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Deportation, Immigration To The USA, Uncategorized

237(h) Waiver May be Available Outside the Entry Restrictions

November 10, 2017

237(h) Waiver May be Available Outside the Entry Restrictions

Author: Green Card Attorney Alena Shautsova

People say that where there are two lawyers, there are three opinions. And there is a good reason for it. The Immigration law, perhaps, is one of those areas of law where nothing is set in stone, and various courts provide various results in similar situations.

In a recent case coming from the Seventh Circuit Court of Appeals, the Court decided that 237(h) waiver: the only waiver that may be available in marriage fraud cases, may be applied for not only when the fraud was committed at the time of entry. The Court stated that if the charge of removability is related to fraud, then 237(h) waiver can be applied for!

I have to say that when I was reading the decision, I was curious how a man received a green card in the US not once, but twice, and each time it was a “problematic” application, when there are very convincing cases of people who are waiting for the decisions on I 751 for years. Once you keep reading the decision, you will see that this man had a very sympathetic situation after all, but, of course, the misrepresentation part of his testimony where he “forgot” that he was married to someone else can be excused in only very, very “sympathetic” circumstances.

Deportation, Immigration To The USA

Statute of Limitations For Green Cards Rescission

July 25, 2016

Statute of Limitations For Green Cards Rescission

Author: Green Card Attorney Alena Shautsova

In law, there is a statue of limitations or period during which one can bring a legal action with regard to almost all rights, regulations, incidents, accidents or actions. For example, if you happened to be in a car accident, you have 3 years to sue. If you became a victim of fraud, you have 6 years to sue your offender.

Now, believe it or not, there is a statue of limitations as to how long the government can wait before taking your green card from you if it was issued in error. The bad news is that there is only one Circuit Federal Court in the whole United States which follows this five-year statute.

This Court is the Court for the 3rd Circuit, and it covers New Jersey! Only this Circuit court held that the government cannot take someone’s green card away if the government issued it in error after five years passed since the issuance under 8 U.S.C. § 1256(a):

If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.

Interestingly enough, there is no time limitation on when the government may start deportation or removal proceedings against a person, so in reality, if the government really wants to take the green card or lawful permanent status away, it may “find” a valid basis for removal, and very often such a basis is determined to be fraud.

Moreover, if a person became a U.S. citizen, and the government still has time to rescind its decision regarding the person’s permanent resident status, the person would lose the citizenship as well. In reality, however, just like with the rescinding or removal of a person in permanent resident status, the government is not bound by the five-year statute and often, naturalized citizens of many years, and decades may lose their citizenship if a mistake is uncovered.

To rescind one’s LPR status, the government would:

1. Would send a notice with intent to rescind

2. A LPR has 30 days to contest the notice and then there will be a hearing with the Immigration Judge. The result of the hearing is appealable.

If a LPR does not respond to the notice within 30 days, he will not be afforded a hearing with an Immigration judge. Important: a request for more time is not a request for hearing! See Ali v. Reno, 22 F 3d 44 (2n Cir. 1994).

3. The government has to prove their case by clear, convincing and unequivocal evidence.

If you receive a notice of intent to rescind your LPR status, call an attorney right away. You can reach us at 917-885-2261.

Deportation, Uncategorized

CANCELLATION OF REMOVAL: NTA, STOP TIME RULE

October 19, 2015

CANCELLATION OF REMOVAL: NTA, STOP TIME RULE

Author: New York Deportation Attorney Alena Shautsova
Cancellation of Removal is an often overlooked form of relief from deportation. It also may be used by someone who has been in the U.S. for a long time without inspection or admission to receive a green card in the U.S. In the last case scenario, a person first would have to ask the U.S. government to place him/her into removal proceedings and only then he/she will have a chance to apply for cancellation.

Cancellation of removal as a form of relief may be of several “kinds” : for permanent residents, for non-permanent residents; for VAWA beneficiaries; for certain persons covered by the Nicaraguan Adjustment and Central American Relief Act of 1997. Each “kind” requires that certain qualifications be met.

One of the common “features” of this form of relief, is that an applicant has to accumulate certain amount of time in the U.S. This time usually runs from the person’s entry into the US, and can be stopped not only due to a departure, but due to certain events that have legal consequences. For example: an arrest or commitment of a crime by the applicant or service of removal/deportation documents.

Since cancellation of removal is a desirable and often the only form of relief an applicant can hope for, there started to develop a body of case law that challenges various limitations and restrictions that might be applied to the applicant. Specifically, the advocates posed a question of whether a service of deficient on its face notice to appear in removal proceedings may serve as a “stop time” event. For example, quite often a person receives a notice to appear issued by ICE that has “TBD” in place of a date and time of the hearing in Immigration court. Can such a document, that has been issued but not filed with the court have sufficient legal weight to eliminate one’s chance for cancellation? It is an interesting question, because in practice, such issued notices may rest on shelves for years before they are eventually filed with the court, and the person, subject of such a notice, naturally, would like to the “wait” time to be counted towards the accrual of the necessary period. (Service of an NTA cuts off the accrual of continuous presence, under a provision known
as the “stop-time” rule. 8 U.S.C. § 1229b(b)(1)(A).)

Unfortunately for the applicants, many Circuit Federal courts held that the Notice to appear served on the applicant does not have to have all the specifics in order to alert the applicant that the government is initiating removal proceedings against him/her, and even an incomplete notice will nevertheless stop the cancellation or removal clock. See Guaman-Yuqui v. Lynch, 786 F.3d 235, 238–40 (2d Cir. 2015) (per curiam); Gonzalez- Garcia v. Holder, 770 F.3d 431, 433–35 (6th Cir. 2014); Yi Di Wang v. Holder, 759 F.3d 670, 673–75 (7th Cir. 2014); Urbina v. Holder, 745 F.3d 736, 739–40 (4th Cir. 2014).

However, there remain one “loophole” out of this catastrophe. If the government agrees to retract the notice, then the “time” can be saved. However, this requires government cooperation and discretion. The BIA held that a notice to appear (NTA) that was served but never resulted in removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the INA. Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015).

Deportation, USCIS, Visas

I-751 Petition, Questions and Answers

October 11, 2015

I-751 Petition, Questions and Answers

Author: Green Card Attorney Alena Shautsova

A conditional permanent resident has to file a petition to remove condition from the residency within 90 day period prior to the second anniversary of his/her status.

LATE FILING

The joint petition (when spouses are still living together) must be filed within the 90 days period, and if it is not, the couple has to present a very good excuse for missing the deadline, otherwise the petition will be rejected.

The petition that contains request for a waiver, on the other hand, can be filed at any time. For example A, conditional permanent resident (CPR), divorced from a USC (a U.S. citizen) just a year after A become a CPR. “A “ does not need to wait to file her petition. Another example, A is a battered spouse. She is still married to a USC who has been abusive. A missed her deadline and her conditional permanent resident card expired. “A” can still file the I 751 petition, even if the deadline is missed.

What is not a good excuse for late filing of the joint petition? Being abroad is not an excuse for late filing of the joint petition. The couple who are abroad must file the petition within the 90 day period prior to the second anniversary of the green card status.

DOES THE STATUS REALLY EXPIRE?

The warning notices say that if the a conditional permanent resident does not file the petition to remove condition timely, his/her status automatically expires. What really expires is the card itself. The status does not expire, despite the warning. In fact, the USCIS or an Immigration judge has to terminate the status in order for “A” to start the process again with a new USC-spouse. It also means that “A” technically will remain a permanent resident, but a conditional one and prior to undertaking any other Immigration steps, she would have to submit an I-751 petition, even if it will be filed late in order to get a finality for her situation. In this case, if the petition is denied, then the status will be terminated. (Does not apply to those seeking adjustment as refugees or asylees).

DO I INCLUDE CHILDREN IN MY I -751?

Yes, dependent children, those who receive their green card with their parents within 90 days of the parent’s conditional green card or, as often it happens, on the same day, must be included in the I -751 form. What do to if the child turns 21 by the time I-751 should be filed? The answer is : file the petition including that child. The statute that talks about removal of the condition for dependents refers children and sons and daughters, meaning, that under INA, I-751 properly included with the parents should receive their permanent resident status as well. See also Caprio v. Holder, 592 F.3d 1091 (10^th Cir. 2010).

Finally, most common question: I was married to the U.S. citizen, and now we are divorced. Did I lose my status? The answer is NO, you did not lose your status. All you need to do is to file I -751 by yourself. It may be a little bit more challenging, as you need to show that you had a real marriage, but it is possible. If you are successful, you will receive a permanent green card.

FUN FACT: One can submit an unlimited number of I 751 petitions.

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!

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

DMV Denial of License

October 21, 2014

DMV Denial of License

New York Immigration lawyer Alena Shautsova

Have you recently moved from another state and had difficulties getting NY driver’s license? Were you totally confused? Were you blamed you are not a US citizen?

It happened to my client: a born US citizen who has spent several years in a different state, and when she came back to NY and decided to apply for NY driver’s license and report a change of her address, a lady at the DMV Manhattan office told her that …. she needs to present “more proof” that she in fact was a US citizen… hmm

My client actually presented a social security card; different state ID card; a US birth certificate; bank statements from different banks and utility bills. According to the DMV point system table she had enough points to get her NYS driver’s license. Nevertheless, the clerk told her to apply for a US passport and come back…

The question was: did the DMV clerks look at their own point table? Or is it just anther document issued to confuse everybody and make people’s life more difficult?

This client is a US citizen, and eventually, after visiting a different DMV location, she was able to get her license.

Many non-citizens, however, experience the same issue. The government passed the Real ID act which requires the DMV offices to check for the lawful immigrant status before issuing an ID to the applicant. However, DMV clerks are not attorneys and often they lack training to ascertain if a person is in fact in lawful immigration status or status that allows a person to receive a state ID or driver’s license. For example, another client of mine, an applicant for asylum was denied Chicago State ID because the clerk there decided that his documents showing pending case with the Immigration Court were not sufficient to prove authorized stay in the US…

At the same time, there are people without lawful immigration status who were able successfully to extend their 8 years DMV licenses even after the Real ID act…

Recently, New York City voted to issue Id-s to everybody, regardless of their immigration status.

Maybe, it is time to change the rules?

Deportation, Immigration To The USA

New Fingerprinting Procedure for Immigration Court

August 8, 2014

New Fingerprinting Procedure for Immigration Court

Author: New York Immigration Lawyer

All respondents in Immigration court have to make sure that the results of the fingerprinting procedure are valid on the date of their Immigration court hearing. Expired results cause delays and adjournments and bring frustration to all participants of the process.

Currently, the Immigration court places the burden of notifying respondents about updating of the biometrics results on their attorneys. Until recently, the procedure required, that respondent submits the Applicant Information Worksheet (AIW) to ICE OCC-NYC at the 11^th floor window at 26 Federal Plaza, New York, NY. ICE OCC-NYC would then forward the AIWs to USCIS, and USCIS would determine if an Applicant’s fingerprint checks were expired, and if expired, reschedule the Applicant for an appointment to be physically re-printed.

Effective August 11, 2014, the AIW has to be sent directly to USCIS to

U.S. Citizenship and Immigration Services

Attention: AIW

26 Federal Plaza – Room 3-120

New York, NY 10278.

USCIS requests the following on all AIW submissions:

1 – Respondent/attorney clearly indicate the next court date at the top of the AIW and, if possible, attach a copy of the EOIR notice indicating the next court date.

2 – Submit the AIWs to USCIS at least 60 days but no more than 120 days before the next merits court date. USCIS will not entertain any AIWs for reprints if the next court date is more than 120 days out.

3 – USCIS will not entertain any AIWs for reprints if, according to their records, the fingerprints will still be valid at the time of the next court date.

Deportation, Immigration To The USA, USCIS

Unlawful Presence Bar Can Be Served In the US

July 23, 2014

Unlawful Presence Bar Can Be Served In the US

Author: New York Immigration Lawyer Alena Shautsova

Under the Immigration laws, if a person overstayed his/her visa or period of authorized stay, he or she would be inadmissible into the US for a period of 3 or 10 years depending on the period of overstay if such a person leaves the US. The bar to entry triggers only when the person leaves the US, however for a long time the question was: does the person have to be outside the US to subsequently receive immigration benefits, or does the bar starts to run when the person leaves the US and continues to run even if the person somehow re-enters the US.

The question was answered in unpublished BIA decision Matter of Cruz, 4/9/14. The BIA stated that “..if section 212(a)(9)(B) of the Act created inadmissibility for an alien who seeks or has sought admission to the United States (similar to section 212(a)(6)(C)(i) of the Act’s provision for the inadmissibility of an alien who “seeks” or “has sought” to procure admission or another immigration benefit by fraud or willful misrepresentation of a material fact), we might construe the statute as creating permanent rather than temporary inadmissibility. However, the statute simply states that an alien is inadmissible if he “seeks” admission within the pertinent period, which is ambiguous language.”

It means that the bar of unlawful presence is a temporary bar which triggers when the person leaves the country and continues to run if the person re-enters the US without inspection and/or using misrepresentation. This is an important decision because it illuminates need for an extreme hardship waiver if the time of the bar has passed.

Deportation, Immigration To The USA

RECEIVED NOTICE TO APPEAR: WHAT IS NEXT?

July 1, 2014

Notice to Appear: What is Next?

Author: New York Immigration Attorney Alena Shautsova

Notice to appear (the “NTA”) is a charging document in Immigration. It outlines the main charges or allegations the government is presenting to deport or remove a person from the United States. Under INA § 239(a)(1) (2012), an NTA should include: the nature of the proceedings, the legal authority under which the proceedings are conducted, the acts or conduct alleged to be in violation of the law, the charges against the noncitizen and the statutory provisions alleged to have been violated. An NTA can be served personally or via regular, first class mail. It does not have to be served via certified mail. It is also may be served on an attorney of record.

A person may be charged with either inadmissibility under INA 212 or deportability under INA 237. A person will be charged with inadmissibility if he or she was not admitted into the US or paroled. A lawful permanent resident with a certain criminal convictions coming back form a trip abroad may also be charged as an arriving alien under inadmissibility ground(s). It is very important to check if the grounds of the removal are stated correctly: it will determine the burden of proof on the alien, and possible defenses.

Another important element of the NTA is time and place of the proceedings. Often, the time and places are outlines as TBD (to be determined); it means that the NTA was just issued and an Immigration Court has not yet docketed the case for its calendar. The government shall provide at least 10 days from the service of the notice and before the start of the removal proceedings so that the person can find an attorney.

NTA basically starts the removal proceedings; after it is filed it is possible to ask the Immigration court to change venue or terminate the proceeding. However, before the NTA is filed, the court lacks jurisdiction to make decisions on any motions.

The charges in NTA have to be examined closely and the charged person should seek representation as soon as he or she was served with the NTA. Sometimes, a person may know that the Notice would be issued. In such a case, he or she shall contact an attorney ASAP to discuss possible defense options and strategy.

A person whose case is filed with the court, will have to appear before an Immigration Judge. Failure to appear will result in a removal order issued against the person and possible 5 year bar to apply for any immigration benefits. The first hearing in Immigration court is called a Master hearing; it is usually very short and during it the court and attorneys decide how they will be proceeding with the case: what defenses and application an alien will file; what documents the government would like to see; what is the time frame of filings, etc.

Contact an Immigration attorney if you have questions regarding Notice to Appear: 917-885-2261.

Deportation, Immigration To The USA

TPS: Children Have to Qualify Independently From Parents

June 23, 2014

TPS: Children Have to Qualify Independently From Parents

Author: New York Immigration Lawyer Alena Shautsova

TPS or Temporary Protected Status allows its beneficiary to stay and work in the US for the period of time designated by the US government. Currently, TPS was announced for the following countries: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria.

Those who would like to receive TPS have to satisfy certain requirements, including being physically present in the US on a special date, designated by the government. For each of the countries, the date is designated separately. It does not matter if the potential beneficiary entered the US illegally, all what matters: the person must physically be in the US and must remain in the US for a certain period of time.

The question arose in the Matter of DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014) if parent’s physical presence can be imputed to the unemancipated (dependent on parents) children. The argument was not baseless, because for some time the courts held that in fact, parents’ physical presence in the US may be imputed (or counted in)towards physical presence of children, even if in fact, children were not in the US. However, this argument was in essence “closed” by the U.S. Supreme Court in Holder v. Martinez Gutierrez , 132 S. Ct. 2011 (2012).

As such, the BIA answered the question in negative, and two daughter of the TPS holder were denied TPS and put in the removal proceedings.

The consequences of this decision cannot be underestimated. Under the TPS regulations, there is no dependent status, meaning that if parents receive TPS, their children cannot do so with them. Now, it also became clear, that children must independently qualify for the TPS, and this, of course, will negatively reflect on family unity. Please note, that at the same time, children may qualify for SIJS if a Family court issues an order appointing a guardian or custodian who can be even undocumented parent!