USCIS Program Permits Lawfully Present Parents to Request Refugee Status for Minor Children Residing in El Salvador, Guatemala, and Honduras

CAM

The Department of State and U.S. Citizenship and Immigration Services (USCIS) recently established a new program to provide a safe and legal route for children living in El Salvador, Guatemala and Honduras to travel to the United States.  Through the Central American Minors (CAM) Refugee/Parole Program, qualifying parents who are lawfully present in the United States now have access to the U.S. Refugee Admissions Program for their children who meet certain criteria.  The CAM program started accepting applications on December 1, 2014.

To qualify, a child must be unmarried, under the age of 21, and residing in El Salvador, Guatemala or Honduras as a national.  The parent must be a biological, step, or legally adopted parent in compliance with the criteria in section 101(b) of the Immigration and Nationality Act (INA).  In addition, the parent must be at least 18 years old and lawfully present in the United States.  Only the following categories qualify: permanent resident status; temporary protected status; parolee (for a minimum of one year); deferred action (for a minimum of one year); deferred enforced departure; or withholding of removal.  Biological parents must establish their biological relationship with their children through DNA testing.

The qualifying child also must meet the definition of a refugee in section 101(a)(42) of the INA.  In general, refugee status may be available to people who have been persecuted or fear they will be persecuted in their country of nationality, or last country of habitual residence for persons lacking a country of nationality, on account of their race, religion, nationality, membership in a particular social group or political opinion.  Applicants who are found ineligible for refugee status may be considered for parole into the United States.

Children of qualifying children also may eligible as derivative beneficiaries.  In addition, a parent of a qualifying child may be eligible if the parent is part of the same household and economic unit as the child and is legally married to the qualifying parent.  The parent outside the United States must establish an independent claim for refugee status.

To apply for the program, qualifying parents must file a Form DS-7699.
The form is available and may be completed only through a designated resettlement agency.  For more information on the program and a list of designated resettlement agencies, visit the Department of State’s Refugee Processing Center’s website.
https://www.wrapsnet.org/

President Obama’s Executive Actions on Immigration Blocked!

Judge BLocks Obama

A federal Judge in Brownsville, Texas has ordered a temporary injunction to President Obama’s executive actions on immigration.  While U.S. District Judge Andrew Hanen of Texas did not rule on the specific legality of the executive action he stated that there was enough merit to warrant an injunction while the case is properly adjudicated.   Last November President Obama issued an executive action permitting, among other things, undocumented migrants temporary stay in the United States and work authorization without fear of immediate deportation.  While many viewed this action as a step in the right direction for immigration reform, it also caused a great deal of controversy over whether or not this action was within President Obama’s Constitutional powers.

In response to the executive action, 26 states led by Texas, sued to block the plan from moving forward arguing that President Obama violated the ‘Take Care Clause’ of the Constitution, which they argue limits the scope of presidential power and violates his presidential duty to faithfully execute the laws.  The coalition also argues that the executive action will be difficult to undo once undocumented migrants begin applying for deferred action, and that the action would force increased investment in health care, education, and law enforcement.  As a result Judge Hanen put a temporary injunction on Obama’s executive action. In response to Judge Hanen’s order, the U.S. Department of Homeland Security has halted preparations for President Obama’s program that would protect parents of U.S. citizens or legal permanent residents, also known as DAPA, that was scheduled to come into effect on February 18th.

Among those supporting President Obama’s executive action is a coalition of 12 states, including the District of Columbia, and law enforcement officials such as the Major Cities Chiefs Association that both filed friend-of-the-court briefs with Judge Hanen supporting the executive action.  The briefs argued that the executive action will benefit states, further public interest, and improve public safety by facilitating cooperation between law enforcement officials and undocumented migrants.

The White House defended President Obama’s executive action as constitutionally within the president’s legal authority, and specifically that the U.S. Supreme Court and Congress have stated and maintained the notion that federal officials can establish priorities in enforcing immigration laws.  The White House stated that the U.S. Department of Justice will file an appeal that will be heard by the 5th Circuit Court of Appeals in New Orleans.

Second Circuit Holds that Aliens who Attain Permanent Resident Status after Being Admitted to the U.S. are Eligible for 212(h) Waivers

In Husic v. Holder, issued January 8, 2015, the United States Court of Appeals for the Second Circuit held that an alien who adjusted to legal permanent resident (“LPR”) status after being admitted to the United States is eligible to seek an inadmissibility waiver from the Attorney General under Section 212(h) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1182(h).  Joining seven sister circuits – including the Third, Fourth, Fifth, Sixth, Seventh, Ninth and Eleventh Circuits – on the issue, the Second Circuit found that Hasim Husic, an alien who obtained LPR status after entering the United States as a visitor, is not “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” under Section 212(h).  Only the Eighth Circuit has reached the opposite conclusion.

Section 212(h) permits the Attorney General, in his discretion, to waive certain crime-related inadmissibility grounds set forth in Section 212(a) of the INA.  However, Section 212(h) also contains a provision that bars certain aliens from applying for waivers if they have been convicted of an aggravated felony after their date of admission.  This provision, known as the Aggravated Felony Bar, only applies to “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.”  Husic v. Holder turned on whether an alien who adjusts to LPR status after being admitted to the United States is covered by that description.  If so, then he is statutorily barred from seeking an inadmissibility waiver from the Attorney General.

Hasim Husic, a native of the former Yugoslavia and citizen of Montenegro, lawfully entered the United States as a B-2 visitor in 1994.  He was granted political asylum in 1995 and became an LPR in 1998.  In 2012, he pleaded guilty to a New York state felony charge, attempted criminal possession of a weapon in the second degree.  He received a three-year prison sentence.

The government charged Husic with removability based on his firearms conviction and an immigration judge held that his offense constituted an aggravated felony under the INA.  Noting that Husic wanted to seek a 212(h) inadmissibility waiver and apply for a status adjustment, the immigration judge also held that he was ineligible for seeking a 212(h) waiver because he is an LPR who has been convicted of an aggravated felony.  Husic appealed to the Board of Immigration Appeals (“BIA”), but the BIA dismissed the appeal.  The Second Circuit reversed on the issue of whether Husic is eligible to seek a 212(h) waiver.

Because the BIA based its interpretation of 212(h) on one of its prior binding decisions, the Second Circuit applied Chevron deference to the BIA’s decision.  The first step in the Chevron test required the court to determine whether the relevant provision in 212(h) is ambiguous.  After substituting the INA’s definitions for the term “admitted” and the phrase “lawfully admitted for permanent residence” into the relevant provision of Section 212(h), the court concluded that there are clearly two requirements that must be met for an alien to be barred from seeking a 212(h) waiver:  (1) the alien must have “previously been admitted to the United States”; and (2) the alien must have been “admitted with the status of ‘an alien lawfully admitted for permanent residence.’”  The second requirement only is met if the alien has LPR status at the time he is admitted to the United States.  An adjustment of status to become an LPR after being admitted to the United States does not satisfy the second requirement.  Concluding that Husic is “unambiguously not ‘an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence,’” the court held that he is eligible to seek a 212(h) waiver.

Although the court explicitly declined the address the issue, this ruling leaves open the possibility that other LPRs, including those who entered without inspection, may be exempt from the Aggravated Felony Bar.

How to Seek Prosecutorial Discretion from ICE

In November 2014, the Secretary of Homeland Security announced two new memorandum clarifying priorities on prosecutorial discretion and enforcement priorities.  These policies are to be implemented by all DHS agencies, including USCIS, when deciding which aliens to arrest, detain, and remove from the US and when and how to exercise prosecutorial discretion.

What follows is guidance on how to seek prosecutorial discretion, including that via DACA and deferred action, from ICE under the new priorities:

When in ICE Custody:

  • If you believe you are eligible for prosecutorial discretion, including through DACA or deferred action, you should consult detainee-staff communication manual for the facility. Every detainee should be provided with a handbook containing this information upon their arrival.
  • You may also call the ICE Enforcement and Removal Operations (“ERO”) Detention Reporting and Information line at 1-888-351-2024 (toll-free)

When in Proceedings Before EOIR:

  • If you are currently in proceedings before and immigration judge or the Board of Immigration Appeals but believe that your case does not fall within the new enforcement priorities you may petition ice to administratively close your case. This also applies if you believe you are eligible for DACA or deferred action and have not previously applied.
  • You should submit such requests to the ICE office of the Principal Legal Advisor (OPLA) to the mailbox of the OPLA field office that is handling your case. The email address of each mailbox is available on ICE’s webpage.
  • The request to OPLA should include your full name, alien registration number (A number), and case status. It is advisable, but not required, to include the reasons why you believe that you do not fall within current enforcement priorities or are eligible for DACA or deferred action.
  • OPLA will respond promptly via email to all requests.

If You Have a Removal Order or Are Scheduled for Removal But Are Not in ICE Custody:

  • ICE is proactively reviewing the cases of individuals scheduled for removal.
  • However, if you are scheduled for removal and believe that your case merits prosecutorial discretion or reconsideration for DACA or deferred action you should consult the ERO officer responsible for your case.
  • You may also call the ICE ERO Detention line at 1-888-351-4024, contact your local OPLA office, or call the USCIS hotline at 1-800-375-5283.

If You Want to Contest a Prosecutorial Discretion Decision:

  • There are no formal reconsideration or appeals processes to prosecutorial discretion decisions.
  • There is no right to prosecutorial discretion.
  • If you disagree with a decision in your case you may contact the supervisor the DHS employee who made that decision for further explanation.
  • You may contact OPLA to request a review of any prosecutorial discretion decisions in your case.

 

Please go to the following website for more information:  https://www.ice.gov/immigrationAction

Religious Persecution May Include Non-Physical Forms of Harm

Religious Persecution

Huang v. Holder is an Eleventh Circuit case on appeal from a Board of Immigration Appeals (BIA) denying Huang’s application for asylum after finding that the abuse he suffered in his native country of China did not constitute religious persecution.  The Eleventh Circuit vacated and remanded to the BIA because it was unclear from the BIA’s decision whether or not it had considered the non-physical evidence of religious persecution Huang presented.

Huang, a Chinese Christian, came to the US through the Mexican border on October 20, 2009.  Upon arrival, he filed an asylum application because based on fear of further religious persecution in China due to his Christian faith.  Huang testified that he became a Christian in 2006 and began attending church services every Sunday.  On August 23, 2009 police interrupted the service he was attending and arrested Huang along with approximately fifteen other congregants.  Huang was brought to the police station and detained for three days while he was questioned about the church’s leadership and members.  During his detention Huang was beaten when he refused to provide information and suffered bruises for which he was later treated at a hospital.  Huang was only released when his father paid bail and upon release was asked to sign a statement vowing that he would not attend the same church again, which he signed.  After his release Huang returned to the church to find that everything had been destroyed.  Sometime later, the police came to Huang’s home and spoke to his father telling him that Huang needed to return to the police station for further investigation.  At this time the police also confiscated all of Huang’s religious materials including his bible.

Huang feared further persecution based on these incidents because he did not plan to stop attending his church services.  Shortly after these incidents, Huang fled China with the help of his father who provided written testimony in his hearing that the police continued to visit the home looking for Huang after he left the country.

The Immigration Judge (IJ) denied Huang’s asylum application because he had failed to demonstrate either past persecution or a well-founded fear of future persecution based on the protected ground of religious beliefs and ordered him removed to China, a ruling Huang appealed to the BIA.  The BIA upheld the IJ decision that “considered cumulatively, [Huang’s injuries] did not rise to the level of severity to constitute past persecution” and that he had not proven a well-founded fear of future persecution and denied relief.  Id.

The Eleventh Circuit, on appeal, vacated the BIA decision and remanded for further consideration of the non-physical persecution Huang suffered.  The Eleventh Circuit did not find that the BIA did not consider factors beyond Huang’s physical injuries but that, based on the record it could not determine whether these factors were a part of the BIA’s considerations.  Judge Huck began the Huang opinion, colorfully, saying“[i]t’s not always enough to say that you did something.  Sometimes, you have to show it as well.  Or at least you have to not do something else that may raise a question as to whether you did what you said you did.”  The BIA analyzed only the beatings that Huang suffered as a factor in their decision.  The Eleventh Circuit credits the BIA with mentioning the confiscation of Huang’s Christian materials but is unsatisfied with the level of attention paid saying that the BIA “did not appear to attach any significance to this fact.”

In addition to the BIA’s lack of analysis on the non-physical harm Huang suffered, the Eleventh Circuit was troubled by the lack of mention of another Eleventh Circuit case on religious persecution: Shi v. U.S. Attorney General.  In Shi, which contained a similar fact pattern to Huang, the Eleventh Circuit found “extreme and egregious suppression of religious practice.”  To support that finding the Eleventh Circuit focused on four circumstances of Shi’s persecution.  First, that “the incident began with the interruption of a private church service and ended with an attempt to coerce Shi to abandon his religious conviction and to promise to never again attend a church meeting like the one that led to his detention in the first place.”  Second, that the police confiscated Shi’s bibles.  The third and fourth circumstance surrounded Shi’s detention and beating which were more excessive than Huang’s.  For these reasons, the Eleventh Circuit remanded to the case to the BIA for further proceedings consistent with its opinion.

Huang draws a distinction between religious and political persecution in its determination that while both may involve physical abuse, which is highly relevant to a persecution determination, both forms of persecution also include particular factors outside of physical harm which are relevant to the court.  In discussing the additional factors particular to religious persecution, Huang has increased the factors that the courts must evaluate in determining religious persecution. By citing Shi in its opinion, the Eleventh Circuit has created a standard that physical abuse is not the only criteria for finding religious persecution. In addition courts should consider any other action taken by the persecutors meant to prevent worship.  The Court focuses specifically on: prohibition of attending church services, through police interruption or forced disavowals; illegal police searches; and confiscation of bibles and other religious materials.  Huang, did not determine that these factors were exhaustive and left open the possibility that the  lower courts could, and should, consider any other facts presented by the petitioner that are relevant to claims of persecution.

It is H-1B Season! Do Not Delay! The Deadline to File is April 1, 2015

Do you have a bachelor’s degree or the equivalent?
Will you be working in a specialty occupation?
Will you be earning a wage?
H1-B
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on October 1, 2015. H-1B petitions need to be filed 6 months before the start date, which is April 1, 2015 for an October 1, 2015 start date.
To be eligible for H-1B you must:
  1. Have a minimum of a 4-year university degree or equivalent;
  2. Be paid at the prevailing wage for the job and location of employment; and
  3. The job must require a minimum four-year university degree (specialty occupation).
When submitting evidence to USCIS, it is important to fully and clearly explain how the submitted evidence establishes eligibility for petition approval.  The more clearly the petitioner can articulate his or her eligibility, the more efficiently and consistently USCIS can review and process the petition and determine eligibility for the benefit sought.
Beach-Oswald Immigration Law Associates’ experienced immigration attorneys will prepare and file all the required documents for foreign professionals and U.S. companies applying for the H-1B Visa.  Do not delay if you or someone you know meets the requirements.  Contact Beach-Oswald Immigration Law Associates immediately to begin the H-1B process!

House Votes to Reverse Obama’s Immigration Executive Order

On January 14th, the House of Representatives voted to try and block President Obama’s Executive Order relating to Immigration announced last November.  In a 236-191 vote, the House of Representatives passed a spending bill aimed to defund major parts of President’ Obama’s plan.  The vote triggers negotiations with the House and the Senate over the funding for the Department of Homeland Security that expires at the end of February.

While this move very clearly shows the Republican Party’s disdain for President Obama’s attempt at immigration reform, arguing his solo move was an abuse of power, the bill is unlikely to pass in the Senate, which is dominated by Democrats.  On the unlikely chance the bill passes through Congress, President Obama would likely use his executive authority to veto it.

There is clearly a need for bipartisanship and compromise between the two parties for immigration reform to be accomplished.

 

No Travel under Obama’s Executive Action

No travel

President Obama stressed the importance of family unity in his Executive Action on November 20th, however that may pertain only to families within the United States and does not allow families divided between the United States and their home-states to be reunited.  For Immigrants all over the world, a main priority of theirs is the ability to return to their home countries and visit parents, and children who were left behind.  While President Obama’s Executive Action will allow undocumented migrants to no longer live in the shadows of the fear of immediate detention and deportation, it will not reunite families.

Hundreds of thousands of undocumented migrants in the United States left behind children and parents for an attempt at achieving financial stability, and may still be tempted to illegally cross the border to visit with their families.  However with President Obama reallocating resources to bulk up border security and promising harsher treatment of those who are caught illegally crossing the border, these undocumented migrants now have more to lose as it will now jeopardize their new legal status and their ability to support families located in the United States.

Many provisions of the Executive Action do not fully go into force until the beginning of 2015, however it appears that those who will qualify by having U.S. citizen or lawful permanent resident children and having had been here for more than five years, may only be able to travel to their home countries with a special one-time permission usually granted only for emergency situations or family deaths.  Those who simply want to reunite with their families will not be able to do so.

President Obama’s 2012 Executive Action plan that established the Deferred Action for Childhood Arrivals (DACA) granted temporary deportation relief to illegal immigrant youths who met a number of strict requirements.  This program also does not confer the right to travel to those who qualify.  Technically under the Immigration and Nationality Act, those who are granted temporary relief from deportation are still technically considered illegal, and can only leave the country legally with assurance of return if they apply for a one-time emergency travel document known as ‘advance parole.’ Further, immigration officials have complete discretion of whether to approve or deny such requests, and the requests are frequently denied.

While President Obama stressed the importance of family unity and avoiding the harsh reality of dividing families, his Executive Action does nothing to assist family reunification with members who are not living within the borders of the United States.

Dispossession through Deportation

Helena's FirstA recent report released by the humanitarian advocacy group, No More Deaths  states that of the 400,000 people deported from the United States during the fiscal year 2013, nearly one third were deported without their personal belongings and money.  This is a serious issue that often goes unreported and continues under the radar, since these deported individuals simply can no longer fight for themselves.  One of our greatest American values is the right to property and it appears as though these migrants are not offered this essential protection.

The release of this report by humanitarian organizations fighting for people for whom it may unfortunately already be too late, as they are back in their home countries and their possessions are long gone may at least shed light on the problematic reality.  In 13% of the reported cases there was a complete failure of U.S. officials to return money and belongings.  Another problem was that the cash was returned in forms that cannot be accessed internationally such as Visa or Mastercard debit cards.  The report cites that in 5% of these cases immigration officials and border agents took the belongings and pocketed the money in plain sight.

The reason these migrants are separated from their belongings in the first place is due to the assembly-line justice system that has emerged at the border.  Daily court hearings are held where dozens of detained migrants plea to criminal charges of illegal entry.  After receiving prison sentences, the migrants are transferred to the custody of the US Marshals Service but the possessions remain with Customs and Border Patrol and are destroyed after 30 days.  Inmate bank accounts only allow for the transfer of U.S. currency, so foreign currency is destroyed.  This is unnerving as obviously the majority of these migrants have their own national currency and no ability to convert it.  Although recently CBP and ICE have acknowledged the concerns of these migrants and attention from advocacy groups in finding better ways to return the possessions, officials affirm that migrants are not entitled to receiving their possessions.

The loss of these possessions is a serious concern.  Financially, the quantity lost may have been the migrant’s entire livelihood, money saved up for years.  To be thrown back into these treacherous and dangerous countries without any economic support is terrifying.  The loss of identity documents such as passports and national identification cards leaves the migrant extremely vulnerable to encounters post-deportation.  They are harassed by police, cannot access money transfers from family since they cannot prove their identities, lack access to legitimate employment opportunities, and are more susceptible to falling into organized crime.  Loss of personal effects such as medication, cell phones, notes with vital contact information, irreplaceable keepsakes, etc. can affect a migrant’s well-being.  To lose all evidence of one’s history and connection to loved ones negatively impacts the migrant physically, spiritually and psychologically.

More awareness must be raised in combating this serious problem of migrants losing vital property rights once they are deported.  The plan forward should be promoting agency accountability and accessibility, ensuring access to money prior to the deportation and guaranteeing access to the belongings.

No More U-Visas for the 2015 Fiscal Year!

U-Visa Cap Met

The U.S. Citizenship and Immigration Services (USCIS) has already approved the statutory maximum of 10,000 petitions for U-1 Nonimmigrant Status (U-Visas) for the 2015 fiscal year that began on October 1, 2014.  The cap was reached almost immediately due to the applicants who were on the wait list from the 2014 fiscal year. Unfortunately, this means that there will be no U-Visas available until October 1, 2016.

Each year, 10,000 U-Visas are available for victims of qualifying crimes who have suffered substantial mental or physical abuse and are willing and committed to assist law enforcement authorities to investigate and prosecute those crimes.

While the 10,000 cap for the 2015 fiscal year has already been reached, USCIS will continue to review pending U-Visa applications for eligibility. For those applicants who USCIS finds eligible, while a U-Visa will not be issued, USCIS will send a letter notifying them that they are on the wait list to receive a U-Visa when they become available again.  USCIS will also inform eligible applicants of options available to them while they are on the wait list.  Eligible applicants and qualifying family members must continue to meet eligibility requirements at the time the U-Visa is issued.

On October 1, 2015, the first day of the 2016 Fiscal Year, USCIS will resume issuing U-Visas.