The Executive Office for Immigration Review has issued recently an extensive memorandum dealing with issues of employment authorization for immigrants who have applied for asylum in the United States but a decision has not yet been finalized in their cases.
The issue commonly known as "asylum clock" (i.e. calculating the number of days an asylum application has been pending, minus any delays caused by the applicant himself or herself) has had many scratching their heads every since the law changed from making employment authorizations automatic upon filing the application for asylum and instead required that certain number of days elapsed before the immigrant could apply for their work permit.
The problem that many have complained about is that even when the delay is caused through no fault of the applicant, or at the request of DHS (for example to take the time to conduct forensics, or background checks) many Immigration Judges do not enter the code that indicates the clock should continue running. Requests to restart the clock or to recalculate the clock often fall to the clerk of the Immigration Court, who are themselves so swamped by work and often just indicate they cannot do anything either becasue of the code entered on the file (even if the code was erroneously entered). Attempts to deal with this issue on record during a hearing could potentially lead to explosions by the overworked Immigrtaion Judge waiting to go through a pile of files and not in the mood to hear about sich "trivial" things as asylum clocks. The problem is that for applicants, the issue is far from trivial. When applications are sometimes pending months if not years, it is crucial that the applicant be able to secure lawful employment. After all not many asylum applicants are able to flee their country carrying suitcases stashed with cash!
The most recent memorandum is gargantuan in its content as it relates to the rules, exemptions, procedures, etc rekated to the asylum clock. Time will tell if use of the memo by attorneys will persuande the court to at least provide some consistency in the application of the asylum clock. The memo can be found here.
Monday, November 21, 2011
Wednesday, November 9, 2011
US Citizens in Canada renounce US Citizenship
An interesting article in the Globe and Mail, Canada's leading national newspaper, talks about US Citizens there renouncing their citizenship in the wake of an announcement that the IRS will crack down on US Citizens who have not filed their taxes simply because they do not live and work in the US anymore.
Unlike many countries, the United States requires its citizens to file annual tax returns with its Internal Revenue Service regardless of where they live and work. Many of the roughly one million Canadian-American citizens long ago stopped filing, assuming they owed no tax. Many are worried now they’ll be hit with punishing penalties as a result of recent U.S. efforts to prevent its citizens from hiding assets in offshore tax havens.
I have been hearing on the local Los Angeles based persian language radio KIRN 670AM about an amnesty period given by IRS for people who have not reported their offshore accounts and income to come clean with the payment of a penalty fee. This would of course be a very relevant issue for many Iranian-American citizens who hold dual residence and businesses in the US and in their home country. But the article in the Globe and Mail suggests that the US expats there, have taken the radical measure of renouncing their citizenship en masse. Well, maybe "en masse" is an exaggeration. However, the numbers do show a growing trend. According to the Globe, last year, 1,534 Americans renounced their U.S. citizenship – more than twice as many as in 2009 and a sevenfold increase from 2008. In Canada, which is home to more U.S. expats than anywhere else in the world, there are typically fewer than 100 renunciations a year.
And the process is not easy or free either. Aside from a $450 fee, there are back taxes to be filed for at least 5 years, which could mean thousands of dollars depending on your income, and an additional exit tax if your income is within certain brackets. And let's not forget the emotional stress. “I’ve been through a divorce and this is quite similar to a divorce,” explains one of the US Citizens in Canada. “It’s a long, drawn-out process and there’s a lot of emotion that comes with doing what I’ve done. It’s not a fun thing to do, but it’s been forced upon me.”
The Globe article can be found here.
Unlike many countries, the United States requires its citizens to file annual tax returns with its Internal Revenue Service regardless of where they live and work. Many of the roughly one million Canadian-American citizens long ago stopped filing, assuming they owed no tax. Many are worried now they’ll be hit with punishing penalties as a result of recent U.S. efforts to prevent its citizens from hiding assets in offshore tax havens.
I have been hearing on the local Los Angeles based persian language radio KIRN 670AM about an amnesty period given by IRS for people who have not reported their offshore accounts and income to come clean with the payment of a penalty fee. This would of course be a very relevant issue for many Iranian-American citizens who hold dual residence and businesses in the US and in their home country. But the article in the Globe and Mail suggests that the US expats there, have taken the radical measure of renouncing their citizenship en masse. Well, maybe "en masse" is an exaggeration. However, the numbers do show a growing trend. According to the Globe, last year, 1,534 Americans renounced their U.S. citizenship – more than twice as many as in 2009 and a sevenfold increase from 2008. In Canada, which is home to more U.S. expats than anywhere else in the world, there are typically fewer than 100 renunciations a year.
And the process is not easy or free either. Aside from a $450 fee, there are back taxes to be filed for at least 5 years, which could mean thousands of dollars depending on your income, and an additional exit tax if your income is within certain brackets. And let's not forget the emotional stress. “I’ve been through a divorce and this is quite similar to a divorce,” explains one of the US Citizens in Canada. “It’s a long, drawn-out process and there’s a lot of emotion that comes with doing what I’ve done. It’s not a fun thing to do, but it’s been forced upon me.”
The Globe article can be found here.
Tuesday, November 8, 2011
New policy on deportation
On November 7, 2011, the U.S. Citizenship and Immigration Services issued a new policy memo regarding the priority that they will follow to place certain immigrants in removal ("deportation") proceedings .
Although all three branches of the U.S. Department of Homeland Security established under President Bush to replace the U.S. Immigration & Naturalization Service ("INS"), the U.S Citizenship and Immigration Services ("USCIS"), the U.S.Immigration and Customs Enforcement ("ICE") and the U.S. Customs and Border Protection ("CBP") have the authority to issue Notices to Appear in Removal Proceedings ("NTA"), the official document that is used to formally place an immigrant in deportation/removal proceedings, the USCIS traditionally has had less of a role in enforcement of removal, and is known as the agency that grants benefits instead of taking them away.
For example, if you want to obtain your Green Card ("adjutsment of status"), naturalization as a US Citizen, petition for your spouse or parents, and a host of other services, USCIS is the agency that takes care of these types of applications and petitions. But it is true that if any officer notices any issue that may lead them to refer an immigrant for removal proceedings, such as the fact that the immigrant has a criminal history, or has entered the U.S. without any lawful status, they can do so.
In the wake of the earlier policy memo issued under the Obama administration that sought to give some guidance on how to prosecute certain immigrants versus others once they already are in removal proceedings, for example allowing ICE attorneys to agree to jointly terminate removal proceedings in the case of certain immigrant who can demonstrate a host of criteria, this policy memo provides guidance to USCIS officers on how to issue the NTA in the first place. probably, the goal of this new memo is to try to avoid putting immigants in removal proceedings only to have their cases terminated later on in line, and as such, trying to eliminate unnecessary expenses in money and time by restricting the number of NTA that are issued in the first place, basically cutting off the flow at the source. It is noteworthy to repeat, as I mentioned in an earlier blog, that under the Obama administration, a record number of deportations have been completed, about 400,000, which is unprecedented in the history of this country.
The policy memo of November 7 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 reentry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are termed "non egregious public safety" cases, that is cases that do not fall under the above-noted criteria. 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.
I read the memo a couple of times and I am still a bit confused. I am not sure that USCIS officers will be any less confused. It seems to me that it will take even longer for a case to be adjudicated and create even more work on an already overloaded USCIS and ICE. I could imagine officers referring files back and forth to each branch, USCIS, ICE, CBP, each claiming the other had the responsibility of making a decision on the NTA, that it is not their jurisdiction, or not their discretion or whatever, with files piling on top of files until there is no end in sight. A bureaucratic nightmare. The end result will be that in any case it will take much much longer for any NTA to be issued, causing people's legal status to remain in uncertainty that much longer.
The November 7 memo can be found here.
Although all three branches of the U.S. Department of Homeland Security established under President Bush to replace the U.S. Immigration & Naturalization Service ("INS"), the U.S Citizenship and Immigration Services ("USCIS"), the U.S.Immigration and Customs Enforcement ("ICE") and the U.S. Customs and Border Protection ("CBP") have the authority to issue Notices to Appear in Removal Proceedings ("NTA"), the official document that is used to formally place an immigrant in deportation/removal proceedings, the USCIS traditionally has had less of a role in enforcement of removal, and is known as the agency that grants benefits instead of taking them away.
For example, if you want to obtain your Green Card ("adjutsment of status"), naturalization as a US Citizen, petition for your spouse or parents, and a host of other services, USCIS is the agency that takes care of these types of applications and petitions. But it is true that if any officer notices any issue that may lead them to refer an immigrant for removal proceedings, such as the fact that the immigrant has a criminal history, or has entered the U.S. without any lawful status, they can do so.
In the wake of the earlier policy memo issued under the Obama administration that sought to give some guidance on how to prosecute certain immigrants versus others once they already are in removal proceedings, for example allowing ICE attorneys to agree to jointly terminate removal proceedings in the case of certain immigrant who can demonstrate a host of criteria, this policy memo provides guidance to USCIS officers on how to issue the NTA in the first place. probably, the goal of this new memo is to try to avoid putting immigants in removal proceedings only to have their cases terminated later on in line, and as such, trying to eliminate unnecessary expenses in money and time by restricting the number of NTA that are issued in the first place, basically cutting off the flow at the source. It is noteworthy to repeat, as I mentioned in an earlier blog, that under the Obama administration, a record number of deportations have been completed, about 400,000, which is unprecedented in the history of this country.
The policy memo of November 7 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 reentry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are termed "non egregious public safety" cases, that is cases that do not fall under the above-noted criteria. 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.
I read the memo a couple of times and I am still a bit confused. I am not sure that USCIS officers will be any less confused. It seems to me that it will take even longer for a case to be adjudicated and create even more work on an already overloaded USCIS and ICE. I could imagine officers referring files back and forth to each branch, USCIS, ICE, CBP, each claiming the other had the responsibility of making a decision on the NTA, that it is not their jurisdiction, or not their discretion or whatever, with files piling on top of files until there is no end in sight. A bureaucratic nightmare. The end result will be that in any case it will take much much longer for any NTA to be issued, causing people's legal status to remain in uncertainty that much longer.
The November 7 memo can be found here.
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