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Aging-Out Children and Cancellation of Removal

September 17, 2020

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. 10th Cir, Jan. 17, 2020).

In Martinez-Perez, respondent-father submitted his application for cancellation of removal well before his daughter’s 21st 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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New York Immigration Statistics

July 16, 2020

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.  
Education LevelShare (%) of All ImmigrantsShare (%) of All Natives
College degree or more3339
Some college1826
High school diploma only2526
Less than a high school diploma248
Source: U.S. Census Bureau, 2018 American Community Survey 1-Year Estimates.

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:
IndustryNumber of Immigrant Workers
Health Care and Social Assistance604,741
Accommodation and Food Services301,593
Retail Trade284,432
Educational Services232,726
Transportation and Warehousing224,796
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • The largest shares of immigrant workers were in the following industries:
IndustryImmigrant Share (%)
(of all industry workers)
Transportation and Warehousing39
Other Services (except Public Administration)36
Accommodation and Food Services35
Construction34
Health Care and Social Assistance33
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.


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:
Occupation CategoryNumber of Immigrant Workers
Transportation and Material Moving280,354
Sales and Related266,206
Office and Administrative Support262,142
Healthcare Support250,294
Management232,654
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • The largest shares of immigrant workers were in the following occupation groups:
Occupation CategoryImmigrant Share (%)
(of all workers in occupation)
Healthcare Support49
Building and Grounds Cleaning & Maintenance43
Construction and Extraction37
Transportation and Material Moving35
Personal Care and Service33
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • 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.

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.”

Trump Signs Proclamation To Revoke Visas of Certain Chinse National and Prevent Their Entry Into The US

May 31, 2020
New Immigration Restrictions For Chinese Students and Researchers

Author: NYC Immigration lawyer Alena Shautsova

On May 29, 2020, President Trump issued another proclamation related to the travel restrictions by citizens of China. Trump used its authority under the Immigration and Nationality Act Section 212(f) to limit the entry of non-citizens into the US. In addition, the Proclamation also calls for revocation of visas of those persons who are currently in the United States and who fall under the Proclamation’s frames. However, unlike previous proclamations, this one does not have a time limit and will remain in effect until revoked by the President.

According to the new proclamation, citizens of China seeking to enter the United States for graduate studies and higher, students and researchers will be prohibited to come to the US if they:

— receive funding from or who are currently employed by, study at, or conduct research at or on behalf of; or

— have been employed by, studied at, or conducted research at or on behalf of, an entity in China that implements or supports the PRC’s military-civil fusion strategy (MCF).

For an explanation of the MCF please see the Department of State’s website: https://bit.ly/3eyTYB3 . According to DOS: “Key technologies being targeted under MCF include quantum computing, big data, semiconductors, 5G, advanced nuclear technology, aerospace technology, and AI. The PRC specifically seeks to exploit the inherent ‘dual-use’ nature of many of these technologies, which have both military and civilian applications.”

The Proclamation provides for generous exeptions, it does not apply to:

–Undergraduate students;

— Lawful permanent residents of the United States;

–The spouse of a United States citizen or lawful permanent resident;

— A foreign national who is a member of the United States Armed Forces and any foreign national who is a spouse or child of a member of the United States Armed Forces;

— A foreign national whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement (such as a PRC U.N. representative or expert performing a U.N. mission) or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;

–A foreign national who is studying or conducting research in a field involving information that would not contribute to the PRC’s military-civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies;

— A foreign national whose entry would further United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or

— A foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The Proclamation also does not apply to asylum seekers.

The Proclamation also states that within the next 60 days, more restrictions may follow that are designed to prevent Chinese nationals from acquiring certain sensitive technology.

The Proclamation does not address the EB5 investor’s program or EB1 self-petition program that allow citizens of China to immigrate to the United States. Nor does it address any work-related or family-related immigrant visas.

It is unclear how the candidates for visa revocation will be determined and if there will be any appeal process in case of erroneous determination.

US Immigration Public Charge Chart Explaining Status and Benefits

May 6, 2020

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.

Medical Hardship for Cancellation of Removal

March 31, 2020

Author: NYC Immigration lawyer Alena Shautsova

View our video on the issue:

Best New York Immigration Lawyer
NYC Immigration lawyer
https://www.youtube.com/watch?v=66EnHipb0Ew&t=30s

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.

Coronavirus Update on US Visa Processing and International Travel

March 19, 2020

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

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. 

 

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 Law Updates From BIA

June 13, 2014

Asylum Law Updates from the BIA

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence,without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.