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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).

 

 

 

 

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 (10th 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.

XXX-Men: They Do Exist!

September 29, 2015

XXX-Men: They Do Exist!

Author: USA Asylum Attorney

Many of us accept the fact that we are citizens of certain countries as a natural “feature “of our lives. Of course, some people would like to change their citizenship; some would like to be citizens of more than one country, some would like to give up their U.S. citizenship… but almost all of us do have that thing that is called “citizenship.”

This is not the case for everybody. One may be surprised to find out that there are people among us who are not citizens of any country. One can only imagine what those people have to go through. What do they put in the forms as their “citizenship”? How do these people travel? Can they claim asylum at all? (One who claims an asylum has to show that he will be persecuted in a particular country…)

How  does a person become stateless?

It depends. It may happen due the change in the law. For example, after the Soviet Union broke apart, former USSR republics had to announce special laws proclaiming their residents to be citizens of the new formed countries. But some republics refused to accept certain residents into their new citizenship. As a result, in countries like Estonia, there are people who got “stuck” in limbo: they cannot claim to be citizens of places where they did not reside, and Estonia prohibited them to become citizens of Estonia. These persons became people with XXX nationality (not a joke, this is what stateless people have to put down as their citizenship). Unfortunately, an act of the country’s government that causes some people to lose their citizenship is not considered a basis for asylum. Previous attempts by persons with no citizenship due to change in the laws to file asylum in the US on this ground were not successful.

In fact, the problem of people of XXX nationality is not a new one. The International community have been discussing it on the highest level for decades. There is even an International convention on Status of Stateless Persons of 1954! It addresses and helps to resolve many issues that stateless person has to deal with it while trying to establish residence in a particular territory or travel. It also requires that basic human rights be afforded to stateless people to the same extent the citizens of the country of their residence may enjoy them. One of the most important provisions of the convention and its supplements, is that the countries-signatories to the Convention will issue identity and travel documents to the stateless persons which would allow them to function in the society (imagine, trying to find a job without an ID), and travel internationally.

While the Convention at issue is a great instrument to resolve this puzzle, the problem is that not all of the countries in the world have joined it. The United States or Russia for example, are not parties to this Convention.

Let’s take a look at some of the pledges the U.S. made during the Ministerial Intergovernmental Event on Refugees and Stateless Persons in 2011 available at http://www.unhcr.org/4ff55a319.pdf:

PLEDGES

“Bars to Admissibility and Asylum Eligibility

The U.S. Government pledges to:

  • •Significantly reduce, through the issuance and application of exemptions to exclusion based on national security grounds, cases that are on hold for a review of eligibility for an exemption to exclusion by the end of fiscal year 2012;

 

  • Undertake a review, to be completed by the end of calendar year

2012, to examine current interpretations of the terms under the

national security exclusion grounds, for example, the meaning of

material support, to better ensure that those in need of protection

retain eligibility for it;

 

Work with Congress to eliminate the one-year filing deadline for

submission of asylum applications.

 

Statelessness among Women and Children

The U.S. Government pledges to:

 

  • Focus U.S. diplomacy on preventing and resolving statelessness among women and children, including efforts to raise global awareness about discrimination against women in nationality laws and to mobilize governments to repeal nationality laws that discriminate against women;

 

  • Promote a child’s right to nationality through multilateral and bilateral engagement, including efforts to promote universal birth registration.

 

Statelessness and Citizenship

The U.S. Government pledges to:

 

  • Actively work with Congress to introduce legislation that provides a mechanism for stateless persons in the United States to obtain permanent residency and eventually citizenship;

 

  • Consider the revision of administrative policies to allow the circumstance of stateless persons to inform decision-making regarding their detention, reporting requirements, and opportunity to apply for work authorization.

 

 

It remains everyone’s hope that people who draft these pledges will also follow them.

POPE FRANCIS AND IMMIGRATION

September 21, 2015

POPE FRANCIS AND IMMIGRATION

Author: New York Immigration lawyer Alena Shautsova

Pope Francis is not only the leader of the Catholic Church, but also a strong and influential political figure. His actions and manifests are being construed as messages not only to the Catholics, but to the whole world, every person, regardless of confession. The world watches and listens to his every word, every step, and every visit he makes, be it a manifesto regarding gay members of the Church, a visit to Cuba, or his anticipated addresses before the United Nations. The Catholic Church that has remained one of the most conservative institutions for centuries received a progressive and open-hearted leader who over the years achieved through reforms more, than certain societies in decades…

It is not a coincidence that meeting with an Immigrant community in New York is a part of the Pope’s schedule during his 2015 September visit. Perhaps, by visiting children-immigrants, the Pope would like to direct our attention to the one issue the U.S. is more capable of resolving but has neglected to effectively address for some time. Of course, Pope Francis does not have a vote in the Congress and cannot force any world leader to accept his point of view, but he can show that only people, people themselves who elected their leaders can bring a change. While we all can sit and complain that the U.S. government, the President, Republican or Democrats do not do anything, we all should ask ourselves, what we did to change the situation…

Regardless of the answer, one thing is clear, if Pope Francis made it a point to accent his visit on the U.S. Immigration issue, it is time to really address it, and address it by DOING something, rather than complaining. It is without a doubt the U.S. declared increased numbers of Syrian refugees will help a little to alleviate the European refugee crisis, the U.S. can and has to address inner Immigration problems as well.

 

NEW VISA BULLETIN PROVIDES FASTER VISAS AND AOS PROCEDURES

September 12, 2015

NEW VISA BULLETIN PROVIDES FASTER VISAS AND AOS PROCEDURES

Author: New York Immigration Lawyer Alena Shautsova

There are new changes to the most complicated and slowest immigration process in employment and family preferences categories : the Department of State and Immigration authorities are revising the way Immigrant visas are counted and the timing when one can file his/her applications for the visas.

From now on, the visa bulletin will provide for two different dates:

  •  Dates for Filing Applications (earliest dates when applicants may be able to apply); and
  • Application Final Action Dates (dates when visas may finally be issued).

The significance of the new changes will primarily affect those who are in the U.S. waiting to file an application for adjustment of status.  An applicant for adjustment of status may also submit (with no additional charge) an application for employment authorization. In addition, often such applicants may submit an application for a travel permit, and plus,  when the adjustment of status application is pending , the applicant is considered to be “legal.”

Here is a reference to the USCIS clarifications regarding the new procedure: http://www.uscis.gov/visabulletininfo.

Simple comparison of the charts  of October 2015 visa bulletin reveals that in average  an applicant  in a preference family category will be able to apply for adjustment of status,  approximately a year earlier than previously.

The most important issue here is the implementation of the new rule, and hopefully, absence of new lawsuits against its makers…

What Is Adjustment of Status?

August 26, 2015

What Is Adjustment of Status?

Author: New York Immigration lawyer Alena Shautsova

Immigration laws of the U.S. allow certain immigrants to apply for an Immigrant visa and become U.S. residents. The regular procedure for this process is administrated through the U.S. consulates when a person is applying from his/her home country for an immigrant visa and a consular officer decides if to grant person’s application.

An intending immigrant (or person who would like to stay in the U.S. permanently) does not qualify for a non-immigrant visa such as an F visa (student visa), B visa (a visa for tourism or pleasure), or an E visa… Some visas are visas of so called duel intent, meaning their purpose can be used for non-immigrant goals, and immigrant goals…

Realizing that some non-immigrants would develop an immigrant intent and basis for immigration while in the U.S., the  Congress created an exception to the regular consular proceedings allowing certain people who are in the U.S. to apply for permanent residency without leaving the country and without submitting a visa application.  This internal process received a name of “adjustment of status” or as many practitioners would call it an “AOS”.

Adjustment of status is a discretionary process.  What does this mean? It means that an applicant does not have a right to become a permanent resident in the U.S. An applicant for adjustment of status has to demonstrate that he/she is statutory eligible (meets all the legal requirements), and there are no bars to adjustment (such as illegal entry, unlawful presence, criminal convictions, accusations of fraud, claims of U.S. citizenship, etc.). However, there is another step for the adjustment. It is discretion by the USCIS to give or not to give the status to the applicant.

Usually, USCIS grants the request if the applicant is a person of good moral character and meets all the usual requirements. However, there are cases when from a pure statutory point of view, a person qualifies for AOS, but gets a denial. There can be various reasons for it, and if there is no legal question involved, but the matter is a one of discretion, even U.S. courts would not be able to save the case… See Mele v. Lynch, 8/19/15 (1St Cir, 13-cv-1917).

That is why it is imperative to understand the importance of the process and significance of all and every submission that ones presents to the USCIS, employers, courts, or anywhere that may have consequences for Immigration process.

USCIS UPDATED ITS FORMS

August 17, 2015

USCIS UPDATED ITS FORMS

Author: New York Immigration Attorney Alena Shautsova

USCIS has updated many of its forms. Whenever the updated forms are published, usually USCIS gives applicants and petitioners some additional time before the old forms are stopped being accepted.  The table below presents the currents deadlines for certain new forms, including waiver forms and affidavit of support I-864 forms:

 

PROBABLE CAUSE FOR IMMIGRATION DETAINER

July 30, 2015

PROBABLE CAUSE FOR IMMIGRATION DETAINER

 

Author: New York Immigration lawyer Alena Shautsova

It is not uncommon or unheard of that a person may be detained or arrested by Immigration authorities when they would like to verify that person’s immigration status.  The question is: can an immigration officer come up to anybody in the streets and detain that person for such a verification? Does an immigration officer need any type of basis before detaining a person?  What basis, if so, he/she has to have before acting? Immigration detainers are documents that are used to arrest a person who is suspected to be in violation of Immigration laws of the United States.   However, what does an issuing officer need to know prior to issuing such a document?

These questions became a subject of lawsuit by Ms. Morales, a US citizen, against the ICE officers who decided to detain her after which they kept her in custody for 24 hours before they realized that Ms. Morales was in fact a US citizen.  See Morales v. Chadbourne, (1st Cir, 2015), NO 14-1425.

Ms. Morales decided to sue the government officers because of the egregious violations of her rights under the Fourth and Fifth Amendments to the U.S. Constitution. Ms. Morales alleged in her Complaint that the ICE officers did not check federal databases before issuing a detainer and did not have probable cause before they issued a detainer, the basis of Ms. Morales’ imprisonment.

The district and Appellate courts agreed with Ms. Morales. The Court held that before issuing a detainer, the responsible immigration officer has to have a probable cause. The Court cited U.S. Supreme Court decision in Brignoni-Ponce that, just as in the criminal context, an immigration officer “must have a reasonable suspicion” to justify briefly stopping individuals to question them “about their citizenship and immigration status . . . but any further detention . . . must be based on . . . probable cause .” (“[T]he Fourth Amendment . . . forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.”

(“An arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States.” The provision specifies that in order to issue a detainer for aliens who have violated controlled substances laws, immigration officers require a “reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States.” 8 U.S.C. § 1357(d)(1).

 

As such, officers’ actions when they failed to conduct simple search of their databases to verify Ms. Morales’ immigration status lacked probable cause necessary for detainer.

 

This case can serve as a precedent for all those incidents when a person is unreasonably detained and his/her rights are violated.

 

 

 

 

 

Humanitarian Parole

July 21, 2015

Humanitarian Parole

Author: New York Immigration lawyer Alena Shautsova

USCIS and CBP are authorized to parole into the US a person who is not qualified for a visa and does not have permanent residency for humanitarian reasons. An application for humanitarian parole has to be filed in the United States. Most often such a relief is used by parents of minor children who have to wait for a long time to immigrate to the US with their parents. Parole is also used for medical emergencies and for other humanitarian reasons or for significant public benefit. One of the reasons for parole can be participation in court hearings during criminal or civil proceedings.

Humanitarian parole is basically a permission to come to the US which is not a visa or a green card. It is a temporary authorization which can be given for the length of the emergency, typically it is given for a year or two. A person who is in the US and still has circumstances which require his/her continuous presence in the US, can ask for re-parole.

The filing procedure is outlined in the instructions to the form I 131. A person requesting the parole has to submit an affidavit of support form and evidence of the necessity for US entry. While a parole is a great opportunity to solve some urgent and difficult situations, it cannot be used to overcome visa or residency requirements. For that reason, every applicant has to provide an explanation as to why humanitarian parole is the best option for him/her.

When the case is approved by USCIS, a consulate overseas is informed and the beneficiary has to comply with the biometrics and/or security checks. A consulate would then issue a boarding foil which will allow the beneficiary to come to the US.

Examples of approved applications for parole include: approval for medical emergency; approval for a minor child of a permanent resident; approval for the TPS holder who neglected to travel on advance parole.

Resources on humanitarian parole:

http://www.uscis.gov/humanitarian/humanitarian-parole

http://www.uscis.gov/humanitarian/humanitarian-parole/questions-answers-humanitarian-parole

http://www.uscis.gov/sites/default/files/USCIS/Resources/Resources%20for%20Congress/Humanitarian%20Parole%20Program.pdf

Proving Real or Bona Fide Marriage

June 27, 2015

Proving Real or Bona Fide Marriage

Author: New York Immigration Lawyer Alena Shautsova

If one of spouses in the marriage with a US citizen, is a non citizen who would like to reside in the US based on the marriage, the government will ask the couple to prove that the marriage is real or bona fide. Usually, a citizen spouse would need to submit form I-130 (petition for immediate relative) and attach prove of  couple’s life together. As per instructions to the form, a couple can present joint lease, joint bank accounts, joint utility bills, joint insurance policies, birth certificates of common children, titles to property… and also photos. In case the marriage is new and the couple really does not have much of joint proves, they can still show that their relationship is real by presenting affidavits from persons who are aware of their relationship and who can testify that the marriage in fact is real.

The question remains, however, how much proof is satisfactory.  What to do if the marriage ended and now the non-citizen by him/herself has to show that the marriage was real?

Often, Immigration Judges and USCIS demand paper proof of the marriage which usually, if the couple had a fall out would not exist. (Rarely people who really break up would hold on to common pictures or documents. Rather those who really go through a bitter break up would want to forget everything and anything that used to unite them).  However, the “paper proof” is not the only way one can prove that the marriage was real.  The burden of preponderance of evidence is met where one of the spouses can present  detailed and credible testimony regarding the marital relationship held 7the Circuit Court of Appeals.  See Hernandez v. Lynch, 6/18/15. No. 14-3305 (7th Cir. 2015).

As such, it is important to remember that as long as the non-citizen is found credible as to the circumstances of the marriage, his/her I 751 (petition to remove condition on residency) should be granted.  This is an important reminder to all dealing with I 751 petitions: the government should not increase the burden established by law just because some assume that there should be some “other” evidence of marriage than those provided. The law does not say that any applicant MUST present certain evidence, but rather states that an applicant has to prove the bona fide marriage by the preponderance of evidence.  See 8 U.S.C. § 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii).