Category: Justice Department

Applying for Asylum? Should you?

This week, I will be traveling to Miami to represent a client in an asylum interview. In this post, I will be discussing eligibility for asylum in simple terms.  I will also provide a list of important resources one could use when applying for asylum.
Asylum law is the international community’s recognition that some individuals would be threatened if they were forced to return to their homeland. According to the High Commissioner of Human Rights, this practice is one of the oldest traditions in human history. National laws are used to establish eligibility for this form of protection. Under our laws, the process of establishing eligibility is a complicated one. An asylum seeker could apply for protection overseas, where he or she applies for asylum through an international agency. However, one a person is in the US, the Department of Homeland Security adjudicates these petitions.
To qualify as an asylum seeker, one must meet the definition of refugee under the Immigration and Naturalization Act. The Act defines a refugee as :”any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).
It seems like such definition should encompass many categories and should be straightforward. It suffices to say that one of the most appealed petitions in immigration law is the petition for asylum I-589. Most of the immigration cases that reach circuit review around the United States involve asylum petitions. Many people believe that the application is a straightforward one. Sometimes, the application is such; however, when the threats are not crystallized or there is a fear of future harm, one should really hire an attorney. Most of these appeals involved applicants whose petitions were not clear enough to convince the adjudicator that they were harmed or would face harm if returned to their countries.  It is very important to consult an attorney before you apply, and if you can not afford one, please visit this link to find a free attorney in your state. Please do not apply on your own, and consult an attorney, specially since the chances of success are very low (see graph below).
So to answer the question above,  consult an attorney before you apply and do discuss other options if the attorney recommends against filing. Please comment if you have any questions.
Asylum Statistics
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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.

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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. 

Second Circuit Reverses BIA’s Decision not to Reopen Removal Proceedings

This week the Second Circuit ruled that the BIA‘s decision to deny a Respondent’s Motion to Reopen removal proceedings was erroneous. The immigration judge had denied the respondent’s application for Cancellation of Removal since he allegedly did not show that he has met the ten years of continuous residence and that his removal would lead to hardship to his qualifying relatives. He appealed the decision and the BIA upheld the immigration judge. Hernandez’s Motion to Reopen his removal proceedings was also denied by the Board
The Second Circuit declined to consider the discretionary decision to deny his application for Cancellation of Removal since review is barred by statute. In reversing the decision regarding the Motion to Reopen, the court reasoned that Hernandez has shown through circumstantial evidence that he was present ten years before his hearing in 2007 and was eligible for Cancellation of Removal.
The case is Hernandez v. Holder and you can read it at this link. Happy Thanksgiving.