What happens when you filed an asylum application yourself, and after your interview, you get placed in removal proceedings and your asylum application is referred to the immigration court? Is that a denial? What should you do next?

You may feel that you are being deported, or that your case has no chance of winning at all. But that’s not really the case.

You can think of it as an opportunity to present your case better in Court. Maybe there were some elements you missed. Maybe you failed to support your case further initially.

We had a couple of cases recently, one for a client from Cameroon and another for a client from Ethiopia, where both filed their initial CIS asylum application themselves. No attorneys. Their cases were denied at the CIS level and referred to the immigration court, and then they retained our firm. And ultimately they had an opportunity to present their case better, and fortunately the Immigration Judge granted their cases.

One good thing about having your case in immigration court is that you have an opportunity to present your case through questions initially asked by your own attorney. So if there are any specific details or events that you want emphasized, the attorney can zone in on those in direct examination.

I remember our attorney Glen preparing both clients twice for hours prior to each of the individual hearings, with over a hundred questions each.

You see there are many issues involved in asylum applications, not just whether you were harmed or not. People simply focus on the harm they experienced, without tying it to other aspects of asylum law nor detailing the specifics of the event.

Is there a one year issue?

Are you part of a protected group?

Is the persecution related to you being part of that protected group?

Did the harm you or your family experienced rise to the level of persecution needed for asylum?

Is there a firm resettlement or relocation issue?

Are your supporting documents, the dates, places, and names listed on those, corroborating your testimony?

Are your supporting documents internally consistent with each other?

Is your written statement consistent with your testimony?

Is your claim detailed enough? Were there addresses, dates, names on every possible instance in your claim?

Maybe your initial claim had simply a month, but not a specific date.

Maybe your initial claim had simply a city, but not a specific address.

Maybe you did not specify how far the hospital is from the place you were persecuted. Or where it is located in the first place.

What is the name of the doctor?

Or how far and where was the police station is from where you were persecuted?

Any many others.

So take this as an opportunity for you to be more thorough in your claim. An opportunity to present it better, with more details and specifics. Asylum law is complex, with may issues and elements involved, aside from simply fearing returning home.

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Show Me Your Papers

U.S. District Judge Susan Bolton ruled that Arizona authorities can enforce the section of the state’s immigration law critics have called the “show me your papers” provision, as reported on CNN. This clears the way for police to carry out the requirement that officers, while enforcing other laws, question the immigration status of those they suspect are in the country illegally. This provision has been in the middle of a two-year legal battle that resulted in a U.S. Supreme Court decision in June upholding the requirement.

Those against the provision pled for Judge Bolton to block the provision, arguing that it would lead to systematic racial profiling and unreasonably long detentions if enforced. Those for the provision argued that racial profiling was simply a speculation. Governor Jan Brewer’s office also said that police have received training to avoid discriminatory practices and that officers must have reasonable suspicion that a person is in the country illegally to trigger the requirement.

Judge Bolton mentioned that her Court will not ignore statements from the Supreme Court that the provision cannot be challenged further on its face until the law takes effect. She confirmed the Supreme Court’s interpretation that the law may still be challenged as unconstitutional on other grounds.

Arizona’s law, SB1070, was passed in 2010. Five other states, Alabama, Georgia, Indiana, South Carolina, and Utah have adopted similar variations.

ICE Detained and Deported A Record Number of Illegals

Immigration and Customs Enforcement (ICE) detained and deported a record number of illegals in 2011 and are on track for similar numbers this year, even though the number of illegals crossing the border dropped to a 40-year low, according to the New York Times.  ICE agents deported 391,953 in 2011, including 188,000 convicted of crimes, which was an all-time high for such deportations.

Citizens of Mexico, Guatemala, Honduras, and El Salvador made up 93% of all people deported last year. To date there are about 366,000 deported through August 31, but they include 191,000 convicted criminals, more than last year. ICE also detained about 429,000 immigrants last year which was another record.

Though the Department of Homeland Security (DHs) had said that they are focusing on illegal immigrants with criminal convictions, the record number of deportations the past two years had a big impact on the Latino community, causing doubt on the Obama administration.

Circuit Cases

• 1st Circuit: Rebenko v. Holder, September 4, 2012. Asylum. Petitioner testified at the IJ level that she experienced mistreatment in Ukraine on account of her Pentecostal faith on four occasions: (1) her arrest in May of 1999; (2) her receipt of threatening phone calls from nationalists following her arrest; (3) the “mockings” she experienced during her graduation in June of 2000; and (4) her beating at the hands of “skinheads”. The 1st Circuit noted that Petitioner did not report any significant mistreatment before May of 1999 or after June of 2000, though she had practiced Pentecostalism since childhood and continued to live in Ukraine until July of 2001. The Court held that the IJ could have reasonably concluded that the mistreatment Petitioner described was not “systematic” but was “reflective of a series of isolated incidents” over the course of a bad year. The Court mentioned that Petitioner describes no nexus between her harassment at her graduation and any government action or omission. Her speculation that the police caused nationalists to make threatening phone calls was not supported by evidence. The Court viewed Petitioner’s May 1999 arrest as a single incident in which Petitioner suffered no injuries requiring medical treatment, and that a reasonable adjudicator would not be compelled to find that this incident rose to the level of persecution.
• 9th Circuit: Sanchez-Avalos v. Holder, September 4, 2012. Criminal. Petitioner petitioned for review the BIA’s decision that he is not eligible for waiver of inadmissibility because he was convicted of an aggravated felony. Petitioner argued that his conviction for sexual battery under California Penal Code § 243.4(a) did not qualify as sexual abuse of minor. The Court applied the categorical and modified categorical approaches. The Court concluded that the crime of sexual battery under California law is categorically broader than the federal generic crime of “sexual abuse of a minor” because the California crime may be committed against a victim of any age, while the federal generic offense requires proof that the victim was a minor. Court held that the crime of sexual battery in California is not categorically an aggravated felony, and that none of the evidence established that the petitioner’s victim was a minor.

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Our Associate Attorney, Sung Hee (Glen) Yu, Esq. was invited to talk about the practice of immigration law practice and his professional experience at the Third Annual Case Western Midwest APALSA (Asian Pacific American Law Students’ Association) Conference last February 18, 2012.

This year’s conference entitled “Building Your Niche: Creating a Professional Identity in Practice and Beyond,” was designed by law students in light of the challenging employment market. APALSA members sought to put on a conference that focused on the expansive opportunities that a Juris Doctor can open up for students, law related or otherwise.  Over twenty-five attorneys, professors, and other professionals were invited to attend and share their experiences. More than 80 law students attended this all day conference.

Mr. Yu, a Case Western Law School alum, was invited to speak at the Immigration Law Breakout sessions with two other immigration attorneys.  He discussed various issues common to the practice of immigration law and shared his experiences in handling employment-based, family-based, and deportation and removal cases. He also offered advice on how to find internships and employment in immigration law firms and other jobs related to the field.

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The Executive Office for Immigration Review (EOIR) issued an updated memorandum – Operating Policies and Procedures Memorandum 11-02: The Asylum Clock – to provide uniform policies regarding the EOIR asylum clock for all immigration courts. The memorandum goes into effect on Dec. 19, 2011. In addition to increasing efficiency by reducing the time that immigration judges and court staff spend on administering the asylum clock, the new guidance addresses concerns expressed by members of the public. This information is very useful for applicants taking note of the clock for work permit purposes.

The EOIR asylum clock is an administrative tool that measures the length of time an asylum application has been pending for each asylum applicant in removal proceedings, not including any delays requested or caused by the applicant. The EOIR tracks the time an asylum application has been pending to implement the asylum adjudication goal of the Immigration and Nationality Act.   Generally, the asylum clock calculates a mandatory 180-day waiting period before an asylum applicant can receive work authorization.  Any delay caused by the asylum applicant will stop the clock and prolong the waiting period for work authorization.  For example, if the hearing was adjourned because of an applicant/respondent-caused delay, the clock stops until the next hearing.

The new memorandum clarifies certain longstanding problems regarding the EOIR asylum clock calculation.  The new guidelines clarify several issues that affect how the asylum clock runs including the starting, stopping, and restarting of the asylum clock; the one-year asylum application filing deadline (the asylum clock runs, except during applicant-caused delays, until the immigration judge has adjudicated whether the asylum application was filed within 1 year after the date of the applicant’s arrival in the United States); and the rescheduling of hearings. In particular, it clarifies that the asylum clock should not stop in the event of a delay caused by a government attorney or the court, and that immigration judges must indicate on the record the reason for postponing a case.

However, there are still existing unclear problems.  According to Legal Action Center (American Immigration Council)’s Press Release, the organization thinks that EOIR fails to resolve more systemic problems through its new guidance including:

• It does not require the judge to state whether the clock has started or stopped or how many days are on the clock.  In addition, it does nothing to improve the existing review process for applicants who seek to resolve mistakes with their asylum clocks.�
• It reaffirms the policy that the asylum clock will begin to run only when the asylum application is accepted by an immigration judge at an initial hearing, despite the fact that applications can be filed months in advance of an initial hearing.
• It reaffirms the policy that, even after an applicant-caused delay has been resolved, the asylum clock cannot start running until the next scheduled hearing date.  Due to congested court dockets, hearing dates may be months or even years apart.
• It restates they will not start or restart the asylum clock when, after an appeal, a case is sent back to the immigration judge to revisit the asylum claim.  This wrongly prevents asylum applicants from seeking work authorization after a lengthy appeal process and after an initial decision denying asylum has been vacated.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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On November 7, 2011, the USCIS published a policy memorandum regarding the priorities that they will follow in placing certain immigrants in removal proceedings through the Notice to Appear).

This newly issued policy memo provides guidance to USCIS officers on how to initially issue the NTA.  The policy memo states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and re-entry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are categorized as “non-egregious public safety” cases. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.

Also, under this new policy, USCIS will issue NTAs where required by statute or regulation.  For example, such cases include termination of conditional permanent resident status, denials of form I-751 petitions, denials of form I-829 petitions by entrepreneurs to remove conditions, termination of refugee status, denials of NACARA 202 and HRIFA adjustments, referrals of asylum cases to immigration court, and when an asylum applicant withdraws his/her application.  USCIS will also issue an NTA if a Statement of Findings substantiating fraud is part of the record.

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On May 4, 2011, the Board of Immigration Appeals (BIA) set forth a framework for the Immigration Judge to assess the competency of respondents in removal proceedings and remanded the case, finding good cause to believe the respondent was not sufficiently competent to proceed with the hearing.

Respondent in this case came from Jamaica and was removable on the basis of his conviction for two or more crimes involving moral turpitude.  Respondent had been diagnosed with schizophrenia, and indicated that he needed medication. At the individual hearing, the Immigration Judge denied Respondent’s asylum relief and summarized the respondent’s mental health history.  However, Immigration Judge did not make an explicit finding regarding respondent’s mental competency.

The BIA remanded the case to the Immigration Judge for further proceedings because the Board concluded that the respondent lacked sufficient competency to proceed with the hearing. According to the BIA, the record includes several psychiatric reports that diagnose him with mental illness, and during criminal proceedings, the respondent was found to be unfit to proceed with a trial.  More importantly, the BIA set forth a framework for the IJ to assess the competency of respondents in removal proceedings as below:

• Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.
• The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
• If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings.
• If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate appropriate safeguards.
• Immigration Judges must articulate the rationale for their decisions regarding competency issues.

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On April 19, 2011, President Obama hosted a White House Meeting with 70 national leaders—including Mayor Bloomberg, former Governor Arnold Schwarzenegger, among others—to discuss the challenge of fixing our broken immigration system.

According to the press, the President expressed disappointment over Congress’s failure to produce comprehensive immigration reform (CIR), or even components of CIR like the DREAM Act, and enumerated the many problems resulting from our broken system—families torn apart, shipping talent overseas, wage equity and work eligibility issues, etc. In the same meeting, the President also stated that the “Administration continues to improve our legal immigration system, secure our borders, and enhance our immigration enforcement so that it is more effectively and sensibly focusing on criminals.” Many reports, however, argue that administrative reforms thus far have not been ambitious enough, or as effective as the White House claims.

Moreover, the President seems to be pinning all future immigration relief on Congressional action—stating that “the only way to fix what’s broken about our immigration system is through legislative action in Congress.”

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On April 8, 2011, AILA released an update on what would happen to different immigration-related government agencies in case the government shuts down. Please note that if the budgetary issues are not resolved, the government plans to shut down at midnight on April 9. As a consequence, the government claims that all but “essential” government functions are not allowed to work.

USCIS (United States Citizenship and Immigration Service)

The USCIS processes permanent resident, naturalization, and non-immigrant  visa petitions, among others. It is the agency that conducts interviews, reviews applications, and makes decisions on green card and citizenship applications. The USCIS has indicated that in the event of a shutdown, they will continue to operate except for the E-Verify section.

DOS (Department of State)

The DOS deals with most visa and consular processing applications. J-1 waivers and visa petitions for people outside the United States go through them. If a shutdown occurs, only applications related to diplomats and “life or death” situations would continue to function.

CBP (Customs and Border Patrol)

The CBP guards the port of the entries – shipping ports, borders, and airports. They inspect and decide on whether a person gets in the United States, and enforce applicable immigration laws when someone is inadmissible. Inspection and law enforcement personnel are deemed “essential” personnel, but a shutdown will also limit their staff. The ramifications of a shutdown are thus uncertain.

EOIR (Executive Officer for Immigration Review)

The EOIR is the immigration court system. Immigration Courts, judges, clerks, and the Board of Immigration Appeals all fall under this branch. A general warning that “non-essential” personnel would not be allowed to work has been set forth, and that the only aspect of operations that is certain to continue is the detained docket, which is considered an essential function.

DOL (Department of Labor)

The Department of Labor is one of the first agencies involved in employment-based petitions, as they review and make determinations on the Labor Certification process. Personnel would certainly not be available to respond to emails or other inquiries, but it is yet to be determined if the ICERT and PERM functions would shut down.

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He was tired. He just got out of jail a few weeks ago. Ten plus years in the United States. Multiple lawyers, hearings, consultations, all for nothing at that point. He had a dream during that faithful day at the airport in New York, somewhere around 2000, after a month long trip, the itinerary of which was deftly planned by some snakehead, one who instructed him to destroy his passport in the plane prior to landing, which he did.

At customs in the airport, as it was with every foreigner trying to enter the United States, he was inspected and questioned by an officer. He had nothing. Not his real passport, not a fake passport, not a card, no immigration document whatsoever, just as the snakehead instructed him.

A common occurrence in the mid to late nineties on to the turn of the century, he was a Chinese national who was paroled as an arriving alien. Through a myriad network of “travel agencies” and lawyers, he went through what a lot of Chinese individuals went through around that time. Some ended up with brilliant lawyers, eventually winning their asylum cases, leading them to permanent residency and eventual naturalization. The unfortunate some ended up with worse attorneys, who half-heartedly represented their clients with minimum effort and “formula” arguments. He said he fell into the latter group, and he lost his case, even with a BIA appeal filed after, the decision was still sustained. He had a final order of removal.

He moved around New York City, working from restaurant to restaurant, toiling day in and day out to make a living. He eventually met what would later on be his wife. They almost had the same path of coming to the United States, almost the same set of people encountered through this immigration maze, from her entry, to her counsels, to her hearings. Alas they had different results to their asylum cases, unlike her husband, she won.

They eventually got married in New York, and she eventually became a permanent resident, and they eventually had two wonderful kids, and they also moved out of New York City, away from it all, where they’d find peace in raising their kids, or so they thought. They moved to a small suburb of Cleveland in Northeast Ohio. They ran a Chinese restaurant, bringing with them the work ethic that they’ve always had. He still had a final order. As far as he knew he was simply running a reverse race against time. He thought nothing could be done. He had a final order, he thought, and that was it.

He consulted with our firm sometime after he was released from immigration detention on an order of supervision. Immigration knew about him anyway, might as well consult with an attorney even though as far as he was concerned, he was done.

I still remember that day, that hopeless submissive look, that tired recounting of his experience, probably told dozens of times with different people, all with the same conclusion – “There’s nothing we can do, you have a final order”. He did not know the terms. He did not know what an arriving alien was. He went through the basics, his entry, his A number, his denied asylum case, his marriage, his detention, his tiring past. He brought two bags of files, and was adamant in simply dumping all paperwork on our tables, as we sifted through what should be the most important parts of the file.

It didn’t take long, to his surprise. We saw the notice to appear. He was an arriving alien. He destroyed his passport in the plane according to the various documents in his file.

We informed him he can apply for and get his green card.

His reaction was not that of joy, nor excitement, nor of surprise. It was more of a yearning look, a few ticks from begging, more close to hoping. Hoping that this is not a hoax nor a false promise. We could tell he’s been through it all. We were not sure if he believed us due to his past experiences, but we knew he can get it. We could not read his face, a blank look, even a doubting look. So it was to our surprise that within ten minutes he decided to retain our firm for his green card application. To this day we had no idea why he decided to retain us. We still remember that blank look on his face after we told him it’s possible. He probably thought he had nothing to lose. Immigration knows him already. He was just detained recently. Might as well go for it. My last chance.

The whole crux of these cases stem from a complex and sometimes epic tale spanning ten or more years, but fall under a simple premise: Arriving aliens with an unexecuted order of removal who remain in the United States past their final order are eligible to adjust status based on marriage to a U.S. Citizen, and the USCIS has jurisdiction over these applications. He was an arriving alien. He had a final order of removal. He was married in good faith to a U.S. Citizen. No fraud. No criminal record. Case is possible.

It was the usual process on our end since then, preparing the applications and arguments, attaching immigration memorandums on arriving alien eligibility, preparing the client for his interview, and ultimately accompanying our client at his interview.

Finally, after over a decade of toiling in the United States, he received his green card around two weeks later.

It was only then that his reaction could finally be discerned, when that numb expression on his face flew out the door. Ten plus years in the United States, multiple hearings, lawyers, consultations, and finally, he was not tired anymore. He finally has his green card.

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Introduction

People who could not afford to pay the filing fees for certain immigration paperwork can file a fee waiver request. The USCIS developed the new Form I-912, Request for Fee Waiver, in an effort to facilitate the fee-waiver request process. The form has been available to the public since November 23, 2010. Since the use of this form is not mandated by regulations, and was only implemented to actually help potential applicants, the USCIS will continue to consider applicant-generated fee-waiver requests.

Fee-waiver requests are reviewed by considering whether the applicant is receiving a mean-tested benefit, whether the applicant’s household income level renders him or her unable to pay, or whether recent financial hardship otherwise renders him or her unable to pay.

Specific Forms and Conditions

The USCIS may waive fees for the following more popular forms based on an inability to pay

• Biometrics services fee
• I-90, Application to Replace Permanent Resident Card
• I-751, Petition to Remove Conditions on Residence
• I-765, Application for Employment Authorization
• I-821, Application for Temporary Protected Status
• N-400, Application for Naturalization

For I-485 Adjustment of Status applications, the USCIS may waive a fee based on an inability to pay and subject to the conditions specified:

• An Afghan and Iraqi interpreter who has received a Special Immigrant Visa
• A “Registry” applicant filing under section 249 of the INA who has maintained continuous residence in the United States since before January 1, 1972; or
• An applicant who is exempt from the public charge grounds of inadmissibility under section 212(a)(4) of the INA, including but not limited to
  • Applications filed by asylees under section 209(b) of the INA;
  • Applications for Special Immigrant Juveniles
  • Applications under the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act (HRIFA), and the Nicaraguan Adjustment and Central American Relief Act (NACARA), or similar provisions; and
  • Applications filed by Lautenberg Parolees

For I-601 Applications for Waiver of Grounds of Inadmissibility for an applicant who is exempt from the public charge grounds of inadmissibility of section 212(a)(4) of the INA.

Based on an inability to pay, the USCIS may waive any fees associated with the filing of any benefit requested by a VAWA self-petitioner or T-Visa applicant, U visa applicant, battered spouses of an A, G, E-3, or H non-immigrant, battered spouse or child of an LPR or USC, and TPS applicants. This would include filings not otherwise eligible for a fee waiver or eligible only for conditional fee waivers such as Forms I-212, I-485, I539, and I-601.

Steps and Criteria

1. Whether the request is submitted on Form I-912 or in the form of a written statement, the applicant may submit additional documentation to provide proof of his or her inability to pay
2. Is the individual receiving a means-tested benefit? A means tested benefit is a benefit where a person’s eligibility for the benefit, or the amount of the benefit, or both, are determined on the basis of the person’s income and resources, including those that may lawfully be deemed available to the person by the benefit-granting agency. The applicant should provide proof in the form of a letter, notice, or other official document containing the name of the agency granting the benefit.
3. Is the individual’s household income at or below 150% of the Federal Poverty Guidelines at the time of filing? Evidence of current employment , W-2 forms, income tax returns, and other documents evidencing income may be submitted.
4. Is the individual under financial hardship, due to extraordinary expenses or other circumstances that renders the individual unable to pay the fee? Unexpected medical bills is an example of this option.

Decision

After review of the fee-waiver request and supporting documentation, the fee-waiver approval or denial would be recorded in the receipt block of the underlying form for which the applicant is requesting a fee waiver. If it is denied, the applicant receives Form G-1054.

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