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Category: Asylum in USA

Asylum in USA, Immigration To The USA, Uncategorized

US Asylum Procedure Changes

July 15, 2019

US Asylum Procedure Changes

Author: Asylum USA Lawyer Alena Shautsova

Asylum is the area of Immigration law that is undergoing rapid and vast changes. Just recently the Trump Administration announced that it will tighten the rules of qualifying for asylum again: now, a person who was traveling through other countries on the way to the US will be disqualified from asylum in the US unless narrow exceptions apply.

These are the exceptions:

  1. A person was trafficked into the US
  2. If the country the migrant passed through did not sign one of the major international treaties that govern how refugees are managed: 1951 Convention on Status of Refugees, 1967 Protocol; and CAT convention.
  3. If an asylum-seeker sought protection in a country but was denied.

The new regulations govern those who enter or attempt to enter the US at the “southern border”.

Notably, people who will be barred from requesting asylum due to these new regulations may still apply for withholding of removal or CAT. However, the screening for these applications will use a higher standard of fear than asylum. A negative finding of reasonable fear will be subject to a court’s review.

 

As a result of these new changes, more people, and almost all Central American families will be barred from claiming asylum in the US. They will also be subject to expedited removal proceedings: removal proceedings where one does not see a judge and the removal order is issued at the border by the government agents. An expedited removal order bars one from coming back to the US for 5 years. A person who disobeys such an order and enters the US illegally will be subject to a permanent bar.

Asylum in USA, Immigration To The USA, Uncategorized

Important Changes in Green Card Medical Exam Acceptance Policy

February 21, 2019

Important Changes in Green Card Medical Exam Acceptance Policy

Author: New York Immigration Attorney Alena Shautsova

An application for adjustment of status will not be approved if an applicant does not present a valid I693 form, medical exam. The medical exam itself is a pretty basic examination of one’s health condition, and even if a person has certain health issues, there is a waiver available. But what is hard is to comply correctly with constantly changing requirements for the form submission. 

Starting November 1, 2018, all forms I 693 will be valid only if the doctors signed them within 60 days of the submission of the form to USCIS and USCIS adjudicated the case within 2 years of the signature.

Note: the form I693 does not have to be filed together with the AOS package. It can be brought to the interview or submitted after a request for more evidence. 

If the I 693 form was submitted before November 1, 2018, then the form would be valid if

  • The civil surgeon signs Form I-693 more than 60 days before the applicant files the underlying benefit application with USCIS, but the applicant submits Form I-693 to USCIS no more than one year after the civil surgeon signed Form I-693; and USCIS issues a decision on the underlying benefit application no more than one year after the date the applicant submitted Form I-693 to USCIS.

OR

  • The civil surgeon signs Form I-693 no more than 60 days before the applicant files the underlying benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than two years after the date of the civil surgeon’s signature.

OR

  • The civil surgeon signs Form I-693, and the applicant submits Form I-693, after the applicant files the benefit application with USCIS; and USCIS issues a decision on the underlying benefit application no more than two years after the date of the civil surgeon’s signature.

In all cases, a Form I-693 submitted to USCIS more than one year after the date of the civil surgeon’s signature is insufficient for evidentiary purposes as of the time of its submission to USCIS.

The best practice is to obtain the form at the interview: since the notice for the interview comes early (about a month before the interview), it is usually enough time to obtain the form and bring to the interview. 

If you have questions regarding AOS procedures in the US, you can book a consultation here: https://www.shautsova.com/appointments/immigration-lawyer-request.html 

Asylum in USA, Immigration To The USA, Uncategorized

New Policy Regarding Unlawful Presence for F, M and J Visa Holders

August 13, 2018

New Policy Regarding Unlawful Presence for F, M and J Visa Holders

Author: US Visa Attorney Alena Shautsova

Recently, Trump administration started implementing new Immigration policies which construe Immigration laws stricter and with greater negative consequences for the non-residents. For example, several months ago, USCIS announced that the D/S (duration of status) exception of unlawful presence for M, F and J students will be abolished. Meaning, that these visa holders will start accumulating unlawful presence as soon as their program/status expires, and not only when a judge or USCIS determined that their status was “stopped.”  This new policy announcement was in conflict with the existing law allowing F and M  students to apply for reinstatement of status within 5 months of loss of such status, which would negate any determination of “unlawful presence.”

As a result, USCIS eventually changed its policy and the final version of it states that no unlawful presence will be accumulated if the person in F or M status filed a subsequently approved application for reinstatement of status. The new policy is as such:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status7 before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018,8 unless the alien had already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge ordered the alien excluded, deported or removed (whether or not the decision is appealed).

 

F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018 An F, J, or M nonimmigrant begin accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Significantly, nonimmigrants who are not issued a Form I-94, Arrival/Departure Record, are treated as nonimmigrants admitted for D/S (as addressed in Chapter 40.9.2(b)(1)(E)(ii)) for purposes of determining unlawful presence.

Asylum in USA, Immigration To The USA, Uncategorized

Updates on Trump Executive Order Regarding Family Separation

June 20, 2018

 

 

Updates on Trump Executive Order Regarding Family Separation

Why Trump is digging in on separating families at the border

Author: New York Immigration lawyer Alena Shautsova

Trump, as promised, signed an Executive Order stopping Family separation on the Southern Border. The Order, however, protects families from separation for 20 days only. In addition, the “zero tolerance” policy stays in place. 

The order directs other agencies, including the Pentagon, to take steps to find places to house family units.
The order specifies that migrants entering the US with children will not be kept together if there’s a fear for the child’s welfare. Families will also be prioritized in the adjudication process.
 
It is anticipated that the order will be challenged. It presents a new ground to challenge prolonged family detention. 
Asylum in USA, Immigration To The USA

US Asylum System is Under Attack

October 16, 2017

US Asylum System is Under Attack

Author: US Asylum Attorney Alena Shautsova

The US asylum system has saved the lives of thousands, maybe hundreds of thousands of people who would have been tortured, humiliated, beaten, arrested and deprived of all possible freedoms and rights in their home countries.  The system is structured to have two tracks: an administrative (or affirmative) and a judicial (or defensive). It does not provide any interim benefits, except for an employment authorization after six months from the filing of the first application. It also establishes a crucial deadline: one year since entry, that an applicant has to meet in order to file for asylum in the US.

Yet, many, including Attorney General Jeff Session criticize the system. They state that the US allows too many applicants in, and provides them with an opportunity to “game” the system.

The US Asylum system and many of its parts are built on the International Conventions. The most crucial document here would be the 1951 Refugee Convention.  In 1967 followed its Protocol. It is not only the US, but virtually all the countries in the world that drafted and joined this Convention and the Protocol recognizing one huge issue: there are people in the world who need the protection of countries other than the ones they were born in. It happens that not all world leaders and not all people in the world are playing by the rules. There are places with great evil, and we cannot just turn our backs on brothers and sisters and little children that suffer from deprivation and persecution. Hence, the countries agreed to recognize that status of refugees, people who do not want to, or are unable to, to return to their home countries to some very serious reasons.  Therefore, the US, asylum seekers or Immigration attorneys did not invent “asylum.” It is all based on a long history of humankind and International norms.

What differs from country to country is the way various governments implement the International norms. Some, provide financial benefits to the seekers before their applications are decided. Some, allow only an administrative path, without a judicial review.  Some, are not parties to the Convention at all and there is no opportunity to apply for asylum in those countries at all.

What is different about the US, is that it allows one to claim or apply for asylum at the US border, before they enter the country. The procedure is known as a “credible fear” interview. A person comes to the border, surrenders herself to the border agents and states that she would like to seek asylum in the US. Such a person is usually detained. Then, such a person has an interview with an Immigration officer who determines if such a person has a “credible fear” of returning to their home country. If the answer is positive, the person is freed from the detention (often on bond) and can present her claim in the US Immigration Court. In court, an Immigration Judge decides if such a person’s claim will be granted.

Further, in the US, under the Real ID Act, an asylum seeker must present evidence to corroborate his/her claim or provide sufficient explanation if such evidence is missing.  The government, and the Immigration Judge (“IJ”), both challenge the evidence and make sure that the applicant’s testimony is consistent and credible. If the IJ denies a person’s claim, he/she can file an appeal.

Attorney Gen. Sessions recently stated that the US Asylum system is being gamed. It is unclear what exactly he referred to. The US Asylum system is built partially on International law and partially on principles of due process and access to justice.  To deny asylum seekers a fair and just opportunity to save their lives in the US due to fear of fraud, would be the same as to execute every person charged with a crime without giving them a chance of due process and the presumption of innocence.

Finally, the US has very serious consequences for those who file false asylum claims: if a person is found to file a false asylum claim, he/she will be forever inadmissible into the US.

 

Asylum in USA, Immigration To The USA, USCIS

No More Parole for Children from Central America

August 17, 2017

No More Parole for Children from Central America

Attorney: Immigration Attorney Alena Shautsova

On December 1, 2014, DHS and the U.S. Department of State (DOS) announced that the U.S. Government would allow certain minors in El Salvador, Guatemala, and Honduras to be considered for refugee status in the United States.  The program helped children to come to the United States if a qualifying parent was present in the US in a legal status.  At some point the program was expanded and helped to come  (1) The in-country biological parent of a qualifying child who is not legally married to the qualifying parent in the United States may apply, and the unmarried and under 21 years of age children and/or legal spouse of the in-country parent can also be included as derivatives of the in-country parent; (2) the caregiver of a qualifying child who is related to either the qualifying parent in the United States or the qualifying child may apply, and the unmarried and under 21 years of age children and/or legal spouse of the caregiver can also be included as derivatives of the caregiver; (3) the married and/or 21 years of age or older children of the qualifying parent (who is lawfully present in the United States) may apply, and (4) the unmarried and under 21 years of age children and legal spouse of the married and/or 21 years of age or older child can also be included as derivatives.

On August 16, 2017, the new administration cancelled the program. All those who were pre-qualified while in their country of origin will be notified that their registration would be terminated. This decision affects those who have not yet traveled to the United States. Those who were already paroled into the US, may remain here, their parole would not be terminated, and they will be allowed to submit form I 131 to be re -paroled while in the United States.

For those who got left behind overseas: they still may try regular Humanitarian parole route. More information on humanitarian parole may be found here:  http://www.russianspeakinglawyerny.com/humanitarian-parole/.

 

If you have questions regarding parole procedure and qualifications, call our office 917-885-2261.

 

Asylum in USA, Immigration To The USA

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.

Asylum in USA, Immigration To The USA, USCIS

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 in USA, Immigration To The USA

Asylum and Gang Violence

May 5, 2015

Asylum and Gang Violence

Author: U.S. Asylum attorney Alena Shautsova

Asylum and Gang Violence

A claim of asylum connected to gang violence is one of the most common types unfortunately. Immigrants from El Salvador, Mexico and Ecuador are all coming to the U.S. in pursuant of a safe harbor. However, despite the obvious danger of gang violence, not every applicant who is afraid of gangs can succeed in a U.S. Immigration court.
For example, in two recent decisions, the courts came to the opposite conclusions. In one case, the court held a mother of a son who is being actively recruited by the gangs is subject to protection in the US , Hernandez-Avalos v. Lynch, 4/30/15. But in a different case, the court held that a young Salvadorian male who is being recruited by the gangs and resist joining them, is not subject to the protection in the US. Rodas-Orellana v. Holder, 3/2/15.
On its face, it seems that these two decisions are opposites and that something is going wrong… Well, what is going on here is the application of so called social visibility standard. An applicant who presents an asylum claim based on membership in a particular social group must show that the group he/she claims to belong to is socially visible. It is largely depends on the applicant’s attorney’s advocacy skills to persuade the court that the applicant in fact belongs to a group that has certain distinguished characteristics in the society it exists in, and that those characteristics are prominent enough for the “bad guys” to notice them and target members of this particular social group.
This demonstration is not an easy one as shown by the case examples above. In fact, in the first example the only thing that ‘saved’ the claim was the mother-son relationship between the applicant for asylum (claim was filed by mom) and the subject of gangs’ attention. So, the “group” mom was a member of, was …her own family. In the second example, the group was found by the judge too broad to be identifiable, and that is why the claim was denied.
It is obvious that asylum law is developing and is very, very complicated for an average asylum seeker to comprehend. We try to republish all important recent asylum decisions on our website’s Asylum Library: http://www.shautsova.com/immigration-usa/asylum-library.html

 

Asylum in USA, Criminal Law, Deportation, Immigration To The USA, Uncategorized

Glitches in USCIS System

December 4, 2014

Glitches in USCIS System

Author: New York Immigration Lawyer

USCIS stands for the United States Citizenship and Immigration Services and is a government body that accepts and processes all petitions and applications related to any and all immigration benefits.

The process of communication with USCIS boils down to exchange of papers and on rare occasions, includes phone calls and infopass appointments.

That is why it is very important to submit correctly filled out forms; timely respond  to request of more evidence and organize the papers in the most convenient way for the adjudicator.

In cases that do not require an interview, the petitioner or applicant will never meet the person who makes a decision on his/her case. However, often, an applicant or an attorney would receive correspondence from the adjudicator: request for more evidence; notice of intend to deny, etc. Often such notices are mere duplicates of the instructions for the form submitted; sometimes a person gets a notice twice; or receives something that does not make a sense at all.

Recently, USCIS revealed that some of such notices are sent automatically due to the “glitches” in their system.  For the past year, the glitches are to blame for RFEs for I 864 affidavit of support form; double notices for fingerprint appointments and receipts of filing with the RFE in it (this one is a hybrid, a new “monster”  created by glitches).

The unfortunate thing is that an attorney or petitioner/applicant still has to address these babies of the glitches even if they do not make any sense, because, if for example, an attorney fails to respond to an RFE, the case almost surely will be denied on the basis of failure to response to an RFE, even if the RFE itself did not make any sense.

Glitches or not, submission to the USCIS is a serious matter, and should not be taken lightly as any mishap will result in frustration, loss of money and time!