On Friday, June 15, 2012, President Obama delivered a speech in the Rose Garden outlining a plan to defer removal ("deportation") and grant temporary protected status for certain young immigrants who have been brought to the U.S.A. without any valid visas or lawful status, through no fault of their own, when they were minors, either by their parents or family members or the infamous "coyotes."
"They are Americans in their hearts, in their minds," He explained. However, he went on to emphasize that his executive order would not provide them with a path to citizenship nor is it an "amnesty."
There were definitely hints that the President was planning something when, on November 7, 2011, the Department of Homeland Security announced that they would follow a new policy of providing prosecutorial discretion i.e. to cease actively pursuing removal proceedings for certain young immigrants who met a number of criteria. I wrote about it in details in this blog last year.
In practice, I, along with many other immigration attorneys practicing before the Los Angeles Immigration Court, have experienced first hand this policy, which allowed many clients to have their removal proceedings terminated. Some were allowed to pursue adjustment of status ("Green Card") if they had a valid, approved petition filed by their family members and others were allowed to renew their work permit based on a pending application. In July 2012, the Los Angeles Immigration Court will be closed for an extended "holiday" which is really to allow the attorneys for Immigration and Customs Enforcement to review hundreds of alien files for prosecutorial discretion.
As it stands now, no one can apply yet under President Obama's Deferred Action. The USCIS has until August 15 to create a process to accept these appliations and has advised the public to just keep checking their website (www.uscis.gov) for further updates. It would be wise for immigration attorneys in private practice however in the meantime to also conduct a review of their client files and prepare all existing and potential clients to start gathering documentation that meets the criteria enunciated so far for Deferred Action. These can be found on the USCIS website as well. I will summarize them below:
1) The applicant must have come to the United states when he/she was UNDER the age of sixteen
This is a bit difficult to prove if there is no passport stamp, visa or any official documentation regarding the date of entry. However, secondary sources of evidence have been accepted customarily by the USCIS to demonstrate date of entry including sworn affidavits, airline tickets, bus tickets, or previous applications filed with the immigration authorities in which the date of entry of the applicant has been declared under oath.
2) The applicant must have continuously resided in the United States for at least 5 years preceding the President's June 15, 2012 executive order and has to be present in the United States on June 15, 2012.
The USCIS typically accepts school records, medical records, church records, employment records, sworn affidavits etc to establish continuous residence in the United States.
3) The applicant must be currently in school, have graduated from high school, have obtained GED, or be an honorably discharged veteran.
There were some discussions among immigration attorneys that the best advice to give for high school dropouts is to re-enroll or at least obtain your GED at this time. A wise piece of advice regardless of immigration status, no doubt.
4) The applicant must not be convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.
Of course, all applicants will be fingerprinted before getting any type of deferred action or other benefit, as is the custom with all immigration applications. A potential applicant could at this time go ahead and submit their fingerprints to FBi and the local law enforcement agency (in California, it would be by submitting a Livescan request at any of the many facilities designated by the California Attorney General) to obtain proof of a "clean" criminal record or at the very least check beforehand there are no errors or unfinished business so as to rectify said errors as soon as possible. There has been much discussion among immigration attorneys as to what would constitute "significant" misdemeanor or how many misdemeanor would qualify as "multiple" (more than 1? more than 2 ?) I am sure there will be more clarity once USCIIS publishes their regulations or on the other hand, this might become the type of issue that gets litigated on appeal to the AAO or BIA for a more detailed definition of what the words "significant" and "multiple" mean in this context.
5) The applicant must not be above the age of thirty.
The consensus among colleagues was that you would still be eligible as long as you applied before your 31st birthday. We have to wait for USCIS regulations on this matter also.
For now, USCIS has answered some FAQs on their website, including the fact that deferred action will be granted in increments of 2 years, to be renewed, and they may be granted employment authorization. Of course, this is assuming that whoever the next President of the United States is does not renege on this executive order.
Friday, June 29, 2012
Thursday, April 5, 2012
New USCIS 5-day Procedure to correct mistakes
U.S. Citizenship and Immigration Services (USCIS) has established an expedited process for reviewing and correcting decisions resulting from certain administrative errors. This process enables customers to request an expedited review of their case and correction of the decision where data entry and/or an administrative error resulted in a denial or rejection of their petition or application.
A customer or his or her authorized representative may contact the National Customer Service Center (NCSC) at 1-800-375-5283 to request that an expedited service request be created if he or she believes that an adverse adjudicative action fits within certain enumerated criteria.
I am actually very happy to hear this news. The process of correcting a mistake on an application, that has been made through no fault of the applicant but is simply an admin error, has been excruciating. You are faced with the option of wasting hours at the USCIS office to file your motion to reopen with an officer who was not the one who handled the case and knows nothing about it or spending enormous filing fees filing the motion to reopen through mail and then waiting months on end for a decision.
These things happen pretty often for example the USCIS will forget to send out a Request for Evidence or they send it to the wrong address and then the case is denied(and all the non refundable filing fees along with it). With this new procedure, USCIS is promising to resolve the matter within 5 business days by merely placing a call to the 1-800 National Customer Service Hotline. I had a few disappinting experiences with this hotline when it first was provided but recently I made an inquiry and i was able to obtain an answer pretty quickly so they must have worked out the kinks in the system.
More information about this new expedited 5 day procedure is available here.
A customer or his or her authorized representative may contact the National Customer Service Center (NCSC) at 1-800-375-5283 to request that an expedited service request be created if he or she believes that an adverse adjudicative action fits within certain enumerated criteria.
I am actually very happy to hear this news. The process of correcting a mistake on an application, that has been made through no fault of the applicant but is simply an admin error, has been excruciating. You are faced with the option of wasting hours at the USCIS office to file your motion to reopen with an officer who was not the one who handled the case and knows nothing about it or spending enormous filing fees filing the motion to reopen through mail and then waiting months on end for a decision.
These things happen pretty often for example the USCIS will forget to send out a Request for Evidence or they send it to the wrong address and then the case is denied(and all the non refundable filing fees along with it). With this new procedure, USCIS is promising to resolve the matter within 5 business days by merely placing a call to the 1-800 National Customer Service Hotline. I had a few disappinting experiences with this hotline when it first was provided but recently I made an inquiry and i was able to obtain an answer pretty quickly so they must have worked out the kinks in the system.
More information about this new expedited 5 day procedure is available here.
Thursday, March 29, 2012
Temporary Protected Status for Syria
Due to the violent upheaval and deteriorating situation in the Syrian Arab Republic (Syria), U.S. Citizenship and Immigration Services (USCIS) announced today that eligible Syrian nationals (and persons without nationality who last habitually resided in Syria) in the United States may apply for Temporary Protected Status (TPS).
The TPS designation for Syria is effective today and will remain in effect through September 30, 2013. The designation means that eligible Syrian nationals will not be removed ("deported") from the United States, and may request employment authorization ("work permit"). The 180-day TPS registration period begins today and ends on September 25, 2012. Although the Federal Register notice erroneously states that TPS applications must be filed March 29, 2012 through September 30, 2013, USCIS will only accept applications filed through September 25, 2012. They have made mistakes in stating filing deadlines before, most recently for the El Salvador TPS that ended March 12, 2012 but was initially incorrectly stated to end March 9, 2012.
To be eligible for TPS, Syrians must meet all individual requirements for TPS, including demonstrating that they have continually resided and been continually physically present in the United States since March 29, 2012. All individuals who apply for TPS will undergo a thorough security check. The USCIS website states that "Individuals with criminal records or who pose a threat to national security are not eligible for TPS and their applications will be denied." That is a bit exaggerated. TPS applicants are ineligible if they have been convicted of 2 or more misdemeanors or 1 felony. So a conviction for 1 misdemeanor although it would constitute a criminal records does not bar eligibility for TPS.
Syria joins El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan as countries currently designated for TPS. The Department of State did not designate Japan for TPS even though it underwent that horrific earthquake/tsunami/nuclear meltdown.
Details and procedures for applying for TPS are provided in the Federal Register notice published today and are available at www.uscis.gov/tps.
The TPS designation for Syria is effective today and will remain in effect through September 30, 2013. The designation means that eligible Syrian nationals will not be removed ("deported") from the United States, and may request employment authorization ("work permit"). The 180-day TPS registration period begins today and ends on September 25, 2012. Although the Federal Register notice erroneously states that TPS applications must be filed March 29, 2012 through September 30, 2013, USCIS will only accept applications filed through September 25, 2012. They have made mistakes in stating filing deadlines before, most recently for the El Salvador TPS that ended March 12, 2012 but was initially incorrectly stated to end March 9, 2012.
To be eligible for TPS, Syrians must meet all individual requirements for TPS, including demonstrating that they have continually resided and been continually physically present in the United States since March 29, 2012. All individuals who apply for TPS will undergo a thorough security check. The USCIS website states that "Individuals with criminal records or who pose a threat to national security are not eligible for TPS and their applications will be denied." That is a bit exaggerated. TPS applicants are ineligible if they have been convicted of 2 or more misdemeanors or 1 felony. So a conviction for 1 misdemeanor although it would constitute a criminal records does not bar eligibility for TPS.
Syria joins El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan as countries currently designated for TPS. The Department of State did not designate Japan for TPS even though it underwent that horrific earthquake/tsunami/nuclear meltdown.
Details and procedures for applying for TPS are provided in the Federal Register notice published today and are available at www.uscis.gov/tps.
Friday, February 10, 2012
Mam Mayan asylum
An interesting decision from the US Court of Appeals for the Ninth Circuit recently. Goes to show that when you are an immigration attorney, dealing every day with so many different nations, and so many different cultures, ethnicities and religious sub groups within those nations, and especially when dealing with asylum claims, you have to also be a historian, anthropologist, therapist etc.
In the case of Mendoza-Pablo v Holder, decided on February 7, 2012, the US Court of Appeals for the Ninth Circuit granted a petition by a member of the Mam Mayan group, an indigenous ethnic group whose members live predominantly in Guatemala and who were largely persecuted during Guatemala's horrendous civil war. I actually have handled asylum applications from Guatemala but have never heard about Mam Mayans until today.
The facts of the case are very compelling but hardly, in my humble opinion, would qualify him under the strict legal standards for asylum. After all, Mendoza Pablo applied for asylum two decades after the events that could otherwise qualify him for asylum occurred and in the meantime he had lived in Mexico for the majority of his life, bringing into issue the question of firm resettlement.
In short, at some point in 1982, when Mendoza-Pablo’s mother was eight months pregnant with him, Guatemalan government soldiers burned their village to the ground, massacring many of the village’s inhabitants in the process. Though Mendoza-Pablo’s immediate family, along with some other villagers, escaped the attack by hiding in the mountains, his paternal grandparents and two aunts were killed when government soldiers locked them in their homes and burned them alive. Outside observers have estimated that “[i]n Todos Santos (the town) sixty to eighty people were killed in 1981-1982” and “[t]he army also burned an estimated 150 or more houses.
Very shortly thereafter, Mendoza-Pablo was born, several weeks premature. Food was scarce in the mountains and Mendoza-Pablo’s mother, unable to breast feed, sought to nourish him with tea made from wild herbs. He became severely maknurished as a result. When he was roughly three months old, Mendoza-Pablo’s family decided that, in light of the foregoing events, remaining in Guatemala posed a danger to their lives. Accordingly, the family traveled to Mexico, where, however, they did not have lawful status, as a result of which Mendoza-Pablo was unable to attend school and had difficulty obtaining employment. In addition,Mendoza-Pablo was often sick and frequently had nightmares.
When Mendoza Pablo was 20 years old, he made his way to the United States and applied for asylum.
Four problems here as I mentioned. Firm resettlement in Mexico, the fact that the events occurred more than twenty years before, third, and that country conditions have vastly changed in Guatemala i.e. no more civil war. fourth Pablo Mendoza did not submit any psychological evaluation or expert witness to prove his point that the initial events in Guatemala had such long term effects on his psyche as to constitute almosta type of second hand persecution throughout the remainder of his life, then exacerbated by further deprivations in Mexico due to his family's flight there.
So how did the Court manage to find for him? As the Court succintly put it: "This case requires us to determine whether Mendoza-Pablo’s early deprivations growing directly out of the unquestionable persecution of his mother and, more generally, his and his parents’s fear of further persecution growing directly out of the Guatemalan government’s across-the-board persecution of Mayans, constitutes persecution under the INA."
Incredibly, the Court just bypassed the matter of the the lack of psych report or expert witness, stating that "While the precise long-term effect of these circumstances on Mendoza-Pablo’s physical and mental development may
well be impossible to determine, it would fly in the face of common
experience not to recognize the likelihood that these deprivations would have some deleterious and long-lasting effects." Based on this "common experience" approach, the Court went on to conclude that where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA."
I think this case is important for several reasons. First for reaffirming that children and infants can be victims of persecution even though they may not have recollection of the events. Secondly, there are a lot of cases where the parents flee to the US with children in tow and they include them in their asylum application. For a lot of Guatemalans and Salvadorans in particular who fled their country because of the blood baths of their civil wars during the 80s, their applications remained pending in a sort of nightmare administrative limbo for several years, if not decades, because of a combination of an overworked INS that let cases linger in dark cobwebby worners of their offices, some class lawsuits and subsequnt settlements against the INS for not properly adjudicating the existing applications for relief for nationals of those countries, and other factors. The result being that I have had several recent cases where those children have now grown up to be over 21, and for one reason or another, are no longer protected under the Child Status Protection Act and they are now left with the option of filing an asylum application on their own without having any recollection of what made their parents flee in the first place. This case and other recent ones by the Ninth Circuit and other Circuits may pave the way for these children to succeed on their claim of asylum based on the persecution suffered by their parents decades before, if they can show lingering effects from that persecution that has affected their lives in such a way as to qualify as persecution.
Very interesting case that kind of went through unnoticed by the legal community but that I think we can all use to advocate on behalf of our clients whom previously we thought had no chance of succeeding on their own asylum applications. The link to the entire decision can be found here.
In the case of Mendoza-Pablo v Holder, decided on February 7, 2012, the US Court of Appeals for the Ninth Circuit granted a petition by a member of the Mam Mayan group, an indigenous ethnic group whose members live predominantly in Guatemala and who were largely persecuted during Guatemala's horrendous civil war. I actually have handled asylum applications from Guatemala but have never heard about Mam Mayans until today.
The facts of the case are very compelling but hardly, in my humble opinion, would qualify him under the strict legal standards for asylum. After all, Mendoza Pablo applied for asylum two decades after the events that could otherwise qualify him for asylum occurred and in the meantime he had lived in Mexico for the majority of his life, bringing into issue the question of firm resettlement.
In short, at some point in 1982, when Mendoza-Pablo’s mother was eight months pregnant with him, Guatemalan government soldiers burned their village to the ground, massacring many of the village’s inhabitants in the process. Though Mendoza-Pablo’s immediate family, along with some other villagers, escaped the attack by hiding in the mountains, his paternal grandparents and two aunts were killed when government soldiers locked them in their homes and burned them alive. Outside observers have estimated that “[i]n Todos Santos (the town) sixty to eighty people were killed in 1981-1982” and “[t]he army also burned an estimated 150 or more houses.
Very shortly thereafter, Mendoza-Pablo was born, several weeks premature. Food was scarce in the mountains and Mendoza-Pablo’s mother, unable to breast feed, sought to nourish him with tea made from wild herbs. He became severely maknurished as a result. When he was roughly three months old, Mendoza-Pablo’s family decided that, in light of the foregoing events, remaining in Guatemala posed a danger to their lives. Accordingly, the family traveled to Mexico, where, however, they did not have lawful status, as a result of which Mendoza-Pablo was unable to attend school and had difficulty obtaining employment. In addition,Mendoza-Pablo was often sick and frequently had nightmares.
When Mendoza Pablo was 20 years old, he made his way to the United States and applied for asylum.
Four problems here as I mentioned. Firm resettlement in Mexico, the fact that the events occurred more than twenty years before, third, and that country conditions have vastly changed in Guatemala i.e. no more civil war. fourth Pablo Mendoza did not submit any psychological evaluation or expert witness to prove his point that the initial events in Guatemala had such long term effects on his psyche as to constitute almosta type of second hand persecution throughout the remainder of his life, then exacerbated by further deprivations in Mexico due to his family's flight there.
So how did the Court manage to find for him? As the Court succintly put it: "This case requires us to determine whether Mendoza-Pablo’s early deprivations growing directly out of the unquestionable persecution of his mother and, more generally, his and his parents’s fear of further persecution growing directly out of the Guatemalan government’s across-the-board persecution of Mayans, constitutes persecution under the INA."
Incredibly, the Court just bypassed the matter of the the lack of psych report or expert witness, stating that "While the precise long-term effect of these circumstances on Mendoza-Pablo’s physical and mental development may
well be impossible to determine, it would fly in the face of common
experience not to recognize the likelihood that these deprivations would have some deleterious and long-lasting effects." Based on this "common experience" approach, the Court went on to conclude that where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA."
I think this case is important for several reasons. First for reaffirming that children and infants can be victims of persecution even though they may not have recollection of the events. Secondly, there are a lot of cases where the parents flee to the US with children in tow and they include them in their asylum application. For a lot of Guatemalans and Salvadorans in particular who fled their country because of the blood baths of their civil wars during the 80s, their applications remained pending in a sort of nightmare administrative limbo for several years, if not decades, because of a combination of an overworked INS that let cases linger in dark cobwebby worners of their offices, some class lawsuits and subsequnt settlements against the INS for not properly adjudicating the existing applications for relief for nationals of those countries, and other factors. The result being that I have had several recent cases where those children have now grown up to be over 21, and for one reason or another, are no longer protected under the Child Status Protection Act and they are now left with the option of filing an asylum application on their own without having any recollection of what made their parents flee in the first place. This case and other recent ones by the Ninth Circuit and other Circuits may pave the way for these children to succeed on their claim of asylum based on the persecution suffered by their parents decades before, if they can show lingering effects from that persecution that has affected their lives in such a way as to qualify as persecution.
Very interesting case that kind of went through unnoticed by the legal community but that I think we can all use to advocate on behalf of our clients whom previously we thought had no chance of succeeding on their own asylum applications. The link to the entire decision can be found here.
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