Author: NYC Immigration Lawyer Alena Shautsova

Department of Homeland Security and Department of Justice published final rules regarding barring asylum to those who on their way to the United States transited through a different country. The new rule goes into effect on January 19, 2021.

To qualify for asylum, an applicant will have to demonstrate that either he/she filed for asylum or similar protection in one of the countries she transited through on the way to the USA, and received a final judgment of denial; or that the alien is the victim of severe human trafficking; or that all the countries the person transited through are not part to the International treaties protecting refugees: 1951 United Nations Convention Relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.

The rule will be applied to those asylum seekers who enter or attempt to enter the United States across the southern land border. It will be applied to all asylum seekers who do not meet exceptions, including unaccompanied minors. The rule will be used in connection with credible fear screening as well, necessary limiting the number of persons who may qualify to see the judge.

A usual route for someone from Central America would include crossing Guatemala and Mexico. These countries traditionally are not considered safe for asylum seekers, and as a rule, persons who are fleeing violence would not seek protection in Guatemala, where there is a high crime rate and violence of its own.

Note that this rule will not be applied to those entering the US via airports, or by the sea, entering the United States at other borders.

This new rule adds on to the incoming restrictions and modifications for asylum eligibility that will go into effect on January 11, 2021.

If you need help with an asylum case, call us at  917 885 2261 to reserve a confidential consultation.

Author: US Asylum attorney Alena Shautsova

Alena Shautsova, NYC based, US Asylum attorney helps clients to identify potential evidence in support of their asylum claims and helps to argue that the evidence shall be admissible in cases where the evidence is challenged on the grounds of relevancy, authenticity, or weight.

What evidence can be used in support of one’s asylum claim in the US? This is one of the most popular questions I receive every day from US asylum seekers. The evidence may range from the types: letters, photos, copies of forms, applications, medical records, but also may range in the likelihood of acceptance and weight.

First, one should know that in the US Federal court system there are rules of evidence: that is written rules which all participants of the court process (people, judges, and the prosecutors) should follow. In the “regular” , non-Immigration court, such rules have strict guidelines, for example, hearsay would not be allowed to be used by any of the parties (hearsay is a statement made out of court offered for the truth of the matter asserted. ) But in Immigration court, the same rules are more relaxed, and hearsay are often used by both the respondents (person who is placed in removal proceedings), and prosecutors.

One of the types of evidence we use in asylum cases is documents or documentary evidence. When we work with documents, we need to follow the rules of evidence and be mindful that any documents that can be produced in support of one’s asylum case can be questioned by the prosecutor or the judge on the grounds of authenticity (if it is a real, unaltered document), relevancy (if it relates to the claim), weight (if it contributes to the person’s burden of proof or shall be disregarded as biased),

In support of one’s asylum claim, a person may present a variety of documents: police and medical records, declarations and affidavits by witnesses, family, and friends, country conditions reports, etc. Often, an asylum applicant is afraid that the documents will be leaked to his/her government. But how then the US government can verify the documents without showing them to the authorities of one’s country?

The US government has established criteria for determining when its own investigative documents and reports are reliable, and they have to identify: 1). the investigator and his/her qualifications; 2). the objective and extent of investigation; 3). the methods used to verify the information discovered. Memo. Cooper, G.C. “Confidentiality of Asylum Applications and Overseas Verification of Documents and Application Information.” As such, the U.S. government can and often will investigate the documentary evidence presented by the asylum applicants to verify their authenticity. Often it is done via consular reports.

The standard for documents’ credibility is the same as for the testimony: and any adverse decision must be based on specific, cogent reasons that bear a legitimate nexus to the finding.” Zahedi v. INS, 222 F3d 1157, 1165 (9th Cir. 2000). However, if an applicant present forged documents, that affects his/her credibility in the absence of explanation or rebuttal. The use of fraudulent documents to escape the country of persecution has been recognized as not fatal to one’s asylum claim. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

Moreover, hearsay documents cannot be the basis for adverse credibility findings. (Consular report that the Russian’s birth certificate did not conform to the Russian records failed DOS’ own standards and lacked the name and title of the investigator, Balachova v. Mukasey, 547 F3d 374, 382-383 (2d Cir. 2008).

Now, the judge may not exclude the documents and then rule that the lack of the documents is a basis for adverse credibility findings. Notably, in the US, a document may be authenticated via various means:

Certification procedure stated in 8 CFR 287.6;

Fed R. Evid. 902(3)

Fed R. Civ. P. 44

An expert may authenticate a document; and

The inherent reliability of the document (business record exception to the hearsay rule, for example).

A common question herein would be: must affidavits be notarized? Notably, no. Affidavits may not be notarized. First, a person may use an exception to the notarization requirements: under the US Federal law, a sworn declaration may have the same weight as a sworn affidavit. But Immigration courts also may accept unsworn letters as authentic statements: an author may be in grave danger and would not risk his/her life going to the notary public to authenticate his/her signature. Note, however, that the judge would be the ultimate ruler regarding the admissibility of the evidence: at least one judge refused to accept letters by friends and family members stating that such letters were not objective. Djadjou v. Holder, 662 F3rd 265, 276 (4th Cir. 2011).

Finally, statements and reports, by both the applicant and the government, may be challenged for factual inaccuracies or because they represent highly unreliable hearsay. Grigoryan v. Barr, 959 F 3d 1233, 1240-43 (9th Cir. 2020).

That is where the skill and knowledge of your attorney may be particularly helpful and may bring that victory which every applicant for asylum is hopeful for.

If you need help with an asylum claim, please call our New York office to reserve a confidential consultation at 917-885-2261.

Author: USA Immigration lawyer Alena Shautsova

At the law office of Alena Shautsova, we help our clients to use complicated US Immigration laws to achieve their Immigration goals: the US immigration law governing one’s case and affecting one’s life in the US, can be extremely complicated and not obvious. A times, an “obvious” assumption may  actually be disputed by various Immigration bodies controlling one’s case: Immigration Judge, Board of Immigration Appeals, or a prosecutor. Consider this example that deals with aging out children and cancellation of removal.

Cancellation of removal for non-permanent resident is a relief available to some persons who have accumulated 10 years of continuous presence in the US, possess good moral character, and can demonstrate that their removal would result in extreme hardship to their qualifying relatives. A qualifying relative for the purposes of cancellation of removal can be a USC or LPR, spouse, parent or a child (under 21 years old).  To learn more about qualifications for cancellation of removal, please visit our blog: Cancellation of Removal: https://www.shautsova.com/law-publications/simplified-eligibility-requirements-cancellation-removal.html

Imagine that a person, who is not married and who does not have parents in the USA,  has a US citizen child. That child, is the person’s only qualifying relative for the purposes of cancellation of removal. Further, by now, almost everyone knows that cases take a very long time to process in US Immigration courts. It takes even longer to get a final result in an Immigration case for a  relief in the form of cancellation of removal. Will a person who filed for cancellation of removal while the child was under 21, but whose child turned 21 while the case was pending, be still eligible for cancellation or removal? This is an important question one Federal Court gave an answer to in Martinez-Perez v. Barr, No. 18-9573, (Ca. 10^th Cir, Jan. 17, 2020).

In Martinez-Perez, respondent-father submitted his application for cancellation of removal well before his daughter’s 21^st birthday. In fact his daughter was only 16years old. But, as the fate and the court had it, Mr. Martinez’ final hearing was scheduled about six years later, when his daughter turned 21 years old. Mr. Martinez’ as such, seemed to have lost his eligibility for cancellation of removal. So ruled the Immigration Judge, and the Board of Immigration Appeals. The issue here was, of course, that the statute or the law regarding qualifications for cancellation of removal, is written so that it is not clear, what it actually means: shall the hardship be established at the time of the final decision, or at the time of the application? Imagine that there are two identical cases A and B. Both A and B’s children are under 21 at the time they file for the cancellation of removal. But A’s case is decided within 1 year, and B’s case is postponed for 8 years, without his request, and his child turns 21 before the decision is made…

After careful analysis, the Court came to a conclusion that if an immigrant suffered an unfair delay that resulted in violation of his/her due process rights, he, may qualify for the relief nevertheless. It does not mean, that in every case of aging out child, an immigrant may win the argument that his/her application should nevertheless be granted. But it does give hope for the cases stuck in the processing backlog.

As you can see, you never “know” how a case may turn out… If you need help with your Immigration case, please call to schedule a consultation at  917-885-2261.

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I would like to share excellent research by the Immigration Council related to immigration in New York: the number of immigrants, their origins, their contributions to society! Below are the quotes from their report:

“New York is often considered one of the greatest cultural hubs in the country, having welcomed immigrants long before the days of Ellis Island. Immigrants now account for nearly one-quarter of the state’s total population and make up more than one-fourth of its labor force. As neighbors, business owners, taxpayers, and workers, immigrants are an integral part of New York’s diverse and thriving communities and make extensive contributions that benefit all.

Nearly a quarter of New York residents are immigrants, while almost one-fifth of residents are native-born U.S. citizens with at least one immigrant parent.

• In 2018, 4.4 million immigrants (foreign-born individuals) comprised 23 percent of the population.
• New York was home to 2.3 million women, 2 million men, and 206,980 children who were immigrants.
• The top countries of origin for immigrants were the Dominican Republic (11 percent of immigrants), China (9 percent), Mexico (5 percent), Jamaica (5 percent), and India (4 percent).
• In 2018, 3.6 million people in New York (18 percent of the state’s population) were native-born Americans who had at least one immigrant parent.

Nearly three in five immigrants in New York are naturalized U.S. citizens.

• 2.6 million immigrants (58 percent)had naturalized as of 2018, and 890,099 immigrants were eligible to become naturalized U.S. citizens in 2017.
• Three-fourths (75 percent) of immigrants reported speaking English “well” or “very well.”

Immigrants in New York are distributed across the educational spectrum.

• One-third (33 percent) of adult immigrants had a college degree or more education in 2018, while nearly a quarter (24 percent) had less than a high school diploma.  

Over half a million U.S. citizens in New York live with at least one family member who is undocumented.

• 725,000 undocumented immigrants comprised 15 percent of the immigrant population and 4 percent of the total state population in 2016.
• 1.2 million people in New York, including 547,802 U.S. citizens, lived with at least one undocumented family member between 2010 and 2014.
• During the same period, about one in 12 of children in the state was a U.S. citizen living with at least one undocumented family member (351,146 children in total).

New York is home to over 28,000 Deferred Action for Childhood Arrivals (DACA) recipients.

• 28,910 active DACA recipients lived in New York as of 2019, while DACA has been granted to 118,860 people in total since 2012.
• As of 2019, 36percentof DACA-eligible immigrants in New York had applied for DACA.
• An additional 20,000 residents of the state would satisfy all but the educational requirements for DACA, and fewer than 2,000 would become eligible as they grew older.

About one in four workers in New York is an immigrant, together making up a vital part of the state’s labor force in a range of industries.

• 2.8 million immigrant workers comprised 28 percent of the labor force in 2018. 
• Immigrant workers were most numerous in the following industries:

• The largest shares of immigrant workers were in the following industries:

Immigrants are an integral part of the New York workforce in a range of occupations.

• In 2018, immigrant workers were most numerous in the following occupation groups:

• The largest shares of immigrant workers were in the following occupation groups:

• Undocumented immigrants comprised 5 percent of New York’s workforce in 2016.

Immigrants in New York have contributed tens of billions of dollars in taxes.

• Immigrant-led households in the state paid $35.4 billion in federal taxes and $21.8 billion in state and local taxes in 2018.
• Undocumented immigrants in New Yorkpaid an estimated $2.3 billion in federal taxes and $1.4 billion in state and local taxes in 2018.
• New York DACA recipients and DACA-eligible individuals paid an estimated $113.4 million in state and local taxes in 2018.

As consumers, immigrants add well over a hundred billion dollars to New York’s economy.

• New York residents in immigrant-led households had $120.5 billion in spending power (after-tax income) in 2018.

Immigrant entrepreneurs in New York generate billions of dollars in business revenue.

• 348,547 immigrant business owners accounted for 34 percent of all self-employed New York residents in 2018 and generated $7.8 billionin business income.
• In the New York-Northern New Jersey-Long Island metropolitan area in 2018, nearly one-third (31 percent) of business owners were immigrants.”

Author: NYC Immigration Lawyer Alena Shautsova

US Public Charge Rule is confusing and complex enough even for a seasoned Immigration practitioner. Public Charge test applies for certain but not all immigration filings/ benefits. For example, VAWA, asylum and refuge seekers are exempt from the public charge test, but most employment and family-based applicants are not. Also not all public benefits would count for the public charge purposes test.

Currently, the test is being used in connection with the adjustment of status filings, filings for extension and change of status and for Immigrant visa filings. Depending on the location of the applicant, the person may have to submit form I 944 (in the US) or form DS5540 (outside the US). Please note that not all the consulates are collecting DS 5540 at this time. Consulates may not even require the form to be submitted as they can ask the applicant at the interview all relevant questions. Dorm DS 5540 cannot be submitted online at this time.

Below you will find an invaluable table composed by the Empire Justice Center that explains in detail which benefits count towards public charge for which immigration filings.

Author: NYC Immigration lawyer Alena Shautsova

View our video on the issue:

Establishing medical hardship for the cancellation of removal cases is one of the most important burdens of the person in removal proceedings.

Recently, the Board of Immigration Appeals issued a decision in the Matter of J-J-G, specifying a standard an applicant for cancellation of removal must meet in connection when trying to establish medical hardship to a qualifying relative. The decision specifically addresses a situation where the qualifying relative is argued to have to accompany the applicant in case of his/her removal.

Specifically, the BIA stated that the person who is trying to show that the relative will suffer exceptional and extremely unusual hardship in case of his/her removal must present evidence that the adequate medical help for the serious medical condition is not reasonably available in the country at issue.

The BIA emphasized that general evidence regarding the lesser qualify of medical care and lesser opportunities in the country at issue is insufficient to meet the requireed standard.

As such, the BIA ordered the respondent, a native of Guatemala, with five US citizen children to be removed to Guatemala! From reading the decision, it is apparent that the result was due to lack of preparation and absence of specific evidence addressing the issue of the cost and availability of the treatment for the medical condition for the qualified relative. Nevertheless, the decision will have a grave impact on thousands of the cancellation of removal applications. The text of the decision can be found here.

Author: New York Immigration Lawyer Alena Shautsova

If you feel that the news gets old the minute it is published, you are right! The US government just announced that it suspends US visa processing, and the US Government issued a warning against all international travel. Do not get stuck overseas!

SUSPENSION OF ROUTINE VISA SERVICES

In response to worldwide challenges related to the outbreak of COVID-19, the Department of State is suspending routine visa services in most countries worldwide.  Embassies and consulates in these countries will cancel all routine immigrant and nonimmigrant visa appointments as of March 18, 2020.  Check the website of the embassy or consulate for its current operating status.  As resources allow, embassies and consulates will continue to provide urgent and emergency visa services.

Please see: https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html

GLOBAL LEVEL 4

The Department of State advises U.S. citizens to avoid all international travel due to the global impact of COVID-19.  In countries where commercial departure options remain available, U.S. citizens who live in the United States should arrange for immediate return to the United States, unless they are prepared to remain abroad for an indefinite period.  U.S. citizens who live abroad should avoid all international travel.  Many countries are experiencing COVID-19 outbreaks and implementing travel restrictions and mandatory quarantines, closing borders, and prohibiting non-citizens from entry with little advance notice.  Airlines have cancelled many international flights and several cruise operators have suspended operations or cancelled trips.  If you choose to travel internationally, your travel plans may be severely disrupted, and you may be forced to remain outside of the United States for an indefinite timeframe.

Please see: https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisory-alert-global-level-4-health-advisory-issue.html