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No Cancellation if Asylum Filing Was Frivolous Says BIA

May 31, 2019

No Cancellation if Asylum Filing Was Frivolous Says BIA

Author: Deportation Lawyer Alena Shautsova

There exists a wrong practice among Immigration law practitioners (fraudsters) to file an asylum claim on behalf of an individual with the purpose of filing for cancellation of removal later in Immigration court. What happens is that people essentially get “tricked” by these practitioners into believing that they can get away with filing a frivolous asylum case and later, when they transferred to court, they will be able to successfully file for a relief with the judge in a different form. At times, people are not even aware they filed for asylum!

Here is a first point: a person has to file for asylum within a year of his/her entry into the US. If you spent here 10 years and more (one of the qualifications for cancellation of removal), chances are you will NOT qualify for asylum unless certain, very narrow exceptions are met.

Second, an asylum application must have merit: you cannot allege that you are afraid of criminal situation in your country general. This is NOT a basis for asylum. It takes months to prepare an asylum application and thoroughly collect all the evidence; if the evidence is not available you must explain why. 

There is a punishment under the law for those who submit  frivolous or fraudulent asylum applications. 

So, within the past years, there were numerous reports of filing for asylum in order to get a cancellation of removal relief: an application for a green card available to be filed in court only. Now, the BIA held that this practice will be sufficiently abolished: if the Immigration judge determines that the asylum application was filed just so that the person could file for cancellation of removal, the proceedings will be DISMISSED! It means that the person will not have a chance to file for cancellation of removal.  See Matter of ANDRADE JASO and CARBAJAL AYALA, 27 I&N Dec. 557 (BIA 2019). 

If one desires to place himself/herself in removal proceedings, even generally not recommended to do so, he/she should request that the government issue a Notice to Appear rather than submit a frivolous asylum case. This approach might come with less success, but will save time, money, and potentially safeguard from civil and criminal penalties. 

 

FOIA: The Importance of Having Your Full Immigration Record

May 20, 2019

FOIA: The Importance of Having Your Full Immigration Record

Author: New York Immigration Attorney Alena Shautsova

FOIA stands for Freedom Of Information Act and is essential for one’s Immigration case. By filing FOIA request, one may not only receive a copy of his/her Immigration file form an Immigration court, Board of Immigration Appeals or USCIS, but also obtain records of one’s interactions with the CBP at the border; receive notes about one’s testimony during his/her Asylum interview and obtain records from the Stokes interview.

A response to FOIA has to be current: if you received a “CD” (the government usually delivers responses to FOIA requests on CDs) in the past but since then had some immigration history: forms filed, a decision made, etc, you need to obtain a “fresh” FOIA response.

One of the most overlooked and underused FOIA requests is an OBIM FOIA: U.S. Office of Biometrics Identity Management (“OBIM,” formerly US-VISIT). Basically, if you would like to receive your files regarding interactions with the Border Patrol officials, you need to file a request for FOIA with OBIM. OBIM requests may be submitted by letter request; Form G-639 by mail, fax, or email; or electronically through the DHS Online Request Form. They should include an original fingerprint card or A-number.

Another important source of information is CBP. A request for records to the CBP may reveal:

Apprehensions and detentions at the border: • Interactions with CBP at the border or in the interior • Form I-94 records • Voluntary return records • Records of entries and exits xi • Expedited removal orders • Advance parole records obtained through CBP.

Unfortunately, the government does not have to disclose all the information. Often,  important information is being withheld according to the provisions allowing the government not to share information that they use for investigation purposes, for example. If, however, an adverse decision is made in one’s case, he/she is entitled to have an opportunity to review and respond to the adverse information in the file.

Finally, often, as a result of the lawsuits, the government is forced to share previously withheld information. What was not available 8 years ago, now, may be available, in other words. If you are seeking to “fix” an old Immigration problem, a FOIA request is a must. It takes several months before you receive a response, but the wait is worth it. Through FOIA you can also obtain copies of lost documents; information regarding old filings that potentially can qualify you for an Immigration benefit; and, of course, information that was filled in the forms which can be checked for accuracy.

If you need assistance in obtaining your files, please call 917-885- 2261 for an appointment.

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

November 28, 2018

Changes in New York Criminal Law May Serve As a Basis for Immigration MTR

Author: New York Immigration Attorney Alena Shautsova

Recently, New York highest Court, the Court of Appeals held that a defendant facing criminal charges with a risk of deportation should be entitled to a jury trial. Under  State Criminal Procedure regulations  340.40, a criminal defendant may be denied a jury trial for certain offenses. As such, such a person will face a bench trial instead: a trial where a judge without a jury will decide his/her faith.  

This regulations and practice have been found violating immigrants’ rights who may face deportation/removal even for otherwise low-level offenses.  The court held:

“It is now beyond cavil that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty,” Stein wrote. “Accordingly, we hold that a noncitizen defendant charged with a deportable crime is entitled to a jury trial under the Sixth Amendment, notwithstanding that the maximum authorized sentence is a term of imprisonment of six months or less.”

It means that in every case, a careful analysis of the consequences of the potential conviction is required. It also means, that those who were convicted of deportable offenses and now are facing deportation, should be able to file corresponding motions to reopen their cases both in criminal and immigration courts. 

If you have Immigration questions related to criminal convictions, please call our office for a consultation at  917 885 2261.

 

 

Legalization of Marijuana and US Admissibility

October 19, 2018

Legalization of Marijuana and US Admissibility

 

Image result for marijuana fields

Author: US Immigration Attorney Alena Shautsova

US Federal laws prohibit use and distribution of marijuana, and even though on a state level in certain jurisdictions, use of marijuana and its possession would not even cause criminal charges any longer, on a Federal level, and particularly for Immigration purposes, affairs related to it may cause serious problems.

Generally speaking, persons who are involved in manufacturing and distributing of marijuana would be inadmissible in the US. Drug-related offenses are the toughest ones for US Immigration purposes: there is no even a waiver for the most of them. 

But recently, countries started to liberalize their policies to toward marijuana. Specifically, Canada legalized it. Now, a person may be involved in acts that are considered to be legal in their country, but illegal in the US. What will happen if the person is seeking to come to the US?

The answer was recently provided by CBP:

 “A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.”

It means that just working for the industry will not make on inadmissible, but if the person is coming, let’s say to explore business opportunities related to the same, he/she will not be able to enter the US. 

 

Brooklyn DA to Expunge Small Drug Convictions

September 21, 2018

Brooklyn DA to Expunge Small Drug Convictions

 

Foliage Cannabis Marijuana Lush Plants Nat

Author: New  York Immigration Attorney Alena Shautsova

In the light of the general liberalization of laws related to marijuana, Brooklyn DA announced a new program that would permit those convicted in Kings county to apply for an expungement of convictions related to unlawful possession of marijuana.  It should be noted, that on a Federal level, possession of marijuana is still a crime related to a controlled substance, which, depending on the amount, may make a person inadmissible and/or deportable. 

The program by Brooklyn DA to expunge small drug convictions would allow many to clear their records, and potentially, qualify for Immigration benefits they could not qualify previously. The subjects of the convictions could request the convictions to be dismissed. Moreover, those with outstanding summons warrants will be able to vacate their warrants: an outstanding warrant is a red flag for any immigrant, and must be addressed ASAP. 

You can learn more about Brooklyn DA’s programs here: http://brooklynda.org/begin-again/.

If you have Immigration concerns related to convictions, please book a consultation at http://www.shautsova.com.

O Visa Consultation Letters

September 19, 2018

O Visa Consultation Letters

Author: US Visa Attorney Alena Shautsova

To receive an O visa in the US, a petition by a potential employer has to be approved.   O-1 and O-2 nonimmigrant visas are available to individuals with extraordinary ability in science, education, business, athletics, or the arts, and individuals with extraordinary achievement in the motion picture or television industry, and certain essential support personnel. A consultation letter from a U.S. peer group, labor organization, and/or management organization is generally required for petitions in the O visa classification. As a part of the approval process, the employer has to reach out to the designated union/organization and request an opinion: if this union agrees that the subject of the petition is deserving to work in the US in a particular field. Not all the fields, by the way, have such unions.  For example,   the American Federation of Musicians (AFM), issues consultation letters for artists and groups in which instrumentalists make up least 50% of the personnel. Other unions issue consultation letters for artists such as dancers, actors, stage managers, stage technicians, operatic singers, and writers.

In the past, it was the petitioner’s job to reach out to the union and collect the letter/recommendation which could have been positive or “no objections” or negative. 

Recently, due to the fraud concerns, USCIS determined that negative consultation opinions must be sent by the unions to USCIS directly. It is an important change in the process of obtaining an O visa.  This new procedure affects only negative letters, not the positive consultations. 

 

What is Happening with DACA?

August 23, 2018

What is Happening with DACA?

Author: New York Immigration Attorney Alena Shautsova

DACA was restored….not so fast. On August 17, 2018 the same court that previously ordered to restore the program fully, including the part of it that used to provide advance parole was again stayed by the same court. NAACP v. Trump, 8/17/18.

What happened was that the government decided to appeal Court’s August 3rd order regarding the full restoration of the program, and filed a motion to clarify the order and motion to stay. The Plaintiffs in the case agreed that the stay will be appropriate with regard to the new applications, hence the stay was granted. 

It means that those who hold DACA cards that are expiring will be able to file the renewal applications, but no new applications and no applications for advance parole will be accepted. 

 

 

USCIS ADOPTS NEW POLICY FOR NTAs

July 6, 2018

USCIS ADOPTS NEW POLICY FOR NTAs

Author: New York Immigration Lawyer Alena Shautsova

USCIS changes policy on how and when it will be referring applicants to court. Now, all persons who applied for Immigration benefits and were denied will be issued Notices to Appear. A Notice to Appear is a charging document that means that the person is going to be placed in removal proceedings in Immigration Court. 

Under the new policy, the following cases will be referred to court: 

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

What Happens After ICE Arrest

February 9, 2018

What Happens After ICE Arrest

Deportation attorney Alena Shautsova

Recent news brings worry and anxiety to Immigrants: ICE arrests non-citizens in courts, at work, in their homes.  But what actually happens after an individual is taken into ICE custody? The answer to this question depends on individuals’ Immigration history and the exact reason for the arrests.

Individuals with Prior Orders of Deportation/Removal

If ICE picks up a person who has a prior order of removal/deportation, ICE may either reinstate the order of removal and try to physically remove the person from the US; or, if a person has any possibility of relief from the physical deportation, ICe may issue an order of supervision.  A person would have to file an application for administrative stay of removal and ICE would release such a person on an order of supervision.  If the application for stay is granted, a person will be allowed to remain in the US, wait for the resolution of his/her applications here, and legally work in the US.

Individuals Charged With Aggravated Felony 

If ICE arrests someone who does not have an order of removal/deportation but is deportable due criminal conudct, and especially due to an agrevated felony, ICE may choose to remove such a person using an expedited procedure tool,  and will serve on an individual a “Notice of Intent to Issue Final Administrative Removal”.  If an individual does not successfully contest such a notice, he/she may be removed out of the US without seeing a judge.

Other Cases

In the majority of other cases, ICE will have to place a person in INA 240 removal proceedings where an individual will have a right to present a defense to removal in court before an Immigration Judge. A person is likely to be detained for a month or so until the bond hearing takes place, and then a person will be released (once the bond is paid.) Some immigrants, are not eligible for the bond (but even this law provision has been challenged in courts.)

In many cases, I would say in the majority of cases, long-time US residents may have defenses to deportation/removal. Depending on their exact situation, they may qualify for adjustment of status (with a waiver, for example); cancellation of removal; SIJS benefits (for children); or else.

If you need a consultation regarding possible defenses, please call us at 917 885 2261.

 

Administrative Closure v. Termination of Immigration Proceedings

January 30, 2018

new-york-supreme-court

Administrative Closure v. Termination  of Immigration Proceedings

Author: New York Immigration Attorney Alena Shautsova

I would like to share this article as a little clarification as to what happens in Immigration court (at times) and the difference between two, almost identical decisions (as many clients see them): administrative closure and termination of Immigration proceedings.

In Immigration Court, a person may have various forms of relief, or sometimes, does not have any benefit that he/she qualifies now, but may qualify in the future. Also, sometimes, when a case is pending against a person, he/she cannot apply for a relief, he/she would otherwise qualify for.  For example, a person in removal proceedings, cannot submit he/her application for adjustment of status with USCIS but has to do so with an Immigration Judge (IJ).  A judge has to close a person’s case in court first so that a person can submit his/her application administratively.  Or, in another example, a person with a final order of removal, and an approved I 601A waiver, cannot leave the country without the case being reopened and closed. (If, of course, a person would like to come back to the US after a trip abroad, or if he/she does not want to apply for yet another waiver).

What happens in such situations, that a person’s removal case has to be closed by the judge. But there is a difference in how a judge can “close” a case, depending on the purpose of the closure.

An IJ may administratively close the case: this is not a true closure of the case. An administrative closure simply takes the case off the active court calendar, and a person would not need to come to court for a while (usually it is done to give a person more time to prepare an application or to resolve some other issues that take a long time.) A person with an “administrative closure”, if leaves the country, will be self-deporting him/herself.

An IJ may terminate the proceedings. This means a complete resolution of the case. The proceedings can be terminated with prejudice (it means that the government will not be able to restart the case based on the same grounds); or without prejudice (it means the government will be able to reinstate the removal on the same grounds against the person).

Simply put it, one would want the case to be “terminated” instead of administratively closed. Only those with pending asylum applications, who want to keep an opportunity to extend their EADs would probably prefer an administrative closure instead of a termination.

 

If you have questions regarding the Immigration court proceedings, reach out to us at  917-885-2261.