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Friday, October 16, 2009
Thursday, October 8, 2009
Evidence for an I-360 Battered Spouse Petition - Sometimes, less is more!
You may have heard this saying: Sometimes, less is more.
Today, we received a somewhat surprising approval for a client who had filed an I-360 visa petition as a battered spouse of a United States citizen. From the very beginning, the case had very little evidence. Often times, this is the situation, since the victim does not "keep" any evidence in anticipation of having to file a battered spouse claim with the U.S. Citizenship and Immigration Services ("U.S. CIS"). In fact, the opposite is true - because the victim does not want to disclose the abuse or has never talked about it with anyone, he or she has no evidence, including any witnesses, to support a claim.
Our client, from the very beginning, was reluctant to talk about the abuse she had suffered. Understandably, she simply wanted to "put the past behind" her and she had repressed all the bad memories of her marriage to her abuser. Indeed, we found this case to be challenging, since we were dealing with no real evidence of abuse or "extreme cruelty" by her United States citizen spouse. All we had to go on was her word.
As lawyers, we always focus on evidence and corroborating a claim, especially a claim as delicate as abuse. The reality of practicing immigration law is that often times, claims must be made without any evidence. If a client simply does not have any evidence to put forward, the claim will often rest of the client's own statement or testimony. This is often true in cases involving a battered spouse claim or an asylum claim.
Over the summer, the U.S. CIS sent a notice to us informing that it was not convinced that our client's claim rose to the level of "extreme cruelty" or abuse by her husband. Of course, my client was shocked to hear this, but we had to explain to her why this was the case. How would the U.S. CIS really know what happened during the marriage of a victim and the abuser if there is no evidence to back up the claim? Why should the U.S. CIS believe a victim's claim without any corroborating evidence?
Notwithstanding lack of evidence, in response to the U.S. CIS notice, we replied and explained in detail why our client deserves to have her petition approved notwithstanding any corroborating evidence. Working closely with our client over course of several hours in several days, we prepared a reply to the U.S. CIS' notice doubting our client's claim. Our clients are worth spending our time on.
Much to our pleasant surprise, the petition was approved this week! Our client was speechless and overjoyed. She will now be able to pursue adjustment of status and obtain her permanent residency in the United States.
The lesson: Never give up on a case, no matter how hopeless it may seem in the beginning! And sometimes, less is more.
-Ruchi Thaker
Today, we received a somewhat surprising approval for a client who had filed an I-360 visa petition as a battered spouse of a United States citizen. From the very beginning, the case had very little evidence. Often times, this is the situation, since the victim does not "keep" any evidence in anticipation of having to file a battered spouse claim with the U.S. Citizenship and Immigration Services ("U.S. CIS"). In fact, the opposite is true - because the victim does not want to disclose the abuse or has never talked about it with anyone, he or she has no evidence, including any witnesses, to support a claim.
Our client, from the very beginning, was reluctant to talk about the abuse she had suffered. Understandably, she simply wanted to "put the past behind" her and she had repressed all the bad memories of her marriage to her abuser. Indeed, we found this case to be challenging, since we were dealing with no real evidence of abuse or "extreme cruelty" by her United States citizen spouse. All we had to go on was her word.
As lawyers, we always focus on evidence and corroborating a claim, especially a claim as delicate as abuse. The reality of practicing immigration law is that often times, claims must be made without any evidence. If a client simply does not have any evidence to put forward, the claim will often rest of the client's own statement or testimony. This is often true in cases involving a battered spouse claim or an asylum claim.
Over the summer, the U.S. CIS sent a notice to us informing that it was not convinced that our client's claim rose to the level of "extreme cruelty" or abuse by her husband. Of course, my client was shocked to hear this, but we had to explain to her why this was the case. How would the U.S. CIS really know what happened during the marriage of a victim and the abuser if there is no evidence to back up the claim? Why should the U.S. CIS believe a victim's claim without any corroborating evidence?
Notwithstanding lack of evidence, in response to the U.S. CIS notice, we replied and explained in detail why our client deserves to have her petition approved notwithstanding any corroborating evidence. Working closely with our client over course of several hours in several days, we prepared a reply to the U.S. CIS' notice doubting our client's claim. Our clients are worth spending our time on.
Much to our pleasant surprise, the petition was approved this week! Our client was speechless and overjoyed. She will now be able to pursue adjustment of status and obtain her permanent residency in the United States.
The lesson: Never give up on a case, no matter how hopeless it may seem in the beginning! And sometimes, less is more.
-Ruchi Thaker
Wednesday, October 7, 2009
Immigration Detention: Overview and Recommendations
On October 6, 2009, the U.S. Immigration and Customs Enforcement ("ICE"), an agency within the Department of Homeland Security ("DHS") that is charged with enforcement of immigration laws, issued a comprehensive report discussing current detention standards and policies and recommendations for the future.
-Ruchi Thaker
-Ruchi Thaker
Tuesday, September 15, 2009
Health Care for Undocumented Immigrants - Fact Check
With so much debate about health care and how it may or may not affect undocumented immigrants, the Center for American Progress is doing some fact-checking on the issue.
-Ruchi Thaker
-Ruchi Thaker
Monday, August 10, 2009
Immigration Reform 2010: Myth or Reality?
President Obama hopes to tackle immigration reform in early 2010.
-Irwin Berowitz
-Irwin Berowitz
Thursday, August 6, 2009
Naturalization Wrongfully Denied on Good Moral Character Grounds
A green card holder was referred to me by another lawyer in March of 2007, because the U.S. Citizenship and Immigration Services ("USCIS") had denied him naturalization on the basis that he could not show the required good moral character to become a citizen as a result of a conviction he had almost 10 years before he filed his application for naturalization. Shockingly, in denying naturalization, the USCIS admitted that it was not supposed to look at the man’s life beyond the 5 years it was allowed to look at to determine good moral character, but it claimed that a conviction from 10 years ago was “relevant in determining [his] present moral character.” Of course, this man had no other convictions since that one conviction 10 years ago. So naturally, I was perplexed as to how his decade-old conviction was “relevant” in determining his present moral character.
This was a completely erroneous decision by the USCIS. It was erroneous because the USCIS looked beyond the 5 years immediately preceding the filing of the application (which is the time period USCIS is authorized to investigate, unless criminal activity has happened during the five years, in which case the USCIS can look outside the 5-year period). It was an erroneous denial because this man had a clean record for the 5 years USCIS was allowed to investigate, so there was nothing in his record to “trigger” an inquiry beyond the five years. However, the worst part was the fact that the USCIS was one hundred percent wrong in denying naturalization based on the fact that this man had a conviction (no matter how many years ago) that reflected poorly on his character.
Because I realized how wrong the USCIS was, I decided to help this man fight for his chance to become a United States citizen. I filed an appeal challenging the USCIS’ unfavorable decision. I explained to the USCIS that my client was not barred from becoming a United States citizen, because he was never “convicted” of a crime. This was a critical argument. What the USCIS had ignored was the fact that my client was adjudicated a “youthful offender” by the state of New York. Under New York law, a youthful offender adjudication is not a judgment of conviction for a crime or any other offense. Moreover, it is not a “conviction” for immigration purposes. Therefore, since my client was never “convicted” of a crime that could reflect poorly on his moral character, the USCIS had no basis to deny my client naturalization for "lack of good moral character" as a result of a “conviction.”
Normally, after an appeal is filed, there is an interview on the appeal. My client and I waited...and waited...and waited...and waited...for an interview notice. I filed nine follow up letters with the USCIS office in New York over the course of 2007, 2008, and 2009. Not only did we not get an interview notice, but the USCIS did not even acknowledge my communications or send a notice advising me of the status of the pending appeal.
Eventually, the USCIS decided to interview my client in early 2009. I went with him to the interview to make sure the officer understood why he was eligible for naturalization. It was clear to me that, even after I explained to the interviewing officer and directed to her to the law, she did not understand how my client was eligible to naturalize. She said to us: “We will let you know of our decision.”
Three months after the interview, my client called me and told me that he received an appointment for a Oath Ceremony to be sworn in as a United States citizen! Of course, USCIS did not bother to notify me, the attorney, even though it knew I represented my client. My client was extremely overjoyed and rightfully so! He had been waiting over two years for the USCIS to realize its mistake. I was confident from the beginning that this appeal would result in a victory.
I wish USCIS would review cases more carefully. Naturalization denials, such as the one my client received, are typical and boilerplate. Often, the denial makes no sense whatsoever. One would think that the naturalization unit of the USCIS would be “experienced” in legal issues dealing with eligibility for naturalization. But almost every time I go to a naturalization interview with a client, I am surprised by how little the interviewing officer knows about the legal eligibility requirements. A little common sense and training in dealing with these issues might be the remedy...just a thought!
-Ruchi Thaker
This was a completely erroneous decision by the USCIS. It was erroneous because the USCIS looked beyond the 5 years immediately preceding the filing of the application (which is the time period USCIS is authorized to investigate, unless criminal activity has happened during the five years, in which case the USCIS can look outside the 5-year period). It was an erroneous denial because this man had a clean record for the 5 years USCIS was allowed to investigate, so there was nothing in his record to “trigger” an inquiry beyond the five years. However, the worst part was the fact that the USCIS was one hundred percent wrong in denying naturalization based on the fact that this man had a conviction (no matter how many years ago) that reflected poorly on his character.
Because I realized how wrong the USCIS was, I decided to help this man fight for his chance to become a United States citizen. I filed an appeal challenging the USCIS’ unfavorable decision. I explained to the USCIS that my client was not barred from becoming a United States citizen, because he was never “convicted” of a crime. This was a critical argument. What the USCIS had ignored was the fact that my client was adjudicated a “youthful offender” by the state of New York. Under New York law, a youthful offender adjudication is not a judgment of conviction for a crime or any other offense. Moreover, it is not a “conviction” for immigration purposes. Therefore, since my client was never “convicted” of a crime that could reflect poorly on his moral character, the USCIS had no basis to deny my client naturalization for "lack of good moral character" as a result of a “conviction.”
Normally, after an appeal is filed, there is an interview on the appeal. My client and I waited...and waited...and waited...and waited...for an interview notice. I filed nine follow up letters with the USCIS office in New York over the course of 2007, 2008, and 2009. Not only did we not get an interview notice, but the USCIS did not even acknowledge my communications or send a notice advising me of the status of the pending appeal.
Eventually, the USCIS decided to interview my client in early 2009. I went with him to the interview to make sure the officer understood why he was eligible for naturalization. It was clear to me that, even after I explained to the interviewing officer and directed to her to the law, she did not understand how my client was eligible to naturalize. She said to us: “We will let you know of our decision.”
Three months after the interview, my client called me and told me that he received an appointment for a Oath Ceremony to be sworn in as a United States citizen! Of course, USCIS did not bother to notify me, the attorney, even though it knew I represented my client. My client was extremely overjoyed and rightfully so! He had been waiting over two years for the USCIS to realize its mistake. I was confident from the beginning that this appeal would result in a victory.
I wish USCIS would review cases more carefully. Naturalization denials, such as the one my client received, are typical and boilerplate. Often, the denial makes no sense whatsoever. One would think that the naturalization unit of the USCIS would be “experienced” in legal issues dealing with eligibility for naturalization. But almost every time I go to a naturalization interview with a client, I am surprised by how little the interviewing officer knows about the legal eligibility requirements. A little common sense and training in dealing with these issues might be the remedy...just a thought!
-Ruchi Thaker
Wednesday, August 5, 2009
Asylee and Refugee Adjustment of Status - Q & A by the USCIS
Here is an updated Questions & Answers memo released by the U.S. Citizenship and Immigration Services addressing frequent questions relating to filing of an adjustment of status application, work authorization application and travel permits for asylees and refugees.
-Irwin Berowitz
-Irwin Berowitz
Tuesday, July 28, 2009
Immigration Consequences of a Criminal Conviction: Think Before You Plead!
Immigration consequences of a criminal conviction can be harsh. Often, too harsh. For those people who are not United States citizen, a criminal conviction can lead to deportation from the United States. For many non-citizens, United States is the only home they have ever known, having resided here since childhood. Returning to the United States after deportation is more difficult than ever. Deportation means near-permanent separation from family members, friends, loss of employment and end of life in the United States. But sometimes, all it takes is one mistake to lose everything.
However, not every conviction results in deportation. Current immigration laws allow non-citizens to seek special "waivers" for certain criminal convictions. However, not all waivers are available to every non-citizen. Some are available only to those who are lawful permanent residents (green card holders), such as a waiver under former INA section 212(c). While there are other forms of relief available to non-citizens who are not lawful permanent residents, having a criminal history will certainly play a factor in a decision by an immigration judge or the Department of Homeland Security official on the non-citizen's future in the United States.
If you are a non-citizen with a criminal record, the key to controlling your immigration destiny, however, comes very early, and not at the point where the Department of Homeland Security ("DHS") commences removal (formerly called "deportation") proceedings. Rather, the initial stages of the criminal proceedings that eventually lead to a conviction will often control whether a non-citizen will have an opportunity to remain in the United States despite a criminal conviction.
I am writing this blog as a public service to all non-citizens (or their family members or friends) who are currently facing criminal charges in a state of a federal court, but have not yet pleaded guilty to any crime or offense. The message is simple: you must know whether your guilty plea and subsequent conviction will trigger removal proceedings (formerly called "deportation") against you. And you should know this BEFORE you plead guilty to anything!
Of course, this means that your criminal defense attorney representing you on the criminal matter MUST have an understanding of what immigration consequences you may suffer if you are convicted of a certain crime (usually the crime you are charged with). All too often, criminal attorneys are not well-versed in current U.S. immigration laws and are unable to advise you on the potential immigration consequences of a specific conviction. This is one reason why a consultation with an immigration attorney with experience in criminal deportation matters is critical.
Let me illustrate a typical situation I hear from my clients all the time. You are arrested and charged with a crime. You hire a criminal defense attorney (or are appointed one). Of course, you do not want to go to jail. So, looking at your situation, your criminal defense attorney advises you that the best thing to do to avoid jail time would be to plead guilty to the crime or to a lesser offense, and receive probation or a monetary fine. Assuming the prosecutor and the judge agree to such a bargain, this sounds like a good deal. After all, you do not want to go to jail! So, you plead guilty to a crime to avoid jail time. You are sentenced to probation and you successfully complete your probation, thinking the past is now behind you. As far as the criminal attorney is concerned, he or she achieved a good result for you -- you avoided jail time and you were only sentenced to probation.
You continue to live your life in the United States. You have a family, including children. You have a job. You pay your bills and taxes. You have turned your life around from whatever situation that led to your conviction. Weeks, months, or even years pass by without any problems. Suddenly, the Department of Homeland Security begins removal proceedings against you, alleging that you are "removable" from the United States on the basis of the crime you pleaded guilty to. Now, you have to go to immigration court, deal with a DHS lawyer who wants you deported as soon as possible, and deal with a judge who may or may not let you stay in the United States. You are forced to go through this process, regardless of how long you have been in the United States, regardless of how many family members you have that depend on you for financial, emotional, and moral support, and regardless of the fact that you have been working hard and paying taxes in America.
Naturally, you should wonder "why didn't my criminal defense lawyer tell me that I could be deported if I got convicted of [whatever offense you pleaded guilty to]?"
If you are facing this situation, you are not alone! While your criminal defense lawyer may have done a great job in getting you a lesser conviction and a sentence, what he or she didn't tell you -- because he or she probably didn't know -- was that even though you pleaded guilty to avoid jail time, and even though you were only sentenced to probation, the specific offense you pleaded guilty to is a removable offense under the immigration laws of the United States. This means that even though you fully accepted responsibility for the crime (by pleading guilty) and served your sentence, the Department of Homeland Security can still punish you by trying to deport you for that crime! This is because criminal laws are different from immigration laws. You aren't being punished "twice" by the criminal system for the crime, because immigration proceedings are civil in nature. So if you think that just because you pleaded guilty, served your sentence or probation and have "put the past behind you," you may be wrong. Your past conviction can still come back to haunt you!
This is why is it critical to seek the advice of experienced immigration attorneys BEFORE you plead guilty to anything in state or federal court! Most criminal defense attorneys are simply not educated on the immigration consequences of a criminal conviction, including possible mandatory detention by the DHS. Therefore, you should take it upon yourself to ask all the right questions to an immigration lawyer with experience in criminal deportation defense matters. Working together with an immigration lawyer and your criminal defense lawyer will allow you to understand what can happen to you if you plead guilty to a certain crime, and may allow your criminal defense lawyer to "negotiate" with the prosecutor about reducing the criminal charges. But until and unless you and your criminal defense attorney understand the immigration consequences, you are risking deportation.
Recently, the New Jersey Supreme Court issued a detailed decision in State v. Nunez-Valdez (A-46-08) (Jul. 27, 2009), where it found that the defendant's lawyer in criminal court provided him ineffective assistance of counsel when he misinformed the defendant that his conviction for criminal sexual contact in the fourth degree would not result in deportation if he pleaded guilty to it, especially since the defendant said that had he known about possible deportation, he would not have pleaded guilty in the first place. The lawyer had advised him that if he pleaded guilty, he would get 5 years probation as opposed to a 10-year jail sentence if he went to trial and was convicted. Of course, the defendant chose to plead guilty. The Court found that the lawyer gave bad advice to his non-citizen client and recommended reforming the plea notices to defendants to include a notice about immigration consequences of a guilty plea and notifying defendants of their right to seek legal advice about their immigration status.
This is just one example. Indeed, criminal defense attorneys are usually not experts in immigration laws. It is your job to find out from an expert in immigration law (and especially an attorney with experience handling criminal deportation cases) about what could happen to you if you plead guilty to a certain crime. Not all criminal convictions result in deportation. Some criminal grounds of removability or inadmissibility can be "waived" by special waivers. But certain convictions will prevent you from naturalization. If all these issues are important to you -- and they should be -- then you should talk to an immigration lawyer before you plead guilty to anything!
-Ruchi Thaker
However, not every conviction results in deportation. Current immigration laws allow non-citizens to seek special "waivers" for certain criminal convictions. However, not all waivers are available to every non-citizen. Some are available only to those who are lawful permanent residents (green card holders), such as a waiver under former INA section 212(c). While there are other forms of relief available to non-citizens who are not lawful permanent residents, having a criminal history will certainly play a factor in a decision by an immigration judge or the Department of Homeland Security official on the non-citizen's future in the United States.
If you are a non-citizen with a criminal record, the key to controlling your immigration destiny, however, comes very early, and not at the point where the Department of Homeland Security ("DHS") commences removal (formerly called "deportation") proceedings. Rather, the initial stages of the criminal proceedings that eventually lead to a conviction will often control whether a non-citizen will have an opportunity to remain in the United States despite a criminal conviction.
I am writing this blog as a public service to all non-citizens (or their family members or friends) who are currently facing criminal charges in a state of a federal court, but have not yet pleaded guilty to any crime or offense. The message is simple: you must know whether your guilty plea and subsequent conviction will trigger removal proceedings (formerly called "deportation") against you. And you should know this BEFORE you plead guilty to anything!
Of course, this means that your criminal defense attorney representing you on the criminal matter MUST have an understanding of what immigration consequences you may suffer if you are convicted of a certain crime (usually the crime you are charged with). All too often, criminal attorneys are not well-versed in current U.S. immigration laws and are unable to advise you on the potential immigration consequences of a specific conviction. This is one reason why a consultation with an immigration attorney with experience in criminal deportation matters is critical.
Let me illustrate a typical situation I hear from my clients all the time. You are arrested and charged with a crime. You hire a criminal defense attorney (or are appointed one). Of course, you do not want to go to jail. So, looking at your situation, your criminal defense attorney advises you that the best thing to do to avoid jail time would be to plead guilty to the crime or to a lesser offense, and receive probation or a monetary fine. Assuming the prosecutor and the judge agree to such a bargain, this sounds like a good deal. After all, you do not want to go to jail! So, you plead guilty to a crime to avoid jail time. You are sentenced to probation and you successfully complete your probation, thinking the past is now behind you. As far as the criminal attorney is concerned, he or she achieved a good result for you -- you avoided jail time and you were only sentenced to probation.
You continue to live your life in the United States. You have a family, including children. You have a job. You pay your bills and taxes. You have turned your life around from whatever situation that led to your conviction. Weeks, months, or even years pass by without any problems. Suddenly, the Department of Homeland Security begins removal proceedings against you, alleging that you are "removable" from the United States on the basis of the crime you pleaded guilty to. Now, you have to go to immigration court, deal with a DHS lawyer who wants you deported as soon as possible, and deal with a judge who may or may not let you stay in the United States. You are forced to go through this process, regardless of how long you have been in the United States, regardless of how many family members you have that depend on you for financial, emotional, and moral support, and regardless of the fact that you have been working hard and paying taxes in America.
Naturally, you should wonder "why didn't my criminal defense lawyer tell me that I could be deported if I got convicted of [whatever offense you pleaded guilty to]?"
If you are facing this situation, you are not alone! While your criminal defense lawyer may have done a great job in getting you a lesser conviction and a sentence, what he or she didn't tell you -- because he or she probably didn't know -- was that even though you pleaded guilty to avoid jail time, and even though you were only sentenced to probation, the specific offense you pleaded guilty to is a removable offense under the immigration laws of the United States. This means that even though you fully accepted responsibility for the crime (by pleading guilty) and served your sentence, the Department of Homeland Security can still punish you by trying to deport you for that crime! This is because criminal laws are different from immigration laws. You aren't being punished "twice" by the criminal system for the crime, because immigration proceedings are civil in nature. So if you think that just because you pleaded guilty, served your sentence or probation and have "put the past behind you," you may be wrong. Your past conviction can still come back to haunt you!
This is why is it critical to seek the advice of experienced immigration attorneys BEFORE you plead guilty to anything in state or federal court! Most criminal defense attorneys are simply not educated on the immigration consequences of a criminal conviction, including possible mandatory detention by the DHS. Therefore, you should take it upon yourself to ask all the right questions to an immigration lawyer with experience in criminal deportation defense matters. Working together with an immigration lawyer and your criminal defense lawyer will allow you to understand what can happen to you if you plead guilty to a certain crime, and may allow your criminal defense lawyer to "negotiate" with the prosecutor about reducing the criminal charges. But until and unless you and your criminal defense attorney understand the immigration consequences, you are risking deportation.
Recently, the New Jersey Supreme Court issued a detailed decision in State v. Nunez-Valdez (A-46-08) (Jul. 27, 2009), where it found that the defendant's lawyer in criminal court provided him ineffective assistance of counsel when he misinformed the defendant that his conviction for criminal sexual contact in the fourth degree would not result in deportation if he pleaded guilty to it, especially since the defendant said that had he known about possible deportation, he would not have pleaded guilty in the first place. The lawyer had advised him that if he pleaded guilty, he would get 5 years probation as opposed to a 10-year jail sentence if he went to trial and was convicted. Of course, the defendant chose to plead guilty. The Court found that the lawyer gave bad advice to his non-citizen client and recommended reforming the plea notices to defendants to include a notice about immigration consequences of a guilty plea and notifying defendants of their right to seek legal advice about their immigration status.
This is just one example. Indeed, criminal defense attorneys are usually not experts in immigration laws. It is your job to find out from an expert in immigration law (and especially an attorney with experience handling criminal deportation cases) about what could happen to you if you plead guilty to a certain crime. Not all criminal convictions result in deportation. Some criminal grounds of removability or inadmissibility can be "waived" by special waivers. But certain convictions will prevent you from naturalization. If all these issues are important to you -- and they should be -- then you should talk to an immigration lawyer before you plead guilty to anything!
-Ruchi Thaker
Thursday, July 23, 2009
Cheap Immigration Services...And What It Will Cost You
Looking for cheap immigration services? Have you ever gone to an immigration "notario," a "visa consultant," a "travel agent," or an "immigration consultant" who has offered you immigration help at a cost that was too good to be true? If so....BEWARE!! Do not become a victim of immigration fraud!
Notarios, visa consultants, travel agents and immigration consultants are NOT immigration lawyers! They cannot represent you in immigration courts, no matter what they say. Often, these people take thousands of dollars from unsuspecting public who seek out their help, and in return, do not provide any legitimate legal service in the immigration process.
Recently, the Executive Office for Immigration Review issued a notice, warning the public of the dangers of seeking immigration help from people other than immigration lawyers.
If you are reading this, and if you are concerned about who handled your immigration case in the past or who is handling your immigration case now, you should definitely make sure that your case is handled by experienced immigration attorneys! While getting cheap services from non-attorneys may sound attractive and may provide you with an instant sense of satisfaction, if your case is not handled properly, you may lose the opportunity to win your case in front of the U.S. Citizenship and Immigration Services or in front of an immigration judge. The worst part is, that a non-lawyer who may have "helped" you with you case, has zero responsibility or accountability to the court or to the legal profession. He or she cannot lose a law license that he or she does not have. He or she cannot be disciplined by the professional conduct committee if he or she is not a lawyer. At the end of the day, only YOU have everything to lose.
In immigration, you often do not get a second chance to "get it right"! So be on the right track from the beginning.
-Ruchi Thaker
Notarios, visa consultants, travel agents and immigration consultants are NOT immigration lawyers! They cannot represent you in immigration courts, no matter what they say. Often, these people take thousands of dollars from unsuspecting public who seek out their help, and in return, do not provide any legitimate legal service in the immigration process.
Recently, the Executive Office for Immigration Review issued a notice, warning the public of the dangers of seeking immigration help from people other than immigration lawyers.
If you are reading this, and if you are concerned about who handled your immigration case in the past or who is handling your immigration case now, you should definitely make sure that your case is handled by experienced immigration attorneys! While getting cheap services from non-attorneys may sound attractive and may provide you with an instant sense of satisfaction, if your case is not handled properly, you may lose the opportunity to win your case in front of the U.S. Citizenship and Immigration Services or in front of an immigration judge. The worst part is, that a non-lawyer who may have "helped" you with you case, has zero responsibility or accountability to the court or to the legal profession. He or she cannot lose a law license that he or she does not have. He or she cannot be disciplined by the professional conduct committee if he or she is not a lawyer. At the end of the day, only YOU have everything to lose.
In immigration, you often do not get a second chance to "get it right"! So be on the right track from the beginning.
-Ruchi Thaker
Monday, July 20, 2009
Thursday, July 9, 2009
New Immigration Bill This Fall?
On July 8, 2009, New York Senator Chuck Schumer (D), told the Associated Press in an interview, that he believes "an immigration bill can be done by the end of the year or early next year that works out disagreements between labor and business interests on the flow of legal foreign workers."
"I think we'll have a good bill by Labor Day," said Schumer, D-N.Y. "I think the fundamental building blocks are in place to do comprehensive immigration reform."
Click here to read the entire article by The Associated Press.
-Ruchi Thaker
"I think we'll have a good bill by Labor Day," said Schumer, D-N.Y. "I think the fundamental building blocks are in place to do comprehensive immigration reform."
Click here to read the entire article by The Associated Press.
-Ruchi Thaker
FY 2010 H-1B Cap -- Visas Still Available!
H-1B visas are still available! Immigration attorneys all over the United States are in shock! We are used to staying up late at the end of March every year to file our H-1B cases on April 1st, the date the H-1B filing period opens. We are used to hearing announcements from the U.S. Citizenship and Immigration Services ("USCIS") within hours of the filing period opening on April 1st, that the H-1B "cap" of 65,000 annually-available visas has been reached! Last year, the USCIS used a "lottery system," in which it randomly selected the cap-subject petitions and rejected those petitions that did not get selected in the lottery. More than 120,000 H-1B visa applications were submitted for the 65,000 available visas!
Then, the U.S. economy took a nose-dive. Employers were forced to cut back on hiring qualified foreign workers. Employers began laying off foreign workers before U.S. workers.
In contrast to previous years, remarkably, as of July 3, 2009, the USCIS announced that it has received only 45,000 H1-B visa applications against the annual cap of 65,000! That means there is still time to apply for an H-1B visa!
-Ruchi Thaker
Then, the U.S. economy took a nose-dive. Employers were forced to cut back on hiring qualified foreign workers. Employers began laying off foreign workers before U.S. workers.
In contrast to previous years, remarkably, as of July 3, 2009, the USCIS announced that it has received only 45,000 H1-B visa applications against the annual cap of 65,000! That means there is still time to apply for an H-1B visa!
-Ruchi Thaker
Violence Against Women Act ("VAWA") Self-Petition Option
Battered spouse who filed a Violence Against Women Act (“VAWA”) motion to reopen gets a second chance to stay in the United States!
Over this past weekend, we received a good decision from the Board of Immigration Appeals on behalf of one of our clients. Our client, a woman, is married to a U.S. citizen, and she was pursuing adjustment of status based upon her marriage. However, the couple was unsuccessful at their visa interview, and the immigration service denied the citizen spouse’s petition. This denial triggered removal proceedings against our client. In Immigration Court, the judge refused to give our client additional time to prepare and file a new visa petition with her husband. We appealed the judge’s decision, but the Board dismissed the appeal.
After her appeal was dismissed, our client told us, for the first time, that she was a victim of abuse at the hands of her husband. She had evidence. She never told anyone about this before, including her immigration attorneys, because she was too ashamed to admit it. She was unaware of the fact that as an abused or a battered spouse of a U.S. citizen, under the Violence Against Women Act, she could self-petition with the U.S. Citizenship and Immigration Service ("USCIS"). Once we learned of the abuses she suffered, we immediately helped her with her petition in January of 2009, and it is currently pending adjudication. The USCIS did find her prima facie eligible for the self-petition as a battered spouse. We filed a detailed and thorough motion to reopen with the Board, and asked the Board to consider this new evidence in our client’s favor.
Over the weekend, we received a decision by the Board, in which the Board granted our motion and reopened our client’s case! According to the Board, we successfully demonstrated that our client deserved a second chance to stay in the United States. While the self-petition has not yet been fully adjudicated, now that her case has been reopened by the Board, our client no longer faces immediate deportation, and will at least get a chance to stay in the United States until there is a decision on her self-petition and a new decision by the Immigration Judge. If she gets a favorable decision on her self-petition, then she will be able to pursue adjustment of status.
There is a lesson to be learned in this story. As immigration lawyers, we do not routinely ask our clients whether they are victims of abuse by their spouse, especially when the client is pursuing adjustment of status through his or her U.S. citizen spouse. Until the time she confessed to us that she was being abused by her husband, our client, like many other abuses spouses out there, had no idea that she had another option. Many women (and men) remain in unhealthy or abusive relationships, thinking that marriage to the U.S. citizen spouse is the only way to obtain permanent residency. Often, victims are too ashamed to admit the abuse to an Immigration Judge, to a DHS lawyer, or even to the victim’s own attorney. Indeed, had our client not come forward with the valuable information about her abuse, we would not have been able to offer her another option, and it is very possible that she would have been deported by now.
-Irwin Berowitz
Over this past weekend, we received a good decision from the Board of Immigration Appeals on behalf of one of our clients. Our client, a woman, is married to a U.S. citizen, and she was pursuing adjustment of status based upon her marriage. However, the couple was unsuccessful at their visa interview, and the immigration service denied the citizen spouse’s petition. This denial triggered removal proceedings against our client. In Immigration Court, the judge refused to give our client additional time to prepare and file a new visa petition with her husband. We appealed the judge’s decision, but the Board dismissed the appeal.
After her appeal was dismissed, our client told us, for the first time, that she was a victim of abuse at the hands of her husband. She had evidence. She never told anyone about this before, including her immigration attorneys, because she was too ashamed to admit it. She was unaware of the fact that as an abused or a battered spouse of a U.S. citizen, under the Violence Against Women Act, she could self-petition with the U.S. Citizenship and Immigration Service ("USCIS"). Once we learned of the abuses she suffered, we immediately helped her with her petition in January of 2009, and it is currently pending adjudication. The USCIS did find her prima facie eligible for the self-petition as a battered spouse. We filed a detailed and thorough motion to reopen with the Board, and asked the Board to consider this new evidence in our client’s favor.
Over the weekend, we received a decision by the Board, in which the Board granted our motion and reopened our client’s case! According to the Board, we successfully demonstrated that our client deserved a second chance to stay in the United States. While the self-petition has not yet been fully adjudicated, now that her case has been reopened by the Board, our client no longer faces immediate deportation, and will at least get a chance to stay in the United States until there is a decision on her self-petition and a new decision by the Immigration Judge. If she gets a favorable decision on her self-petition, then she will be able to pursue adjustment of status.
There is a lesson to be learned in this story. As immigration lawyers, we do not routinely ask our clients whether they are victims of abuse by their spouse, especially when the client is pursuing adjustment of status through his or her U.S. citizen spouse. Until the time she confessed to us that she was being abused by her husband, our client, like many other abuses spouses out there, had no idea that she had another option. Many women (and men) remain in unhealthy or abusive relationships, thinking that marriage to the U.S. citizen spouse is the only way to obtain permanent residency. Often, victims are too ashamed to admit the abuse to an Immigration Judge, to a DHS lawyer, or even to the victim’s own attorney. Indeed, had our client not come forward with the valuable information about her abuse, we would not have been able to offer her another option, and it is very possible that she would have been deported by now.
-Irwin Berowitz
Wednesday, July 1, 2009
Individual Taxpayer Identification Numbers (ITINs) NOT an Immigration Benefit
Individual Taxpayer Identification Numbers (ITINs) NOT an Immigration Benefit
This is a good blog on what ITIN is and what it is not!
-Ruchi Thaker
This is a good blog on what ITIN is and what it is not!
-Ruchi Thaker
Thursday, June 25, 2009
The Future of Immigration Reform in Doubt
Immigration reform discussions are off to a shaky start. Today, President Obama was scheduled to meet with Congressional leaders to discuss the framework for possible immigration reform.
New York Senator Chuck Schumer maintains that immigration reform will happen. Citing to a need for a "national system to verify work documents," Senator Schumer said that "Congress has failed to crack down on unscrupulous employers and illegal immigrants with fake documents."
However, White House Chief of Staff, Rahm Emanuel, confirms that there just aren't enough votes in Congress to pass a comprehensive immigration reform bill.
Speaker of the House of Representatives, Nancy Pelosi, said that the House will let the Senate take the first swing at immigration reform legislation, since the House has been "ready for a long time."
With all of these players now coming to the stage to debate immigration reform, now is the time to be active and call your State Senator's office or House of Representative member's office in support of immigration reform! Make your voice count!
-Ruchi Thaker
New York Senator Chuck Schumer maintains that immigration reform will happen. Citing to a need for a "national system to verify work documents," Senator Schumer said that "Congress has failed to crack down on unscrupulous employers and illegal immigrants with fake documents."
However, White House Chief of Staff, Rahm Emanuel, confirms that there just aren't enough votes in Congress to pass a comprehensive immigration reform bill.
Speaker of the House of Representatives, Nancy Pelosi, said that the House will let the Senate take the first swing at immigration reform legislation, since the House has been "ready for a long time."
With all of these players now coming to the stage to debate immigration reform, now is the time to be active and call your State Senator's office or House of Representative member's office in support of immigration reform! Make your voice count!
-Ruchi Thaker
Wednesday, June 24, 2009
Section 212(c) Waiver Still Working for Lawful Permanent Residents!
Section 212(c) waiver saved my client from deportation today!! Before the immigration laws changed in 1996, my client, an Egyptian citizen who is a lawful permanent resident of the United States, was convicted of a counterfeiting offense, a crime involving moral turpitude under current immigration laws, for which he received a sentence of probation only. He continued traveling internationally without any problems re-entering the United States, despite the fact that he had a criminal conviction. About one year ago, when he returned to the United States from a trip abroad, the Department of Homeland Security (DHS) discovered his conviction and started removal proceedings against him. Of course, as he was now facing removal, he needed an experienced immigration lawyer. He called me and we decided to discuss his case in detail to figure out what, if anything, could be done, to save him from deportation. After I talked with him, I told him that he was lucky that he was eligible for a deportation waiver that existed in the past, but which no longer exists because of the 1996 changes in the immigration laws.
My representation of this client was not "normal" -- he traveled back and forth to and from Egypt during the course of his removal proceedings. I often had to work with him while he was overseas, which, at time, proved challenging. But thanks to technology, such as emails and faxes, I made sure he had no excuses not to stay in touch with me! Of course, as it may be true with some cases, there were bumps along the way, thanks to time differences and unavailability of some documents, but nothing that my client and I could not resolve in preparing the case.
In Immigration Court, my client applied for a Section 212(c) waiver of his crime. This law no longer exists (because it was replaced with Cancellation of Removal in 1996), but a narrow group of lawful permanent residents still remain eligible for this waiver. My client's case required intensive document preparation. Under the new Immigration Court rules, everything had to be done precisely and correctly, to make it easier for the Immigration Judge to review my client's life through paper documents. No easy task, I assure you!
Almost one year after he was placed in removal proceedings, my client finally got his day in Court today. Because of his criminal history, I had to help my client prove to the judge and to the attorney for the DHS that he has obeyed the law and acted responsibly since his conviction. Working closely together, my client and I did that. In addition, after hours of preparation by me, my client’s testimony today was convincing. The Immigration Judge granted him Section 212(c) waiver! The DHS attorney said that he would not appeal. My client was so happy with his win, that he now wants me to represent him on his application for naturalization.
It is cases like this that make my job as an immigration lawyer rewarding. To see the happiness on my client's face was indescribable. He couldn't contain himself with excitement, knowing that this past is now really behind him, and that he can move forward with his life! Hopefully in the coming years, I will help him bring his family to the United States from Egypt through consular processing!
-Irwin Berowitz
My representation of this client was not "normal" -- he traveled back and forth to and from Egypt during the course of his removal proceedings. I often had to work with him while he was overseas, which, at time, proved challenging. But thanks to technology, such as emails and faxes, I made sure he had no excuses not to stay in touch with me! Of course, as it may be true with some cases, there were bumps along the way, thanks to time differences and unavailability of some documents, but nothing that my client and I could not resolve in preparing the case.
In Immigration Court, my client applied for a Section 212(c) waiver of his crime. This law no longer exists (because it was replaced with Cancellation of Removal in 1996), but a narrow group of lawful permanent residents still remain eligible for this waiver. My client's case required intensive document preparation. Under the new Immigration Court rules, everything had to be done precisely and correctly, to make it easier for the Immigration Judge to review my client's life through paper documents. No easy task, I assure you!
Almost one year after he was placed in removal proceedings, my client finally got his day in Court today. Because of his criminal history, I had to help my client prove to the judge and to the attorney for the DHS that he has obeyed the law and acted responsibly since his conviction. Working closely together, my client and I did that. In addition, after hours of preparation by me, my client’s testimony today was convincing. The Immigration Judge granted him Section 212(c) waiver! The DHS attorney said that he would not appeal. My client was so happy with his win, that he now wants me to represent him on his application for naturalization.
It is cases like this that make my job as an immigration lawyer rewarding. To see the happiness on my client's face was indescribable. He couldn't contain himself with excitement, knowing that this past is now really behind him, and that he can move forward with his life! Hopefully in the coming years, I will help him bring his family to the United States from Egypt through consular processing!
-Irwin Berowitz
Tuesday, June 23, 2009
Deportation Waiver Granted Despite Crimes Involving Moral Turpitude Convictions!
Crimes involving moral turpitude convictions does not always necessarily mean automatic deportation. Yesterday, one of my detained clients won his case in front of an Immigration Judge in New York City. This man has been a permanent resident for 15 years. In the 1990s, he was convicted of two crimes involving moral turpitude. He never spent a day in jail. However, when he returned to the United States last January from a trip abroad, the Department of Homeland Security (DHS) took him into custody because it determined that he was removable due to his convictions. After he was taken into custody, he started looking for an immigration lawyer in New York City. One of my existing clients referred him to me. I met him in jail, discussed his case, and we agreed that I would represent him in immigration court. In Immigration Court, my client applied for an INA section 212(h) waiver.
Because of my client’s criminal history, I had to prove to the judge that if my client was not allowed to keep his permanent resident status, that at least one of his family members would suffer extreme hardship. After hours and hours of preparation with my client and his family, the day of the final hearing arrived. Although my client was extremely nervous, he remembered what I had told him, and he was able to adequately convey that he was a good husband and a father, and that his family needed him to be with them.
After my client had testified for three hours, the judge said that he was going to approve his case. The DHS attorney said that he agreed with the judge. My client was a winner, and last night, after spending more than 150 days in three different county jails, he returned home to his loving family.
-Irwin Berowitz
Because of my client’s criminal history, I had to prove to the judge that if my client was not allowed to keep his permanent resident status, that at least one of his family members would suffer extreme hardship. After hours and hours of preparation with my client and his family, the day of the final hearing arrived. Although my client was extremely nervous, he remembered what I had told him, and he was able to adequately convey that he was a good husband and a father, and that his family needed him to be with them.
After my client had testified for three hours, the judge said that he was going to approve his case. The DHS attorney said that he agreed with the judge. My client was a winner, and last night, after spending more than 150 days in three different county jails, he returned home to his loving family.
-Irwin Berowitz
Sunday, June 21, 2009
Not Enough Votes in Congress for Immigration Reform
On June 19, 2009, President Obama's Press Secretary, Robert Gibbs, announced that there aren't enough votes in Congress just yet to achieve the desired immigration reform.
-Ruchi Thaker
-Ruchi Thaker
Saturday, June 20, 2009
E-Passports for Visa Waiver Applicants
Effective July 1, 2009, all Visa Waiver Program (VWP) emergency or temporary passports must be electronic passports (e-Passports) to be eligible for travel to the United States under the VWP.
This includes VWP applicants who present emergency or temporary passports to transit the United States.
Click here for more information on the Visa Waiver electronic passport requirement.
-Ruchi Thaker
This includes VWP applicants who present emergency or temporary passports to transit the United States.
Click here for more information on the Visa Waiver electronic passport requirement.
-Ruchi Thaker
Friday, June 19, 2009
President Obama on Immigration
Today, President Obama spoke at the Esperanza National Hispanic Prayer Breakfast in Washington, D.C. During his speech, he said:
The American people -- the American people believe in immigration, but they also believe that we can't tolerate a situation where people come to the United States in violation of the law, nor can we tolerate employers who exploit undocumented workers in order to drive down wages. That's why we're taking steps to strengthen border security, and we must build on those efforts. We must also clarify the status of millions who are here illegally, many who have put down roots. For those who wish to become citizens, we should require them to pay a penalty and pay taxes, learn English, go to the back of the line behind those who played by the rules. That is the fair, practical, and promising way forward, and that's what I'm committed to passing as President of the United States.
President Obama owes his victory partially (if not mostly) to the Hispanic vote on November 4, 2008. So it was fitting that he asserted his commitment to immigration reform "during his Presidency." President Bush once acknowledged that the failure of his administration to pass immigration reform was a "personal disappointment" for his presidency. Let us hope that President Obama keeps his word and that we see a good immigration reform, maybe as soon as this year or early next year!
Read President Obama's speech from this morning!
-Ruchi Thaker
The American people -- the American people believe in immigration, but they also believe that we can't tolerate a situation where people come to the United States in violation of the law, nor can we tolerate employers who exploit undocumented workers in order to drive down wages. That's why we're taking steps to strengthen border security, and we must build on those efforts. We must also clarify the status of millions who are here illegally, many who have put down roots. For those who wish to become citizens, we should require them to pay a penalty and pay taxes, learn English, go to the back of the line behind those who played by the rules. That is the fair, practical, and promising way forward, and that's what I'm committed to passing as President of the United States.
President Obama owes his victory partially (if not mostly) to the Hispanic vote on November 4, 2008. So it was fitting that he asserted his commitment to immigration reform "during his Presidency." President Bush once acknowledged that the failure of his administration to pass immigration reform was a "personal disappointment" for his presidency. Let us hope that President Obama keeps his word and that we see a good immigration reform, maybe as soon as this year or early next year!
Read President Obama's speech from this morning!
-Ruchi Thaker
Thursday, June 18, 2009
Successful Deportation Defense - Client Wins Tough Deportation Waiver!
Today, one of our clients won his case in front of an Immigration Judge. When he was young, he did a number of foolish things, and ended up being convicted of several felonies. He went to prison in the mid-1990s for over one year. After that, he spent one year in Immigration custody. He has been a “free” man since then, except for the deportation case that hung over him until today.
Because of our client’s criminal history, we had to provide the judge with proof that our client has undergone significant rehabilitation, that he has been taking care of his wife and his children, that he has been working and paying his taxes, and that he has been performing community service. Working closely with out client, and some devoted members of his family, we did all that and more. At his big hearing, after our client testified, members of his family testified. His wife was the best witness. We knew that she would be.
After our client’s wife finished testifying, the attorney for the Department of Homeland Security informed the judge that the witnesses were credible, and that our client had proven that he has really changed his ways. The judge approved his case, our client cried like a baby, and everyone was happy. The DHS attorney accepted the judge's decision as final and will not appeal the favorable decision. We couldn't have asked for anything more!
-Irwin Berowitz
Because of our client’s criminal history, we had to provide the judge with proof that our client has undergone significant rehabilitation, that he has been taking care of his wife and his children, that he has been working and paying his taxes, and that he has been performing community service. Working closely with out client, and some devoted members of his family, we did all that and more. At his big hearing, after our client testified, members of his family testified. His wife was the best witness. We knew that she would be.
After our client’s wife finished testifying, the attorney for the Department of Homeland Security informed the judge that the witnesses were credible, and that our client had proven that he has really changed his ways. The judge approved his case, our client cried like a baby, and everyone was happy. The DHS attorney accepted the judge's decision as final and will not appeal the favorable decision. We couldn't have asked for anything more!
-Irwin Berowitz
Tuesday, June 16, 2009
Greencard Renewal Application
Here is something "nice" that the Department of Homeland Security ("DHS") is now supposed to do:
In a February 6, 2009 memo, the Acting Associate Director of the U.S. Citizenship and Immigration Services ("USCIS") announced that the USCIS must now immediately process Form I-90, even if the lawful permanent resident ("LPR") is subject to removal proceedings as a result of a criminal conviction.
This is an important policy change. Form I-90 is used by a lawful permanent resident to renew an expiring alien registration card ("ARC"). Typically, an ARC is valid for a period of 10 years and is physical evidence that the bearer of the ARC is a lawful permanent resident of the United States. Before the ARC expires, the alien must file Form I-90 to renew it. However, in the past, if the alien was convicted of a crime after he or she became an LPR and prior to the renewal of the ARC, DHS asked the alien to submit a certificate of disposition for the conviction. If the coviction was one that rendered the alien "removable" or "inadmissible," DHS used to commence removal proceedings against the alien without renewing the alien's ARC.
As immigration lawyers, we never understood why the DHS refused to renew the ARC if an alien was removable or inadmissible. Our position has always been that an ARC is only the physical evidence that the holder of the card is an LPR. An LPR can only "lose" the status in a few ways: (1) abandonment of the status; (2) an order of removal from an immigration judge and/or the Board of Immigration Appeals; and (3) rescission of the LPR status by the USCIS on the basis of fraud. The fact that an alien may be removable or inadmissible has nothing to do with whether the DHS should be able to renew the ARC. So, logically, the fact that the DHS would not renew the ARC did not mean that the person lost his or her status as an LPR; it only meant that he or she would no longer have proof of his or her valid status through a renewed ARC. In reality, though, this caused many problems, such as the inability to find or keep a job because of employers who were unwilling to hire or keep employees who could not produce a valid ARC, or the ability of the alien to obtain basic, necessary things, such as a driver's license.
The February 6, 2009 memo instructs the DHS to process immediately the I-90 form upon the establishment of identity and the fact that the alien is indeed and LPR. Of course, the DHS can scrutinize the LPR further if it believes that the LPR is removable and should be placed in removal proceedings, but the DHS can only do this after it processes the I-90 first.
While it isn't a "perfect" system and there is likely to be some "oversight" of this new policy, we are hopeful that the USCIS will honor this policy, so that hardworking LPRs will not have to be in limbo and without a renewed ARC until DHS decides (sometimes months later), whether to commence removal proceedings.
-Ruchi Thaker
In a February 6, 2009 memo, the Acting Associate Director of the U.S. Citizenship and Immigration Services ("USCIS") announced that the USCIS must now immediately process Form I-90, even if the lawful permanent resident ("LPR") is subject to removal proceedings as a result of a criminal conviction.
This is an important policy change. Form I-90 is used by a lawful permanent resident to renew an expiring alien registration card ("ARC"). Typically, an ARC is valid for a period of 10 years and is physical evidence that the bearer of the ARC is a lawful permanent resident of the United States. Before the ARC expires, the alien must file Form I-90 to renew it. However, in the past, if the alien was convicted of a crime after he or she became an LPR and prior to the renewal of the ARC, DHS asked the alien to submit a certificate of disposition for the conviction. If the coviction was one that rendered the alien "removable" or "inadmissible," DHS used to commence removal proceedings against the alien without renewing the alien's ARC.
As immigration lawyers, we never understood why the DHS refused to renew the ARC if an alien was removable or inadmissible. Our position has always been that an ARC is only the physical evidence that the holder of the card is an LPR. An LPR can only "lose" the status in a few ways: (1) abandonment of the status; (2) an order of removal from an immigration judge and/or the Board of Immigration Appeals; and (3) rescission of the LPR status by the USCIS on the basis of fraud. The fact that an alien may be removable or inadmissible has nothing to do with whether the DHS should be able to renew the ARC. So, logically, the fact that the DHS would not renew the ARC did not mean that the person lost his or her status as an LPR; it only meant that he or she would no longer have proof of his or her valid status through a renewed ARC. In reality, though, this caused many problems, such as the inability to find or keep a job because of employers who were unwilling to hire or keep employees who could not produce a valid ARC, or the ability of the alien to obtain basic, necessary things, such as a driver's license.
The February 6, 2009 memo instructs the DHS to process immediately the I-90 form upon the establishment of identity and the fact that the alien is indeed and LPR. Of course, the DHS can scrutinize the LPR further if it believes that the LPR is removable and should be placed in removal proceedings, but the DHS can only do this after it processes the I-90 first.
While it isn't a "perfect" system and there is likely to be some "oversight" of this new policy, we are hopeful that the USCIS will honor this policy, so that hardworking LPRs will not have to be in limbo and without a renewed ARC until DHS decides (sometimes months later), whether to commence removal proceedings.
-Ruchi Thaker
Sunday, June 14, 2009
Foreign-born widows of US Citizens
Tonight on 60 Minutes (CBS, 7:00 PM EST) - a documentary on US policy that asks foreign-born widows of US citizens to leave the United States upon the death of the US citizen.
Here is the related Department of Homeland Security order that was issued by Secretary of the DHS, Janet Napolitano, on June 9, 2009, which "eases" the burden on widows.
-Ruchi Thaker
Here is the related Department of Homeland Security order that was issued by Secretary of the DHS, Janet Napolitano, on June 9, 2009, which "eases" the burden on widows.
-Ruchi Thaker
Saturday, June 13, 2009
Due Process Violation?
I had a fascinating conversation this week with a fellow immigration attorney, who had a very interesting case in Buffalo, New York. His client, who was in "deportation proceedings" (as they were called prior to 1996) was ordered deported by an immigration judge in his absence sometime in 1994. Apparently, he had a court date that he missed, and under the immigration laws, an immigration judge had the authority to order deportation without the presence of the foreign national in court. When the foreign national discovered the deportation lawyer, he hired a lawyer, who tried to have the case "reopened" on the basis that his client never received the notice of his hearing date. Under the law, such a motion was permissible. Also, filing such a motion (typically called "motion to reopen and rescind an in absentia order") did not require a showing that the foreign national was or is eligible for a form of relief from deportation, or that he would ultimately win a case before an immigration judge. All that is required is a showing of lack of notice of hearing (actual or constructive).
The immigration judge who ordered the deportation in 1994 denied the motion to reopen, claiming that there was sufficient evidence of notice of hearing. The Board of Immigration Appeals (the highest administrative immigration tribunal) denied the appeal.
Then, when the foreign national had accumulated more favorable equities in the United States, in 2007, the lawyer obtain the consent of the Department of Homeland Security lawyer, who, in writing, said that she would not object to a motion to reopen the old deportation case. When the foreign national's lawyer presented all this to the immigration judge, the judge again denied the motion to reopen. Typically, when both parties ask the Court to reopen a case (through a "joint motion to reopen"), the immigration judge usually reopens the matter. However, here, the judge denied reopening and went through a whole list of reasons why he would ultimately deny "adjustment of status" (a process by which the foreign national would obtain lawful permanent residency in the United States, through marriage or employment). Because he felt that he would deny the ultimate relief sought, there was no reason to reopen.
Again, the foreign national appealed to the Board of Immigration Appeals, and once again, he lost on appeal.
The lawyer then made a prudent move, and decided that he would file a new motion with the immigration judge, addressing all of his concerns in his previous denial. Of course, the logic behind this was to show to the immigration judge that his client was likely to prevail on the merits of his adjustment of status application, and that he was not legally barred from seeking adjustment of status. Again, the Department of Homeland Security lawyer, in writing, said that she would not object to the Court's reopening the case.
Then things took an interesting turn. Without any reasonable explanation (that we know of), another immigration judge sitting in Buffalo, NY reviewed the motion, and denied it on the basis that the foreign national had notice of his 1994 hearing date, and therefore he did not deserve to have his case reopened.
Now, the lawyer is in the process of preparing another appeal, and then considering going to the United States Court of Appeals for the Second Circuit if the Board of Immigration Appeals denies the appeal.
Since the REAL ID Act came out in 2005, challenging an immigration case in federal court has become more challenging. Only constitutional and legal claims can be brought in federal courts (along with claims of torture if deported to the foreign national's native country). Discretionary (meaning, things that an immigration judge or the Board of Immigration Appeals decided as a matter of their opinion after balancing all the positive and negative aspects of a case), cannot be challenged in federal courts. This means more and more foreign nationals are being deprived of opportunities to have a higher federal court review often-erroneous and irrational decisions of immigration judges and the Board of Immigration Appeals. In the situation mentioned above, there is no reason why another judge would take over deciding the motion: the original judge is still there; he did not "recuse" himself from the case; he was not on an extended vacation or absence. Indeed, the lawyer and the foreign national had a reasonable expectation that the new motion would be reviewed by the original judge who entered the deportation order.
This situation isn't only outrageous, but unfortunately, things like this are probably happening all over the country and many foreign nationals are being deported without having a fair opportunity to be heard in Court. Our Constitution provides due process rights and immigrants are regularly being deprived of it.
-Ruchi Thaker
The immigration judge who ordered the deportation in 1994 denied the motion to reopen, claiming that there was sufficient evidence of notice of hearing. The Board of Immigration Appeals (the highest administrative immigration tribunal) denied the appeal.
Then, when the foreign national had accumulated more favorable equities in the United States, in 2007, the lawyer obtain the consent of the Department of Homeland Security lawyer, who, in writing, said that she would not object to a motion to reopen the old deportation case. When the foreign national's lawyer presented all this to the immigration judge, the judge again denied the motion to reopen. Typically, when both parties ask the Court to reopen a case (through a "joint motion to reopen"), the immigration judge usually reopens the matter. However, here, the judge denied reopening and went through a whole list of reasons why he would ultimately deny "adjustment of status" (a process by which the foreign national would obtain lawful permanent residency in the United States, through marriage or employment). Because he felt that he would deny the ultimate relief sought, there was no reason to reopen.
Again, the foreign national appealed to the Board of Immigration Appeals, and once again, he lost on appeal.
The lawyer then made a prudent move, and decided that he would file a new motion with the immigration judge, addressing all of his concerns in his previous denial. Of course, the logic behind this was to show to the immigration judge that his client was likely to prevail on the merits of his adjustment of status application, and that he was not legally barred from seeking adjustment of status. Again, the Department of Homeland Security lawyer, in writing, said that she would not object to the Court's reopening the case.
Then things took an interesting turn. Without any reasonable explanation (that we know of), another immigration judge sitting in Buffalo, NY reviewed the motion, and denied it on the basis that the foreign national had notice of his 1994 hearing date, and therefore he did not deserve to have his case reopened.
Now, the lawyer is in the process of preparing another appeal, and then considering going to the United States Court of Appeals for the Second Circuit if the Board of Immigration Appeals denies the appeal.
Since the REAL ID Act came out in 2005, challenging an immigration case in federal court has become more challenging. Only constitutional and legal claims can be brought in federal courts (along with claims of torture if deported to the foreign national's native country). Discretionary (meaning, things that an immigration judge or the Board of Immigration Appeals decided as a matter of their opinion after balancing all the positive and negative aspects of a case), cannot be challenged in federal courts. This means more and more foreign nationals are being deprived of opportunities to have a higher federal court review often-erroneous and irrational decisions of immigration judges and the Board of Immigration Appeals. In the situation mentioned above, there is no reason why another judge would take over deciding the motion: the original judge is still there; he did not "recuse" himself from the case; he was not on an extended vacation or absence. Indeed, the lawyer and the foreign national had a reasonable expectation that the new motion would be reviewed by the original judge who entered the deportation order.
This situation isn't only outrageous, but unfortunately, things like this are probably happening all over the country and many foreign nationals are being deported without having a fair opportunity to be heard in Court. Our Constitution provides due process rights and immigrants are regularly being deprived of it.
-Ruchi Thaker
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