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PROBABLE CAUSE FOR IMMIGRATION DETAINER

July 30, 2015

PROBABLE CAUSE FOR IMMIGRATION DETAINER

 

Author: New York Immigration lawyer Alena Shautsova

It is not uncommon or unheard of that a person may be detained or arrested by Immigration authorities when they would like to verify that person’s immigration status.  The question is: can an immigration officer come up to anybody in the streets and detain that person for such a verification? Does an immigration officer need any type of basis before detaining a person?  What basis, if so, he/she has to have before acting? Immigration detainers are documents that are used to arrest a person who is suspected to be in violation of Immigration laws of the United States.   However, what does an issuing officer need to know prior to issuing such a document?

These questions became a subject of lawsuit by Ms. Morales, a US citizen, against the ICE officers who decided to detain her after which they kept her in custody for 24 hours before they realized that Ms. Morales was in fact a US citizen.  See Morales v. Chadbourne, (1st Cir, 2015), NO 14-1425.

Ms. Morales decided to sue the government officers because of the egregious violations of her rights under the Fourth and Fifth Amendments to the U.S. Constitution. Ms. Morales alleged in her Complaint that the ICE officers did not check federal databases before issuing a detainer and did not have probable cause before they issued a detainer, the basis of Ms. Morales’ imprisonment.

The district and Appellate courts agreed with Ms. Morales. The Court held that before issuing a detainer, the responsible immigration officer has to have a probable cause. The Court cited U.S. Supreme Court decision in Brignoni-Ponce that, just as in the criminal context, an immigration officer “must have a reasonable suspicion” to justify briefly stopping individuals to question them “about their citizenship and immigration status . . . but any further detention . . . must be based on . . . probable cause .” (“[T]he Fourth Amendment . . . forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.”

(“An arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States.” The provision specifies that in order to issue a detainer for aliens who have violated controlled substances laws, immigration officers require a “reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States.” 8 U.S.C. § 1357(d)(1).

 

As such, officers’ actions when they failed to conduct simple search of their databases to verify Ms. Morales’ immigration status lacked probable cause necessary for detainer.

 

This case can serve as a precedent for all those incidents when a person is unreasonably detained and his/her rights are violated.

 

 

 

 

 

Humanitarian Parole

July 21, 2015

Humanitarian Parole

Author: New York Immigration lawyer Alena Shautsova

USCIS and CBP are authorized to parole into the US a person who is not qualified for a visa and does not have permanent residency for humanitarian reasons. An application for humanitarian parole has to be filed in the United States. Most often such a relief is used by parents of minor children who have to wait for a long time to immigrate to the US with their parents. Parole is also used for medical emergencies and for other humanitarian reasons or for significant public benefit. One of the reasons for parole can be participation in court hearings during criminal or civil proceedings.

Humanitarian parole is basically a permission to come to the US which is not a visa or a green card. It is a temporary authorization which can be given for the length of the emergency, typically it is given for a year or two. A person who is in the US and still has circumstances which require his/her continuous presence in the US, can ask for re-parole.

The filing procedure is outlined in the instructions to the form I 131. A person requesting the parole has to submit an affidavit of support form and evidence of the necessity for US entry. While a parole is a great opportunity to solve some urgent and difficult situations, it cannot be used to overcome visa or residency requirements. For that reason, every applicant has to provide an explanation as to why humanitarian parole is the best option for him/her.

When the case is approved by USCIS, a consulate overseas is informed and the beneficiary has to comply with the biometrics and/or security checks. A consulate would then issue a boarding foil which will allow the beneficiary to come to the US.

Examples of approved applications for parole include: approval for medical emergency; approval for a minor child of a permanent resident; approval for the TPS holder who neglected to travel on advance parole.

Resources on humanitarian parole:

http://www.uscis.gov/humanitarian/humanitarian-parole

http://www.uscis.gov/humanitarian/humanitarian-parole/questions-answers-humanitarian-parole

http://www.uscis.gov/sites/default/files/USCIS/Resources/Resources%20for%20Congress/Humanitarian%20Parole%20Program.pdf

Proving Real or Bona Fide Marriage

June 27, 2015

Proving Real or Bona Fide Marriage

Author: New York Immigration Lawyer Alena Shautsova

If one of spouses in the marriage with a US citizen, is a non citizen who would like to reside in the US based on the marriage, the government will ask the couple to prove that the marriage is real or bona fide. Usually, a citizen spouse would need to submit form I-130 (petition for immediate relative) and attach prove of  couple’s life together. As per instructions to the form, a couple can present joint lease, joint bank accounts, joint utility bills, joint insurance policies, birth certificates of common children, titles to property… and also photos. In case the marriage is new and the couple really does not have much of joint proves, they can still show that their relationship is real by presenting affidavits from persons who are aware of their relationship and who can testify that the marriage in fact is real.

The question remains, however, how much proof is satisfactory.  What to do if the marriage ended and now the non-citizen by him/herself has to show that the marriage was real?

Often, Immigration Judges and USCIS demand paper proof of the marriage which usually, if the couple had a fall out would not exist. (Rarely people who really break up would hold on to common pictures or documents. Rather those who really go through a bitter break up would want to forget everything and anything that used to unite them).  However, the “paper proof” is not the only way one can prove that the marriage was real.  The burden of preponderance of evidence is met where one of the spouses can present  detailed and credible testimony regarding the marital relationship held 7the Circuit Court of Appeals.  See Hernandez v. Lynch, 6/18/15. No. 14-3305 (7th Cir. 2015).

As such, it is important to remember that as long as the non-citizen is found credible as to the circumstances of the marriage, his/her I 751 (petition to remove condition on residency) should be granted.  This is an important reminder to all dealing with I 751 petitions: the government should not increase the burden established by law just because some assume that there should be some “other” evidence of marriage than those provided. The law does not say that any applicant MUST present certain evidence, but rather states that an applicant has to prove the bona fide marriage by the preponderance of evidence.  See 8 U.S.C. § 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii).

 

 

U VISA STATUS

June 23, 2015

Author: New York Immigration Attorney Alena Shautsova

U VISA STATUS

A U visa status allows eligible individuals and dependents to acquire a lawful status in the US or to enter the US in a legal status if they were victims of specified crimes or criminal activity and suffered substantial physical or physiological abuse.

In order to qualify for a U status, an individual does not need to be in the US legally, or enter the US legally. What is needed, however, is a signed certification by the law enforcement stating that the beneficiary was helpful to the investigation and resolution of the crime. Without such a certification, one cannot apply for the U status.

One very strong positive of the U status, is that it allows its holder to apply for the permanent resident status after several years; also a U status holder is eligible for an employment authorization.

The list of criminal acts that qualify an individual for the U visa status includes: abduction, perjury, sexual assault, domestic violence, stalking, etc.

This list, however, is not a list of specific statutory violations, but instead a list of general categories of crime. The recent USCIS Memo on the issue one more time specifies that the list of the crimes is not exclusive, and USCIS should review each submission on a case by case basis to determine if the criminal activity is related to the specified crimes: if the nature and elements of the crime are substantially similar to the crimes listed, the criminal act suffered should be recognized as the qualifying one.

 

For example, in New York, there is no crime called “domestic violence.” Rather, there crimes, depending on the relationship between the victim and an offender which will be recognized as crimes of domestic violence.

 

Importantly, not only the applicant, but his family may qualify for the U visa. For example, If the main applicant is under 21 years of age at the time the principal properly filed the petition, qualifying family members include the main applicant’s spouse, children, unmarried siblings under 18 years of age (on the filing date of the principal’s petition), and parents. If the main applicant is 21 years of age or older, only the spouse and children are eligible for derivative status as qualifying family members.

Another important benefit of the U visa status is that the beneficiary can apply for a broad range of waivers while applying for and adjustment of status (green card). For example, if an ordinary applicant for adjustment of status will have an illegal entry or fraud activity on the way of the adjustment, a U visa applicant will be able to get a waiver for that obstacle.

An application for U visa / status may turn into a complicated process when the USCIS is questioning the criminal activity at issue or the level of the suffered harm. That is why it is recommended that the applicant uses help of a qualified attorney.

WAVE IN EXCEPTION

June 1, 2015

WAVE IN EXCEPTION

Author: New York Immigration attorney Alena Shautsova

One of the requirements for adjustment of status (or process of receiving permanent residency without leaving the U.S.) is evidence of being “inspected and admitted” as defined by 8 USC § 1101(a)(13)(A).

What constitutes admission is an important questions to answer, because it defines person’s eligibility for different immigration benefits such as, inter alia, adjustment of status and cancellation of removal.

Admission and inspection commonly takes place when a person is undergoing a “check” at the border or port of entry and presents him/herself to a CBP officer with a valid document such as a passport and a visa. However, this is not always the case. What to do in a case of crossing the border between the US and Canada or US and Mexico where there is no traditional Immigration control and checkup? That is how a “waved in” exception to traditional admission occurred. Through years of litigation and fights, it was finally decided that a person who was “waved in”: allowed to come to the US without a check- up, is a person legally admitted for the immigration benefit purposes.

The Board of Immigration Appeals found that “the terms ‘admitted’ and ‘admission,’ as defined in [§ 1101(a)(13)(A)], continue to denote procedural regularity for purposes of adjustment of status, rather than compliance with substantive legal requirements.” In re Quilantan, 25 I. & N. Dec. 285 ,at 290. See also Martinez v. Att’y Gen., 693 F.3d 408, 414 (3d Cir. 2012); Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010); Emokah v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008). The Board also considered the definition of admission at § 1101(a)(13)(A) in light of its interaction with other statutory provisions of the INA and the intent of Congress in enacting the definition. See In re Quilantan, 25 I. & N. Dec. at 291–92. It further rejected the Government’s argument that an alien “must be admitted in a particular ‘status’” to satisfy the definition of admission. Id. at 293.

It means that a person is admitted, when is allowed to come into the U.S. The particular status of admission does not matter, as the person is considered to be admitted in “any status.” See recent decision Tula-Rubio v. Lynch, 5/21/15 from 5th Circuit Court of Appeals.

How one can prove that he/she was in fact waved in?

The courts found the fact of admission where people were able to provide detailed testimony as to circumstances of entry and present witnesses to confirm the entry. Interestingly, that admission was found in cases where the exact time and date of admission was not recalled as long as overall testimony was found credible.

Asylum and Gang Violence

May 5, 2015

Asylum and Gang Violence

Author: U.S. Asylum attorney Alena Shautsova

Asylum and Gang Violence

A claim of asylum connected to gang violence is one of the most common types unfortunately. Immigrants from El Salvador, Mexico and Ecuador are all coming to the U.S. in pursuant of a safe harbor. However, despite the obvious danger of gang violence, not every applicant who is afraid of gangs can succeed in a U.S. Immigration court.
For example, in two recent decisions, the courts came to the opposite conclusions. In one case, the court held a mother of a son who is being actively recruited by the gangs is subject to protection in the US , Hernandez-Avalos v. Lynch, 4/30/15. But in a different case, the court held that a young Salvadorian male who is being recruited by the gangs and resist joining them, is not subject to the protection in the US. Rodas-Orellana v. Holder, 3/2/15.
On its face, it seems that these two decisions are opposites and that something is going wrong… Well, what is going on here is the application of so called social visibility standard. An applicant who presents an asylum claim based on membership in a particular social group must show that the group he/she claims to belong to is socially visible. It is largely depends on the applicant’s attorney’s advocacy skills to persuade the court that the applicant in fact belongs to a group that has certain distinguished characteristics in the society it exists in, and that those characteristics are prominent enough for the “bad guys” to notice them and target members of this particular social group.
This demonstration is not an easy one as shown by the case examples above. In fact, in the first example the only thing that ‘saved’ the claim was the mother-son relationship between the applicant for asylum (claim was filed by mom) and the subject of gangs’ attention. So, the “group” mom was a member of, was …her own family. In the second example, the group was found by the judge too broad to be identifiable, and that is why the claim was denied.
It is obvious that asylum law is developing and is very, very complicated for an average asylum seeker to comprehend. We try to republish all important recent asylum decisions on our website’s Asylum Library: http://www.shautsova.com/immigration-usa/asylum-library.html

 

Legally Speaking: Top 10 Questions regarding Waivers under INA and Answers

April 15, 2015

Legally Speaking: Top 10 Questions regarding Waivers under INA and there Answers

Author: New York Immigration Lawyer Alena Shautsova

Legally Speaking: Top 10 Questions regarding Waivers under INA and there Answers

  1. Q: There is no one single waiver that will solve my inadmissibility’s, can I “stack” waivers as a solution to my inadmissibility?

 

A: That is a great question, in most cases, yes you will be able to stack your waivers. The waivers can and should be granted simultaneously. There are however a few exceptions to the stacking of waivers.

  1. When you are not “otherwise admissible” at the time of your entry, having been previously deported.
  2. When you were never charged with deportability/inadmissibility due to fraudulent marriage that was the basis for your lawful permanent resident status.

 

2.     Q: After we apply for a waiver will I be eligible for Employment Authorization before it is granted?

 

A: No. The waiver application itself does not provide for an opportunity to file for a waiver.

 

3.     Q: Is it possible to appeal or refile a waiver?

A: Yes. In most cases it is possible to appeal or file a motion to reopen/reconsider. In certain cases there is no appeal , but it is possible to refile.

 

4.     Q: I showed an Extreme hardship when submitting my waiver, why was I denied for lack of evidence?

A: In almost all situations, a waiver application is being analyzed first from the point of view of statutory eligibility, and then as matter of discretion. Also, it is USCIS who determines if there was enough evidence to demonstrate hardship.

5.     Q: I have been living in the US “under the radar” since I have been here, how can I prove that I have been here the whole time?

A: It is applicant’s burden to establish physical presence in the U.S. Possible evidence may include photos, social media updates, trip receipts, records of rent payments, medical records.

6.     Q: How much documentation is needed to show an Extreme hardship?

A: There is no set limit.

7.     Q: I don’t think I submitted enough evidence in my waiver submission, is it possible to add additional evidence?

A: Yes, before the decision is made, it is possible if you have a receipt number.

8.     Q: Why should I use an attorney to file my case when the instructions are right on the USCIS website?

A: An attorney can help to present the case and evidence in the most favorable light; also a good submission should be accompanied with the points of law that correspond to the published precedents and cases, which a person who is not practicing law will have a very hard time doing.

9.     Q: Why do you charge so much money for waivers opposed to other attorneys?

A: A good submission involves at least 40 hours of work which includes forms, affidavits, letters of support, consultations on different aspects, meetings with clients, memorandum of law, etc.

10.   Q: What makes you so successful when it comes to waivers?

A: First, it is time we spend talking to our clients and learning about their lives. Second, it is ability to make clients comfortable so that they will share all aspects of their lives and ability to explain to a third party why an applicant has a compelling story and deserves the pardon.

H1B 2016 Cap is Reached

April 8, 2015

H1B 2016 Cap is Reached

Author: New York Immigration attorney Alena Shautsova

On April 7, 2015 USCIS announced that the H1B Cap, or amount of visas that are allocated to foreign workers in specialty occupations has been reached for the 2016 fiscal year. The government has received more than allocated 20,000 petitions for the advanced degrees and more than 65,000 petitions for the general category.

Now, government’s computer will randomly select the “winners” and after that, their applications will go through consideration process. If the petition is granted an the beneficiary uses the cap, the petition is counted towards the cap. If for some reason, the selected petition is not approved or the beneficiary is not utilizing it, the “spot” will be returned to the pool and will be given to someone else.

USCIS continues to accept petitions that are not covered by the 2016 cap, or cap exempt. Such petitioner can be filed for example by those whose H1B status is being extended due to pending labor certification or  I-140 petition; or those whose employment conditions changed and need amendments, etc.

All petitions that will not be selected, will be returned together with the filing fees, as long as they were not duplicated.

Immigration Fraud Waiver 237(a)(1)(H)

March 26, 2015

Immigration Fraud Waiver 237(a)(1)(H)

Author: New York Immigration lawyer Alena Shautsova

Immigration laws are unforgiving to those who the government determined used fraud or misrepresentation to acquire an immigrant visa or adjustment of status. The Immigration Fraud waiver under 237(a)(1)(H) is one of the rare exceptions. 

Immigration fraud occurs when a person makes an intentional misrepresentation of material fact with intent to deceit the person to whom the message is addressed.

A misrepresentation occurs when a person presents facts that are not true. In the content of the discussed waiver, a misrepresentation may be willful or innocent.

As used in INA 212(a)(6)(C)(i), a misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the alien. A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.

Due to the broad definition of misrepresentation, and the fact that it can be innocent, a green card holder may be charged with removability based on misrepresentation even when he/she was not aware of the falsity of the information. For example, a person was not aware that he/she had an order of deportation against him/her and answered NO to the question regarding outstanding orders; a person was not aware that the divorce certificate was false and introduced it as a valid proof during an immigrant visa application…

A permanent resident who entered the US using an immigrant visa or who adjust his status in the U.S. may be charged with the ground of removability under INA 237(a)(1)(A) or INA 212(a)(6)(c)(i) if suspected of fraud or misrepresentation in connection with the receipt of IV (immigrant visa) or permanent resident status. The good news, is that in many cases, a person may apply for a 237(a)(1)(H) waiver.

To qualify for the waiver, a person first has to be charged with the mentioned above grounds of removability.

Second, a person has to have a qualified retaliate in the U.S.: a spouse, parent, son or daughter who is a U.S. citizen or LPR. The usual reading of the statute so far is that the relative must be alive at the time of the decision on the waiver and that the qualifying relationship should be in existence. However, at least one court in the 9th circuit held that a son of the deceased USC can qualify for the waiver; and in at least one BIA decision, a divorced applicant was allowed to apply for it.  See Matter of Soretire, 11/20/14, unpublished BIA decision.

Notably, no showing of extreme hardship to the relative is required for this particular waiver.

Third, a person must not be otherwise inadmissible.

This waiver may be helpful to those who gained their permanent resident status without disclosing that were married at the time of the marriage to the USC (bigamy); those who did not disclose that they were married when received a visa as an unmarried son or daughter of the LPR; those who presented false documents at the time of the Immigrant visa interview or adjustment of status; and those conditional resident who the USCIS believes engaged in fraudulent marriage.

Finally, if an applicant is statutory eligible for the waiver, he/she still has to demonstrate that he/she deserves a favorable discretion.  It means that person’s good moral character as well as hardship to the qualifying relative will be considered (however, the level of hardship does not need to rise to the extreme level).

Can one whose waiver was denied appeal the denial in court?

It depends on the grounds for the denial. Although a court does not have jurisdiction to review the discretionary denial of a fraud waiver, it does have jurisdiction to review the statutory eligibility elements under § 237(a)(1)(H) of the Immigration and Nationality Act (INA), 8 U.S.C.S. § 1227(a)(1)(H), as it may review constitutional claims or questions of law. INA § 242(a)(2)(D)8 U.S.C. § 1252(a)(2)(D).

USCIS UPDATES G 28 form and I 864P poverty guidelines

March 16, 2015

USCIS UPDATES G 28 form and I 864P poverty guidelines

Author New York  immigration lawyer Alena Shautsova

USCIS updated its G 28 attorney or representative notice of appearance form. The main new change is that now, the applicant or petitioner can choose who should receive notices regarding immigration filings and documents: the applicant or petitioner or just his/her representative. The change should affect those applying for employment authorization and who would like their attorneys to receive the EAD card. Previously, it was impossible for an attorney to receive an EAD card at attorney’s address.

USCIS also updated I 864P poverty guidelines which establish income limits necessary to sponsor family members into the US. The forms submitted to USCIS prior March 1, 2015 will be considered under the previous guidelines.