Asylum in USA, Immigration To The USA

Delivering Solutions For Your Future

Immigration in America, USA flag

EAD Clock and Transfer of Pending Asylum Case

July 12, 2016

EAD Clock and Transfer of Pending Asylum Case

Author: USA Asylum Attorney Alena Shautsova

Finally, there is a good news for asylum seekers. USCIS is adjusting its policy on stopping the employment authorization clock in case an applicant is filing his/her request to change the venue or transfer the case from one asylum office to another.

Previously, any request for transfer at any point of asylum case was considered by USCIS as a delay of the proceedings caused by the applicant and the EAD clock (the 180 day clock for employment authorization that starts to run once the case is filed) would be stopped, and often stopped permanently.

Recently, USCIS announced that in case of a transfer request the clock will be stopped only if the case had already been scheduled for an interview prior to the request. It is unclear, if the applicant should be aware of the scheduled date or not,  for the “punishment” to be imposed. However, the good news is that clock will be and should be restarted for all those cases were it was stopped in violation of this new policy.

The EAD clock is one of the most sensitive topic for asylum seekers. In many other countries, asylum seekers may enjoy different benefits while they are waiting for the resolution of their applications. The only benefit that they get in the US is a right to an employment authorization that  one can use after his/her case was pending for more than 180 days.

Sometimes, pro se applicants transfer their cases without knowing of the consequences of transfer. The new policy should help to eliminate this injustice and help those awaiting for their asylum cases to be resolved.

The other aspect of the issue is that the wait times for asylum interviews increased dramatically within the past few years. It is not uncommon for an asylum seeker to  wait for 2 years before he/she is called for an appointment with an Asylum officer. It means that if somebody moved within the first 6 months after filing the case, he lost his/her chance for an employment authorization for the whole time the case would be pending.  Hopefully, the new policy will help “movers” to avoid this consequences.

How to Avoid Mistakes While Representing Yourself in Immigration Court

March 3, 2016

How to Avoid Mistakes While Representing Yourself in Immigration Court

Author: New York Immigration lawyer

You ended up in Immigration court and do not know what to do…

The easy answer to this situation would be “hire an attorney!”, but sometimes an individual cannot afford an attorney, or believes that the first portion of a case can be done pro-se to reduce attorney’s fees.

First, if you cannot afford an attorney, try your best to find a low-bono or a pro-bono one. Some non-for profit organizations are offering free legal services, and local bar associations cab direct you to the pro-bono lawyers in the area. Also, law schools have legal clinics that take different type of matters and can help you as well.

However, if you are “stuck” by yourself, here are some tips.

  1. Stay away from FRAUD. As tempting as it can sound, or as persuasive as an “uncle” promised it to be, lying on Immigration applications and in Immigration court is never a good idea. It does not mean that you cannot advocate on your own behalf, explaining the impact of certain events and providing your point of view and research, let’s say, on country conditions. But, stating something that you know is not true, for purpose of obtaining Immigration benefits will make you permanently inadmissible into the United States.
  2. Read available memos, cases and practices and procedures. It is not easy, but it is not a rocket science. Start with the Immigration Practice Manual which outlines the basics of Immigration court procedures. Some non-for –profits publish excellent resources on various topics, such as U visas, VAWA, asylum, Cancellation or Removal… Those resources are available on Google and are free!
  3. Another common error encountered when dealing with former pro- se clients, is that they give too much information in there affidavits in support of their claims (If they submit one to begin with). The old saying, keep it simple goes a long way for affidavits. Focus on the reason you are writing the affidavit: if it is submitted, to prove a bona fide marriage write about your relationship and how it developed. It is always better to be concise and allow for later expansion of your testimony.
  4. At last, remember that each and every word is transcribed. Speak clearly and think before answering questions. Refrain from any type of vulgarity, and show respect to the judge who ultimately decides whether or not you are going to stay in the U.S, and the prosecutor. When you speak before the court, or to the prosecutor, your words have value. Trying to exemplify your knowledge of the English language is helpful at times to show the Judge you have a desire to learn the language of the country, but if you are not sure of the definitions of your words you are using, refrain from using them. One such example, is the word “moot”: the definition of the word in the Webster’s dictionary differs significantly from the meaning the courts give to this word, and without knowing it, one may misunderstand the entire proceedings.

And now, some practical tips:

 

  1. When you use ASYLUM as defense from removal, after you are asked to designate a country to be removed to in the event of denial of your case, you should respectfully decline to do so. The idea is that there is no country in the world where you feel safe, and hence, you do not wish to be removed to any country.
  2. Make sure your documents are filed on time, preferably before the deadline or a “call up date”.
  3. Check the status of your fingerprints: if possible, ask to expedite the clearance, and make sure nothing on your end is holding up the process.
  4. If you filed your asylum application with the Court and not USCIS, you must follow special procedure for ordering your own fingerprints by filing first three pages of I-589, and a copy of the instructions with USCIS. This is the only time fingerprints are not automatically ordered for you, but without this clearance, your application for asylum with the Immigration court might be denied.

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

 

Solutions For Unaccompanied Minors

October 9, 2014

Asylum For Unaccompanied Minors

Author: New York Immigration attorney Alena Shautsova

Recent influx of children from South America posted serious questions in  front of the US government.  While the Obama administration promised an Immigration reform, it also decided to handle the cases of these children rather harshly: new immigration detention facility in Texas and surge dockets in Immigration courts do not look like measures that should address this crisis in a humane way.

Nevertheless, most of the children are eligible for some sort of relief. For example: asylum, Special immigrant juvenile status, U or T visa, and sometimes VAWA derivative status.

Most of the asylum claims of  unaccompanied children involve allegations of family or domestic violence or gang violence.

Special Immigrant Juvenile Status can be granted to those children who have a guardian or custodian in the US pursuant to a State judge’s court order. The child can submit application for SIJ as long as he/she is under 21 years old.

In New York, any person can serve as  a guardian, as long as he/she does not have disqualifying criminal convictions, and can demonstrate that he/she will be a suitable and reliable adult.

The fact that a child has one parent present in the US does not disqualify the child from the SIJ status.

Sometimes, the DHS issues an expedited order of removal against the child (for example, when the child is 18 years old, he/she can still qualify for SIJ status, but the Immigration treats him/her as an adult). Such an order will not be a bar to SIJ status. If, however, the child is placed in regular Immigration proceedings, and now is applying for SIJ, it is likely that the judge will not terminate the case until I 360 is approved.

Recently, the DHS has harshened its policies and practices of dealing with immigrant children: the DHS keeps these kids in detention, would refuse or set a very high bond; would issue  expedited orders of removal against those kids who turned 18…  However, it does not mean that there are no solutions for children and, if possible, a child or his/her family members should consult with an attorney to explore defenses to the removal.

 

 

 

 

 

 

Asylum Interview Notes Must be Disclosed

December 6, 2013

Author: Asylum Attorney Alena Shautsova

Asylum Officers will have to share their notes they take at the time of the interview pursuant to valid FOIA requests.

The first step in asylum process in the US, is an interview with an asylum officer. During the interview, the officer decides if the applicant is credible, and if his/her story is consistent and truthful.  The officer takes notes at the time of the interview and often those notes determine the future of the applicant’s case.

The issue is that up until Martins v. USCIS lawsuit, the officers refused to share the notes with the applicant, and as such, the applicant had no opportunity to challenge officer’s determinations and conclusions.

Under the settlement agreement reached in Martins, USCIS must instruct all officers, employees, and agents involved in the processing of FOIA requests that asylum officer interview notes – the records reflecting information, instructions, and questions asked by officers and responses given by applicants in asylum interviews – are not by their nature and status protected by the deliberative process privilege as a general matter and thus are to be produced under FOIA. This training must be completed within three months of the settlement agreement. USCIS must demonstrate its compliance to the court with the settlement after 3 months.

It should add transparency to the asylum interview process and strengthen the due process rights of the applicants.

If you believe you need assistance with the asylum process, call law office of Alena Shautsova, US Asylum attorney 917-885-2261.

Asylum Clock Settlement

May 14, 2013

Author: US Asylum attorney Alena Shautsova

Asylum clock issues have been preventing many applicants for asylum from receiving EAD and being able to support themselves while their cases being considered by Asylum Officer or Immigration Court. Sometimes, the wait time for EAD can be as long as several years. Imagine, during all this time the person is not able to legally work and have to accept jobs below minimum pay, hide from authorities and being stressed out every time the judge asks about his/her job situation.
Read Post

What Do Statistics Say About U.S. Asylum and Refugee Immigration?

February 15, 2013

Author: Asylum Lawyer Alena Shautsova

Every year the Office of Immigration Statistics issues an Annual Flow Report that offers information about U.S. refugee and asylum statistics. The most recent statistics available are for 2011 and the annual flow report indicates that 56,384 persons gained admission to the United States as refugees during 2011. Burma, Bhutan and Iraq were the leading countries for the flow of immigrants and there were 24,988 individuals granted asylum by the Department of Homeland Security (DHS) and Department of Justice (DOJ).

Read Post

Can I File For Asylum if my Visa Expires?

February 4, 2013

Author: New York Asylum Attorney

Many asylum applicants are confused regarding the procedure of filing for asylum. Let’s say someone came here from Egypt (a country with recent change in country conditions) and now they face a question: shall they file for asylum in the US or shall they do it from their home country. Many potential applicants are afraid that by the time they prepare their application in the US, their visas will expire, and they become illegal.
Read Post

Asylum Denials Rates Are At Historic Low

January 17, 2013

What are the odds of getting asylum in the United States? According to the latest report, they are pretty good.

Asylum denials rates are at their historic low. The statistics released by TRAC Immigration shows that  the odds of an asylum claim being granted  reached a historic high  in FY2012, with only 44.5% being turned down.
Read Post