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
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
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.
- 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.
- 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!
- 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.
- 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:
- 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.
- Make sure your documents are filed on time, preferably before the deadline or a “call up date”.
- 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.
- 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 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.
Work Authorization for Asylum Seekers
Author: New York Immigration attorney
An important agreement was reached in connection with asylum clock and ability of asylum seekers to obtain an EAD (employment authorization). The law states that if an application for asylum has been pending for more than 180 days, an asylum seeker can apply and be granted a work authorization.
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).
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.