2014 Ombudsman Annual Report

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The 2014 Ombudsman Annual Report, released by USCIS, indicated that the Request for Evidence rates for the L-1 intracompany transferee visa category is nearly 50 percent for the first half of the 2014 Fiscal Year.  This indicates a significant rise in the Request for Evidence rates for L-1 visas in recent years.  Despite this increase in Requests for Evidence the report also indicates that USCIS has approved more than 83% of the L-1A visa petitions, and more than 67% of the L-1B visa petitions.

The report holds that the high number of Requests for Evidence could indicate that USCIS needs to better articulate what requirements must be satisfied with respect to the L-1 visas.  Until these requirements are amended employers should expect  and be prepared to submit a substantial amount of documents for all L-1 petitions and for overall delays in the adjudication process

Read the Full Report Here:  http://www.dhs.gov/sites/default/files/publications/cisomb-annual-report-2014-508compliant.pd

New Case Law: If Conditional Permanent Residents are Eligible for 212(h) Waivers

Matter of KA

On September 17, 2014 the BIA held in Matter of Ka A. Paek that an alien who was admitted to the United States as a conditional permanent resident is considered lawfully admitted for permanent residence and is barred from establishing eligibility for a waiver of inadmissibility if he or she is later convicted of an aggravated felony.

In 1991 the respondent, a native and citizen of South Korea, was admitted to the United States as a conditional permanent resident by being the spouse of a United States citizen.  Subsequent to his admission as a conditional permanent resident, in 2005 and 2006 he was convicted of a theft and a robbery offense and removal proceedings were initiated.  At his hearing before the Immigration Judge the respondent applied for adjustment of status based on his marriage to a United States citizen and also sought for a waiver of inadmissibility under 212(h) of the INA because of his convictions in 2005 and 2006.  At the hearing the Immigration Judge held that the respondent had been convicted of an aggravated felony after his admission and was therefore barred from eligibility for a 212(h) waiver.

Section 212(h) of the INA provides for a discretionary waiver of some of the crime related inadmissibility grounds.  A 212(h) waiver will waive the inadmissibility grounds relating to:  (1) crimes involving moral turpitude; (2) engaging in prostitution; (3) a single conviction for simple possession or being under the influence of 30 grams or less of marijuana, or an equivalent amount of hashish; (4) a conviction of two or more offenses with an aggregate sentence imposed of at least five years that took place more than 15 years before the current application with proof that the applicant is rehabilitated or (5) asserting immunity against prosecution of a serious crime.

However, Section 212(h) includes a provision known as the Aggravated Felony Bar.  The Aggravated Felony Bar confirms that no waiver shall be granted to an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if since the date of the admission the alien has been convicted of an aggravated felony.

Thus, in this case the BIA was faced with the question of whether the Aggravated Felony Bar applies to the respondent, who was admitted into the United States as a conditional permanent resident.  Since the INA only states that the Aggravated Felony Bar is applicable to aliens lawfully admitted for permanent residence, the BIA had to determine whether an alien who is admitted as a conditional permanent resident is equivalent in meaning to an alien who is admitted for permanent residence.

As previously mentioned, the Immigration Judge held that the Aggravated Felony Bar applied to the respondent and thus indirectly holding that aliens who are admitted as a conditional permanent resident are also considered lawfully admitted for permanent residence.  The BIA agreed with this determination by analyzing whether admission of a conditional permanent resident as described under Section 216(a) is encompassed within the phrase lawfully admitted for permanent residence as described under Section 214(h).  The BIA noted that the plain language of a number of provisions in Section 216 clearly establishes that an alien admitted as a conditional permanent resident is in fact lawfully admitted for permanent residence.

Specifically, Section 216(a)(1) states that “an alien spouse… and an alien son or daughter… shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis….”  The BIA ultimately determined that the language of a number of provisions in Section 216 make it clear that permanent resident status is obtained on the date of an alien’s initial admission as a conditional permanent resident.  Thus while an alien may be admitted to the United States under Section 216 on a conditional basis, such admission is an admission as an alien lawfully admitted for permanent residence.

Therefore because the respondent was admitted to the United States in 1991 as a conditional permanent resident he was admitted as an alien lawfully admitted for permanent residence, thus the Immigration Judge properly determined that the respondent is subject to the Aggravated Felony Bar and is ineligible for a 212(h) waiver.

Recognizing Asylum Claims Based on Domestic Violence

Domestic Violence

In Matter of A-R-C-G-, the BIA recently found that “married women in Guatemala who are unable to leave their relationship” may constitute as a particular social group.  This is a landmark decision that will better assist in allowing women who have experienced domestic violence to achieve asylum in the United States.

The respondent is a mother of three and a native citizen of Guatemala. She entered the United States without inspection on December 25, 2005 and soon thereafter filed an application for asylum and withholding of removal.  The respondent fled Guatemala after suffering serious abuse at the hands of her husband for nearly a decade.  The abuse included weekly beatings resulting in broken bones, burnings, verbal threats, and rape.  The respondent repeatedly contacted the police who refused to assist her saying that they would not interfere in a marital relationship.  On one occasion the police came to her home after she had been beaten but her husband was not arrested.  After more than a decade of abuse the respondent fled for the United States.

The case was appealed to the BIA after an Immigration Judge found that while the respondent was credible, she did not demonstrate that she had suffered past persecution or had a well-founded fear of future persecution on account of her particular social group comprised of “married women in Guatemala who are unable to leave their relationship.” And that the respondent’s abuse was the result of criminal acts perpetrated arbitrarily rather than persecution.

The BIA first analyzed whether the respondent’s claimed group of “married women in Guatemala who are unable to leave their relationship” constituted a particular social group.  An applicant seeking asylum based on his or her membership in a particular social group must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.  The BIA declared that the respondent’s proposed group met all of the three requirements, but emphasized that whether a social group exists in any given case is a case-by-case analysis heavily dependent on the facts, evidence, and, documented country conditions.

First, “married women in Guatemala who are unable to leave their relationship” is composed of members who share the common immutable characteristic of gender.  Additionally, it was noted that marital status can also be an immutable characteristic where the individual is unable to leave the relationship.  Second, the proposed social group is defined with sufficient particularity as the terms used – ‘married,’ ‘women,’ and ‘unable to leave the relationship’ – have commonly accepted definitions within Guatemalan society based on societal expectations about gender and subordination as well as the police’s refusal to involve themselves with marital and domestic affairs.  Lastly, the proposed group is socially distinct within Guatemalan society as unrebuttable evidence was produced through country reports and official documents that establish Guatemala’s culture of ‘machismo and family violence.’  The evidence used to support these notions included State Department Country Reports as well as independent human rights reports concerning violence against women in Guatemala.

The BIA ultimately held that the harm experienced by the respondent rose to the level of past persecution, that “married women in Guatemala who are unable to leave their relationship” constituted a valid particular social group, and that there is adequate nexus between the abuse suffered and the particular social group.  The case was then remanded back to the Immigration Judge to address the respondent’s statutory eligibility for asylum in light of this decision, specifically focusing on whether the respondent adequately demonstrated that the Guatemalan Government was unwilling or unable to control the ‘private’ actor, or her husband.

That the BIA held that women fleeing domestic violence may constitute a particular social group is a step in a right direction to protect women fleeing repugnant violence at the hands of their spouse.  While many lawyers have argued that gender and gender related groups may constitute a particular social group, until now the BIA has not issued clear precedent on the issue nor recognized a protected group that primarily includes women.  However, the BIA expressly emphasized that whether a particular social group exists in a specific case relies extensively on the facts and evidence of each individual case.  It further stated that the use of documented country conditions, law enforcement statistics, expert witnesses, and other reliable and credible sources of information may be used to prove the existence of a particular social group.  The implications of this decision will undoubtedly positively impact women in immigration proceedings who are relying on domestic-violence asylum claims.

The Unfortunate Realities of the U.S. Immigration Courts

Immigration CourtsMost of the general public is not aware of the way in which immigration courts function in the United States.  With all the discussion in the media concerning undocumented child migrants and increased deportations, the realities of the current immigration court system should be more publicized.  According to the National Association of Immigration Judges (NAIJ) there are presently 227 field judges across the nation taking on a docket of more than 375 thousand cases!  Even for those that do not know much about the immigration court system, these figures are striking and suggest an unmanageable reality.

The immigration court system is underfunded and under-staffed creating severe backlog and ultimately calling the entire process into question.  There is pressure on local judges to move through cases quickly, at times hearing more than 50 cases a day.  If appropriate and adequate attention is not being given to the respondents, how can we have faith in our decision-makers?  Unfortunately, only more problems are emerging as decisions are appealed.  The lack of due process at the lower immigration courts produces the crisis at the federal level.

Substantial changes must be implemented in order to remedy the current crisis facing the nation’s immigration court system.  Immigration Judge Marks remarked, “We deal with cases that are, in effect, death penalty cases.  Some of the defendants may be killed if they’re returned to their home countries.”  This realization is striking and if more people were made aware, perhaps more attention would be given in support of meaningful immigration reform and concerted action.

The United States immigration courts have placed the burden of proof on the accused.  This means that these immigrants are guilty of illegally entering the country until proven innocent.  Their lack of financial access to an attorney, lack of understanding of the English language and the young ages of these juveniles do not matter; they are still subject to this system.

More funding must be directed to immigration courts in order to ensure a more reasonable system.  Unfortunately, recent news reports cite Congress as ignoring the Obama administration’s request to accelerate spending on immigration courts.  His request was made with particular attention given to the high rates of unaccompanied minors at the border.  These cases have been put on a fast track for adjudication since they are children.  This does not take into account all the pending cases that have been placed on the back burner due to understaffing and the ill-equipped court system.  Congress has increased spending for Border Patrol agents and detention centers, disregarding the need of immigration judges and the back log of cases climbing to 400,000.

 

 

4th Circuit Grants Review on Asylum Regarding MS-13 and Mara 18

4TH cIRCUIT

In a reversal of the Board of Immigration Appeals, the Fourth Circuit Court of Appeals remanded on July 18th, 2014, a case in which an asylum applicant seeks to remain in the United States on the basis of his kinship tie to a member of the Mara 18 street gang in El Salvador.

Wildon Manfredo Aquino Cordova sought withholding of removal from the US based on his kinship tie to a member of Mara 18, a street gang that has a contentious rivalry with the notorious MS-13 street gang. Aquino’s cousin, Jorge Vidal, joined Mara 18 under duress in 2010, and he became a target for MS-13. Despite refusing to join either Mara 18 or MS-13, Aquino faced repeated attacks, threats, and pressures from both MS-13 and Mara 18 members because of his cousin’s associations. To escape this persecution, Aquino fled El Salvador; since his departure, his cousin, Vidal, has since been killed by MS-13 gang members, as has his uncle. Fearing for his life, Aquino entered the US without inspection in July 2010, and he applied for asylum based on his membership in “a particular social group,” i.e., his kinship to a Mara 18 gang member.

The immigration judge and BIA both rejected this classification, finding that evidence of his abuse, his cousin’s death, and country conditions involving MS-13 and Mara 18 concerned “general conditions of upheaval and unrest associated with gang violence.” When defining the particular social group to which Aquino belonged, they classified him as “a person who is from El Salvador who came to the United States, returned to El Salvador and had problems with a gang, and the police did not help.” This analysis neglected to consider the importance of Aquino’s kinship to a gang member, despite established precedent affirming that family ties may form the basis for membership in a “particular social group” as required for a grant of asylum.  The BIA’s justification for denying asylum on this basis concluded that although the deaths of his uncle and cousin are “relevant to his case,” Aquino had not met the burden of showing that MS-13 “uniquely or specially targeted” his family. This logic argued that because his uncle and cousin were not targeted because of kinship ties, therefore Aquino had not been targeted because of kinship ties.

The Fourth Circuit rejected the BIA’s classification, holding that although Aquino’s uncle and cousin were not targeted because of their kinship ties, this did not invalidate Aquino’s own asylum claim based on his kinship ties. The Fourth Circuit remanded the case to the BIA to reconsider whether Aquino’s own kinship ties formed a proper basis for asylum and withholding of removal. The Court noted also that the strength of Aquino’s claim, while drawing support from his kinship with a targeted gang member, was most grounded in the actual and severe abuse he himself suffered, not on that suffered by his family.

This decision creates an interesting precedent for the millions of individuals in Latin America with kinship ties to MS-13, Mara 18, and other criminal gangs. Previous cases extended asylum to those directly involved with or persecuted by criminal gangs, but this case may mark a shift toward extending the same consideration to those who have a familial relationship with someone targeted by gangs. As hundreds of thousands of immigrants flee northward to escape escalating violence and insecurity in Central and South America, this case offers hope to some, at least, that their efforts to receive a grant of asylum may be slightly more tenable than before.

Read the Case at:  http://www.ca4.uscourts.gov/Opinions/Published/131597.P.pdf

 

Immigration Friendly Attitudes at the Local Level in Cities

Around the country, many cities are embracing immigrants new to their communities and promoting integration.  The oftentimes-negative rhetoric concerning immigration policy relating to  the inaction of Congress does not necessarily influence the immigration-friendly attitudes at the local level. These newcomers are indeed adapting and becoming consumers, business owners, homeowners, etc. and contributing their purchasing power, which is helping the local economies grow.

Cities with more favorable outlooks towards immigration include Ohio cities of Cincinnati, Springfield, Dayton and Columbus as well as big city centers like Chicago, Baltimore, St. Louis and Atlanta.  In Cincinnati for example, Mayor Cranley proclaimed, “This is a country of immigrants, and this is a place where immigration is rewarded and thanked.”  This is the sentiment of the “melting pot” that so many value about the United States.  Cincinnati’s task force is concentrating on the following:  economic development, community resources, education and talent retention, international relationships, and rights and safety.

The favorable outlook towards immigration at the local level is not simply out of a sense of goodwill; local leaders are seeing the economic and developmental value immigrants have for their communities.  The more welcoming approach shared by some American cities should serve as an example towards redefining our national public policy.

But is it easier to promote these values of integration at a local level where the issue of national security may not necessarily be felt as strongly?  The realities of local communities and the public policy of a nation may have drastically different concerns to confront.  Yet what is important to note in these immigration friendly cities, is that action is being taken.  Community leaders are taking in migrants, celebrating different cultures and integrating them into their constituency.  As we wait for immigration reform to become a reality, these communities are at least offering a welcoming atmosphere.

In addition to the economic development achieved in more inclusive communities, local leaders are recognizing the importance of offering a welcoming atmosphere to unaccompanied migrants.  Many see this as a basic duty in a nation seeking to promote civil and human rights.   These unaccompanied child migrants are fleeing devastating circumstances in their home countries to make the treacherous journey to the unknown, which they can only hope will offer them peace and security.  As these children wait for their cases to be adjudicated, they are left vulnerable.  Local leaders are responding to their constituents who want these unaccompanied minors welcomed and cared for.  They seek to provide these basic rights as best as they can to the migrants while Congress continues to stall at improving a flawed immigration system.

We need to recognize that immigration is beneficial to the country as a whole, and enriches the nation’s cultural identity, grows the economy and ensures global competitiveness. These local governments are realizing that they don’t have to wait on Congress to start policies that promote an inclusive culture and community.  While we wait on comprehensive immigration reform, the strides being made across the nation at the local level to benefit the economy cannot be ignored and should be applauded.

Immigration as Primary National Security Concern or Should Humanitarian Concerns Prevail?

Helena's FirstA recent Rasmussen Report showed that U.S. voters rate the current immigration crisis as a greater national security problem than Russia and the situation in Gaza with Palestinians and Israelis.  Thirty-seven percent (37%) of likely U.S. voters saw immigration as the primary concern, thirty-one percent (31%) for Russia and twenty-three percent (23%) for Gaza.

All three issues are at critical points of concern on the global scale currently.  The renewed fighting in Gaza has brought much attention to a conflict some had forgotten and others never fully understood.  Now, social media and a younger generation of the U.S. population are getting involved and bringing awareness to the injustices.  The annexation of Crimea in March and Putin’s current support for rebels in Eastern Ukraine have severely called into question any lasting alliance with Russia.  Russia had been a strategic partner; key to resolving conflicts in Iran, Syria and other critical conflict areas so the United States needs to evaluate how it will manage in the long-term without this working relationship.

But what does it mean to have immigration at the top of our national security concerns compared to these crises?  The Pew Research Center shows a 117% increase in the number of unaccompanied children ages 12 and younger caught at the U.S.-Mexico border during this fiscal year.  These numbers have tripled in less than a year.  At the end of July 2014 most recent figures had shown this included more than 57, 525 children.  Not taking into account the adults that are also still crossing the border in large amounts, these are record numbers of unaccompanied children.

It is humanitarian crisis of epic proportions for our nation for several reasons.  These people are escaping thriving crime and poverty in their home countries.  Once here, the sheer numbers overwhelm the U.S. Border Control and the resources allocated have been unrealistically inadequate to curb the flow of these migrants.  Federal law requires that undocumented immigrant minors from countries other than Mexico (which in most cases mean El Salvador, Guatemala and Honduras) be detained prior to their appearances in immigration court.  In the interim the United States is required to provide their health care and basic needs before releasing them to relatives or guardians.  Yet, the United States and its present infrastructure is not equipped to handle the current numbers so conditions at the border and at these detention centers are inadequate with the overwhelming capacity.  This is why the current problem is further compounded as the public questions the humanitarian treatment of these underage migrants. They have fled dangerous and squalid conditions and now U.S. facilities and the hopes of a better future for these migrants are also being called into question.

Immigration is rising in opinion polls as a concern relating to national security due to the recent influx of child migrants from Central America.  It is important that it is rising as this may finally elicit the much-needed substantive action from Congress. Illegal immigration and border security have been troubling for years, yet Congress continues to stall on any monumental immigration reform. Oftentimes it is inevitable crisis that ensures action.

Executive Action on Immigration: MPI Offers Estimates of Unauthorized Immigrant Populations that Could Receive Relief

Originally written and posted by the The Migration Policy Institute, which is an independent, non-partisan, non-profit think tank in Washington, D.C. dedicated to analysis of the movement of people worldwide. MPI provides analysis, development and evaluation of migration and refugee policies at the local, national and international levels. Learn more at www.migrationpolicy.org

WASHINGTON — As the Obama administration contemplates executive action on immigration, the Migration Policy Institute (MPI) today released estimates of various groups of unauthorized immigrants that could receive relief from deportation, either via deferred action or further refinement of immigration enforcement priorities.

The brief, Executive Action for Unauthorized Immigrants: Estimates of the Populations that Could Receive Relief, examines scenarios for executive action that have been publicly advanced by members of Congress, immigrant-rights advocates and others, describing scenarios that could be narrowly targeted to just a few tens of thousands of the nation’s estimated 11.7 million unauthorized immigrants or be expansive enough to reach several million.

Using an innovative methodology to analyze the most recent U.S. Census data to determine unauthorized status, MPI examines scenarios for expansion of the Deferred Action for Childhood Arrivals (DACA) program that has provided a temporary grant of relief from deportation as well as eligibility for work authorization to more than 587,000 unauthorized immigrants who came to the United States as children, as well as extension of deferred action to other populations.

With respect to expansion of the DACA program, MPI finds that:

  • Eliminating the current education requirement (high school diploma or equivalent or current enrollment in school) would expand the DACA-eligible population by about 430,000. Last month, MPI estimated that 1.2 million unauthorized immigrant youth met all DACA eligibility criteria at the program’s announcement in June 2012. Eliminating the education requirement would bring the immediately eligible population to nearly 1.7 million.
  • Extending eligibility to those who arrived in the U.S. before age 18 (from the current age 16) would expand the population by about 180,000.
  • Moving forward the length of residence to 2009 (from the current 2007) would add about 50,000 youth.

Beyond DACA, the administration could grant deferred action to new populations. Among the possible criteria that MPI modeled are length of U.S. residence; close family ties to U.S. citizens, legal permanent residents or DACA beneficiaries; and/or potential eligibility for a green card as the immediate relative of a U.S. citizen. Excluding populations already eligible for DACA, MPI estimates that as of 2012:

  • 3 million unauthorized immigrants had lived in the U.S. for 15 years or more, 5.7 million for at least 10 years and 8.5 million for at least five years.
  • 3.5 million were the parents of U.S. citizens under age 18 — with 2.4 million of them having lived in the United States a decade or more. Including parents of children who are green-card holders or DACA recipients raises the total to 3.7 million.
  • 770,000 were the spouses of U.S. citizens. Including the spouses of green-card holders and DACA recipients nearly doubles this group to 1.5 million.
  • 1.3 million had qualifying immediate-relative relationships because they were spouses of U.S. citizens or parents of U.S.-citizen children ages 21 or over, but many are unable to depart the country to apply for a visa without facing years-long bars on their re-entry because of their cumulative unlawful stay.

Beyond deferred action, the Obama administration is said to be considering refinement of immigration enforcement priorities to limit the deportation of certain groups of unauthorized immigrants if they are apprehended by federal immigration authorities. While it is not possible to model future apprehensions and thus predict who might be affected by U.S. Immigration and Customs Enforcement (ICE) enforcement priorities, MPI analyzed 11 years of ICE removals data (for fiscal years 2003-2013) to determine how changes to current enforcement priorities could have affected past deportations, assuming removals were strictly limited to priority cases. Among the findings:

  • Narrowing the definition of “recent illegal entrants” to those apprehended within one year of entering the U.S. (currently the definition is three years) would have reduced removals by 232,000 during 2003-2013.
  • Excluding noncitizens convicted exclusively of traffic offenses (other than DUI) would have resulted in 206,000 fewer removals over the period. Excluding all non-violent crimes would have reduced removals by 433,000.
  • Foregoing deportation of those with outstanding deportation orders more than a decade old would have resulted in 203,000 fewer removals.

“Our work makes clear that the reach of potential changes to expand the DACA program or refine immigration enforcement priorities would be even greater if multiple changes were to be implemented at the same time — for example eliminating the DACA educational requirement and changing the age at arrival criteria,” said Randy Capps, MPI’s director of research for U.S. programs.

Said Marc Rosenblum, deputy director of MPI’s U.S. immigration policy program: “The length of residence required would be key to the scope of any new deferred action program: far fewer individuals would qualify under a program limited to people who arrived 10 or 15 years ago than a program without such limits.”
Read the report at: http://migrationpolicy.org/sites/default/files/publications/Executive-Action-Brief-FINAL.pdf

Increase in Fees by Department of State

State Dept Money

The Department of State has announced that it will change fees for certain types of applications. These fee changes will take effect on September 12, 2014. The most important changes include a reduction in the E Treaty Investor/Treaty Trader fees from $270 to $205 and an increase in the fee for a K Fiancé Visa from $240 to $265.  Other significant changes include an increase in the processing fees for immigrant visa applications for the immediate relative family-based preference (from $230 to $325) and a decrease in the fee for employment-based preference categories (from $405 to $345).

Application fees will be grandfathered for applicants that paid their visa fee before September 12, 2014 and will have their visa interview on or before December 11, 2014. Applicants who paid their fees before September 12, 2014, but with visa appointments after December 12, 2014 will have to pay any increase in fees. There will be no refunds for visa application fees that were paid before September 12, 2014 where the new fee has decreased.

Immigration Court Backlogs Reach All-Time High

Immigration Court Backlog

Due to the recent surge of unaccompanied children migrants the backlog in Immigration Courts has reached an all-time high.  At the end of June the back log totaled 375,503 cases, which is an increase of more than 50,000 since the start of the 2013 fiscal year.  Specifically the number of juvenile cases has increased to 41,600 and more are anticipated every day.   Along with an increase in the backlog, the average wait-time for pending cases has also increased to an average of 587 days.

To view annual backlog trends and the states with the largest backlog per the end of June 2014, see the latest Transactional Records Access Clearinghouse (TRAC) report at: http://trac.syr.edu/imm/snap_backlog 

To view immigration court backlog trends based on location and nationality per the end of June 2014, see TRACs immigration backlog tool at: http://tracfed.syr.edu/cgi-bin/tracuser.pl