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MOTION TO CHANGE/TRANSFER VENUE IN IMMIGRAITON COURT

January 30, 2016

Motion to Change/Transfer Venue in Immigration Court

Author: New York Immigration Attorney Alena Shautsova

In my practice, quite often I receive a phone call with the following content: “Hello, my name is so and so, my nephew/husband/family friend is in detention in Texas, Virginia, New Jersey… I want the person to be released and be allowed to see an Immigration Judge in New York, where he/she lives/intends to live…”  I say “O’K, let’s see what we can do..” Then, I meet with the calling party and find out the details. Often, the scenario that I have to deal with is that a person was crossing the border, or recently crossed the border and was apprehended by the ICE enforcement. Often, the detained person is very young. But what unites all these calls, is that the person would be detained in a state other than New York,  but  it is New York where the person’s family and friends reside.

In such a situation, I as a practitioner have to file two motions. First, is a motion for re-determination of the bond consideration so that my client will be released from the ICE custody. (I will address this type of application in a separate blog).

And second, I have to file a motion to change venue of the proceedings, unless my client would like to travel back to TX, VA or MD for his/her future court hearings (which is not the case, of course).

1. When To File For Change of Venue and Why

One should file for change of venue of the proceedings as early as possible. In most cases, a person is being put in removal proceedings within the jurisdiction of the court where the person was detained. For example, J. crossed the border in TX and was apprehend. Even though J intended to reside in NY, and in NY J has all his family members, his court proceedings will be started in TX.  It means that if released from custody, J will have to travel to TX for each and every hearing and J’s witnesses, if any will have to travel to TX as well. Of course, it may not be practical or possible for the witnesses to travel, as well as for J. That is why, as soon as an attorney is retained, and attorney is advised that J can be released to his/her family members in a different state, attorney should file motion to change venue.  It is important to act as quickly as possible: the longer local DHS counsel will be involved in the J’s case, the more reluctant the DHS counsel will be to lose the case from his/her desk. As such, the DHS counsel will have a valid argument that the government will be prejudiced if the motion to change venue is filed late in case.

2. What Needs to be Submitted to Court to Show that there is Good Cause for Change of Venue

In order for the motion to be granted, the moving party has to demonstrate that a good cause exists. Usually, I submit: the motion itself (it is my affirmation describing the facts under which the request should be granted); an affidavit from my client; affidavits from friends and family explaining the ties my client has with the venue where we would like the case to be moved; etc. Under the current regulations, a request to change venue should be accompanied with the written pleadings to the allegations in the Notice to Appear.  Like any other motion, motion to change venue should contain a proposed order and proof of service on DHS.  It is also a good idea  to submit a draft of the application the client will be submitting with the court to demonstrate that client has a potential relief from removal.

3. What to do if the Motion is Denied

Even through that many view motions to change venue as trivial, sometimes they do get denied. In this case, a person has a couple of options. One may appeal the denial, or renew his/her request with the Court. Often, in the denial decision, the Court would “give a hint” as to what additional information it would like to see before granting the request. Often, a denial is a result of poor preparation, and with a little more effort, a request to change venue is granted.

TIPS ON WORKING WITH NVC

January 18, 2016

TIPS ON WORKING WITH NVC

Author: New York Immigration attorney Alena Shautsova

Once an Immigrant petition is approved, the NVC receives the file and acts as middle man between the petitioner and the consulate. It collects the fees, documents and more information before it schedules an interview for the visa applicant. The NVC process in itself can be quite frustrating, and not only for those petitioners and applicants who do not have an attorney. The Q&A below intend to help pro-se petitioners with the process.

 

  1. Why and how NVC terminates the petition?

The termination process is only entered after the priority date becomes current. A notice is given to applicants explaining that if the NVC does not hear from a representative of the case for a period of one year the case will be terminated and the individual will be required to resubmit the case again with additional filing fees, if applicable. However, the period of one year only starts after the priority date becomes current.

  1. How can I know if an approved I-130 is still valid?

Here, it is wise to have an attorney, because attorneys have a special way to communicate with the NVC: When determining whether or not an I-130 is still valid after being sent to the NVC the fastest way to do so is by emailing NVCattorney@state.gov or by calling the NVC directly.

If a response is not procured within 15 days after sending an email to NVCattorney@state.gov you may send a second follow up email. If after an additional 15 days you still do not receive a response you may send a third follow email with subject line “Attention PI Supervisor,” the supervisor will then respond within 5-7 business days.

  1. NVC collected the documents and did not mention about any issues, but the visa was denied, why?

When discussing a Nonimmigrant Visa, the NVC is authorized to answer questions regarding the general NIV application process, status of the application, whether or not the case was refused or requires additional information. The NVC cannot advise an applicant if they are eligible for a specific nonimmigrant visa.

  1. I had to submit an I 601A waiver. The decision on the waiver takes a long time. Will my petition be terminated?

When waiting for an I-601A response from USCIS the one year termination process will no longer be in effect. If you receive a letter stating the I-130 application has been terminated while I-601A waiver is pending, contact an attorney immediately or NVC directly to resolve the situation.

  1. Do I have to file with the NVC a letter from employer to show my current income?

When submitting an I-864 Affidavit of Support, an employer letter is not required from the petitioner when evidence of previously filed taxes are more than sufficient. If it is not possible to get a letter from your employer as to your current income contact, your attorney or NVC as soon as possible to avoid further delays in your case.

Immigration Consequences of Arrest

January 4, 2016

Immigration Consequences of Arrest

Author: New York Immigration lawyer Alena Shautsova

An arrest occurs when a person is taken into a custody against his/her will for interrogation or search. What constitute an arrest and custody is actually depends on the facts and the occurrences that have been deemed to constitute an arrest have been examined by the judges for a long time.

Sometimes, after an arrest a person is issued a document by the arresting authorities, sometimes it does not happen. Such documents may be a police report, a desk appearance ticket… In other words, sometimes, an arrest results in criminal or administrative charges and sometimes it does not.

The question that I receive often is: should one disclose a fact of arrest that did not result in formal charges? For example, a husband and a wife had a domestic dispute, their neighbors called the police, the couple was brought to the precinct, the wife was let go, but the husband was not. The wife did not have to submit herself for the fingerprint procedure. Does she have to disclose this incident on her citizenship application?

Or, let’s take a different set of facts: young people, whose names are A, B and C, return to their apartment after a party. A decides to do something in public which is not allowed and an officer issues him a ticket. The rest are asked to present proof of their identity. Shall B disclose this fact on his green card application? B was not issued or ticket and was not charged with anything.

And finally, A, B and C are shopping. A security guard suspects that A, B and C committed shoplifting. All three are taken into custody and the police is called. A, B and C are issued desk appearance tickets. During the court hearing, charges against A are dismissed. Shall A disclose this incident during his permanent residency interview?

Let’s see… nowadays most immigration applications and petitions require full disclosure of any arrests and any and all charges, including those resulted in dismissal. Even administrative incidents must be disclosed during the citizenship process: such as stops by Immigration or Customs agents in the airports. An individual who does not disclose a fact of arrest may be charged with committing fraud or misrepresentation in connection with application for Immigration benefits: a charge that requires a hardship waiver or results in finding of lack of good moral character.

It means that almost in all cases an individual has to disclose the arrest, even if subsequently the charges were never brought against the individual. In our first example, the wife will have to disclose the fact that she was brought to the precinct as a suspect , even though the police later realized she was the victim. In the second example, I believe, there was no arrest, even though some might argue that even though B and C who were not issued tickets,  they were not free to leave once an officer asked them to present their IDs. In the third example, A absolutely has to disclose the incident.

Citizenship applicants with arrest history are severely scrutinized on the point of “Good Moral Character.” A dismissal can usually be construed to a misunderstanding between the parties.

In any case of arrest or administrative or criminal charges, an individual who is looking to obtain Immigration benefits such as visa, change of status, permanent residency, citizenship has to consult with an attorney. The Immigration law says that one who admits to committing the elements of the offense (even if the person is not convicted) is deemed to commit and be convicted of the offense under the Immigration law.

Finally, if the person was fingerprinted, and/or the formal charges were brought and later dismissed, this information is FOREVER in the person’s FBI history and will show during the USCIS security checks. So, as a reminder, every applicant has to answers all the questions truthfully, and fully…

Parole After DACA

December 5, 2015

Parole After DACA

Author: New York Immigration lawyer Alena Shautsova

DACA or Deferred Action for Childhood Arrivals is a form of prosecutorial discretion that allows a person who came to the US before reaching the age of 16, and who is otherwise eligible, to receive an employment authorization in the United States and  be temporary protected from removal/deportation.

One of the most important benefits of DACA is a possibility of receiving permission to travel outside of the US and  be paroled back into the US. The parole cures illegal entry bar to adjustment of status and hence, those DACA beneficiaries who have a US citizen immediate relative (a spouse, for example)  are able to receive green cards in the US without a waiver, provided they were paroled into the US. This parole requires international travel, and is different from Parole in Place program offered to relatives of the US military members. PIP (Parole in Place) does not require  an international travel.

To receive permission for  international travel, a DACA beneficiary has to file form I 131 and pay an applicable fee. The most important part here, however, is that not any reason for travel is sufficient for USCIS to grant the request. For example, if a person simply would like to go on vacation overseas, this would not qualify as a valid reason. An example of valid reasons would be: to visit a relative in a foreign country; to receive medical treatment; to attend a funeral; other urgent and emergent situations

It is desirable that an applicant confirms the reason with valid documents and an affidavit explaining the need for travel.

It is also possible to expedite request for the advance parole. USCIS has its own criteria for emergent travel.  It is advisable that a person who is seeking to receive an advance parole consults with a legal professional prior to submitting his/her application to avoid delays and denials.

You may submit questions regarding parole through a.shautsova@gmail.com or by calling our office at 917-885-2261.

 

HOW TO EXPEDITE EAD APPLICATION

November 19, 2015

HOW TO EXPEDITE  EAD APPLICATION

Author: New York Immigration attorney Alena Shautsova

Generally, an  employment authorization should be issued within 90 days of submission of the  complete application package.  An applicant with pending asylum application, should receive an EAD card within 30 days of filing I-765 form. An applicant for adjustment of status, usually receives an EAD within 45 days.

However, often, applicants experience delays.  Delays maybe caused by the processing delays by USCIS, or by the applicant when he/she failed to submit all necessary evidence.

If an EAD application has been pending for more than 75 days, an applicant should call USCIS and inquire about the status of the case, and also make an info pass appointment and go to a local USCIS office.

It should be noted that USCIS does not issue Interim EADs anymore, and somebody without a valid employment authorization cannot accept/continue his/her employment.  A person may file for a renewal of the EAD as soon as 120 days before its expiration.

The EAD clock will be reset if  an applicant failed to attach initial evidence, and will be stopped if an applicant failed to attach evidence requested by USCIS. For example, if an applicant failed to attach initial evidence, and  USCIS informed the applicant about it on the 30th day of the EAD application being pending, the clock will be  reset to 0 once the evidence is received.

The instructions to the EAD application  form and the form itself are available at http://www.uscis.gov/i-765.

F-1 NEPALI STUDENTS EAD

November 10, 2015

F-1 NEPALI STUDENTS EAD

Author: New York Immigration attorney Alena Shautsova

The devastating earthquake in Nepal   and its consequences affected its citizens all round the world. The U.S. government first announced that Nepali nationals will be able to apply for  TPS status in the U.S..

Now, the DHS announced that F-1 Nepali students will be able to qualify for employment authorization easier: as long as Nepali students would maintain minimum  full course requirement and experience severer economic hardship. Specifically, undergraduate students who receive on-campus or off-campus employment authorization under this notice must remain registered for a minimum of six credit hours of instruction per academic semester. A graduate-level F–1 student who receives on-campus or off-campus employment authorization under this notice must remain registered for a minimum of three credit hours of instruction per academic semester. See 8 CFR 214.2(f)(5)(v).

Other requirements that Nepali student must meet:
(1) An applicant should be a  citizen of Nepal;
(2) An applicant should be lawfully present in the United
States in F–1 nonimmigrant status on April 25, 2015, under section 101(a (15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);
(3) An applicant should be enrolled in a school that is Student and Exchange Visitor Program (SEVP)-certified for enrollment for F–1 students;
(4) An applicant should be  currently maintaining F–1 status; and
(5) should experience severe economic hardship as a direct result of the damage caused by the earthquake of April 25, 2015.

Those who already hold an employment authorization, will be able to benefit from the new changes as well. These changes will remain in effect (as of now) until December 24, 2016.

For more information, please contact our office at 917-885-2261.

CANCELLATION OF REMOVAL: NTA, STOP TIME RULE

October 19, 2015

CANCELLATION OF REMOVAL: NTA, STOP TIME RULE

Author:   New York Deportation Attorney Alena Shautsova
Cancellation of Removal is an often overlooked form of relief from deportation. It also may be used by someone who has been in the U.S.  for a long time  without inspection or admission to receive a green card in the U.S.  In the last case scenario, a person first would have to ask the U.S. government to place him/her into removal proceedings and only then he/she will have a chance to apply for cancellation.

Cancellation of removal as a form of relief may be of several “kinds” : for permanent residents, for non-permanent residents; for VAWA beneficiaries; for  certain persons covered by  the Nicaraguan Adjustment and Central American Relief Act of 1997. Each “kind” requires that certain qualifications be met.

One of the common “features” of this form of relief, is that an applicant has to accumulate  certain amount of time in the U.S. This time usually runs from the person’s entry into the US, and can be stopped not only due to a departure, but due to certain events that have legal consequences. For example: an arrest or commitment of a crime by the applicant or  service of removal/deportation documents.

Since cancellation of removal is a desirable and often the only form of relief an applicant can hope for, there started to develop a body of case law that challenges various limitations and restrictions that might be applied to the applicant. Specifically,  the advocates posed a question of whether a service of deficient on its face notice to appear in removal proceedings may serve as a “stop time” event. For example, quite often a person receives a notice to appear issued by ICE that has “TBD” in place of a date and time of the hearing in Immigration court.  Can such a document, that has been issued but not filed with the court have sufficient legal weight to eliminate one’s chance for cancellation? It is an interesting question, because in practice, such issued notices may rest on shelves for years before they are eventually filed with the court, and the person, subject of such a notice, naturally, would like to the “wait” time to be counted towards the accrual of the necessary period.  (Service of an NTA cuts off the accrual of continuous presence, under a provision known
as the “stop-time” rule. 8 U.S.C. § 1229b(b)(1)(A).)

Unfortunately for the applicants, many Circuit Federal courts held that the Notice to appear served on the applicant does not have to have all the specifics in order to alert the applicant that the government is initiating removal proceedings against him/her, and even an incomplete notice will nevertheless stop the cancellation or removal clock.  See Guaman-Yuqui v. Lynch, 786 F.3d 235, 238–40 (2d Cir. 2015) (per curiam); Gonzalez- Garcia v. Holder, 770 F.3d 431, 433–35 (6th Cir. 2014); Yi Di Wang v. Holder, 759 F.3d 670, 673–75 (7th Cir. 2014); Urbina v. Holder, 745 F.3d 736, 739–40 (4th Cir. 2014).

However, there remain one “loophole” out of this catastrophe. If the government agrees to retract the notice, then the “time” can be saved. However, this requires government cooperation and discretion. The BIA held that a notice to appear (NTA) that was served but never resulted in removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the INA. Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015).

 

 

 

 

I-751 Petition, Questions and Answers

October 11, 2015

I-751 Petition, Questions and Answers

Author: Green Card Attorney Alena Shautsova

A conditional permanent resident has to file a petition to remove condition from the residency within 90 day period prior to the second anniversary of his/her status.

LATE FILING

The joint petition (when spouses are still living together) must be filed within the 90 days period, and if it is not, the couple has to present a very good excuse for missing the deadline, otherwise the petition will be rejected.

The petition that contains request for a waiver, on the other hand, can be filed at any time. For example A, conditional permanent resident (CPR), divorced from a USC (a U.S. citizen) just a year after A become a CPR. “A “ does not need to wait to file her petition. Another example, A is a battered spouse. She is still married to a USC who has been abusive. A missed her deadline and her conditional permanent resident card expired. “A” can still file the I 751 petition, even if the deadline is missed.

What is not a good excuse for late filing of the joint petition? Being abroad is not an excuse for late filing of the joint petition. The couple who are abroad must file the petition within the 90 day period prior to the second anniversary of the green card status.

DOES THE STATUS REALLY EXPIRE?

The warning notices say that if the a conditional permanent resident does not file the petition to remove condition timely, his/her status automatically expires. What really expires is the card itself. The status does not expire, despite the warning. In fact, the USCIS or an Immigration judge has to terminate the status in order for “A” to start the process again with a new USC-spouse. It also means that “A” technically will remain a permanent resident, but a conditional one and prior to undertaking any other Immigration steps, she would have to submit an I-751 petition, even if it will be filed late in order to get a finality for her situation. In this case, if the petition is denied, then the status will be terminated. (Does not apply to those seeking adjustment as refugees or asylees).

DO I INCLUDE CHILDREN IN MY I -751?

Yes, dependent children, those who receive their green card with their parents within 90 days of the parent’s conditional green card or, as often it happens, on the same day, must be included in the I -751 form. What do to if the child turns 21 by the time I-751 should be filed? The answer is : file the petition including that child. The statute that talks about removal of the condition for dependents refers children and sons and daughters, meaning, that under INA, I-751 properly included with the parents should receive their permanent resident status as well. See also Caprio v. Holder, 592 F.3d 1091 (10th Cir. 2010).

Finally, most common question: I was married to the U.S. citizen, and now we are divorced. Did I lose my status? The answer is NO, you did not lose your status. All you need to do is to file I -751 by yourself. It may be a little bit more challenging, as you need to show that you had a real marriage, but it is possible. If you are successful, you will receive a permanent green card.

FUN FACT: One can submit an unlimited number of I 751 petitions.

XXX-Men: They Do Exist!

September 29, 2015

XXX-Men: They Do Exist!

Author: USA Asylum Attorney

Many of us accept the fact that we are citizens of certain countries as a natural “feature “of our lives. Of course, some people would like to change their citizenship; some would like to be citizens of more than one country, some would like to give up their U.S. citizenship… but almost all of us do have that thing that is called “citizenship.”

This is not the case for everybody. One may be surprised to find out that there are people among us who are not citizens of any country. One can only imagine what those people have to go through. What do they put in the forms as their “citizenship”? How do these people travel? Can they claim asylum at all? (One who claims an asylum has to show that he will be persecuted in a particular country…)

How  does a person become stateless?

It depends. It may happen due the change in the law. For example, after the Soviet Union broke apart, former USSR republics had to announce special laws proclaiming their residents to be citizens of the new formed countries. But some republics refused to accept certain residents into their new citizenship. As a result, in countries like Estonia, there are people who got “stuck” in limbo: they cannot claim to be citizens of places where they did not reside, and Estonia prohibited them to become citizens of Estonia. These persons became people with XXX nationality (not a joke, this is what stateless people have to put down as their citizenship). Unfortunately, an act of the country’s government that causes some people to lose their citizenship is not considered a basis for asylum. Previous attempts by persons with no citizenship due to change in the laws to file asylum in the US on this ground were not successful.

In fact, the problem of people of XXX nationality is not a new one. The International community have been discussing it on the highest level for decades. There is even an International convention on Status of Stateless Persons of 1954! It addresses and helps to resolve many issues that stateless person has to deal with it while trying to establish residence in a particular territory or travel. It also requires that basic human rights be afforded to stateless people to the same extent the citizens of the country of their residence may enjoy them. One of the most important provisions of the convention and its supplements, is that the countries-signatories to the Convention will issue identity and travel documents to the stateless persons which would allow them to function in the society (imagine, trying to find a job without an ID), and travel internationally.

While the Convention at issue is a great instrument to resolve this puzzle, the problem is that not all of the countries in the world have joined it. The United States or Russia for example, are not parties to this Convention.

Let’s take a look at some of the pledges the U.S. made during the Ministerial Intergovernmental Event on Refugees and Stateless Persons in 2011 available at http://www.unhcr.org/4ff55a319.pdf:

PLEDGES

“Bars to Admissibility and Asylum Eligibility

The U.S. Government pledges to:

  • •Significantly reduce, through the issuance and application of exemptions to exclusion based on national security grounds, cases that are on hold for a review of eligibility for an exemption to exclusion by the end of fiscal year 2012;

 

  • Undertake a review, to be completed by the end of calendar year

2012, to examine current interpretations of the terms under the

national security exclusion grounds, for example, the meaning of

material support, to better ensure that those in need of protection

retain eligibility for it;

 

Work with Congress to eliminate the one-year filing deadline for

submission of asylum applications.

 

Statelessness among Women and Children

The U.S. Government pledges to:

 

  • Focus U.S. diplomacy on preventing and resolving statelessness among women and children, including efforts to raise global awareness about discrimination against women in nationality laws and to mobilize governments to repeal nationality laws that discriminate against women;

 

  • Promote a child’s right to nationality through multilateral and bilateral engagement, including efforts to promote universal birth registration.

 

Statelessness and Citizenship

The U.S. Government pledges to:

 

  • Actively work with Congress to introduce legislation that provides a mechanism for stateless persons in the United States to obtain permanent residency and eventually citizenship;

 

  • Consider the revision of administrative policies to allow the circumstance of stateless persons to inform decision-making regarding their detention, reporting requirements, and opportunity to apply for work authorization.

 

 

It remains everyone’s hope that people who draft these pledges will also follow them.

POPE FRANCIS AND IMMIGRATION

September 21, 2015

POPE FRANCIS AND IMMIGRATION

Author: New York Immigration lawyer Alena Shautsova

Pope Francis is not only the leader of the Catholic Church, but also a strong and influential political figure. His actions and manifests are being construed as messages not only to the Catholics, but to the whole world, every person, regardless of confession. The world watches and listens to his every word, every step, and every visit he makes, be it a manifesto regarding gay members of the Church, a visit to Cuba, or his anticipated addresses before the United Nations. The Catholic Church that has remained one of the most conservative institutions for centuries received a progressive and open-hearted leader who over the years achieved through reforms more, than certain societies in decades…

It is not a coincidence that meeting with an Immigrant community in New York is a part of the Pope’s schedule during his 2015 September visit. Perhaps, by visiting children-immigrants, the Pope would like to direct our attention to the one issue the U.S. is more capable of resolving but has neglected to effectively address for some time. Of course, Pope Francis does not have a vote in the Congress and cannot force any world leader to accept his point of view, but he can show that only people, people themselves who elected their leaders can bring a change. While we all can sit and complain that the U.S. government, the President, Republican or Democrats do not do anything, we all should ask ourselves, what we did to change the situation…

Regardless of the answer, one thing is clear, if Pope Francis made it a point to accent his visit on the U.S. Immigration issue, it is time to really address it, and address it by DOING something, rather than complaining. It is without a doubt the U.S. declared increased numbers of Syrian refugees will help a little to alleviate the European refugee crisis, the U.S. can and has to address inner Immigration problems as well.