Category: Tucker Ludin

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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Waivers of Misrepresentation under the Immigration and Naturalization Act

I have represented several individuals, both before the Service and immigration courts, who were inadmissible for a material misrepresentation under the Immigration and Naturalization Act (INA). The typical problem involves a situation where a person was applying for a visitor’s visa, says that he/she is married when she is not, and now is applying for permanent residence based on a marriage petition. During the adjustment of status interview, the misrepresentation is discovered and the application is denied or put on hold to allow the client to apply for a waiver. In some cases the client is even placed in removal proceedings after the application is denied under Section 237(a)(1)(A) of the Act.

The good thing about these charges, if you were before the Service, is that you can apply for a waiver of the ground of inadmissibility under INA 212(i). The waiver allows the Attorney General to waive the ground of inadmissibility if the alien’s removal would lead to extreme hardship to the alien’s US citizen child or spouse. In the case of a VAWA applicant, the immigrant would qualify for the waiver if the removal would lead to personal hardship.

I have represented several clients in removal proceedings who were placed there for one reason or another. The government bears the burden of proving removability in removal proceedings. The immigrant’s chances of success in both instances depend on the availability of a qualifying relative to show hardship and the evidence that the Service possesses to prove the misrepresentation. I have always tell people, these are very complicated cases and no one should attempt to apply on their own (without an attorney).

Please let me know if you have any questions. Also, feel free to add me on Linkedin, Google+, twitter, or leave a comment using the form below.

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Attaining Permanent Residence through the EB-5 Program

The Eb-5 program has been getting renewed attention lately. Congress has been trying to reform the program specifically to counter the alleged fraud that has plagued the program since 1990. One thing remains true however, there is an influx of interest by Chinese and South American investors who are shelling hundreds of thousands of dollars for a chance to attain the American dream. The EB-5 program allows foreign investors who invest at least $500,000 ($1,000,000 in most areas) in a “new business to receive permanent residence in the United States. The amount of investment depends on the location of the investment. The lower amount is for investments in Targeted Employment areas, or areas where unemployment is 150% of the national unemployment number. The $1,000,000 investment requirement is for areas where unemployment is less than 150%. EB-5 investments could be in what is called a stand-alone investment, or through a regional center. A stand-alone investment is one where the investor invests his money into his own business and tries to meet all the program’s requirements through that company. A regional center investment is an investment where the investor invests his money into a pre-approved investment center, with limited control over the investment. As of today, there are 480 regional centers. You can access the regional center list by visiting this link. The EB-5 program is not for everyone. It is important to consult with an immigration attorney before taking on this endeavor. Please feel free to leave me a comment through the form below, add me on twitter, Linkedin and Google Plus. [contact-form-7 404 "Not Found"]

My Talk before the Pinellas Association of Criminal Defense Attorneys

One of the best thing to boost the confidence of a young attorney is to be invited to speak before his peers to discuss his area of practice. I had the pleasure to speak before the Pinellas Association of Criminal Defense Attorneys  yesterday. The crowd was a mixture between private practitioners and public defenders. 
My talk focused on one of my favorite immigration topics: criminal immigration. I discussed some of the new trends when it comes to the intersection between immigration and criminal law. I look forward to speaking before the Pinellas County Public Defender’s Office– Misdemeanor Division. I will keep you all posted. 
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U.S. Immigration and Customs Enforcement agents take part in Operation Cross Check in September 2011.

Second Circuit Remands Asylum Case to the BIA to Issue Decision Regarding Duress

Last month, the Second Circuit Court of Appeals remanded an asylum case to the Board of Immigration Appeals for the latter to consider whether duress should be considered when it comes to the “material support” bar to admission. The “material support bar” bars any person who offered any material support to a terrorist group from being admitted to the United States. Ay is a Kurdish national and a citizen of Turkey. He was accused of providing support to individuals whom he thought were terrorists. He maintained however that he was under duress. The immigration judge ordered his removal after ruling that he was ineligible for asylum under the “material support bar“. The BIA affirmed but added that he could be eligible for a waiver from the Department of Homeland Security. The Second Circuit reasoned the statutory provision might include an exception for duress and the Board’s decision did not have the proper analysis. The Court remanded the case to the Board to issue a precedent decision dealing with the question. 
The main reason for the court’s decision was the fact that the statutory language is ambiguous. I look forward to the Board’s decision. 
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Asylum Fraud In Chinatown

The New York Times published a story over the weekend discussing asylum fraud in Chinatown, NY. The article spoke about the widespread fraud in asylum applications, with attorneys, clergy, and paralegals helping applicants fabricate stories to shore up their asylum applications. The fraud has led to the indictment of several people, including eight attorneys. The indictments came as the result of a federal investigation, which recorded several individuals coaching their clients. The fraudulent applications have led to severe backlogs at the asylum office in New York, with more than 7000 applications files in 2012. 
What really surprised me that the majority of indicted attorneys still believe that they did not commit any illegal acts. They simply believed that they were helping these applicants stay in the United States. This is clearly a violation of the ABA Model Rule of Professional Conduct 1.2(d), which prohibits aiding a client in committing fraud.  
Throughout my years of practicing immigration law, I have been asked to commit fraud by potential new clients and clients I represented. Usually, these conversations are very brief and end after I ask that person to leave my office or when I file a motion to withdraw if I am representing the person in removal proceedings or before the Service. I know that people would want to blame all lawyers for this conduct. However, like in other any profession, there are attorneys who choose to sell their reputation for money. 
I am reminded of one of the last scenes of one of my favorite movies “A Few Good Men“, when one of the defendants asks the other “what did we do wrong?.” The answer was “we were supposed to help people who could not help themselves”. As attorneys, and particularly immigration attorneys, we are entrusted with helping the weak apply to stay in the Land of the Free. We have taken oaths that we would not take cases for personal gains. I believe that these attorneys should receive the strictest punishment available under the law.  I will keep you updated on this case.  

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

Immigration Reform and the Battle between the Parties

Immigration reform has become a hot topic after President Obama delivered his State of the Union address. The Republicans proposed their own plan for immigration reform yesterday. The highlight of their plan is to block undocumented immigrants from getting a special path to citizenship. The plan also calls for undocumented to pay back taxes, pass rigorous background checks lean English and American civics.  The President is now on board for a plan, even if it does not have a special path to citizenship. The Republican plan also calls for securing the boarder before any reform takes place. 
I honestly do not think that these plans will work. The Republican plan ends with the hope that this plan will end illegal immigration. This plan seemed like a Republican attempt to silence their critics. There are several problems with both plans, like the failure to address the need for highly skilled workers. I will be writing several blog entries in the next couple of weeks addressing these shortcomings. Please comment or email me at yakzana@gmail.com of you have any questions. 

Miami-Dade County Issues Immigration Detainer Resolution

On December 3, 2014, the Miami-Dade Board of County Commissioners issued a resolution that gave the County the power to refuse  ICE detainer requests unless the federal government reimburses the county . The resolution cited several issues. First, the commissioners cited the fact that the detainers cost the county more than a half a million dollars in costs without being reimbursed by the federal government. Second, the commissioners cited the fact that more than 400,000 people were deported last year, the majority of whom are parents of United States citizens. Lastly, the commissioners cited the fact that these detainers are mere requests by ICE, which could be declined by the county as a reason to pass the resolution. The resolution calls for the denial of these requests unless the federal government reimburses the county for its costs. 
I agree with the resolution since these detainers, in my opinion, are unconstitutional since they federalize local agents to execute a federal function. All of these problems have led State Attorneys around the nation to deny these requests. We will see what will happen to these requests, especially since they overburden state entities and lead to recuperated expenses.