal avenue to deal with the problem. Immigration law is very complicated, and the outcome could differ literally on one simple fact, like the date you came into the United States, your country of citizenship, or whether you were previously inspected by an immigration officer. An attorney will be able to diagnose these simple problems, because he/she knows how to do that, and you do not.
Call us before you print out that form from www.uscis.gov. We will always be your advocate and serving you would be our mission.

Is Immigration Reform Possible Even After Last Night’s Vote?

We all know that yesterday’s election results are very bad for immigration reform. After all, the last time we had a Democratic President with a Republican controlled Congress we witnesses the passage of IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act).

Despite last night’s vote, President Obama vowed today that he will be using his executive powers on immigration to grant some relief for certain immigrants. However, as I discussed in previous posts, these measures will fall short for several reasons, least of which, they will not be followed by the same people entrusted with enforcing these policies. Executive action will also not deal with the long wait times for both immigrant and work visas.

President Obama promised that the new executive action before the end of the year, unless he gets a bill that “he could sign”. I know that these measures will fall short, but they could allow millions of immigrants remain in the country where they have established family ties for decades.

I just hope that we do not get another IIRIRA.

Board Rules that Conditional Permanent Resident Admitted at POE Ineligible for 212(h) Waiver

The Board of Immigration Appeals ruled today that a conditional permanent resident admitted as such at a port of entry is ineligible for cancellation of removal since he was an aggravated felon. The Respondent in the case was a citizen of North Korea who was convicted of two crimes involving moral turpitude and an aggravated felony. He was admitted as a conditional resident in 1991 and was placed in removal proceedings in 2013. He conceded removability at his hearing but applied for adjustment of status along with a 212(h) waiver. The immigration judge ruled that he was ineligible for adjustment and the waiver since he was admitted to the United States and convicted of an aggravated felony. In upholding the immigration judge’s decision the Board ruled that conditional residents admitted at a port of entry is an alien admitted for permanent residence. The Board ruled that since the conviction was within 7 years of his admission, he was ineligible for cancellation of removal. Click here to read the decision.

BIA Issues Three Decisions Dealing with the Adam Walsh Act

The Board of Immigration Appeals issued three decision dealing with issues related to the Adam Walsh Act. The Adam Walsh Act prevents USCIS from approving any visa petition filed by a United States citizen if the Petitioner was convicted of a charge relating to the abuse of a minor. The Service could approve the petition if the Petitioner proves that he poses no risk to the beneficiary. The standard used for this discretionary decision is very unclear and convoluted. The decisions clarified nothing.

Unlike other immigration laws, the Adam Walsh Act does not seek to prevent an immigrant from receiving an immigration benefit but prevents a United States citizen from ever moving past a mistake he has committed. Despite the numerous arguments made by advocates to limit the law’s interpretation, the Board decided that the law was retroactive, meaning it applies to cases with convictions before its enactment. The Board also refused to delineate the standard of proof the Petitioner must meet to show that he poses “no risk” to the beneficiary, and in the third case, the Board ruled the the Petitioner bore the burden of proof in showing that his conviction is not a “specified offense against a minor”. The latter allowed the Service to use a case-by-case analysis, and permitted the Service to abdicate the long-standing categorical approach in analyzing such offenses.

As I argued before, there are several constitutional problems with the law. The Board can not rule on constitutional challenges to the laws which it applies. The task of determining the constitutionality of these laws falls on circuit and district courts around the nation. I look forward to the constitutional challenges that advocates will bring forward against this injurious law.

To read the three decision visit here.

Know Yourself Before Applying for An Immigration Benefit

I will  be discussing the second case that I discussed in my last post. This case involved a Respondent with so many identities, that the court could not find out his true identity. In Singh v. Holder, a Respondent appealed the Board of Immigration Appeals‘ order affirming the immigration judge’s decision denying his application for adjustment of status. He claimed that his due process rights were violated and that the Board erred in holding that he could not prove that he was admitted into the United States.

Singh claimed that his name in Tarsem Singh and was born on June 13, 1982, and that he entered the United States in 1995. He was also known as Simranjit Singh. He was smuggled into the United States as the daughter of a family friend. He was apprehended by ICE in 1997 and was served with for I-213. The document showed that he was born in 1978, making him 19 years old at the time. He was removed in absentia after he failed to appear for his removal hearing.  His mother procured a new birth certificate for him, with a new name and a new birthday, making him 15 years old. He filed a motion to reopen the case arguing that he did not receive proper notice of the old proceeding, which was granted. He then moved to terminate the proceedings arguing that he was a minor at the time and termination was warranted under 8 C.F.R. § 236.3. The immigration judge ordered his removal reasoning that he was nineteen when served with the first Notice to Appear. He also ruled that he was not inspected by an immigration officer, since his story could not be credited. The Board upheld the immigration judge’s decision.

The First Circuit rejected Singh’s argument that his due process rights were violated since he was given enough notice to speak to his father about his arrest and because the curt could not prove his true age. The court also ruled that Singh could not show that he was inspected since he could not provide proof of such inspection. Thus, the court upheld the Board‘s decision.

I think that this case should not have been appealed. I believe that as practitioners we should be cautious of what we appeal, due to the concern that we establish bad law. I welcome your comments and feedback.

[contact-form-7 404 "Not Found"]

First Circuit Upholds Denial of Cancellation of Removal

In one of the most clear discussion of criteria to qualify for non-Lawful Permanent Resident Cancellation of Removal, the First Circuit upheld the Board’s decision denying such relief. To clarify, a non-LPR may qualify for Cancellation of Removal, among other things, if he has been in the United States for more than 10 and has a qualifying relative (child or spouse), who would suffer “extreme and unusual hardship” if the undocumented immigrant were to be removed from the United States. Lawful permanent residents and abused immigrants also qualify for this relief under separate statutes. Typically circuit courts lack jurisdiction to review discretionary decision of immigration judges, including decision denying Cancellation of Removal, unless the appeal includes violation of legal rights.  
In the above-mentioned case, the immigration judge denied relief since the only alleged hardship to which the couple’s US citizen son would suffer is the lack of educational opportunities in the country of removal. The Board upheld the immigration judge‘s denial and the immigrant appealed. The immigrant argued that the immigration judge and the BIA committed legal error by failing to cite Matter of Montreal, the seminal case discussion hardship in these cases. The court ruled that even though the judge did not cite the case, she used the same criteria to deny relief . The court ruled that it did not have to deal with the jurisdictional issue since the case failed on the merits.  
I get so many phone calls asking for the “ten years green card“. I tell them that there is no such thing and that the case is not a slam dunk. This case highlights the difficulty with showing relief in these cases and the importance of preparation by you and your attorney.
Please consult an attorney before you apply for any form of immigration benefit. Also, feel free to add me on twitter @ayakzan or on Google Plus +Ahmad Yakzan or comment if you have any questions. 

What should Immigration Reform Look like? Part one.

The Washington Post published an opinion piece entitled : “Mr. Bohner’s weak immigration excuses”. The article discussed the “smoke screens” that get used in the immigration debate. The article’s main point was the fact that Republicans use the terms “border security” to scare people about immigration reform at a time when illegal immigration has dropped since 2008. As I discussed before, the emphasis on border security in any immigration reform is misplaced. Below I will discuss some things that, in my opinion, should be in immigration reform. 
High Skilled Immigration: many practitioners believe that the current system is restricting the influx of highly skilled and educated immigration. The current system restricts the number of visas that could be granted to these immigrants, who wish to proper in the United States. I am a strong advocate of the points system that several developed countries like Canada and the United Kingdom use. This system will give more points to intending immigrants depending on their education, experience and skills. This system still restricts the amount of immigrants, which appeases politicians that want to guard American jobs, but also attracts the needed skills that we need. 
Undocumented Immigration (Illegal Immigration): Most politicians should respectfully realize that the magic bullet to end illegal immigration does not exist. There are several causes for illegal immigration, which include economic, political, and problems with our existing system. The economic reasons are paramount here but problems with our existing system, in my opinion, dwarf the economic causes. I have represented numerous people who simply stayed in the United States because all of their relatives live here. Fixing the problems with our legal immigration system will lead to a decrease in undocumented immigration. One of the ways to fix such system, is to eliminate visa limits for family sponsored immigration. This has been addressed in the Senate’s immigration bill. We should now wait and see if the plan will pass the house. 
I will post another entry this week that will discuss other aspects of immigration reform. 
Add me on google +Ahmad Yakzan or on twitter at @ayakzan