Category: www.arabimmigrationlawyer.com

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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Board of Immigration Appeals Holds that Admission of Conviction Might not Trigger Stop-Time Rule

I have been an advocate of changing the Supreme Court’s decision that removal proceedings are civil and not criminal. The main reason being my argument is the fact that criminal law has infiltrated removal proceedings since the criminal grounds for removal have been expanded by Congress on several occasions.

One of the problems in removal proceedings is the definition of “conviction” for immigration law purposes. The common sense definition of the term does not apply in these “civil” proceedings, since a mere admission of enough facts makes you removable for immigration purposes. The consequences that come from such “conviction” are tremendous in the immigration context, including triggering the stop-time rule, a rule that would make a person ineligible for discretionary relief like Cancellation of Removal for non and lawful permanent resident.

The Board in a recent unpublished decision ruled that admission, without being informed of the possible consequences of such conduct and the true definition of the crime, did not trigger the stop-time rule under Matter of K,I&N. Dec. 59 (BIA 1957).  Unfortunately, this is an unpublished decision by the Board, which under guidance, the Board does not have to follow. However, I have used these decisions in court proceedings and they were very persuasive. 

I ask you to please comment and let me know what you think. Also, please feel free to add me or follow me on social networks. Thank you for following me.

first_illegal_immigrants

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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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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.