Tampa Family Immigration Attorney

Asylum

Asylum Law in the United States

Asylees are refugees who are in the United States, at a land border or point of entry. INA §208(a). Asylees must qualify as refugees, meaning that they have to prove a well-founded fear of persecution based on a protected ground. Persons interdicted in the high seas may not qualify for asylum.

Before asylum could be granted, the person’s nationality has to be determined. Urgen v. Holder, 768 F.3d 269, 272-74 (2nd Cir. 2014). Statelessness alone, however, is not enough to qualify for asylum, but if statelessness is the basis for persecution then it qualifies. Stserba v. Holder, 646 F.3d 964 (6th Cir. 2011).

Persecution is defined as a threat to the life or freedom of or an infliction of harm on those who differ in a way regarded as offensive. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Harm need not to be physical to rise to the level of persecution. Borca v. INS, 77 F.3d 210, 215-17 (7th Cir. 1996). Permanent or serious physical injury is not required to establish persecution. Matter of O-Z & I-Z, 22 I&N Dec. 23, 25-26 (BIA 1998). Custodial interrogation, rape or sexual assault, and forced medical examinations may arise to the level of persecution.

The government in the country of nationality must also be unable or unwilling to protect the applicant. Kamar v. Sessions, 875 F.3d 811, 819-20 (6th Cir. 2017).

Protected Grounds

The persecution must be based on a protected ground. The protected grounds are:

• Race
• Religion
• National origin
• Political opinion
• Membership in a particular social group

The applicant must prove that the persecution was based on one or more of the abovementioned grounds. INS v. Elias-Zacarias, 502 US 478 (1992). These characteristics may be imputed to an applicant. There must be a nexus between the persecution and the protected ground. The applicant does not have to show that the persecutor acted with bad intent. Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996).

Political Opinion

Political opinion requires an active and specific opinion or belief. Political opinion also does not require an active participation in rallies or organized functions. It requires the immigration judge to consider the evidence relating to the country of citizenship. Mandebvu v. Holder, 755 F.3d 417, 428-32 (6th Cir. 2014). Neutrality, however, may not be enough to show persecution. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Political opinion, however, may be imputed, meaning that the persecutor assumes the political opinion because of a close relationship. INS v. Elias-Zacarias, 502 US 478 (1992). An applicant, however, does not have to show that she holds the actual opinion.

Membership in a Particular Social Group

A particular social group includes members of a group that hold a common immutable characteristic that could not be changed. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). The group must be defined with particularity. Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014). The group members have a characteristic that sets it apart. Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Family could also qualify as a particular social group. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). To prove eligibility based on a family unit, there must be a nexus between the family unit and the harm. Id.  The Board has denied social group protections based on past criminal activities because they are not immutable. Matter of E-A-G-, 24 I&N Dec. 591, 595-96 (BIA 2008). The Attorney General has referred to himself a case to determine whether harm by private entities to social groups qualifies an applicant for asylum. Matter of A-B-, 27 I&N Dec. 227 (AG 2018).

The social group must be cognizable and articulated to the immigration judge and the Board would not remand a casa e for determination of a new social group. Matter of W-Y-C & H-O-B, 27 I&N Dec. 189 (BIA 2018). Federal courts have recognized the following groups:

• Members of a clan
• Domestic violence victims
• HIV/AIDS victims
• Mental illness or disability
• Gang membership
• Witnesses and family members
• Land owners

In mixed motive cases, the applicant must show that a protected ground was one central reason for the claimed persecution. INA §208(b)(1)(b)(i).

Past Persecution

If an applicant establishes past persecution, there will be a presumption of future persecution. The government many rebut such finding if 1) there was a fundamental change in circumstances or 2) the applicant may relocate within the country to avoid persecution. 8 CFR §§ 208.13(b)(1)(i)(A) and (B). Once a showing of past persecution is shown, the immigration judge must make such finding. Antipova v. US Att’y Gen., 392 F.3d 1259 (11th Cir. 2004). An applicant does not have to show subjective fear. Nor does he have to show that there was a pattern of persecution.  8 CFR § 208.13(b)(ii)(3). Once past persecution is shown, then there will be a presumption pf future persecution. 8 CFR § 208.13(b)(1)(ii). Such a finding would also show that a person’s life would be threatened for purposes of withholding of removal. INA §241()(3).

Humanitarian Asylum

When the government rebuts future persecution, an applicant may still qualify for asylum based on past persecution under humanitarian asylum. 8 CFR §208.13(b)(1)(iii)(A). Matter of Chen, 20 I&N Dec. 16, 21 (BIA 1989). Humanitarian asylum is not an independent claim for preservation purposes. An applicant may also qualify for asylum if he or she would face other serious harm upon removal. 8 CFR § 208.13(b)(1)(iii)(B); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). Past persecution does not require persecution if the applicant’s testimony is credible.

Well Founded Fear of Future Persecution

An applicant who does not show past persecution may qualify for asylum if she can show that there is a possibility of future persecution. INA §101(a)(42). The applicant must show that a reasonable person similarly situated would fear persecution. Matter of Barrera, 19 I&N Dec. 837, 845 (BIA 1989).  The quantum of proof may be less that 10% possibility. 8 CFR §208.13(b)(2)((i)(B). The fear has both a subjective and  objective components. The persecutor does not need to presently be aware of the offending characteristic but that he will become aware. Eduard v. Ashcroft, 379 F.3d 182, 192-93 (5th Cir. 2004). Additionally, the applicant does not have show that he fled the country because of persecution, but that he has a claim now. Wiransane v. Ashcroft, 366 F.3d 889, 899 (10th Cir. 2004). Disclosure of asylum status to the applicant’s country may raise an independent claim of asylum. 8 CFR§ 1208.6(a).

A person does not have to show that he will be singled out if there is a pattern of persecution against similarly situated individuals. To establish a pattern, a person must show that the persecutor targets the group specifically for one of the five grounds. Even if there was no showing of a pattern, a person may still qualify if he or she is a member of a disfavored group. Sael v. Ashcroft, 386 F.3d 922, 925-30 (9th Cir. 2004). A person would not qualify if relocation is reasonable. Shah v. Holder, 758 F.3d 32 (1st Cir. 2014). Criteria to determine whether relocation is reasoto nable include 1) whether the person would be harmed in the place of relocation 2) ongoing civil strife in the country 3) administrative , economic, or judicial infrastructure 4) geographical limitations and 5) social and cultural restraints. 8 CFR §208.13(b)(3).

Mandatory Denial of Asylum

Congress has established bars to asylum, where USCIS may not grant asylum but an immigration judge must hold an evidentiary hearing regarding the bar. INA §§208(a)(2) and (b)(2). The bars include:

• Persecution of others under INA §208(b)(2)(A)(i)
• Particularly serious crime INA §208(b)(2)(A)(ii)
• Serious nonpolitical crimes INA §208(b)(2)(A)(iii)
• Danger to the security of the United States INA §208(b)(2)(A)(iv)
• Terrorism related inadmissibility grounds INA §208(b)(2)(A)(v)
• Firm resettlement INA §208(b)(2)(A)(vi)
• Safe third country under the US-Canada Agreement
• Previous asylum applicants under INA §§208(a)(2)(C)-(D) unless there are changed circumstances
• One-year time limit INA §§208(a)(2)(B), (D) unless there are changed or extraordinary circumstance

We understand that applying for asylum and withholding of removal is a serious matter. Your life could literally depend on the result. Call us today for help applying for such relief.

Citizenship and Naturalization

The United States allows citizenship by several means. These means include:

• Citizenship by birth in the United States under INA §§301(a)-(b) and (f)
• The citizenship of one or both parents INA §§301(c)-(d) and (g)-(h)
• A combination of parental citizenship and location INA §§301(e) and 303
• After birth by a combination of parental citizenship and residence INA §§320 and 322
• Naturalization under INA §316
• Citizenship by Birth or Certain Unincorporated Territories

The 14th Amendment grants citizenship by birth in the United States. The United States adhered to the doctrine of jus soli. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). This also includes persons born in certain US territories under U.S. control. INA §§302 and 304-307. This also includes a person born in the Panama Canal under certain conditions. 8 USC §1403. Persons born in the Commonwealth of the Northern Mariana Islands after January 9, 1978, are United States citizens by virtue of covenant between the US and the Commonwealth. However, a person born in a location such as the Philippines and American Samoa are not citizens but nationals of the United States and do not acquire citizenship at birth. However, they may acquire citizenship by naturalization. Entines v. U.S., 160 F.Supp.3d 208 (D.D.C. 2016).

A lack of an official birth record is not as decisive as to whether someone is born in the US. Persons of unknown parentage found in the US are considered born in the United States unless proven otherwise before turning 21. INA §301(f).

Citizenship by Acquisition at Birth

A child born outside the US where one or both parents are United States citizens may acquire citizenship ay birth. INA 301(c)-(e), (g)-(h). A child born out of wedlock may acquire citizenship and requires the mother to be physically present in the United States to transmit citizenship. INA §309(c). A child does not need a certificate of citizenship. Children born by Assisted Reproductive Technology (ART) may acquire citizenship under INA §301/309 if 1) USC father must be the genetic parent 2) the USC mother is the genetic mother or 3) USC mother is the gestational and legal mother of the child at the time and place of the child’s birth.

Residence of Physical Presence of the USC Parent

A child’s USC parent must reside or be physically present in the US to “transmit” citizenship to the child. Residence has been defined as principal dwelling place of a person without attention to intent. Savorgnan v. US, 338 US 491 (1950). In Sessions v. Morales-Santana, the United States Supreme Court ruled that the different physical presence for unwed mothers and father violated equal protection. 137 S.Ct 1678 (2017). Physical presence need not be counted by the minute. If the parent is a naturalized US citizen, the time before and after naturalization may be counted. Matter of M-, 7 I&N Dec. 643 (RC 1958). A parent may not that constructive presence prevented him from residing in the United States due to war or illness but may when he was prevented by the government due to erroneous interpretation of the law. Matter of Navarrete, 12 I&N Dec. 138 (BIA 1967).

Adopted Children

In Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) an adopted child may not benefit from INA §301(g) but may be eligible under INA §322.

Citizenship by Derivation through Naturalization or U.S. Birth of One Parent under INA §320 and former law under INA §321

Prior to the Child Citizenship Act, a child could derive citizenship when one parent became a United States citizen when the child was under 18 and the child was residing in the US after a grant of permanent residence. The child could have also derived if he or she was residing in the United States and was in the legal custody of that parent. INA §321. The Board of Immigration Appeals has interpreted the law to require lawful permanent residence before the age of 18. Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008). The law required 1) the naturalization of both parents 2) the naturalization of one of the parents if the other is deceased 3) the naturalization of the parent with legal custody of the child, or the naturalization of the mother of the child was born out of wedlock and legitimization has not occurred.

Child Citizenship Act

The Child Citizenship Act has changed former law and streamlined the process. Under the new law, a child derived citizenship if 1) one child is a citizen by birth or naturalization, 2) if the parent naturalized, the child was under 18, 3) the child is residing in the United States as a lawful permanent resident; and 4) the child is residing in the US in the legal custody of the United States citizen parent. INA §320(a). Under INA §320(b), adopted children derive citizenship after admittance as lawful permanent residents. Lawful permanent residence must be obtained legally without misrepresentation. Walker v. Holder, 589 F.3d 12 (1st Cir. 2009). The child should have been admitted for permanent residence on or after February 27 2001. Legal custody means that 1) the child currently resides with both parents, 2) the child resides with one natural parent of the other is deceased, or 3) the child was born out of wedlock  was legitimated and currently resides with the natural parent. Matter of Rivers, 17 I&N Dec. 419, 421 (BIA 1980).

The child must be under 18 at the time he or she receives permanent residence. Gutierrez v. Lynch, 830 F.3d 179 (5th Cir. 2016).

Children born out of wedlock may claim citizenship from their mother when the mother naturalizes. Children claiming derivative citizenship through their father may use the legitimization laws at the place of residence at the time of birth.  Matter of Cross, 26 I&N Dec. 485 (BIA 2015). Step-children are not covered under the law since they are included in the definition under INA §101(c). Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009).

Certificate of Citizenship under INA §322

A child who has not derived citizenship through the naturalization of one parent may apply for a certificate of citizenship if 1) one parent is a USC; 2) the child is temporarily physically present in the United States under a lawful admission and is in status, 3) the child is under 18, and 4) the child is outside the United States in the legal custody of a father who has been in the United States for 5 years 2 of which after the age of 14. A child may obtain a certificate within 5 years of a parent’s death if there is grandparent or United States citizen guardian. An adopted child must have been adopted before 16. 8 CFR §322.

A child whose parent did not meet the physical presence requirements may still obtain a certificate if the United States grandparent resides in the United States for 5 years 2 of which were after the grandparent’s 14th birthday. INA §322. If the grandparent died, then the child still qualifies if the grandparent met the physical presence before passing. Children born to members of the armed forces are exempted from all these requirements under INA §322(d). The application is filed on form N-600K before the child enters the United States. Persons otherwise eligible may file form N-600 if they are in the United States.

Naturalization by Application

An immigrant may become a citizen by naturalization. The person must meet the following requirements:

The immigrant must be a lawful permanent resident. If the immigrant erroneously obtained permanent residence or by fraud, the denial of his naturalization would be upheld. Reganit v. Secy., DHS 814 F.3d 1253 (11th Cir. 2016). Conditional permanent residents may apply for naturalization if they have met the physical presence requirements. Matter of Paek, 26 I&N Dec. 403, 406-07 (BIA 2014). Effective date of residence is rolled back for applicant who adjusted under the Cuban Adjustment Act or asylees.

Must be at least 18 years old under INA §334(b) unless the age requirement is waived for military service.

The immigrant must meet the continuous-residence and physical presence requirements. The lawful permanent resident for five years unless married to a United States citizen. If married to a United States citizen the couple must be 1) the United States citizen spouse has been a citizen for three years, and 2) the parties have been living in a marital union for 3 years. 8 CFR §319.1(a)(3). There is no requirement that the marriage was the predicate for permanent residence. Living in a marital union means that the couple is living together. S. v. Maduno, 40 F.3d 1212 (11th Cir. 1994). Involuntary separation, however, may not sever eligibility. A battered spouse or child may also apply under the 3 years rule. INA §319(a). The person must also reside for at least three months in the state where he applies. INA §316(a). A student attending an institution outside of his state may apply in the state of the institution or his state of residence. The person must have also resided in the United States for one-half of the five or three years. The immigrant must also reside in the United States from the time of the application to the date of admission into citizenship. Id. Disruptions in residence between 6 months and 1 year create a rebuttable presumption of abandonment of residence. Factors that may be used to show that an immigrant did not abandon residence include 1) not terminating employment in the United States; 2) the presence of immediate family in the US; 3) retention of full access to US home and 4) not obtaining employment abroad. An absence of more than one year shall disrupt residence. A person with disruption of residence may reapply 4 years and one month after coming to the United States. A person who qualifies under the 3 years rule can apply after two years and one month. There are certain exemptions including service in the military, spouses, and children of service members, employees working abroad for the US government or international organizations.

The immigrant must be a person of good moral character for the statutory period required and until citizenship. A member of the military must be for one year. Providing false testimony can be a bar to establishing good moral character. INA 101(f)(6). Materiality is not a consideration in this analysis. Certain crimes also bar the finding of good moral character. A person who has committed murder is permanently barred from establishing good moral character. The permanent bar also applies to persons convicted of an aggravated felony. A person who received a pardon before or during the statutory period may still establish good moral character. 8 §§CFR 316.10 (c)(2)(i) and (ii). Voting illegally or making false claims to citizenship may also preclude a finding of good moral character, unless 1) each parent was a United States citizen, 2) the applicant resided permanently in the US prior to 16 and 3) he or she reasonably believed that he or she was a United States citizen. The officer may still approve the application if the person is not in removal proceedings using the following factors 1) family ties, 2) absence of criminal history, 3) education and school records, 4) employment history, 5) other law-abiding behavior including paying taxes, 6) community involvement, 7) credibility and 8) length of time in the US. Polygamy and commission of criminal acts may also be used to deny an application.

The immigrant must also be attached to the principles of the Constitution under INA §316(a)(3).

The immigrant must also be willing to bear arms, perform noncombatant services, or work of national importance.

The immigrant must also demonstrate knowledge of English and US History and Government

The immigrant must also take the oath of allegiance.

Please call us if you are eligible for citizenship through derivative status, or eligible to apply for naturalization.

Family Based Immigration Petitions

If you are a US citizen or lawful permanent resident and want to help your family immigrate to the United States, turn to American Dream^® Law Office for help. Our family immigration lawyer can help you understand the immigration process in Miami, St. Petersburg, Orlando, and Tampa, FL, as well as Washington D.C.

How Can We Help You?

Our goal is to reunite families. When you meet with us, we’ll go over all the details of the immigration process, including what paperwork to fill out, what the priority dates for various family members are, and what the requirements for immigration are.

Under US law, immediate family members are the ones who can almost immediately immigrate without waiting. Immediate family members are any children, spouses, or siblings of a US citizen or lawful permanent resident. However, all family members are subject to preference categories, so we’ll guide you through the process so you can facilitate family immigration without delay or hassle.

We’ll also explain your responsibilities as the sponsor. For example, sponsors must always be a US citizen or lawful permanent citizen, make 125% of the poverty level, petition for family members themselves, and be married to spouses before the petition filing.

Finally, we’ll also explain how life events like marriage, divorce, naturalization, and death can change or impact priority changes. Immigration law can be a tricky thing, but we’re here to help you understand all the rights you have and the steps you need to take.

Why Believe in Us?

When you need a family immigration visa lawyer who cares, turn to Ahmad Yakzan, an immigrant himself. At American Dream^® Law Office, we prioritize reasonable rates, effective communication, and client convenience. This dedication to helping you succeed in your immigration efforts shows through our many 5-star reviews.

To schedule a consultation, please call today at (888) 991-3336.

K Visas

One of the goals of United States immigration policy is to unite families. The K visa option is a great option for fiancés to come to the United States, in anticipation of marriage. The K visa is also a great option for spouses to come to the United States. This option is usually faster than consular processing. This visa allows children to come to the United States, and go through the Adjustment of Status in the United States.

Who May Apply for a K Visa?

The K visa can be used by fiancés and their children. The visa can also be used by spouses of United States citizens, and their children, to come to the United States to apply for Adjustment of Status.

What is a K-1 Visa?

A K-1 visa allows fiancés of United States citizens to come to the United States The visa also allows children of K-1 visa holders to come to the United States under the K-2 classification. The requirements of this visa are as follows:

• Be a fiancé(e) of a United States citizen
• Come to the United States solely to finalize the marriage
• Marry the United States citizen within 90 days of entry
• Should have met in person within 2 years of the application, or apply for a waiver of such requirement.

A K-1 visa holder may not change status in the United States to another non-immigrant classification. He may not be able to adjust his status. However, a showing of a bona fide marriage with the K visa petitioner may allow a K visa holder to adjust his status, even though the Applicant and the Beneficiary divorce. Matter of Sesay, 25 I&N Dec. 431, 441-44 (BIA 2011).

What is a K-3 Visa?

A K-3 visa allows a spouse of a United States citizen to come to the United States to complete processing of Adjustment of Status. The unmarried minor children of a K-3 will be afforded K-4 status and will be allowed to come to the United States to go through the same process. The main differences between a K-1 and the K-3 are the fact that the latter is married to the United States citizen and has a pending I-130 petition already filed on her behalf.

If the Service approves the I-130 petition, the consular post will not issue a K visa and will complete the consular process. A K-3 holder may not change status in the United States and may only adjust her status through the original Petitioner.

What is the Procedure for Obtaining a K Visa?

The first step is to apply in the United States by filing an I-129F petition with the United States Citizenship and Immigration Services. Once that is approved, the Applicant must file with the Department of States using the DS-160 application.

Is the Adam Walsh Act Applicable in K Visa Cases?

The Adam Walsh Act will apply in a certain case if the Petitioner had been convicted of any crimes relating to the sexual abuse of minors. However, an Applicant may apply for a waiver, allowing him to petition for his fiancé or spouse.

Contact us today if you are considering applying for a K visa for your spouse or fiancé(e).

Self Petitions Violence Against Women's Act (VAWA)

The Violence Against Women Act (VAWA) allows spouses, children, and parents of abusive United States citizens, or lawful permanent residents in some instances, to petition for permanent residence in the United States. To qualify for a self-petition, the self-petitioner should have been abused by the United States citizen, or by the Lawful Permanent Resident in the case or spouse or child. There are several kinds of abuse that qualify, which will be discussed below.

I was abused by My Spouse, Can I Apply Under VAWA?

If you have been abused by your spouse, you may self-petition for permanent residence by filing an I-360 petition with the United States Citizenship & Immigration Services. This ability to self-petition was established by Congress in 1996 in the original Violence Against Women Act. The self-petitioning process is straightforward and is adjudicated by a special section of the Service’s Vermont Service Center. Once approved, the self-petitioner may apply for Adjustment of Status, if the visa number is available.

I Entered the United States without Inspection, Can I Still Apply?

Yes. The law allows you to apply for Adjustment of Status, even though you entered without inspection.