A Guide for Immigration Advocates [2, 19 ed.]

Table of contents :
Table of Contents
Unit 12: Applying for Cancellation of Removal [for LPRs] under INA 240A(a) (Formerly the 212(c) Waiver)
§ 12.1 Introduction: Cancellation of Removal and the Former 212(c) Waiver
§ 12.2 Overview of Legal Requirements
§ 12.3 Seven Years Continuous Residence after Admission
§ 12.4 A Noncitizen Who Has Been Convicted of an Aggravated Felony Is Barred from Eligibility for Cancellation of Removal
§ 12.5 Other Groups Who Are Ineligible
§ 12.6 The Balance Test
§ 12.7 Positive Factors
§ 12.8 Factors on the Negative Side
§ 12.9 Proving Rehabilitation: The Three Story Approach
§ 12.10 Summary of Procedure
§ 12.11 Preparing the Client for the Hearing
§ 12.12 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings
Further Information
Appendix 12-A
Appendix 12-B
Appendix 12-C
Appendix 12-D
Appendix 12-E
Unit 13: Ethical Duties of Paralegals
§ 13.1 Overview of Authorized and Unauthorized Practice of Law
§ 13.2 What Is Authorized Practice of Law?
§ 13.3 Explicitly Authorized Representation in Immigration Cases
§ 13.4 Entering an Appearance
§ 13.5 Paralegals Working under the Supervision of a Lawyer
§ 13.6 The Independent Paralegal and Immigration Consultants
§ 13.7 Overview of Ethical Duties
§ 13.8 What Are Legal Ethics?
§ 13.9 What Other Rules Govern Ethics of Nonlawyers?
§ 13.10 The Duty of Zealous Representation
§ 13.11 The Duty of Competence
§ 13.12 Duty of Client Confidentiality and Privileged Information
§ 13.13 Grounds for Discipline before DHS Immigration Agencies and EOIR
§ 13.14 Disciplinary System of the DHS and EOIR
§ 13.15 Summary Disciplinary Proceedings and Immediate Suspension
§ 13.16 Forms of Discipline
§ 13.17 Reinstatement
§ 13.18 Confidentiality in Disciplinary Proceedings
§ 13.19 Malpractice
§ 13.20 Tips for Giving Professional Service and Avoiding Professional Discipline
§ 13.21 Other Legal Actions by Disgruntled Clients
§ 13.22 Introduction to BIA Accreditation
§ 13.23 How to Apply for Recognition of Your Agency
§ 13.24 How to Apply to Become an Accredited Representative
§ 13.25 Limits of Recognition
Further Information
Appendix 13-A
Appendix 13-B
Appendix 13-C
Appendix 13-D
Appendix 13-E
Appendix 13-F
Appendix 13-G
Appendix 13-H
Appendix 13-I
Appendix 13-J
Appendix 13-K
Unit 14: Asylum
§ 14.1 Overview of Asylum Law
§ 14.2 The Statute: Legal Requirements for Eligibility for Asylum
§ 14.3 Other Sources of the Law on Asylum: The Regulations, Case Law and the U.N. Handbook
§ 14.4 Well-Founded Fear of Persecution
§ 14.5 Past Persecution
§ 14.6 What Is Persecution?
§ 14.7 Persecutors: Government and Non-Governmental Forces
§ 14.8 Connecting Persecution to the “Enumerated Grounds”
§ 14.9 Political Opinion
§ 14.10 Imputed Political Opinion
§ 14.11 Membership in a Particular Social Group
§ 14.12 Nationality
§ 14.13 Race
§ 14.14 Religion
§ 14.15 The REAL ID Act and Corroboration
§ 14.16 Bars to Asylum and Discretion
§ 14.17 Affirmative Applications before the CIS
§ 14.18 Defensive Asylum in Removal Proceedings
§ 14.19 “Should I Apply for Asylum?” Analysis of Risks and Benefits
Further Information
Appendix14-A
Appendix 14-B
Unit 15: Asylum & Withholding of Removal; Statutory Bars to Asylum & Withholding on Removal; Preparing a Declaration
§ 15.1 Comparing Asylum and Withholding of Removal
§ 15.2 Differences in the Legal Standard
§ 15.3 Differences in Benefits
§ 15.4 Bars to Both Asylum and Withholding of Removal
§ 15.5 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal
§ 15.6 Discretion in Asylum Cases
§ 15.7 Relief under the Torture Convention
§ 15.8 Overview of Declarations
§ 15.9 Organization of an Asylum Declaration
§ 15.10 Use of Details in Declarations
§ 15.11 Working Together with Your Client to Write the Declaration
§ 15.12 Interviewing the Applicant (The Circle Method)
§ 15.13 Drafting a Declaration
Further Information
Appendix 15-A
Appendix 15-B
Appendix 15-C
Appendix 15-D
Appendix 15-E
Unit 16: U & T Visas, Registry, Legalization, Family Unity & Discretionary Relief
§ 16.1 Introduction
§ 16.2 Who Is Eligible for U Nonimmigrant Status?
§ 16.3 Applying for the U Visa
§ 16.4 Adjustment of Status
§ 16.5 Derivative Family Members
§ 16.6 The T Visa for Victims of Trafficking
§ 16.7 Requirements for T Nonimmigrant Visas
§ 16.8 Establishing That the Applicant Is a Victim of a Severe Form of Trafficking in Persons
§ 16.9 Application and Adjustment to Lawful Permanent Residence
§ 16.10 Overview of the Law of Registry
§ 16.11 Entry before 1972
§ 16.12 Continuous Residence in the U.S.
§ 16.13 Good Moral Character and Not Ineligible to Citizenship
§ 16.14 Grounds of Inadmissibility and Deportation
§ 16.15 Discretionary Denials
§ 16.16 Registry Application Procedure: Persons Not in Proceedings
§ 16.17 Applications in Removal Proceedings
§ 16.18 Documenting Residence for Registry Applications
§ 16.19 Documentation: Use of Affidavits
§ 16.20 Overview of the Immigration Reform & Control Act of 1986
§ 16.21 Legalization Program for Persons in U.S. since before 1/1/82
§ 16.22 Legalization Program for Agricultural Workers
§ 16.23 Legalization Denials: Appeals and Reopening
§ 16.24 Late Legalization or Late Amnesty
§ 16.25 Nicaraguan and Cuban Adjustment under the Nicaraguan Adjustment and Central American Relief Act of 1997
§ 16.26 The Haitian Refugee Immigration Fairness Act of 1998
§ 16.27 Introduction: Family Unity
§ 16.28 Basic Eligibility Requirements for Family Unity
§ 16.29 Who Is a Legalized Alien?
§ 16.30 Children under 21 as of the Applicable Date in 1988
§ 16.31 Spouse
§ 16.32 Residence in the U.S. since before the Applicable Date in 1988
§ 16.33 Effect of Absences from U.S.
§ 16.34 Applicants Do Not Have to Remain Eligible for a Second Preference Visa
§ 16.35 Children Born Abroad to Mothers with Family Unity
§ 16.36 Criminal Disqualifying Grounds
§ 16.37 Other Grounds of Disqualification from Family Unity
§ 16.38 Benefits of Family Unity
§ 16.39 Limitations of Family Unity Status
§ 16.40 Overview of Types of Voluntary Departure
§ 16.41 Voluntary Departure as a Removal Defense
§ 16.42 Eligibility and Grounds of Disqualification
§ 16.43 Effective Date of Law with Warnings
§ 16.44 Clients Who Wish to Apply for Relief in Removal Proceedings May Apply Only for the Third Type of Voluntary Departure
§ 16.45 Stays of Deportation/Removal
§ 16.46 Prosecutorial Discretion
§ 16.47 Deferred Action
§ 16.48 Deferred Action for Childhood Arrivals
§ 16.49 Criminal Bars to DACA
§ 16.50 Continuous Residence and Travel Requirements for DACA
§ 16.51 Educational Requirements for DACA
§ 16.52 What Does an Approval of DACA Provide?
§ 16.53 Renewal Process
§ 16.54 Deferred Action in Sympathetic Cases
§ 16.55 Private Bills Passed by Congress
Appendix 16-A
Appendix 16-B
Appendix 16-C
Appendix 16-D
Appendix 16-E
Appendix 16-F
Appendix 16-G
Unit 17: Naturalization & Acquisition & Derivation of Citizenship for Children
§ 17.1 What Is Naturalization?
§ 17.2 Advantages and Disadvantages of the Naturalization Process
§ 17.3 The Nine Requirements
§ 17.4 Lawful Permanent Resident Status: INA § 318
§ 17.5 Age: INA § 334(b)
§ 17.6 Residence: INA § 316
§ 17.6(a) Abandonment of Residence: Losing One’s Status as an LPR
§ 17.6(b) Special Exception: Nationals of the United States
§ 17.6(c) Special Exception: People Serving in the U.S. Armed Services
§ 17.7 Good Moral Character: INA § 316(a)(3)
§ 17.8 Temporary Bars to Naturalization
§ 17.9 Permanent Ineligibility for Naturalization
§ 17.10 English Language: INA § 312(a)(1)
§ 17.11 U.S. History and Government: INA § 312(a)(2)
§ 17.12 Belief in the Principles of the U.S. and the Oath of Allegiance: INA § 316(a)(3)
§ 17.13 Step One: The Application
§ 17.14 Step Two: The Interview and Naturalization Application
§ 17.15 Step Three: The Final Hearing and the Oath of Allegiance
§ 17.16 Contested Naturalization Proceedings
§ 17.17 Overview of Acquisition and Derivation of Citizenship
§ 17.18 Introduction to Acquisition of Citizenship
§ 17.19 Who Can Acquire Citizenship at Birth outside of the U.S.?
§ 17.20 How to Use the Charts
§ 17.21 Documenting a Claim of Acquisition of Citizenship
§ 17.22 Acquisition of Citizenship Exercises
§ 17.23 Derivation of Citizenship
§ 17.24 Who Can Derive Citizenship
§ 17.25 Using the Chart to Determine Derivative Status
§ 17.26 Child Citizenship Act of 2000
§ 17.27 Submitting an Application for and Documenting a Claim of Derivative Citizenship
§ 17.28 How to Appeal a Denial of a § 320 Citizenship Application
§ 17.29 Section 322: Citizenship for Children
§ 17.30 Introduction to Loss of Citizenship
§ 17.31 Expatriation
§ 17.32 Denaturalization: INA § 340
§ 17.33 Denaturalization Proceedings: INA § 340 -- 8 CFR § 340.2
§ 17.34 Practice Questions
Further Information
Appendix 17-A
Appendix 17-B
Appendix 17-C
Appendix 17-D
Appendix 17-E
Appendix 17-F
Appendix 17-G
Appendix 17-H
Unit 18: Identifying Immigration Solutions
§ 18.1 Introduction
§ 18.2 A Systematic Approach to Identifying Solutions
§ 18.3 Long-Term Option Sheet
§ 18.4 Incorporation into the Case File
§ 18.5 Two-Part Approach
§ 18.6 Sample Exercises
Appendix 18-A
Appendix 18-B
Appendix 18-C
Appendix 18-D
Appendix 18-E
Appendix 18-F
Appendix 18-G
Appendix 18-H
Appendix 18-I
Appendix 18-J
Appendix 18-K
Appendix 18-L
Unit 19: Constitutional & Statutory Rights of Immigrants
§ 19.1 Overview of the Unit
§ 19.2 Overview of Constitutional Rights
§ 19.3 Authority to Question People about Immigration Status
§ 19.4 Questioning and Types of “Stops” of Immigrants
§ 19.5 The Right to Remain Silent
§ 19.6 Searches
§ 19.7 Rights in Public Places
§ 19.8 Rights in the Home and Other Private Places
§ 19.9 Rights at Schools and Places of Worship
§ 19.10 Workplace Raids
§ 19.11 Rights in Automobiles
§ 19.12 Rights at the Border
§ 19.13 Rights at Border Equivalents: Airports, Trains/Buses
§ 19.14 Rights upon Being Arrested by the DHS and While in DHS Detention
§ 19.15 Right to Legal Representation
§ 19.16 Rights Regarding Immigration Detainers/Holds for Those in Criminal Custody
§ 19.17 Rights of Juveniles
§ 19.18 The “Equal Protection” Rights of Immigrants
§ 19.19 Right Not to Be Discriminated against in Employment
§ 19.20 Rights around Worker Exploitation
§ 19.21 Right to Public Education
§ 19.22 An Overview
§ 19.23 Administrative Complaints
§ 19.24 Lawsuits against the DHS
§ 19.25 Raising Violations of Rights in Removal Hearings: Motions to Suppress and Motions to Terminate
§ 19.26 Organizing a Community Response to Rights Abuses
§ 19.27 Legal Support When Rights Have Been Violated
Appendix 19-A
Appendix 19-B
Appendix 19-C
Appendix 19-D
Appendix 19-E
Appendix 19-F
Appendix 19-G
Appendix 19-H
Appendix 19-I
Unit 20: Negotiation Skills & Building Community Support
§ 20.1 What Is Negotiation?
§ 20.2 Clients as Negotiators
§ 20.3 Negotiating: Practical Tips
§ 20.4 Negotiation Strategies
§ 20.5 Introduction
§ 20.6 Obtaining Letters and Testimony
§ 20.7 Organizing Campaigns in the Immigrant Community
§ 20.8 Encouraging Clients to Be Advocates
§ 20.9 Helping Immigrants Form Immigrant-Based Committees
§ 20.10 Committee Activities
§ 20.11 Media Coverage
§ 20.12 Effectiveness of the Public Campaign on Family Unity
§ 20.13 Public Campaign on Income Requirement for Affidavits of Support: The Ana Rivera Case
Appendix 20-A
Appendix 20-B
Appendix 20-C
Appendix 20-D
Appendix 20-E
Unit 21: History of Immigration Law & Policy & Employment-Based Immigration
§ 21.1 The Interests That Affect U.S. Immigration Policy
§ 21.2 The First Immigrants (Colonial–1800)
§ 21.3 European Immigration to the East Coast, the First Wave: 1800s
§ 21.4 Chinese Immigration to the West Coast, 1848–1890
§ 21.5 The Second Wave of Europeans (1880–1915)
§ 21.6 West Coast II, Mexican Migration (1900–1930)
§ 21.7 1938–1965: World War II and McCarthyism
§ 21.8 Changing Political Views (1965–1976)
§ 21.9 Refugee Act of 1980 and Act of 1986
§ 21.10 The Anti-Immigrant Crusades of the 1990s
§ 21.11 The Effects of September 11
§ 21.12 Conclusions
§ 21.13 A Word to Nonprofit Agency Staff on Employment Visas
§ 21.14 Overview and Relation to Other Immigration Options
§ 21.15 The Employment-Based Preference System
§ 21.16 The First Preference: Extraordinary Aliens, Outstanding Professors and Researchers, Multi-National Executives and Managers
§ 21.17 The Second Preference: Professionals and Exceptional Ability Immigrants
§ 21.18 The Third Preference: Professionals, Skilled Workers and Other Workers
§ 21.19 The Fourth Preference: Special Immigrant Religious Workers
§ 21.20 The Fifth Preference: Special Immigrant Investors
§ 21.21 Labor Certification
§ 21.22 Special Considerations: Adjustment of Status and Consular Processing for Employment-Based Immigrants
Glossary
Other ILRC Products & Services

Citation preview

ILRC.GdImmAd18thEd.Cov.Vol22014:. 5/27/14 12:09 PM Page 1

A Guide for Immigration Advocates is a two-volume, practical guide for advocates to use in their everyday practice. In addition to substantive law, each chapter includes information on critical books for your library, Internet research, systems for identifying the potential remedies in a case, and how to manage a caseload. This book is a real time-saver for attorneys and paralegals, whether working for a community organization or in private practice!

The Guide is the best practical how-to resource on non-business immigration I've found. It is used on a daily basis by staff and attorneys alike. I like it for the good overview it gives before I start research in primary authority. — JoAnn Barten, Immigration Attorney

I love A Guide for Immigration Advocates! This manual got me started in immigration law, and this essential reference manual is what really helped me learn immigration law when I transitioned from business litigation. I highly recommend it to all attorneys and legal assistants who want to learn immigration law. — Adam Chester, former Supervising Attorney, Catholic Charities of Dallas, Immigration & Legal Services

A Guide for Immigration Advocates is an excellent resource. I give it to clients who are human resource professionals or in-house legal staff at large corporations, as well as retaining a copy in our firm's library. It is one of my top recommendations, because the Guide gives a good overview and important information for common immigration issues.

A Guide for Immigration Advocates

Completely updated in 2014. A Guide for Immigration Advocates is a practical and essential tool for beginning immigration attorneys, immigration law firms employing paralegals, BIA accredited representatives, and nonprofit community-based organizations. The Guide is unique among immigration law manuals because it provides a comprehensive detailed overview of the law that is both practical and easy to use. More than a compilation of immigration law topic articles, it’s a how-to manual containing clearly worded explanations of each subject and includes sample applications, charts, and examples to illustrate the concepts. This invaluable resource also provides practical advice on working with your clients to elicit the information you need to assist them efficiently and accurately.

— C. Matthew Schulz, Partner, Global Immigration & Executive Transfer, Baker & McKenzie, LLP

A Guide for Immigration Advocates TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

19th Edition - Volume 2 By ILRC Staff Attorneys 1663 MISSION STREET SUITE 602 SAN FRANCISCO, CA 94103 T 415.255.9499 / F 415.255.9792 WWW.ILRC.ORG

19th Edition Volume 2

A Guide for Immigration Advocates 19th Edition Volume 2

Written by the Immigrant Legal Resource Center San Francisco, California

This edition was made possible through financial support from the Equal Access Fund, a program of the State Bar of California’s Legal Services Trust Fund.

A=

Copyright 2014 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 (415) 255-9499 www.ilrc.org

=

A Guide for Immigration Advocates April 2014

A Guide for Immigration Advocates 19th Edition Table of Contents Unit One § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 § 1.10 § 1.11 § 1.12 § 1.13 § 1.14 § 1.15 § 1.16 § 1.17 § 1.18 § 1.19 § 1.20 § 1.21 § 1.22 § 1.23 § 1.24 § 1.25 Appendix 1-A Appendix 1-B Appendix 1-C Appendix 1-D Appendix 1-E

Overview of Immigration and the Law A Nation with Borders ....................................................................................... 1-2 Who Is a Citizen? Who Is an Alien? ................................................................. 1-4 The Grounds of Inadmissibility .......................................................................... 1-5 What Can Happen to an Alien Who Is Inadmissible? ........................................ 1-6 The Grounds of Deportability ............................................................................ 1-7 What Can Happen to an Alien Who Is Deportable?........................................... 1-9 Removal Proceedings: Admissibility, Deportability, Burden of Proof and “Expedited Removal” .................................................................................. 1-9 What Is a Lawful Permanent Resident? ........................................................... 1-12 An Alien Who Is Inadmissible May Not Be Able to Immigrate; Waivers of Inadmissibility ............................................................................... 1-13 Immigration through a Family Visa Petition: INA §§ 203, 204 ....................... 1-13 Asylum: INA § 208 .......................................................................................... 1-14 Refugee Status: INA § 207 ............................................................................... 1-14 Registry: INA § 249 ......................................................................................... 1-14 Amnesty: The Legalization and SAW Programs: INA §§ 245A, 210 ............. 1-14 Cancellation of Removal for Non-Permanent Residents INA § 240A(b) ................................................................................................. 1-15 Immigration Status ........................................................................................... 1-16 Applicants for Lawful Status ............................................................................ 1-19 Undocumented Immigrants .............................................................................. 1-19 What Is DHS?................................................................................................... 1-20 The Structure of the DHS Immigration Agencies ............................................ 1-22 CIS, ICE & CBP Offices and the Saga of the “A-File” ................................... 1-23 How Does a Field Office Work? ...................................................................... 1-24 Immigration Court and the BIA: The Executive Office for Immigration Review ......................................................................................... 1-26 The INA............................................................................................................ 1-27 Agency Regulations ......................................................................................... 1-28 Answers to Exercises Note-Taking Guide Student Work-Sheet for Role-Plays #1 and #2 List of Non-Immigrant Visas Flowchart: United States Department of Homeland Security

Table of Contents-1

Immigrant Legal Resource Center April 2014

Unit Two § 2.1 § 2.2 § 2.3 § 2.4

The Advocate/Client Partnership and Interviewing Skills The Advocate/Client Partnership: What’s in It for Us? ..................................... 2-1 Creating a Partnership with Our Clients............................................................. 2-2 Building and Presenting a Case in Partnership with Our Clients ....................... 2-7 The Client Meeting: Interviewing and Counseling Clients .............................. 2-12

Appendix 2-A Appendix 2-B

Annotated Client Interview Checklist Sample Client Intake Form

Unit Three

Grounds of Inadmissibility and Deportability

§ 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7 § 3.8 § 3.9 § 3.10 § 3.11 § 3.12 § 3.13

§ 3.14 § 3.15 § 3.16 § 3.17 § 3.18 § 3.19 § 3.20 § 3.21 § 3.22 § 3.23 § 3.24 § 3.25 § 3.26 § 3.27

Overview of Admissibility, Deportability, Admission and Removal ................ 3-2 Health-Related Grounds: Communicable Diseases, Required Vaccinations Dangerous Disorders and Addiction and Abuse ......................... 3-13 Alien Smuggling: Grounds of Inadmissibility and Deportability .................... 3-18 Visa Fraud ........................................................................................................ 3-23 Document Fraud: Ground of Inadmissibility and Deportability ...................... 3-26 Insufficient Documentation .............................................................................. 3-29 False Claim to U.S. Citizenship ....................................................................... 3-30 Likely to Become a Public Charge ................................................................... 3-36 Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Polygamists ........... 3-58 Entry, Admission and Effective Dates ............................................................. 3-64 Unlawfully Present in the United States without Being Admitted or Paroled ......................................................................................................... 3-65 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver ................... 3-67 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed and Who Enter or Attempt to Enter without Being Admitted ..................................................................... 3-78 Failure to Attend Removal Proceedings ........................................................... 3-89 Past Removal or Deportation/Exclusion .......................................................... 3-90 Summary of IIRIRA Inadmissibility Grounds ................................................. 3-94 Grounds of Deportability (Except Those Related to Crimes) .......................... 3-96 Clients with Criminal Records ....................................................................... 3-100 What Is a Criminal Conviction? ..................................................................... 3-102 What Evidence Can the DHS Submit to Show a Conviction? ....................... 3-106 What Is a Sentence for Immigration Purposes? ............................................. 3-106 How to Analyze a Past Conviction: The Categorical Approach .................... 3-107 Inadmissibility and Deportability Based on Drug Offenses ........................... 3-115 Crimes Involving Moral Turpitude ................................................................ 3-119 The Crime of Moral Turpitude Ground of Inadmissibility, Including the Petty Offense and Youth Exceptions ....................................... 3-122 The Moral Turpitude Ground of Deportability .............................................. 3-124 Firearms Offenses .......................................................................................... 3-126

Table of Contents-2

A Guide for Immigration Advocates April 2014

§ 3.28 § 3.29 § 3.30

§ 3.31 § 3.32 Appendix 3-A Appendix 3-B Appendix 3-C Appendix 3-D Appendix 3-E Appendix 3-F Appendix 3-G

Appendix 3-H Appendix 3-I Appendix 3-J Appendix 3-K

Unit Four

§ 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11 § 4.12 § 4.13

Aggravated Felonies ....................................................................................... 3-128 Domestic Violence, Stalking, and Child Neglect, Abuse or Abandonment ............................................................................................. 3-133 Other Grounds: Prostitution, Two Convictions with Five Year Sentence Imposed, Alien Trafficking, Money Laundering, High-Speed Flight from Immigration............................................................. 3-138 Clearing Up a Criminal Record ...................................................................... 3-139 The Good Moral Character Requirement ....................................................... 3-141 Answers to Exercises Chart of Grounds of Inadmissibility, Deportability, Good Moral Character Form I-864P Poverty Guidelines Instructions for Obtaining Criminal Record Checks Requests for Criminal Records Chart on Admission and Removal Proceedings Charts on the Three & Ten Year Bars + May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence USCIS Public Charge Fact Sheet USCIS Memo on INA 212(a)(6) USCIS Vaccination Requirements Unpublished BIA case on False Claim to U.S. Citizenship dated October 27, 2008 Family Visas: Qualifying Family Relationships Eligibility for Visas and the State Department Visa Bulletin Overview of the Family Immigration Process: A Two-Step Process ................. 4-1 The Immediate Relative Category and the Definition of “Child” and “Spouse” ...................................................................................................... 4-6 K Visa ............................................................................................................... 4-13 Petitions under the Preference System: Definition of Siblings and Sons and Daughters ................................................................................... 4-15 The Preference Categories................................................................................ 4-16 Derivative Beneficiaries ................................................................................... 4-22 How the Preference System Works .................................................................. 4-24 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate ............................................................... 4-26 Advising Your Client about When a Visa May Become Available ................. 4-32 Child Status Protection Act (CSPA) ................................................................ 4-33 The V Nonimmigrant Visa ............................................................................... 4-43 When Is a Visa Petition Terminated or No Longer Good? .............................. 4-46 Diversity Immigrants, Employment Visas, and Children in Juvenile Court Proceedings .......................................................................... 4-53

Table of Contents-3

Immigrant Legal Resource Center April 2014

Appendix 4-A Appendix 4-B Appendix 4-C

Appendix 4-E

Answers to Exercises The Visa System USCIS Policy Memorandum, “Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act.” December 16, 2010. USCIS Policy Memorandum, “Revised Guidance for the Child Status Protection Act (CSPA)” Note-Taking Guide

Unit Five

Family Visas: Submitting the Petition; Marriage Issues; VAWA

Appendix 4-D

§ 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13 § 5.14 § 5.15 § 5.16 § 5.17 § 5.18 § 5.19 § 5.20 § 5.21 Appendix 5-A Appendix 5-B Appendix 5-C Appendix 5-D

Completing Government Forms ......................................................................... 5-2 Completing the Visa Petition, Form I-130 ......................................................... 5-4 The G-325A and Photograph: Required in a Petition for a Husband or Wife............................................................................................ 5-11 Documenting the Visa Petition......................................................................... 5-12 What Documents Are Needed to Prove Family Relationship? ........................ 5-13 Obtaining Documents in the United States to Show Family Relationship ...................................................................................................... 5-14 Obtaining Documents from Other Countries ................................................... 5-15 Making Proper Copies of Documents .............................................................. 5-16 Making Certified Translations of Documents .................................................. 5-17 Documenting the Immigration Status of the Petitioner .................................... 5-18 Filing the I-130 Packet ..................................................................................... 5-19 CIS Challenges to a Marriage .......................................................................... 5-21 The Legal Standard for a Marriage .................................................................. 5-22 Documentation to Show That a Marriage Is Bona Fide ................................... 5-24 What Will Happen at the Marriage Fraud Interview? ...................................... 5-25 Preparing Your Client: Self-Defense Techniques for CIS Interviews ............. 5-26 Special Rules That Affect Spousal Visa Petitions ............................................ 5-28 “Self-Petitioning” of Abused Spouses and Children under the Violence Against Women Act (“VAWA”) ................................................ 5-31 Requirements for a VAWA Self-Petition for an Abused Child ....................... 5-42 Requirements for a VAWA Self-Petition for an Abused Parent ...................... 5-45 Procedures for Self-Petitioning under VAWA ................................................. 5-47 USCIS Form I-130, Petition for Alien Relative; and USCIS Form G325A, Biographic Information Sample Visa Assignment from Exercise 5.2 Note-Taking Guide

Table of Contents-4

A Guide for Immigration Advocates April 2014

Unit Six

§ 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12 § 6.13 § 6.14 § 6.15 § 6.16 § 6.17 § 6.18 § 6.19 § 6.20 Appendix 6-A

Appendix 6-B

Appendix 6-C Appendix 6-D Appendix 6-E Appendix 6-F Appendix 6-G

Family Visas: Consular Processing and Waivers of Inadmissibility and Deportability The NVC, the U.S. Consulates and the Department of State ............................. 6-2 How the DHS and the State Department Divide Responsibility in Visa Cases ...................................................................................................... 6-3 Initial Consular Processing at the NVC ............................................................. 6-4 Obtaining Documents According to NVC Instructions and the FAM ............... 6-9 Getting Ready for the Interview ....................................................................... 6-11 What Will Happen at the Interview? ................................................................ 6-14 What Happens after the Immigrant Visa Is Granted ........................................ 6-16 What to Do if Your Alien Registration Card Fails to Arrive ........................... 6-17 Waivers of Grounds of Inadmissibility ............................................................ 6-18 What Is a Waiver? ............................................................................................ 6-19 What Is Discretion? .......................................................................................... 6-19 How to Find the Waivers in the Act ................................................................. 6-21 Waiver of Inadmissibility for Visa Fraud and Waiver of Deportability for Persons Inadmissible at the Time of Admission ......................................... 6-22 Waiver for Certain Crimes under INA § 212(h) .............................................. 6-25 Waiver of Inadmissibility/Exemption for Alien Smuggling ............................ 6-30 Document Fraud Waiver of Inadmissibility ..................................................... 6-32 Waiver for Communicable Disease, Lack of Vaccinations, or Dangerous Mental Disorders under INA § 212(g) ....................................... 6-35 Waivers for Unlawful Presence, Past Removal and Other Related Immigration Offenses.......................................................................... 6-38 Procedure for Applying for a Waiver ............................................................... 6-43 How Do You Establish Extreme Hardship? ..................................................... 6-47 Sample NVC cover letter to designated attorney, along with the Processing Fee Bill Invoices for the Immigrant Visa (IV) Application and the Affidavit of Support Sample Payment Receipt print-outs from the Immigrant Visa Invoice Payment Center, along with the accompanying “Document Cover Sheets,” to be returned to NVC with the IV Application and the Affidavit of Support. Answers to Exercises Sample Successful Waiver Application Declaration in Support of Waiver of Unlawful Presence Bar Overview of the Unlawful Presence Waiver, Form I-601A, filing process Sample Provisional Unlawful Presence Waiver

Table of Contents-5

Immigrant Legal Resource Center April 2014

Unit Seven § 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9 § 7.10 § 7.11 § 7.12 § 7.13 § 7.14 § 7.15 § 7.16 § 7.17 § 7.18 § 7.19 § 7.20 § 7.21 § 7.22 § 7.23 § 7.24 § 7.25 § 7.26 § 7.27 § 7.28 Appendix 7-A Appendix 7-B Appendix 7-C Appendix 7-D Appendix 7-E Appendix 7-F Appendix 7-G Appendix 7-H

Family Visas: Adjustment of Status and Conditional Residence What Is Adjustment of Status? ........................................................................... 7-2 Who Is Eligible for Adjustment of Status Based on a Family Petition?.......................................................................................... 7-3 What Forms and Documents Are Needed to Apply for Adjustment of Status? ................................................................................. 7-18 The Application for Adjustment, Form I-485 .................................................. 7-21 Form G-325A, Fingerprints, Photos, and Medical Exam ................................. 7-22 Submitting the Adjustment Application ........................................................... 7-24 The Effect of Leaving the Country................................................................... 7-25 What Will Happen at the Adjustment Interview? ............................................ 7-25 The Decision: Approvals and Denials .............................................................. 7-28 Introduction: The Immigration Marriage Fraud Amendment Act.................... 7-31 What Is Conditional Permanent Residency? .................................................... 7-31 Who Is a Conditional Permanent Resident? ..................................................... 7-32 Removal of the Condition on Residency if the Marriage Still Exists after Two Years: The I-751 “Joint Petition” .................................. 7-34 When to File the I-751 Joint Petition ............................................................... 7-34 Completing the I-751 Joint Petition ................................................................. 7-37 Application Procedure: Filing, Interview, Standard for Approval, Denials ....................................................................................... 7-38 Termination of Conditional Residency by CIS during the “Testing Period” .............................................................................. 7-40 Introduction to Waivers of the I-751 Joint Filing Requirement ....................... 7-42 When to File ..................................................................................................... 7-43 How to File a Waiver ....................................................................................... 7-44 The “Good Faith” Waiver ................................................................................ 7-45 The Extreme Hardship Waiver ......................................................................... 7-46 The Battery or Extreme Cruelty Waiver .......................................................... 7-47 Proof of Battery or Extreme Cruelty ................................................................ 7-48 Additional Help for Battered Spouses and Children ........................................ 7-48 Filing a Waiver if the U.S. Citizen or Permanent Resident Spouse Has Died .............................................................................................. 7-49 Dependent Sons and Daughters ........................................................................ 7-49 Special Situations Involving Conditional Residency and Waivers .................. 7-51 Answers to Exercises Sample Letter Sample Letter, Spanish I-751 Chart comparing 245(a) and 245(i) Note-Taking Guide Excerpts from INA §245 Exercise and Sample I-485, and I-485A

Table of Contents-6

A Guide for Immigration Advocates April 2014

Appendix 7-I Appendix 7-J

2005 Memo Problems on 245(i) Eligibility

Unit Eight

Legal Research for Immigration Practice

§ 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 § 8.7 § 8.8 § 8.9 § 8.10 § 8.11 § 8.12 § 8.13 § 8.14 § 8.15 § 8.16 § 8.17

What Is Legal Authority? ................................................................................... 8-2 Distinguishing Primary Law Sources from Secondary Research Sources ............................................................................................................... 8-3 Hierarchy in Legal Authority ............................................................................. 8-3 Sources of Legal Authority: The Constitution ................................................... 8-4 Sources of Legal Authority: Federal Statutes (The Immigration & Nationality Act) .............................................................................................. 8-4 Sources of Legal Authority: Regulations ........................................................... 8-5 Sources of Legal Authority: Cases ..................................................................... 8-5 Sources of Legal Authority: Internal Agency Operating Instructions ................ 8-7 Understanding the Code: The Case Citation System ......................................... 8-8 Citations in Judicial Decisions ........................................................................... 8-9 Citing the Immigration and Nationality Act ..................................................... 8-11 Citing to the Code of Federal Regulations ....................................................... 8-11 Research Tips for the Immigration and Nationality Act and the Regulations .......................................................................................... 8-12 Other Primary Sources: Internal Operating Instructions .................................. 8-13 Additional Tools for Research: Using Treatises and Other Secondary Sources ........................................................................................... 8-13 Practical Tips for Legal Research .................................................................... 8-14 Gaining Access to Library Materials................................................................ 8-15

Appendix 8-A Appendix 8-B Appendix 8-C Appendix 8-D Appendix 8-E Appendix 8-F

Citing Unpublished Federal Appellate Opinions Issued before 2007 Chart: The Thirteen Federal Judicial Circuits Library Resources for Immigration Paralegals Immigration Law Research Web-Sites Research Questions for 8 CFR and the Immigration and Nationality Act Extra Research Questions for Legal Research Practice

Unit Nine

Legal Writing and Appeals

§ 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8

Writing Techniques for Persuasive Legal Writing ............................................. 9-2 Writing Clearly ................................................................................................... 9-2 Accuracy............................................................................................................. 9-3 Presenting the Facts in Legal Arguments ........................................................... 9-3 Practical Tips for Written Communication with DHS and the Courts..................................................................................................... 9-5 The Courts .......................................................................................................... 9-6 Overview of Administrative and Judicial Bodies ............................................... 9-6 Administrative Appeals of Immigration Cases .................................................. 9-7

Table of Contents-7

Immigrant Legal Resource Center April 2014

§ 9.9 § 9.10 § 9.11 § 9.12 § 9.13 § 9.14 § 9.15 § 9.16 § 9.17 Appendix 9-A Appendix 9-B Appendix 9-C

Appeals of Immigration Cases in Federal Judicial Courts ................................. 9-8 The Right to Appeal ......................................................................................... 9-11 The Importance of Prompt Action on Denials ................................................. 9-11 Appeals and Motions to Reopen and Reconsider Compared ........................... 9-12 Procedure for Appeals before the BIA ............................................................. 9-13 Motions to Reopen/Reconsider in EOIR .......................................................... 9-17 Appeals and Motions to AAO .......................................................................... 9-21 Who Is Qualified to File a Brief? ..................................................................... 9-22 Keeping Clients Involved in and Informed about Their Appeals ..................... 9-22

Appendix 9-E Appendix 9-F Appendix 9-G Appendix 9-H Appendix 9-I

Hierarchy of Courts’ Authority Route of Appeal for a Typical Deportation or Removal Case Form EOIR-26 Notice of Appeal to the Board of Immigration Appeals (BIA) with Instructions Form EOIR-29 Notice of Appeal from Decision of CIS Officer, with Instructions Form I-290B Notice of Appeal or Motion Change of Address Form -- Board of Immigration Appeals Writing Exercise Paragraphs for Writing Discussion Legal Writing Homework Assignment

Unit Ten

The Removal Process

Appendix 9-D

§ 10.1 § 10.2 § 10.3 § 10.4 § 10.5

§ 10.6 § 10.7 § 10.8 § 10.9 § 10.10 § 10.11 § 10.12 Appendix 10-A Appendix 10-B Appendix 10-C

Overview and Definition of Terms .................................................................. 10-2 Deportability, Inadmissibility, Voluntary Departure and Types of Removal Proceedings ................................................................................... 10-6 Arrests, Issuance of the Notice to Appear and Order to Show Cause .............. 10-9 The Master Calendar Hearing: Beginning Removal Proceedings .................. 10-10 Penalties for Failure to Appear at an Immigration Hearing or Interview and Failure to Leave Pursuant to Voluntary Departure or a Removal Order ........................................................................................ 10-18 After a Final Removal Order: Surrender and Removal .................................. 10-27 Persons Who Return Illegally after Having Been Earlier Removed: “Reinstatement of Removal” .......................................................................... 10-28 Detention, Bonds and Procedure .................................................................... 10-31 Bond Equities ................................................................................................. 10-40 Preparing for the Bond Redetermination Hearing .......................................... 10-43 Posting the Bond ............................................................................................ 10-44 Expedited Removal Proceedings under INA § 235 ........................................ 10-45 Sample Form I-862, Notice to Appear Sample Form I-213, Record of Deportable/Inadmissible Alien Form EOIR 33/IC, Alien’s Change of Address Form/Immigration Court

Table of Contents-8

A Guide for Immigration Advocates April 2014

Appendix 10-D

Appendix 10-E Appendix 10-F Unit Eleven

§ 11.1 § 11.2 § 11.3 § 11.4 § 11.5 § 11.6 § 11.7 § 11.8 § 11.9 § 11.10 § 11.11 § 11.12 § 11.13 § 11.14 § 11.15 § 11.16 § 11.17 § 11.18 § 11.19 § 11.20 § 11.21 § 11.22 § 11.23 § 11.24 § 11.25 § 11.26 § 11.27 § 11.28 § 11.29 § 11.30

Instructions for Submitting Certain Applications in Immigration Court and for Providing Biometric and Biographic Information to U.S. Citizenship and Immigration Services Sample Form I-286, Notice of Custody Determination Custody Hearing Checklist Introduction to Cancellation of Removal under INA § 240A(b), (Former Suspension of Deportation) and Introduction to Evidence for Immigration Cases Overview of the Law ........................................................................................ 11-3 Overview of Requirements and Procedure for Cancellation of Removal under INA § 240A(b)(1) ............................................................... 11-3 Continuous Physical Presence .......................................................................... 11-5 Documenting Continuous Physical Presence ................................................... 11-9 Good Moral Character and Criminal Bars...................................................... 11-10 Introduction to Exceptional and Extremely Unusual Hardship ...................... 11-21 Family Separation .......................................................................................... 11-25 Hardship to the Applicant’s Children ............................................................. 11-26 Community Ties ............................................................................................. 11-28 Medical Conditions ........................................................................................ 11-29 Conditions in the Country of Deportability .................................................... 11-30 Working with a Client and Her Family to Determine Hardship..................... 11-31 Putting It All Together ................................................................................... 11-32 Discretion, Judicial Review, and Abandonment of Application in Cancellation of Removal Cases.................................................................. 11-33 Overview of the Law ...................................................................................... 11-35 Definitions of Battery and Extreme Cruelty for VAWA Cancellation of Removal ................................................................................ 11-36 The Abuser’s Legal Status and Family Relationship under VAWA Cancellation ...................................................................................... 11-37 Continuous Physical Presence under VAWA Cancellation ........................... 11-38 Good Moral Character, Inadmissibility and Deportability Issues under VAWA Cancellation of Removal......................................................... 11-39 Extreme Hardship under VAWA Cancellation of Removal .......................... 11-40 Children under VAWA Cancellation ............................................................. 11-42 VAWA Cancellation Compared with VAWA Self-Petitioning ..................... 11-42 Motions to Reopen ......................................................................................... 11-44 What Is Suspension of Deportation and Who Can Qualify? .......................... 11-44 Continuous Physical Presence in Suspension Cases ...................................... 11-47 Good Moral Character for Suspension of Deportation................................... 11-49 Hardship for Suspension of Deportation ........................................................ 11-49 Discretion in Suspension of Deportation Cases ............................................. 11-49 What Is Evidence? .......................................................................................... 11-50 Relevant and Irrelevant Evidence................................................................... 11-50

Table of Contents-9

Immigrant Legal Resource Center April 2014

§ 11.31 § 11.32 § 11.33 § 11.34 Appendix 11-A Appendix 11-B Appendix 11-C Appendix 11-D Appendix 11-E Appendix 11-F Appendix 11-G

Appendix 11-H Unit Twelve

§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7 § 12.8 § 12.9 § 12.10 § 12.11 § 12.12

Appendix 12-A Appendix 12-B Appendix 12-C

Analyzing the Strength of Evidence in Cancellation Cases ........................... 11-51 How to Use Evidence ..................................................................................... 11-53 Summary of Procedure ................................................................................... 11-53 Suspension of Deportation Benefits under NACARA ................................... 11-55 Answers to Exercises Cancellation of Removal Application Checklists Cancellation of Removal Statute INA § 243A Document Checklist Excerpts from INA Section 101(f) -- Good Moral Character Immigration Case Analysis Chart Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents, with Instructions Sample Form EOIR-42B Applying for Cancellation of Removal [For Lawful Permanent Residents] under INA 240A(a) (Formerly the 212(c) Waiver) Introduction: Cancellation of Removal and the Former 212(c) Waiver ........... 12-1 Overview of Legal Requirements..................................................................... 12-3 Seven Years Continuous Residence after Admission ...................................... 12-3 A Noncitizen Who Has Been Convicted of an Aggravated Felony Is Barred from Eligibility for Cancellation of Removal ................................. 12-14 Other Groups Who Are Ineligible .................................................................. 12-16 The Balance Test ............................................................................................ 12-16 Positive Factors .............................................................................................. 12-17 Factors on the Negative Side .......................................................................... 12-20 Proving Rehabilitation: The Three Story Approach ....................................... 12-21 Summary of Procedure ................................................................................... 12-24 Preparing the Client for the Hearing .............................................................. 12-25 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings ................................................................................. 12-27

Appendix 12-D Appendix 12-E

Sample Answers to Exercises § 240A(a) Waiver Checklists Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, with Instructions Letters of Support Sample Letters of Support

Unit Thirteen

Ethical Duties of Paralegals

§ 13.1 § 13.2

Overview of Authorized and Unauthorized Practice of Law ........................... 13-2 What Is Authorized Practice of Law? .............................................................. 13-2

Table of Contents-10

A Guide for Immigration Advocates April 2014

§ 13.3 § 13.4 § 13.5 § 13.6 § 13.7 § 13.8 § 13.9 § 13.10 § 13.11 § 13.12 § 13.13 § 13.14 § 13.15 § 13.16 § 13.17 § 13.18 § 13.19 § 13.20 § 13.21 § 13.22 § 13.23 § 13.24 § 13.25 Appendix 13-A Appendix 13-B Appendix 13-C Appendix 13-D Appendix 13-E Appendix 13-F Appendix 13-G Appendix 13-H Appendix 13-I Appendix 13-J Appendix 13-K

Explicitly Authorized Representation in Immigration Cases ........................... 13-3 Entering an Appearance ................................................................................... 13-6 Paralegals Working under the Supervision of a Lawyer .................................. 13-8 The Independent Paralegal and Immigration Consultants................................ 13-9 Overview of Ethical Duties ............................................................................ 13-13 What Are Legal Ethics? ................................................................................. 13-13 What Other Rules Govern Ethics of Nonlawyers? ......................................... 13-13 The Duty of Zealous Representation .............................................................. 13-14 The Duty of Competence ............................................................................... 13-14 Duty of Client Confidentiality and Privileged Information............................ 13-15 Grounds for Discipline before DHS Immigration Agencies and EOIR ........................................................................................ 13-17 Disciplinary System of the DHS and EOIR ................................................... 13-21 Summary Disciplinary Proceedings and Immediate Suspension ................... 13-22 Forms of Discipline ........................................................................................ 13-23 Reinstatement ................................................................................................. 13-23 Confidentiality in Disciplinary Proceedings .................................................. 13-24 Malpractice ..................................................................................................... 13-25 Tips for Giving Professional Service and Avoiding Professional Discipline ................................................................................... 13-26 Other Legal Actions by Disgruntled Clients .................................................. 13-27 Introduction to BIA Accreditation ................................................................. 13-27 How to Apply for Recognition of Your Agency ............................................ 13-28 How to Apply to Become an Accredited Representative ............................... 13-32 Limits of Recognition..................................................................................... 13-33 Answers to Exercises Title 8: Aliens and Nationality -- DHS Regulations and EOIR Regulations Sample Form EOIR-28, Notice of Entry of Appearance as Attorney or Representative before the Immigration Court Form EOIR-28 Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, with Instructions Form EOIR-31, Request for Recognition of a Non-Profit Religious, Charitable, Social Service, or Similar Organization, with Instructions Board of Immigration Appeals Frequently Asked Questions (FAQs) about the Recognition and Accreditation (R&A) Program Form EOIR-27, Notice of Entry of Appearance as Attorney or Representative before the Board of Immigration Appeals Draft Model Code of Professional Responsibility for Accredited Representatives Approved Application for Partial BIA Accreditation Approved Application for Full BIA Accreditation

Table of Contents-11

Immigrant Legal Resource Center April 2014

Unit Fourteen § 14.1 § 14.2 § 14.3 § 14.4 § 14.5 § 14.6 § 14.7 § 14.8 § 14.9 § 14.10 § 14.11 § 14.12 § 14.13 § 14.14 § 14.15 § 14.16 § 14.17 § 14.18 § 14.19

Asylum Overview of Asylum Law ................................................................................ 14-2 The Statute: Legal Requirements for Eligibility for Asylum ........................... 14-3 Other Sources of the Law on Asylum: The Regulations, Case Law and the U.N. Handbook .................................................................................... 14-4 Well-Founded Fear of Persecution ................................................................... 14-6 Past Persecution................................................................................................ 14-8 What Is Persecution? ........................................................................................ 14-9 Persecutors: Government and Non-Governmental Forces ............................. 14-17 Connecting Persecution to the “Enumerated Grounds” ................................. 14-19 Political Opinion ............................................................................................ 14-23 Imputed Political Opinion .............................................................................. 14-26 Membership in a Particular Social Group ...................................................... 14-30 Nationality ...................................................................................................... 14-49 Race ................................................................................................................ 14-51 Religion .......................................................................................................... 14-52 The REAL ID Act and Corroboration ............................................................ 14-55 Bars to Asylum and Discretion ...................................................................... 14-56 Affirmative Applications before the CIS ....................................................... 14-57 Defensive Asylum in Removal Proceedings .................................................. 14-61 “Should I Apply for Asylum?” Analysis of Risks and Benefits.................... 14-65

Appendix 14-A Appendix 14-B

Answers to Exercises After Winning Asylum: Benefits for Asylees

Unit Fifteen

Asylum and Withholding of Removal; Statutory Bars to Asylum and Withholding on Removal; Preparing a Declaration

§ 15.1 § 15.2 § 15.3 § 15.4 § 15.5 § 15.6 § 15.7 § 15.8 § 15.9 § 15.10 § 15.11 § 15.12 § 15.13

Comparing Asylum and Withholding of Removal ........................................... 15-2 Differences in the Legal Standard .................................................................... 15-3 Differences in Benefits ..................................................................................... 15-6 Bars to Both Asylum and Withholding of Removal ........................................ 15-8 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal ................................................................................ 15-20 Discretion in Asylum Cases ........................................................................... 15-26 Relief under the Torture Convention.............................................................. 15-28 Overview of Declarations ............................................................................... 15-29 Organization of an Asylum Declaration ......................................................... 15-29 Use of Details in Declarations ........................................................................ 15-30 Working Together with Your Client to Write the Declaration ....................... 15-30 Interviewing the Applicant (The Circle Method) ........................................... 15-33 Drafting a Declaration .................................................................................... 15-34

Table of Contents-12

A Guide for Immigration Advocates April 2014

Appendix 15-A Appendix 15-B Appendix 15-C Appendix 15-D Appendix 15-E

Chart Comparing Asylum, Withholding and CAT How to Write an Asylum Declaration, Declaration of Eric Cohen Sample Asylum Declaration Chart Comparing Asylum/Withholding Bars Feedback Form

Unit Sixteen

U and T Visas, Registry, Legalization, Family Unity and Discretionary Relief

§ 16.1 § 16.2 § 16.3 § 16.4 § 16.5 § 16.6 § 16.7 § 16.8 § 16.9 § 16.10 § 16.11 § 16.12 § 16.13 § 16.14 § 16.15 § 16.16 § 16.17 § 16.18 § 16.19 § 16.20 § 16.21 § 16.22 § 16.23 § 16.24 § 16.25 § 16.26 § 16.27 § 16.28 § 16.29 § 16.30 § 16.31 § 16.32 § 16.33

Introduction ...................................................................................................... 16-3 Who Is Eligible for U Nonimmigrant Status? .................................................. 16-4 Applying for the U Visa ................................................................................... 16-9 Adjustment of Status ...................................................................................... 16-13 Derivative Family Members ........................................................................... 16-14 The T Visa for Victims of Trafficking ........................................................... 16-16 Requirements for T Nonimmigrant Visas ...................................................... 16-16 Establishing That the Applicant Is a Victim of a Severe Form of Trafficking in Persons ................................................................................ 16-18 Application and Adjustment to Lawful Permanent Residence ....................... 16-19 Overview of the Law of Registry ................................................................... 16-20 Entry before 1972 ........................................................................................... 16-21 Continuous Residence in the U.S. .................................................................. 16-21 Good Moral Character and Not Ineligible to Citizenship .............................. 16-22 Grounds of Inadmissibility and Deportation .................................................. 16-23 Discretionary Denials ..................................................................................... 16-23 Registry Application Procedure: Persons Not in Proceedings ....................... 16-24 Applications in Removal Proceedings ........................................................... 16-24 Documenting Residence for Registry Applications ....................................... 16-24 Documentation: Use of Affidavits ................................................................. 16-25 Overview of the Immigration Reform & Control Act of 1986....................... 16-26 Legalization Program for Persons in U.S. since before 1/1/82 ...................... 16-26 Legalization Program for Agricultural Workers ............................................ 16-27 Legalization Denials: Appeals and Reopening............................................... 16-27 Late Legalization or Late Amnesty ................................................................ 16-28 Nicaraguan and Cuban Adjustment under the Nicaraguan Adjustment and Central American Relief Act of 1997 .................................. 16-29 The Haitian Refugee Immigration Fairness Act of 1998 ............................... 16-31 Introduction: Family Unity ............................................................................. 16-33 Basic Eligibility Requirements for Family Unity ........................................... 16-34 Who Is a Legalized Alien? ............................................................................. 16-34 Children under 21 as of the Applicable Date in 1988 .................................... 16-35 Spouse ............................................................................................................ 16-35 Residence in the U.S. since before the Applicable Date in 1988 ................... 16-36 Effect of Absences from U.S. ......................................................................... 16-37

Table of Contents-13

Immigrant Legal Resource Center April 2014

§ 16.34 § 16.35 § 16.36 § 16.37 § 16.38 § 16.39 § 16.40 § 16.41 § 16.42 § 16.43 § 16.44 § 16.45 § 16.46 § 16.47 § 16.48 § 16.49 § 16.50 § 16.51 § 16.52 § 16.53 § 16.54 § 16.55 Appendix 16-A Appendix 16-B Appendix 16-C Appendix 16-D

Appendix 16-E Appendix 16-F Appendix 16-G Unit Seventeen

§ 17.1 § 17.2 § 17.3 § 17.4 § 17.5 § 17.6

Applicants Do Not Have to Remain Eligible for a Second Preference Visa .............................................................................................. 16-37 Children Born Abroad to Mothers with Family Unity ................................... 16-38 Criminal Disqualifying Grounds .................................................................... 16-38 Other Grounds of Disqualification from Family Unity .................................. 16-39 Benefits of Family Unity ................................................................................ 16-40 Limitations of Family Unity Status ................................................................ 16-41 Overview of Types of Voluntary Departure ................................................... 16-42 Voluntary Departure as a Removal Defense .................................................. 16-43 Eligibility and Grounds of Disqualification ................................................... 16-44 Effective Date of Law with Warnings ............................................................ 16-47 Clients Who Wish to Apply for Relief in Removal Proceedings May Apply Only for the Third Type of Voluntary Departure ........................ 16-47 Stays of Deportation/Removal ....................................................................... 16-48 Prosecutorial Discretion ................................................................................. 16-50 Deferred Action .............................................................................................. 16-52 Deferred Action for Childhood Arrivals ........................................................ 16-52 Criminal Bars to DACA ................................................................................. 16-53 Continuous Residence and Travel Requirements for DACA ......................... 16-59 Educational Requirements for DACA ............................................................ 16-61 What Does an Approval of DACA Provide? ................................................. 16-63 Renewal Process ............................................................................................. 16-64 Deferred Action in Sympathetic Cases .......................................................... 16-64 Private Bills Passed by Congress ................................................................... 16-66 Sample Affidavit in Support of Registry Case Interoffice Memorandum: New Classification for Victims of Criminal Activity -- Eligibility for “U” Nonimmigrant Status Sample Public Defender Request USCIS Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens Sec. 249 INA & Sec. 101-A-19 INA Voluntary Departure Advisals DACA Chart Naturalization and Acquisition and Derivation of Citizenship for Children What Is Naturalization? .................................................................................... 17-2 Advantages and Disadvantages of the Naturalization Process ......................... 17-2 The Nine Requirements .................................................................................... 17-4 Lawful Permanent Resident Status: INA § 318 ............................................... 17-4 Age: INA § 334(b) ........................................................................................... 17-5 Residence: INA § 316 ...................................................................................... 17-5

Table of Contents-14

A Guide for Immigration Advocates April 2014

§ 17.6(a) § 17.6(b) § 17.6(c) § 17.7 § 17.8 § 17.9 § 17.10 § 17.11 § 17.12 § 17.13 § 17.14 § 17.15 § 17.16 § 17.17 § 17.18 § 17.19 § 17.20 § 17.21 § 17.22 § 17.23 § 17.24 § 17.25 § 17.26 § 17.27 § 17.28 § 17.29 § 17.30 § 17.31 § 17.32 § 17.33 § 17.34 Appendix 17-A Appendix 17-B Appendix 17-C Appendix 17-D Appendix 17-E Appendix 17-F Appendix 17-G Appendix 17-H

Abandonment of Residence: Losing One’s Status as an LPR ........................ 17-12 Special Exception: Nationals of the United States ......................................... 17-15 Special Exception: People Serving in the U.S. Armed Services .................... 17-15 Good Moral Character: INA § 316(a)(3)........................................................ 17-18 Temporary Bars to Naturalization .................................................................. 17-23 Permanent Ineligibility for Naturalization...................................................... 17-24 English Language: INA § 312(a)(1) ............................................................... 17-25 U.S. History and Government: INA § 312(a)(2) ............................................ 17-28 Belief in the Principles of the U.S. and the Oath of Allegiance: INA § 316(a)(3) ...................................................................... 17-29 Step One: The Application ............................................................................. 17-31 Step Two: The Interview and Naturalization Application.............................. 17-32 Step Three: The Final Hearing and the Oath of Allegiance ........................... 17-33 Contested Naturalization Proceedings............................................................ 17-33 Overview of Acquisition and Derivation of Citizenship ................................ 17-34 Introduction to Acquisition of Citizenship ..................................................... 17-34 Who Can Acquire Citizenship at Birth outside of the U.S.? .......................... 17-35 How to Use the Charts.................................................................................... 17-36 Documenting a Claim of Acquisition of Citizenship ..................................... 17-39 Acquisition of Citizenship Exercises ............................................................. 17-40 Derivation of Citizenship ............................................................................... 17-41 Who Can Derive Citizenship .......................................................................... 17-41 Using the Chart to Determine Derivative Status ............................................ 17-41 Child Citizenship Act of 2000 ........................................................................ 17-43 Submitting an Application for and Documenting a Claim of Derivative Citizenship................................................................................ 17-44 How to Appeal a Denial of a § 320 Citizenship Application ......................... 17-45 Section 322: Citizenship for Children ............................................................ 17-45 Introduction to Loss of Citizenship ................................................................ 17-48 Expatriation .................................................................................................... 17-48 Denaturalization: INA § 340 .......................................................................... 17-50 Denaturalization Proceedings: INA § 340 -- 8 CFR § 340.2.......................... 17-51 Practice Questions .......................................................................................... 17-51 Answers to Exercises Charts A, B & C: Acquisition and Derivation of Citizenship Advantages and Disadvantages of Naturalization Example Homework Assignment -- Naturalization Cases Practice Exercises on Acquisition of Citizenship Small Group Exercises on Acquisition of Citizenship Title 8 of Code of Federal Regulations (8 CFR), Part 316 -- General Requirements for Naturalization Requirements for Becoming a U.S. Citizen through “Naturalization” (English, Spanish & Chinese)

Table of Contents-15

Immigrant Legal Resource Center April 2014

Unit Eighteen § 18.1 § 18.2 § 18.3 § 18.4 § 18.5 § 18.6

Identifying Immigration Solutions Introduction ...................................................................................................... 18-1 A Systematic Approach to Identifying Solutions ............................................. 18-2 Long-Term Option Sheet.................................................................................. 18-3 Incorporation into the Case File ....................................................................... 18-5 Two-Part Approach .......................................................................................... 18-6 Sample Exercises.............................................................................................. 18-7

Appendix 18-A Appendix 18-B Appendix 18-C Appendix 18-D Appendix 18-E Appendix 18-F Appendix 18-G Appendix 18-H Appendix 18-I Appendix 18-J Appendix 18-K Appendix 18-L

Answers to Exercise § 18.1 Long Term Option Worksheet (blank) Long-Term Option Sheet for Gloria Long-Term Option Sheet for Carlos Cliente Long-Term Option Sheet for Maria & Juan Lopez Sample Retainer Agreement Cancellation of Removal (for Non-LPRs) Checklists Income-Screening Portion of Client Intake Interview Case Activity Sheet Developing a Case Management System Additional Long-Term Option Sheet from Exercises Guide to Abbreviations in the Long-Term Option Sheet

Unit Nineteen

Constitutional and Statutory Rights of Immigrants

§ 19.1 § 19.2 § 19.3 § 19.4 § 19.5 § 19.6 § 19.7 § 19.8 § 19.9 § 19.10 § 19.11 § 19.12 § 19.13 § 19.14 § 19.15 § 19.16 § 19.17 § 19.18 § 19.19

Overview of the Unit ........................................................................................ 19-2 Overview of Constitutional Rights ................................................................... 19-3 Authority to Question People about Immigration Status ................................. 19-4 Questioning and Types of “Stops” of Immigrants ......................................... 19-12 The Right to Remain Silent ............................................................................ 19-18 Searches .......................................................................................................... 19-21 Rights in Public Places ................................................................................... 19-21 Rights in the Home and Other Private Places ................................................ 19-22 Rights at Schools and Places of Worship ....................................................... 19-24 Workplace Raids ............................................................................................ 19-26 Rights in Automobiles .................................................................................... 19-28 Rights at the Border........................................................................................ 19-30 Rights at Border Equivalents: Airports, Trains/Buses ................................... 19-31 Rights upon Being Arrested by the DHS and While in DHS Detention ........................................................................................... 19-35 Right to Legal Representation ........................................................................ 19-55 Rights Regarding Immigration Detainers/Holds for Those in Criminal Custody ....................................................................................... 19-56 Rights of Juveniles ......................................................................................... 19-63 The “Equal Protection” Rights of Immigrants ............................................... 19-67 Right Not to Be Discriminated against in Employment ................................. 19-67

Table of Contents-16

A Guide for Immigration Advocates April 2014

§ 19.20 § 19.21 § 19.22 § 19.23 § 19.24 § 19.25 § 19.26 § 19.27 Appendix 19-A

Rights around Worker Exploitation ............................................................... 19-68 Right to Public Education............................................................................... 19-69 An Overview .................................................................................................. 19-70 Administrative Complaints............................................................................. 19-71 Lawsuits against the DHS .............................................................................. 19-80 Raising Violations of Rights in Removal Hearings: Motions to Suppress and Motions to Terminate ........................................................... 19-81 Organizing a Community Response to Rights Abuses................................... 19-85 Legal Support When Rights Have Been Violated .......................................... 19-86

Appendix 19-B Appendix 19-C Appendix 19-D Appendix 19-E Appendix 19-F Appendix 19-G Appendix 19-H Appendix 19-I

Assignments, Outlines and Materials for a “Know Your Rights” Community Meeting Relevant Constitutional Amendments KYR Materials Homework Assignment – Administrative Complaints ICE Enforcement Memos on Schools Immigration Enforcement in the Wake of September 11, 2001 Dangerous Merger Fact Sheet ICE Fact Sheet on Detention Reform Sample Motion to Suppress, Covering 4th and 5th amendment arguments, including an argument on widespread 4th Amendment violations

Unit Twenty

Negotiation Skills and Building Community Support

§ 20.1 § 20.2 § 20.3 § 20.4 § 20.5 § 20.6 § 20.7 § 20.8 § 20.9 § 20.10 § 20.11 § 20.12 § 20.13

Appendix 20-A Appendix 20-B Appendix 20-C Appendix 20-D Appendix 20-E

What Is Negotiation? ........................................................................................ 20-2 Clients as Negotiators....................................................................................... 20-2 Negotiating: Practical Tips ............................................................................... 20-4 Negotiation Strategies ...................................................................................... 20-6 Introduction ...................................................................................................... 20-9 Obtaining Letters and Testimony ................................................................... 20-10 Organizing Campaigns in the Immigrant Community ................................... 20-10 Encouraging Clients to Be Advocates ............................................................ 20-12 Helping Immigrants Form Immigrant-Based Committees ............................. 20-13 Committee Activities...................................................................................... 20-15 Media Coverage ............................................................................................. 20-17 Effectiveness of the Public Campaign on Family Unity ................................ 20-18 Public Campaign on Income Requirement for Affidavits of Support: The Ana Rivera Case................................................................... 20-19 Negotiation Letter Providing Evidence of CIS Delay Petition Campaign to Stop Deportation of Children Exercises and Role-Plays Press Clippings on Ana Rivera More Ana Rivera Press

Table of Contents-17

Immigrant Legal Resource Center April 2014

Unit Twenty-One

§ 21.1 § 21.2 § 21.3 § 21.4 § 21.5 § 21.6 § 21.7 § 21.8 § 21.9 § 21.10 § 21.11 § 21.12 § 21.13 § 21.14 § 21.15 § 21.16 § 21.17 § 21.18 § 21.19 § 21.20 § 21.21 § 21.22

History of Immigration Law and Policy and Employment-Based Immigration

The Interests That Affect U.S. Immigration Policy ......................................... 21-2 The First Immigrants (Colonial–1800)............................................................. 21-4 European Immigration to the East Coast, the First Wave: 1800s ..................... 21-5 Chinese Immigration to the West Coast, 1848–1890 ....................................... 21-6 The Second Wave of Europeans (1880–1915) ................................................. 21-8 West Coast II, Mexican Migration (1900–1930) ............................................. 21-9 1938–1965: World War II and McCarthyism ................................................ 21-10 Changing Political Views (1965–1976) ......................................................... 21-11 Refugee Act of 1980 and Act of 1986 ............................................................ 21-12 The Anti-Immigrant Crusades of the 1990s ................................................... 21-13 The Effects of September 11 .......................................................................... 21-16 Conclusions .................................................................................................... 21-18 A Word to Nonprofit Agency Staff on Employment Visas............................ 21-18 Overview and Relation to Other Immigration Options .................................. 21-19 The Employment-Based Preference System .................................................. 21-20 The First Preference: Extraordinary Aliens, Outstanding Professors and Researchers, Multi-National Executives and Managers .......................... 21-21 The Second Preference: Professionals and Exceptional Ability Immigrants ......................................................................................... 21-23 The Third Preference: Professionals, Skilled Workers and Other Workers ......................................................................................... 21-25 The Fourth Preference: Special Immigrant Religious Workers ..................... 21-27 The Fifth Preference: Special Immigrant Investors........................................ 21-28 Labor Certification ......................................................................................... 21-30 Special Considerations: Adjustment of Status and Consular Processing for Employment-Based Immigrants ............................................. 21-37

Glossary of Immigration Terms

Table of Contents-18

UNIT TWELVE APPLYING FOR CANCELLATION OF REMOVAL [FOR LAWFUL PERMANENT RESIDENTS] UNDER INA 240A(a) (FORMERLY THE 212(c) WAIVER)

Tab Position 1

A Guide for Immigration Advocates April 2014

This Unit Covers: The law regarding 240A(a) cancellation of removal for lawful permanent residents; The procedure for requesting 240A(a) cancellation of removal Cases still being decided under the former INA § 212(c)

This Unit Includes: § 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7 § 12.8 § 12.9 § 12.10 § 12.11 § 12.12

Introduction: Cancellation of Removal and the Former 212(c) Waiver ........... 12-1 Overview of Legal Requirements..................................................................... 12-3 Seven Years Continuous Residence after Admission ...................................... 12-3 A Noncitizen Who Has Been Convicted of an Aggravated Felony Is Barred from Eligibility for Cancellation of Removal ................................. 12-14 Other Groups Who Are Ineligible .................................................................. 12-16 The Balance Test ............................................................................................ 12-16 Positive Factors .............................................................................................. 12-17 Factors on the Negative Side .......................................................................... 12-20 Proving Rehabilitation: The Three Story Approach ....................................... 12-21 Summary of Procedure ................................................................................... 12-24 Preparing the Client for the Hearing .............................................................. 12-25 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings ................................................................................. 12-27

Elizabeth Murray, a Canadian citizen, has lived in the U.S. as a lawful permanent resident since 1996. She lives with her U.S. citizen spouse and two U.S. citizen children. Beginning in 2000, Elizabeth started hanging out with the wrong crowd. By 2004 she used cocaine regularly. In January 2006 she was arrested and convicted of possession of cocaine. She spent three months in jail, some in a drug rehabilitation program. In 2014, Elizabeth was placed in removal proceedings and charged with being deportable for conviction of a drug offense.

§ 12.1 Introduction: Cancellation of Removal and the Former 212(c) Waiver In the above example, Elizabeth is removable from the United States but she may qualify for cancellation of removal. Cancellation of removal under § 240A(a) of the INA offers relief for

12-1

Unit 12

  

Unit 12

long-term permanent residents facing removal proceedings because they have been found to be either inadmissible or removable from the United States. Section 240A(a) cancellation of removal was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In some ways it was intended to replace “section 212(c) relief,” a longstanding form of relief for long-term permanent residents under former INA § 212(c). For cases beginning on or after April 1, 1997, § 212(c) relief was eliminated and cancellation of removal went into effect. [But see § 12.12 below for information about how some permanent residents in removal proceedings still can waive some pre-April 1, 1997 convictions under the former § 212(c).] This unit will concentrate on cancellation of removal. There are three reasons, however, that you still need to know something about § 212(c) relief. First, the old § 212(c) cases provide information about the standards for granting discretionary relief. Both cancellation of removal and § 212(c) relief are discretionary forms of relief. Once you have proven that your client is eligible to apply, the heart of the case is convincing the judge that positive factors in the case outweigh negative factors. Congress made it clear that the standards and case law for discretionary decisions in § 212(c) relief should be carried over into cancellation of removal. Second, those few people still in deportation or exclusion cases that began before April 1, 1997 will remain eligible for 212(c) relief, not for cancellation of removal. Third, some permanent residents with convictions from before April 1, 1997—including aggravated felony convictions—can apply for § 212(c) relief even though they are in removal proceedings, and not deportation or exclusion proceedings. See § 12.12 below for more information on this topic. This unit is divided into three parts: Part One discusses the rules for statutory eligibility for § 240A(a) cancellation of removal. Part Two discusses how to prove rehabilitation and other positive factors to convince the judge to give relief as a matter of discretion. [This applies both to cancellation of removal and the former § 212(c) relief.] Part Three gives a brief overview of the former § 212(c) relief, and ideas for resources if you are working on a continuing § 212(c) case or trying to assert § 212(c) relief for someone in removal proceedings.

12-2

Tab Position 1

Immigrant Legal Resource Center April 2014

PART ONE: LEGAL REQUIREMENTS FOR 240A(a) CANCELLATION OF REMOVAL FOR LAWFUL PERMANENT RESIDENTS

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 12.2 Overview of Legal Requirements LPR Cancellation of Removal under § 240A(a) allows a removable permanent resident to retain her LPR status and avoid deportation. An applicant must prove several things to win § 240A(a) cancellation of removal.

The “clock stops” for calculating the 7 years when: a. the person is served with a Notice to Appear for removal proceedings, or b. the person commits an offense that is referred to in INA § 212(a)(2) and that makes him or her inadmissible under INA § 212(a)(2) or deportable under § 237(a)(2) or (a)(4) [criminal or terrorist grounds]. 3. The applicant must not have been convicted of an aggravated felony. 4. She must not have been granted cancellation of removal, § 212(c) relief, or suspension of deportation before. 5. She must not fall into certain other categories, including terrorists, persecutors, and certain crewmen and exchange visitors. and 6. She must convince the judge that the positive factors for keeping her in the U.S. outweigh the reasons for ordering removal (discussed in Part Two).

§ 12.3 Seven Years Continuous Residence after Admission An applicant for § 240A(a) relief must prove that she has resided in the U.S. continuously for seven years after having been admitted into the U.S. in any status.

A.

When Does the Seven Years Start? “Admitted in Any Status”

The seven year period starts at any admission. You may remember that “admitted” is defined in INA § 101(a)(13) as the “lawful entry into the United States after inspection and authorization by an immigration officer.” Some people clearly have been “admitted” under this definition. A person who entered with a tourist or student visa, or some other visitor’s visa, has

12-3

Unit 12

1. She must prove that she has been a lawful permanent resident for at least 5 years. 2. She must prove that she has resided in the U.S. continuously for 7 years after having been admitted in any status.

been admitted. Likewise, a person who was admitted as a lawful permanent resident after going through consular processing has been admitted.

Unit 12

Conversely, a person who has entered without inspection (EWI) has not been admitted under INA § 101(a)(13), and cannot count his or her continuous physical presence in the U.S. toward the 7 years of continuous residency, no matter how long he or she has been living in the U.S. If the person then adjusted status to lawful permanent resident, that date will serve as the date of admission. See below. The seven-year period then stops when the person either (a) commits acts that are referred to in INA § 212(a)(2) [criminal and related inadmissibility grounds], and that make her either inadmissible or deportable under certain grounds related to crimes and terrorism, or (b) is served with a Notice to Appear for removal proceedings, whichever event is earlier. Special Rule for Military Personnel. A noncitizen who has served at least twenty-four months of active duty in the armed forces and was admitted to the military in the United States does not need to fulfill the continuous-residence requirement.1 1. Admission followed by unlawful status; parole According to the definition of an “admission” in the INA, a person who has been paroled into the U.S. has not been admitted,2 and cannot count the time between his or her parole and his or her admission as an LPR toward the 7 years of continuous residence. Similarly, a person who enters as an alien crewman (C-1 or D visa) has not been admitted and cannot count the time between entry as a crewman and acquisition of LPR status toward the 7 years of continuous residence.3 For those who were admitted as defined in INA § 101(a)(13) in some other status prior to becoming permanent residents, it does not matter if the person was out of status in the U.S. during the 7 years of continuous residence (such as visa overstays), so long as the person was admitted in some immigration status.4 In other words, any time after the person’s lawful admission counts toward the 7 years, whether or not the person remained in lawful immigration status or was residing in the U.S. illegally during that time. Example: Sally came to the U.S. on a B-2, Visitor’s Visa in 2003. Her visa expired in 2004, but she never left the U.S. In 2006 Sally adjusted her status to that of a lawful permanent resident. Assuming it is now 2014, Sally could qualify for cancellation of removal because:

1

INA § 240A(d)(3). Note that if the noncitizen is “separated” from military service, the “separation” must have occurred under honorable conditions. 2 INA § 101(a)(13)(B). 3 INA § 101(a)(13)(B). 4 See Matter of Blancas, 23 I&N Dec. 458 (BIA 2002).

12-4

Tab Position 1

Immigrant Legal Resource Center April 2014

  

She has been a lawful permanent resident for five years She was admitted in lawful status (in her case a Visitor’s Visa) and She lived in the U.S. continuously for seven years after having been admitted in any status (in her case a Visitor’s Visa).

Tab Position 1

A Guide for Immigration Advocates April 2014

2. Adjustment of status as an admission

Example: Julie came entered the U.S. without inspection in 1998 to join her LPR husband, who filed an I-130 for her in 1999, making her eligible to adjust status under INA § 245(i). She has never left the U.S. In 2008 she adjusted her status under § 245(i) and became a lawful permanent resident. It is now 2014. Julie does not qualify for cancellation of removal because:   

Although she has been a lawful permanent resident for more than five years, She was not admitted in lawful status when she entered the U.S. without inspection in 1998. Her admission date is 2008, the date she adjusted her status to that of a permanent resident. She has therefore resided in the U.S. continuously for only six years, counting from the date of her adjustment in 2008 to 2014.

3. Family unity, other status as admission There is disagreement as to whether a grant of Family Unity can amount to an “admission” to start the seven years’ continuous residence. Relying on the cases that held that adjustment of status can be an admission, the Ninth Circuit held that obtaining Family Unity status constitutes an admission for the purpose of counting the seven-years of continuous residency required for LPR cancellation eligibility.6 Subsequently, the same Court held that a designation or finding of eligibility for Special Immigrant Juvenile Status and parole under that part of the INA can also be an “admission” for the same purposes.7 Under the Garcia-Quintero 5

See, e.g., Matter of Rosas, 22 I&N Dec. 616 (BIA 1999); Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011); Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005). 6 Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1015-1018 (9th Cir. 2006), citing to Matter of Rosas, Ocampo-Duran, supra. See also Yepez-Razo v. Gonzales, 445 F.3d 1216, 1217 (9th Cir. 2006) (Family Unity beneficiary was “lawfully residing” in the United States from the date of her acceptance into the FUP, which rendered her eligible for a § 212(h) waiver from removal). 7 Garcia v. Holder, 659 F.3d 1261 (9th Cir. 2011).

12-5

Unit 12

Adjustment of status to permanent residency can serve as an admission for some purposes where there was no other admission, i.e., where the noncitizen entered without inspection.5 If your LPR client originally entered without inspection, for purposes of establishing 7 years continuous residence he or she can only count the time from the date that lawful permanent residence was granted.

reasoning, a grant of asylum or Temporary Protected Status also ought to be held an admission for the purpose of counting the seven years of continuous residency.

Unit 12

The BIA held that it will not apply this rule outside the Ninth Circuit, finding that a grant of Family Unity is not an “admission” for purposes of starting the seven years residence requirement for LPR cancellation.8 Note that in the future the Ninth Circuit might decide to defer to the BIA on this issue. 4. Children cannot use their parents’ continuous residence or lawful permanent residence time to meet LPR cancellation requirements The BIA had held that a parent’s admission date and LPR status may not be imputed to a child, for the purposes of satisfying the seven years residence “after admission in any status,” or the five years lawful permanent residency status, required for cancellation.9 The Ninth Circuit had refused to defer to this.10 Now the Supreme Court has held that federal courts must defer to the BIA’s view on this particular question. Therefore a child may not use his or her parent’s time in the U.S. or LPR status time to meet the seven-year or five-year requirements.11 5. Can an LPR re-start the seven-year clock by traveling outside the U.S.? The BIA states that one cannot do that. In Matter of Nelson, 25 I&N Dec. 410 (BIA 2011), Mr. Nelson was admitted as a permanent resident in 1994, convicted of a marijuana offense in 1999, and left the U.S. for a few days in 2000. He was convicted of additional offenses in 2008. He asserted that even though his first seven-year time period was stopped by the conviction in 1999, he started a new seven-year time period when he left the U.S. and returned, and he acquired the seven years he needed, from 2000–2008. The BIA held that his clock definitively stopped as of 1999 and he could not begin a new seven-year period. The BIA did note that Mr. Nelson did not obtain a waiver when he returned in 2000—and it seems possible that would have changed the outcome of the case. For example, if the marijuana offense was for possession of 30 grams or less, he would have been eligible to apply for a waiver under INA § 212(h). It seems likely that if a waiver would have been granted the clock would not have stopped, because then the offense would not have made him inadmissible or deportable.12 See discussion in Subpart C, below.

8

Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010). Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008). 10 Mercado-Zazueta v. Holder, 580 F.3d 1102, 1114 (9th Cir. 2009). 11 See Holder v. Martinez-Gutierrez, 566 U.S. __, --S.Ct-- (May 21, 2012). 12 However, in a recent 3d Cir. case, Taveras v. Attorney General, __F.3d__ (3d Cir. 2013), the Court held that a prior waiver of removability granted does not waive the “conviction,” which can still be used against a noncitizen later in a determination of inadmissibility, at least for purposes of adjustment of status. 9

12-6

Tab Position 1

Immigrant Legal Resource Center April 2014

B.

When Do the Seven Years End? Service of a Notice to Appear

The seven years continuous residence required for cancellation ends when the person is served a Notice to Appear under INA § 239(a) or when the person has committed certain crimes, whichever date is earlier.13

You might also consider arguing that if the NTA is not properly completed or served, that this does not stop the seven-year clock. However, the BIA found that service of an NTA will stop the continuous residence or physical presence required for any cancellation, even if the NTA does not contain the date and time of the initial hearing, as is required under statute.15 C.

When Do the Seven Years End? Commission of Certain Offenses

PRACTICE TIP: In cancellation cases arising in Ninth Circuit states, a conviction by plea from before April 1, 1997 will not stop the clock. See discussion in Subsection D, below.

The required seven years of continuous residence will end when the person commits certain offenses, even before a Notice to Appear is served. Note that the clock only stops for the required seven years of continuous residence. The required five years lawful permanent residency does not end when the person commits these offenses; that clock may continue through the administrative proceeding (until the BIA makes a final ruling) and possibly through federal court appeals. 13

See Subsection C below explaining the crimes that can end the seven years of continuous residence. See 8 CFR §§ 1003.14(a), 239.1(a) and 1239.1(a). 15 See Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011).Note that the Second Circuit has implied that an NTA without the date and time of hearing is insufficient to stop the seven-year clock until a subsequent notice of hearing with date and time is also served. See Guamanrrigra v. Holder, 670 F.3d 404 (2d Cir. 2012). Additionally, the BIA is presently reconsidering whether Camarillo is the correct standard in a pending case called Matter of Ordaz-Gonzalez. 14

12-7

Unit 12

INA § 239(a) defines “service of the Notice to Appear” as the date upon which the noncitizen has either been given the NTA in person or the date on which the person has been served by mail, either to himself or to his counsel of record. This date may be earlier than the date upon which removal proceedings actually begin, because removal proceedings do not begin until the NTA has been filed with the immigration court.14 There are times when there is a considerable delay before the NTA is filed with the court. If you have a client in that situation, you should argue that notwithstanding the language of the statute, the seven years of continuous residence should not terminate until removal proceedings have actually commenced by the filing of the NTA with the immigration court. This argument may not succeed, but it is worth trying where there has been a significant delay between service of the NTA and commencement of proceedings and your client’s ability to establish seven years of continuous residence depends on this difference.

Tab Position 1

A Guide for Immigration Advocates April 2014

Under INA § 240A(d)(1), the seven years residence ends “when the alien has committed an offense referred to in § 212(a)(2) that renders the alien inadmissible to the United States under § 212(a)(2) or removable from the United States under § 237(a)(2) or 237(a)(4).…” Under this section, which offenses stop the clock, and what is the meaning of “committed”?

Unit 12

1. Which offenses stop the clock and which don’t? It takes a close reading of the statute to determine what offenses actually stop the clock. The statute provides that the offense committed must: a. “Be referred to” in § 212(a)(2) (the criminal grounds of inadmissibility), and b. Cause the person to be deportable or inadmissible under the designated grounds, which deal with crimes and terrorism. Both conditions must be met to end the period of continuous residence. ICE cannot assert that commission of a deportable or inadmissible offense will stop the clock if that offense is not also referred to in § 212(a)(2). This requirement will help some people who are deportable or inadmissible, but whose offense is not included in § 212(a)(2), since such an offense will not stop the clock on the seven years. What Offenses Are “Referred To” in INA § 212(A)(2), Cause Inadmissibility or Deportability, and Therefore Stop the Clock? If you look at § 212(a)(2), you will see that it refers to:      

Admissions or convictions relating to crimes involving moral turpitude (unless the offense comes within the petty offense or youthful offender exception) Admissions or convictions relating to controlled substances Trafficking in controlled substances Engaging in prostitution Conviction of two or more crimes with an aggregate sentence imposed of five years or more, and Certain diplomats who assert immunity from criminal prosecution.

Which Offenses Are Not “Referred To” in INA § 212(A)(2) and Therefore Do Not Stop the Clock—Even if They Make the Noncitizen Inadmissible or Deportable? Section 212(a)(2) does not explicitly refer to many other kinds of offenses. Some are in referred to in other inadmissibility grounds, and some in deportation grounds. Some examples that do not stop the clock are:  

Drug addiction or abuse: (§§ 212(a)(1), 237(a)(2)(B)) Firearms Offenses: (§ 237(a)(2)(C))

12-8

Tab Position 1

Immigrant Legal Resource Center April 2014

   

Crime of Domestic Violence, Violation of DV Protective Order, Stalking: (§ 237(a)(2)(E)) Crime of Child Abuse: (§ 237(a)(2)(E)) Alien Smuggling: (§§ 212(a)(6)(E)(i), 237(a)(1)(E)(i)) False Claim to Citizenship: (§§ 212(a)(6)(C)(ii), 237(a)(3)(D))

Example: Silvia is convicted of shooting someone with a gun. This offense makes her deportable under the firearms ground, but that does not stop the clock. Her problem is that this offense also is a crime involving moral turpitude, which is “referred to” in § 212(a)(2). Unless the offense comes within the petty offense exception or youthful offender exception to the CIMT inadmissibility ground, it will stop the clock. See next section. 2. A single crime involving moral turpitude (CIMT) conviction will stop the sevenyear clock, unless it comes within the petty offense exception or youthful offender exception to the CIMT inadmissibility ground A conviction for a single crime involving moral turpitude (CIMT) that comes within the petty offense exception or youthful offender exception to the inadmissibility ground will not “stop the clock” on the seven years residence required for LPR cancellation. This is true even if the conviction makes the applicant deportable under the CIMT ground.17 Let’s examine this statement by looking at the facts of Matter of Garcia. Mr. Garcia was admitted as a permanent resident in 1999 and was convicted in 2001 of an Oklahoma domestic violence misdemeanor, a CIMT. The offense had a maximum possible penalty of one year but he was sentenced to just three years of probation, i.e., no sentence imposed for immigration purposes. This conviction made Mr. Garcia deportable under the CIMT ground, because he was convicted of one CIMT with a potential sentence of at least a year, committed within five years after admission.18 It did not make him inadmissible under the CIMT ground, because it came within the petty offense exception to the inadmissibility ground under INA § 212(a)(2)(A)(ii)(II). This exception provides that the CIMT inadmissibility ground automatically “shall not apply “ to someone who meets the following requirements: the person has committed only one CIMT, where the conviction carries a potential sentence of a year or less, and a sentence of not more than six months was imposed.

16

See Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000). Matter of Garcia, 25 I&N Dec. 332 (BIA 2010). 18 INA § 237(a)(2)(A)(i). 17

12-9

Unit 12

Example: C-T- is convicted of unlawful possession of a firearm. This is a basis for deportation under the firearms ground in INA § 237(a)(2), but it is not an offense “referred to” in § 212(a)(2). There is no “firearms” ground of inadmissibility and this nonviolent offense does not involve moral turpitude. Therefore, although the conviction makes C-T- deportable, it does not stop the seven-year clock for cancellation purposes.16

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

The question was, did Mr. Garcia’s conviction stop the seven-year clock? The BIA held that it did not. As you know, the clock-stopping provision in INA § 240A(d)(1) provides that the required seven years of continuous residence “shall be deemed to end … (B) when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4).…” Because INA § 212(a)(2) provides that the CIMT inadmissibility ground “shall not apply” to an offense that comes within the petty offense exception, the BIA found that such an offense is not one “referred to” in INA § 212(a)(2). Thus, it cannot stop the seven-year count, even if it makes the noncitizen deportable.19 The same result should apply to an offense that comes within the youthful offender exception to the CIMT inadmissibility ground.20 A person comes within that exception if he or she committed only one CIMT, while under the age of 18, and the conviction or resulting imprisonment ended at least five years before the current application. (Note that this exception helps youth who were tried as adults. If the youth had been tried in delinquency proceedings, there would be no “conviction.” See Unit 3.) Both the petty offense exception and youthful offender exception are automatic exceptions to the inadmissibility ground. They do not require a waiver or a discretionary decision from the immigration judge. Further discussion of what offenses are crimes involving moral turpitude, and when a conviction of such a crime makes a person deportable or inadmissible, is found in Unit 3.

WARNING: One Court, the Fifth Circuit has held that if an offense falls within a ground “referred to” in the stop-time rule, but that ground doesn’t cause the particular LPR to become inadmissible or deportable, yet the same offense also falls within a different ground of inadmissibility or deportability that isn’t on the “referred to” list, but does render the person inadmissible or deportable, the stop-time rule has been triggered by the combination of the two factors. Miresles-Zuniga v. Holder, __F.3d__ (5th Cir. 2014). Here’s what happened in Miresles-Zuniga. The LPR was convicted of an aggravated assault domestic violence offense. The offense was both a CIMT and a deportable domestic violence offense. CIMTs are “referred to” in the stop-time rule, but domestic violence offenses are not. This LPR could not deportable for a single CIMT, as it had not occurred within five years of an admission, but the same offense “caused him to be deportable” for a domestic violence conviction. So the Court held that the fact that the offense was a CIMT on the “referred to” list and separately a domestic violence offense that “caused him to be deportable” was enough to make the clock stop on his accrual of seven years.

19 20

Matter of Garcia, 25 I&N Dec. at 334-36. INA § 212(a)(2)(A)(ii)(I).

12-10

Tab Position 1

Immigrant Legal Resource Center April 2014

3. What happens if a person who came within the petty offense exception is convicted of a second CIMT?

The BIA held that in this case the clock will stop as of the date of commission of the second CIMT.21 Therefore in Mr. Garcia’s case, if his admission was in 1999, his first CIMT conviction that came within the petty offense exception was in 2001, and he committed and was convicted of the second CIMT conviction in 2008, the clock would stop in 2008. In this case, he would have met the seven years of continuous residence requirement (1999-2008). 4. The clock stops on the date the offense is committed, not the date of conviction The statute provides that the clock stops upon “commission” of an offense that makes the applicant deportable or inadmissible. The BIA has ruled that the clock stops on the date the person actually commits the offense rather than the date of conviction.22 While it appears to be an uphill battle, practitioners who want to challenge this holding in federal court should see the dissent to Matter of Perez for ideas.23 5. Ninth Circuit: No conviction from before April 1, 1997 “stops the clock” for cancellation The Ninth Circuit held that the clock-stopping provisions in cancellation of removal, which took effect on April 1, 1997, cannot be applied retroactively to convictions received before that date.24 The Court decided this case based on the same theory that the Supreme Court used in the § 212(c) case, INS v. St. Cyr, 533 U.S. 289 (2001). See § 12.12, below. Therefore, in removal proceedings that originate in states within the Ninth Circuit’s jurisdiction, no conviction by plea received before April 1, 1997 will stop the clock on the required seven years of residence since admission. This offers a great advantage to LPR cancellation applicants with older convictions.

21

Matter of Deando-Roma, 23 I&N Dec. 597 (BIA 2003). Matter of Perez, 22 I&N Dec. 689 (BIA 1999). 23 See Matter of P--, 6 I&N Dec. 788, 790 (BIA 1955) and Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), both interpreting former INA § 244(a)(2). 24 Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006). 22

12-11

Unit 12

Assume that your client is convicted of a CIMT that comes within the petty offense exception. Under Matter of Garcia, that conviction does not stop the seven-year clock. But what happens if your client later is convicted of a second CIMT? Two CIMT convictions disqualify the person from the petty offense exception, and make him or her automatically deportable and inadmissible under the CIMT grounds—so the clock would stop. But would the clock stop as of the date that he committed the second CIMT, or would it be held to have stopped back at the date of commission of the first CIMT offense? (Again, the same rule should apply if the first conviction came within the youthful offender exception rather than the petty offense exception.)

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Example: Pierre was admitted to the U.S. as a visitor in 1991 and adjusted status to permanent residence in 1993. In 1995 he pled guilty to a drug offense that is not an aggravated felony. He was convicted of another minor drug offense in 2003. In 2014 he applied for naturalization. He was denied naturalization and put in removal proceedings in Arizona, and charged with deportability based on the drug convictions. Can he apply for cancellation, or did his clock stop too soon? Pierre can apply. The 1995 conviction did not stop his clock, because it occurred before April 1, 1997 and his removal proceedings are held in a Ninth Circuit state (Arizona). The 2003 conviction stops his clock, but by then he had 12 years residence since his 1991 admission as a visitor. The BIA and the Third and Fifth Circuits have stated that they will not apply this rule.25 The Second Circuit gave some indication that it would be open to the Ninth Circuit’s reasoning on this issue.26 The situation is different if the offense was committed before April 1, 1997, but the conviction occurred after that date. In that case the Second and Ninth Circuits have held that the commission of the offense does stop the clock.27 D.

Five Years Lawful Permanent Resident Status

An applicant for cancelation must have five years of lawful permanent resident status.28 The five-year clock starts upon the date that the person became a lawful permanent resident. Regarding when the five-year period stops, unlike the seven-year continuous residence requirement, the requirement of five years of lawful permanent resident time does not have a statutory stop-clock provision. If you look at the stop-clock provision, INA § 240A(d)(1), by its terms it applies only to continuous residence or continuous physical presence.29 Therefore the five-year LPR period does not stop when the applicant commits an offense, or when the NTA is served or filed. It stops only when the person loses lawful permanent resident status, which at the earliest would be when there is a final order of removal after either the immigrant accepts an IJ’s order of removal, or later when the BIA affirms the removal order. A noncitizen may even file a motion to reopen proceedings to apply for cancellation notwithstanding an administratively final order, if he or she gains the five years within ninety

25

See Matter of Robles, 24 I&N Dec. 22 (BIA 2006); Matter of Jurado, 24 I&N Dec. 29 (BIA 2006); Briseno-Flores v. Att’y Gen. of the U.S., 492 F.3d 226 (3d Cir. 2007); Heaven v. Gonzales, 473 F.3d 167 (5th Cir. 2006). 26 See Zuluaga Martinez v. INS, 523 F.3d 365, 376 (2d Cir. 2008). 27 See Zuluaga-Martinez, supra; Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. 2006). 28 INA § 240A(a)(1). 29 See, e.g., Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006), De La Cruz v. Maurer, 483 F.3d 1013, 1021 (10th Cir. 2007).

12-12

Tab Position 1

Immigrant Legal Resource Center April 2014

days following the entry of the final order.30 Arguably the period of lawful permanent resident status should continue to accrue through an appeal to a federal court.31 E.

Tab Position 1

A Guide for Immigration Advocates April 2014

Bringing It All Together: Karin’s Story

Let’s look at an example that puts all of these rules together, to see if Karin remains eligible for LPR cancellation of removal.

Seven-Years of Continuous Residence Requirement. Her “clock” for seven-years of continuous residence for LPR cancellation purposes began with her first admission in 2006. See Matter of Blanca, discussed above. In 2010 Karin was convicted of one theft CIMT that carried a maximum possible sentence of one year, and she was sentenced to one day in jail. This conviction made her deportable for CIMT, because she was convicted of one CIMT that she committed within five years of her 2006 admission, and that had a potential sentence of one year or more. However, her CIMT offense does not fall within the inadmissibility ground because it came within the petty offense exception: she committed only one CIMT, with a potential sentence of one year or less, and a sentence imposed of six months or less.32 Now Karin is deportable but her clock has not stopped because her offense came within the petty offense exception. See Matter of Garcia, discussed above. At the same time in 2010, she was convicted of a crime of child neglect that made her deportable under the child abuse ground. Because the offense involves only negligence, it was not also a CIMT. Because a deportable crime of child abuse is not “referred to” in § 212(a)(2), this offense also did not stop the clock. See Matter of Campos-Torres, discussed above. In 2014 she committed and was convicted of a second theft CIMT offense. Now she is deportable and inadmissible for CIMT—i.e., she is no longer within the petty offense exception— and her seven-year clock has stopped. Luckily, the seven-year clock stopped on the date she committed the second CIMT, not the first. See Matter of Deando-Roma, discussed above. Since

30

See discussion in Matter of Bautista-Gomez, 23 I& N Dec. 893 (BIA 2006) (in an application for nonLPR cancellation, the provision in 8 CFR 1003.23(b)(3) that an applicant for cancellation of removal must demonstrate statutory eligibility for that relief before the service of a notice to appear applies only to the continuous-physical-presence requirement and has no bearing on other issues such as qualifying relatives, hardship, or good moral character). 31 In considering the former § 212(c) relief, the predecessor to LPR cancellation, the Ninth Circuit held that “lawful unrelinquished domicile” lasted through federal court appeal if the person had contested deportability. Wall v. INS, 722 F.2d 1442 (9th Cir. 1984), United States v. Jimenez-Marmelejo, 104 F.3d 1083 (9th Cir. 1996). See § 12.12, below. 32 See Unit 3 for more information on CIMT grounds of inadmissibility and deportability.

12-13

Unit 12

Example: Karin was admitted as a visitor in 2006. She fell out of status in 2007, but then married a USC and adjusted status to lawful permanent resident in 2009.

Unit 12

the clock began at her admission in 2006 and kept going until she committed the second CIMT in 2014, she has the seven years residence for purposes of cancellation. Five-Years of LPR Status Requirement. She also needs to have five years as a lawful permanent resident (LPR). The five-year LPR clock started when she became an LPR in 2009. It did not stop when she committed an offense, or when the NTA was served or filed. It will stop only if she accepts a removal order from the immigration judge, or if the BIA affirms her final order of removal on appeal. See discussion in Part D, above. Let’s say that she would reach the five-year point on May 1, 2014, because she adjusted status on May 2, 2009. She has her first master calendar hearing on February 1, 2014 and gets a continuance to find counsel. By the time of her second master calendar hearing on July 1, 2014 she has the five years and can apply for LPR cancellation.

§ 12.4 A Noncitizen Who Has Been Convicted of an Aggravated Felony Is Barred from Eligibility for Cancellation of Removal

NOTE: If the aggravated felony conviction occurred before April 24, 1996 or in some cases April 1, 1997 the permanent resident might be eligible to apply for § 212(c) relief, either in removal or deportation proceedings. See discussion in § 12.12.

A person who qualifies for § 240A(a) cancellation of removal can apply to waive almost any ground of deportability or inadmissibility. Even firearms offenses, which were never permitted under the former § 212(c) waiver, can be waived in cancellation of removal. Unfortunately, conviction of an aggravated felony is an absolute bar to applying for cancellation of removal. At this time, so many offenses are listed as aggravated felonies that this will seriously restrict the number of people who can apply. For example, anyone convicted of selling any drugs, or anyone who received a one-year suspended sentence for an offense involving theft or violence, cannot apply for cancellation of removal. Please note that all cases dealing with aggravated felonies are complicated. Unless you are a very experienced advocate who has had years of experience working with clients charged with aggravated felonies, please refer any cases involving aggravated felonies to an experienced immigration attorney. A.

What Is an Aggravated Felony?

Many serious and minor offenses are aggravated felonies. The definition of aggravated felony is found at INA § 101(a)(43) and discussed in Unit 3. In case of doubt, you should read § 101(a)(43) carefully, and bring in an expert before exposing your client to immigration authorities. As a basic overview, here is a summary of some of the most common aggravated

12-14

Tab Position 1

Immigrant Legal Resource Center April 2014

felonies. Remember that the person must have a conviction of the offense in order to be penalized as an aggravated felon.   

  

Please see Unit 3 for a complete list. Effective Dates. Any of the above offenses are held to be aggravated felonies, regardless of the date of conviction, in all government actions taken after September 30, 1996. See discussion and a complete list in Unit 3.

Aggravated Felony Review Questions Which of these persons is convicted of an aggravated felony? Why or why not? Use the above list, or look up INA § 101(a)(43). Answers below. 1. Mary was convicted of sale of $10 worth of marijuana. 2. Felix was convicted of assault with a deadly weapon and sentenced to six months. 3. Hans was convicted of two burglary offenses. He was sentenced to six months on one and 364 days on the other. 4. Frans was convicted of one burglary offense and sentenced to one year. 5. Gina was convicted of alien smuggling when she helped bring her baby sister illegally into the U.S. Review Answers 1. Yes. Drug trafficking is an aggravated felony. 2. No. This is a crime of violence, but a sentence of a year or more must be imposed for it to be an aggravated felony.

12-15

Unit 12



murder, rape, or sexual abuse of a minor (which, depending on the circuit, might include consensual sex with a person under 16 or even under 18) any offense generally considered to be “drug trafficking,” plus certain other offenses such as possession of flunitrazepam (date rape drug) trafficking in firearms, plus several federal crimes relating to firearms or destructive devices including felon in possession of a firearm offenses such as fraud and tax evasion if the loss to the victim exceeds $10,000, and money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000 a “crime of violence” resulting in a term of imprisonment of at least one year, if it was not a “purely political offense” certain offenses involving theft or burglary, if the term of imprisonment is at least one year any alien smuggling, harboring or transporting, except for a first offense in which the person smuggled was the parent, spouse or child

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

3. No. These offenses might meet the technical definition of “burglary” as an aggravated felony, but each he received a sentence of less than a one-year for each conviction. A burglary offense must have a sentence imposed of a year or more. 4. Maybe. If this offense meets the definition of “burglary” it will be an aggravated felony, because a sentence of a year or more was imposed. 5. Yes, unfortunately. Unlike document fraud, conviction of alien smuggling is an aggravated felony even without a one-year sentence. The only exception is for smuggling a parent, spouse or child “and no other individual.” See INA § 101(a)(43)(N). Advocates should lobby Congress to change this unreasonable category.

§ 12.5 Other Groups Who Are Ineligible Under INA § 240A(c), cancellation of removal is not available to the following people even if they were not convicted of an aggravated felony: a. People who already have received cancellation of removal, suspension of deportation, or § 212(c) relief. b. People who persecuted others, or are inadmissible or deportable under the anti-terrorist grounds. c. Crewmen who entered after June 30, 1964, and certain “J” visa exchange visitors (those who either received graduate medical education or failed to satisfy their two year requirement). The most important provision for the majority of our clients is that anyone who was ever granted suspension of deportation, § 212(c) relief or cancellation of removal in the past does not get a “second chance.” Be sure to find out how your client became a permanent resident. This provision is especially unfair for people who received suspension. For example, if it turns out that 15 years ago your client got a green card after winning suspension of deportation, he or she is not statutorily eligible to apply for cancellation of removal.

PART TWO: DISCRETION -- PERSUADING THE JUDGE TO GRANT THE RELIEF § 12.6 The Balance Test Once the applicant has proven she meets the requirements of residing in the U.S. continuously for seven years after an admission and being a lawful permanent resident for five of those years, the case has really just begun. You and your client must now convince the judge to grant the waiver. The immigration judge will use a balancing test to decide whether to grant § 240A(a) cancellation.

12-16

Tab Position 1

Immigrant Legal Resource Center April 2014

Congress made it clear that the standards and case law for discretionary decisions in § 212(c) relief should be carried over into cancellation of removal. Additionally, in the case Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998), the BIA ruled that the general standards for determining discretion for 212(c) cases that were developed in Matter of Marin, 16 I&N Dec. 581 (BIA 1978) and other BIA cases are applicable to the exercise of discretion for LPR cancellation cases. Therefore, you will be looking to § 212(c) cases for guidance.

This test is like the exercise of discretion in § 240A(b) (and former suspension of deportation) cases. See § 11.14. The balancing test, however, is even broader than discretion. The balancing test encompasses all elements of a person’s life.

WARNING: Do not expect the judge to guess which factors are the most important on this scale. You and your client need to show the judge all possible factors that will convince her that the scale tips in favor of the client.

§ 12.7 Positive Factors The judge must consider the “social and humane” factors, which show why granting § 240A(a) relief is in the best interests of the United States. Therefore you and your client need to stack as many factors as possible on the positive side of the scale. How do you know what these factors are? Clients generally know best what is good about their lives. But they don’t necessarily know which factors matter the most to the judge. So that clients can communicate to you what positive factors exist in their lives, you need to explain the law clearly to them. See Exercise 11.2 for an example of how to explain the law to a client. Similarly, the client understands her own cultural background and values. If you understand your client’s background, you can present a more effective case to the judge. Example 12.7-a: Adela is a 35-year old Mexican woman who is in removal proceedings because she was convicted of writing bad checks and perjury, both crimes of moral 33

See Matter of Marin, 16 I&N Dec. 581 (BIA 1978) and Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988).

12-17

Unit 12

Imagine the judge using an old-fashioned balance scale to make her decision. On one end of the scale the judge puts all the positive factors. These show why it is in the best interests of the U.S. to allow the applicant to stay. On the other end of the scale the judge puts all the negative factors. These show why it is not in the best interests of the country for the applicant to stay in the U.S. Whichever side of the scale weighs the most will determine whether the applicant is deported or permitted to stay in the U.S.33

Tab Position 1

A Guide for Immigration Advocates April 2014

turpitude. She has lived in the U.S. as a permanent resident for fifteen years. She lives with and supports her two U.S. born teenage children and her 70-year old LPR mother. Adela’s brother and his family live in the neighborhood, and they see each other almost every day and they all go to church together on Sundays. Karen, the legal worker, lives several hundred miles away from her family and sees them once a year at Christmas. This is typical of Karen and her friends.

Unit 12

While listening to Adela tell her story, Karen realizes that strong family bonds are much more important to Adela than they are to her. Karen and Adela now can work to show the judge how important it is that Adela stay in the U.S. and maintain the close ties that are important to the entire extended family. Aside from drawing on your client’s knowledge and experience, you can also talk to other legal workers to see what has been effective in cases they have handled. You can also read reported cases to see what factors judges have considered in the past. In Matter of Marin, 16 I&N Dec. 581 (BIA 1978) the Board of Immigration Appeals (BIA) listed the major factors for judges to consider in granting § 212(c) relief. In 1998, the BIA decided an important case called Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998) in which the BIA stated that the factors stated in Matter of Marin must also be the factors that a judge considers in § 240A(a) cancellation of removal cases. The factors listed in Matter of Marin include:         

family ties in the U.S.; residence for a long time in the U.S. (especially if the applicant first came here when he was very young); evidence of hardship to the applicant and his family if he is deported; service in the U.S. Armed Forces; a history of employment, property or business ties; evidence of value and service to the community; proof of genuine rehabilitation if a criminal record exists; a willingness to admit that he made a mistake and will not do it again; any other evidence showing the applicant’s good character.

Within the Ninth Circuit, an unmarried client who has the intent to marry and proves that a heterosexual relationship is like a “common-law marriage,” but who lives in a state (like California) that does not recognize “common-law marriages” can still use that relationship to prove hardship for § 212(c) cases.34 One should argue that the holding applies for cancellation of removal cases as well. It will be more convincing if the couple also proves that they hold themselves out as married.

34

Kahn v. INS, 36 F.3d 1412 (9th Cir. 1994).

12-18

Tab Position 1

Immigrant Legal Resource Center April 2014

Remember that each case must stand on its own facts. Your job is to convince the judge that all the positive factors considered together outweigh the negative ones.

Tab Position 1

A Guide for Immigration Advocates April 2014

Example 12.7-b: Richard, a lawful permanent resident from Ireland, was convicted of possession of methamphetamine—a controlled substance. After serving nine months in prison he was placed in removal proceedings and he applied for cancellation of removal. After his legal worker explained the legal requirements to Richard, Richard decided he would show the judge he has rehabilitated and is remorseful about his past.

   

admit to the judge that he was using methamphetamine; tell the judge he was wrong for using drugs and he was not being fair to his family; present evidence of completing a drug rehabilitation program and testify that his drug days are over; and show that he works full time and has stopped hanging out with his old friends with whom he used to do drugs.

Exercise 12.7: What are three pieces of evidence that Richard can introduce at his hearing to prove his rehabilitation and feelings of remorse? For answers see Appendix 12-A.

PRACTICE TIP: Judges have denied relief because they did not believe the applicant when she said she never committed the crime, which now makes her deportable. The Seventh Circuit, in Guillen-Garcia v. INS, 999 F.2d 199 (7th Cir. 1993) stated that the BIA could not rely exclusively on the petitioner’s refusal to acknowledge guilt in determining whether he was rehabilitated. In a similar case, Gonzalez v. INS, 996 F.2d 804 (6th Cir. 1993), the Sixth Circuit decided just the opposite. Please remember to check the law in your circuit. Judges are required to take criminal convictions as valid. You should not pressure a client who insists that she was wrongfully convicted of a crime. However, your client must understand that if she maintains her innocence in the face of a criminal conviction, the judge will most likely not believe her and think that she is not remorseful or sorry, thus making a grant more difficult to obtain.

Unusual or Outstanding Equities. In deciding 212(c) cases, the BIA determined that people who were convicted of certain serious crimes—like trafficking or sale of drugs—need to

12-19

Unit 12

Some of the things Richard decided to do to show he was rehabilitated include:

demonstrate “unusual or outstanding” equities to qualify for § 212(c) relief.35 However, just because one has a conviction for a drug crime does not automatically mean he has been convicted of a “serious crime” for purposes of having to prove “unusual or outstanding” equities. Instead, the immigration judge must take into account the actual nature of the person’s drug offense.36 The burden of “unusual or outstanding” equities is more difficult to meet than with a regular § 212(c) application.

Unit 12

According to a BIA case, In re Javier Sotelo-Sotelo, 23 I&N Dec. 201 (BIA 2001), the standard of using “Unusual or Outstanding Equities” does not apply to cancellation cases.37

NOTE: Although practitioners and their clients should always try to show the strongest equities, when a client’s crime may be in the category of a serious crime it is often best also to argue that she is not required to show “unusual or outstanding” equities.

For more information on the need to show “unusual or outstanding” equities, please refer to Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988); Matter of Edwards, 20 I&N Dec. 191 (BIA 1990); and Matter of Roberts, 20 I&N Dec. 294 (BIA 1991).

§ 12.8 Factors on the Negative Side ICE can present negative factors in arguing that the immigration judge should not grant a cancellation or 212(c) case. For instance, in one case the government tried to argue that because the applicant was a parent, but not married, that the person was not rehabilitated for § 212(c) relief. However, the Ninth Circuit ruled that the BIA could not properly consider being an unwed parent as a negative factor.38 All cancellation and 212(c) cases have at least one negative factor that weighs against the applicant. This factor will be the ground upon which the applicant has been found deportable. You and your client always need to present all the positive factors you can to the judge to outweigh the negative factors. The factors will not have the same weight from case to case. Even one factor, if it is quite strong, could tip the balance against the applicant. Example 12.8: Sarah, a lawful permanent resident from Scotland, worked as a bank teller. She was convicted of embezzling money, went to jail, was placed in removal proceedings and applied for cancellation under § 240A(a). While she was waiting for her immigration hearing she forged some checks to pay her debts. She was arrested and convicted of forgery. Sarah will have a hard time proving rehabilitation since she 35

Matter of Marin, supra; see also Matter of Roberts, 20 I&N Dec. 294 (BIA 1991). See Matter of Roberts, 20 I&N Dec. 294 (BIA 1991). 37 See also Dave v. Ashcroft, 363 F.3d 649, 651 (7th Cir. 2004). 38 Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993). 36

12-20

Tab Position 1

Immigrant Legal Resource Center April 2014

recently got arrested for a crime which was similar to the one that got her placed in removal proceedings initially.

a. What are the positive factors in Chen’s case? b. How could Chen have strengthened his case during the hearing? c. How could you, as a legal worker, have helped Chen prepare his case differently? For answers see Appendix 12-A.

§ 12.9 Proving Rehabilitation: The Three Story Approach As we have discussed, the judge must balance all positive and negative factors in making the decision to grant or deny § 240A(a) cancellation. In cases where the applicant is in removal proceedings because of a criminal conviction, rehabilitation is probably the single most important element in this decision. While the extent of rehabilitation is significant, the BIA, however, has held that rehabilitation is not a prerequisite for a grant of cancellation of removal.39 To show rehabilitation the client must demonstrate that she has changed from the kind of person she was when she committed the crime. She must convince the judge that she will not commit any more crimes. One way to explain this change to a judge is the “three story approach.” In this approach the client and paralegal present three stories as follows: 1) a story showing the client’s past life when she committed the crime; 2) a story expressing the client’s remorse for her wrong doings; and 3) a story providing a positive and different picture of the client’s present life. The purpose of the “three story approach” is to show that the circumstances that caused the client to become involved in crime no longer shape her life. Only your client knows what these factors are. You can suggest factors, which have been present in other cases. Ultimately, however, it is your client’s story that matters. Listen to your client, his family and friends to develop the three stories. Don’t be concerned if the parts of the stories overlap. 39

See Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).

12-21

Unit 12

Exercise 12.8: Chen, a lawful permanent resident from Hong Kong, was convicted of auto theft. His U.S. citizen wife and two U.S. citizen children live with him. He has a steady job for now. Chen’s legal worker did not prepare Chen for the hearing. Chen didn’t understand what he needed to prove to get a waiver. During the hearing Chen was the only person who testified. While testifying Chen tried to tell the judge how he was framed and never stole the car. The judge denied the case because the convictions were very recent and Chen had not shown rehabilitation.

Tab Position 1

A Guide for Immigration Advocates April 2014

Note that in many cases, applicants for § 240A(a) relief will not be released on bond and will have to prepare their cases from jail. This, of course, makes it much more difficult for the person to demonstrate his “new life,” as well as to collect evidence and get support from friends. It is crucial that the applicant, his family, and any support network that he has (except his old “bad” friends) take responsibility for the case to overcome this challenge.

Unit 12

A.

Story 1: The Applicant’s Past Life

The first story presents the reasons why the client became involved in crime. For example, for many people the pressure of the first years in a new culture makes life very difficult. People may make friends with “undesirable types.” The isolation and alienation of life in urban America may contribute to joining a gang or using drugs. Many recent immigrants face serious economic pressure. A person, who in less stressful circumstances would never consider the option, may see selling drugs or stealing as a way out. You and your client should expose these negative factors. It is a good idea to stress that these factors no longer exist. Although you must be honest, try not to tell the story in such a negative way that the judge will think the client can never be rehabilitated or that all immigrants have these problems. B.

Story 2: Remorse for Past Mistakes

In the second story, the client shows remorse for past wrongs. Recognizing mistakes and making a commitment to a new and changed life are good evidence of the client’s rehabilitation. Often the client may want to admit to the immigration judge that she committed the crime and is sorry for having done it. She must understand that she was wrong and made a mistake.

WARNING: You and your client should think hard before admitting to a crime that she did not commit, or a crime for which she has not been arrested or convicted. Although it does not occur often, things that your client says or admits to in a deportation hearing could be used in a future criminal case.

When admitting to the immigration judge that they were wrong, clients often talk about how going to prison changed their lives. Clients say that whatever they gained from committing a crime is not worth losing personal freedom and contact with loved ones. They say prison gave them time to think about their actions and to recognize the harm they have caused themselves and others. When a judge hears these things, it helps convince her to grant the waiver. C.

Story 3: The Client’s New Life

In the third story, the client shows new influences in her life. Stable family life, relationships with new friends who have not been in trouble with the police, and steady employment are typical factors to present. Parts of a client’s life that are boring or unimportant 12-22

Tab Position 1

Immigrant Legal Resource Center April 2014

can be presented to the judge as positive factors. For example, spending time at home, eating meals with the family or watching television demonstrate that the client is not out on the street. Spending time with family and making new friends shows that the client has developed new and positive attitudes. Again, proving this while the client is in detention is challenging but not impossible.

Example 12.9: Francois, a lawful permanent resident from France, was convicted for grand theft and possession of cocaine. He was sentenced to six months in jail for the theft and three months for the drug possession charge. Now he is applying for § 240A(a) relief. Lupe, the legal worker, explained the requirements for a waiver to Francois and his family. With the law in mind Francois, his family and Lupe decided to tell his three stories this way: Story 1: Francois and his family started having financial problems three years ago when his wife Giselle became disabled. Francois began to steal small items for the house, and then began to steal more expensive articles to sell to make money. He became depressed and began to use cocaine and began not showing up for work. He was arrested when he tried to steal an expensive leather jacket. Cocaine was found on him at the arrest. Story 2: After spending several months in jail and attending drug-counseling programs, Francois now admits he had a drug problem. He took lots of time to think about his life when he was in jail. He admits that he jeopardized the well-being of himself and his family and says he will never do it again. Giselle and his son visited him regularly in jail. While he loved seeing them, he hated putting them through this and swears he would never do such a thing again. Story 3: Francois’ life has changed. He and Giselle have communicated with his employer, who has decided to offer him his job back. The family finances are under control. He wants to spend lots of time with his son. Before he went to jail, even when he was having drug problems, he always kept a good relationship with his son. They do homework together, play ball at the park, and watch television. Francois and his son are absolutely devoted to each other. Francois will not associate with his drug user friends and wants to spend most of his time at work or at home with his family.

40

However, the hardship standard for cancellation of removal for nonpermanent residents under INA § 240A(b)(1) is much more difficult to meet.

12-23

Unit 12

The client can present hopes and plans for her future in the United States, and what she has done to begin achieving them. These goals show that the client has a new direction in life. Your client also should state the importance of remaining in the United States and the hardship she and her family would suffer if she were deported. Showing hardship is very important and is similar to showing hardship for waivers of inadmissibility or cancellation of removal for nonpermanent residents under INA § 240A(b)(1).40 See Units 6 and 11 for ways to establish hardship.

Tab Position 1

A Guide for Immigration Advocates April 2014

People who knew Francois before his troubles began will submit affidavits, one of them may testify. These people will say that Francois ignored them when he ran with his drugusing friends. These old friends now say that Francois has called them from jail, and he is a changed man. He has rekindled these old friendships.

Unit 12

Francois also can discuss his goals. He wants to continue drug therapy and plans to continue to go to Narcotics Anonymous once a week for many years to come. His family wants to save money to buy a house. The applicant’s rehabilitation is probably the single most important issue in § 240A(a) cases. The “three story approach” is one of the clearest and most effective ways to demonstrate to the judge that the client has been rehabilitated. One can use letters of support to show the judge that the client has changed. See Appendix 12-D.

§ 12.10 Summary of Procedure In removal proceedings, the immigration judge decides whether to grant the § 240A(a) waiver. As with § 240A(b) (cancellation of removal for non-permanent residents), the client first goes to the Master Calendar hearing, pleads to the allegations of the Notice to Appear, and tells the judge that he intends to apply for a § 240A(a). See Unit 10 on removal proceedings. The judge will give the applicant a deadline by which he must submit the application.

WARNING: Do not miss this deadline! If you miss the deadline set by the judge to file the waiver application, your client may be deported in absentia! Look at the Immigration Court Practice Manual to make sure that you are complying with all the procedural requirements for submitting applications and evidence in court.41

The Forms for a Cancellation of Removal Case   

EOIR form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents. See Appendix 12-C for a complete form EOIR-42A. INS Form G-325A, Biographic Information Sheet. See Unit 5 for a completed G-325A. Fee or Fee Waiver.

41

The Immigration Court Practice Manual can be located at the following website address: www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm.

12-24

Tab Position 1

Immigrant Legal Resource Center April 2014

ICE will obtain your client’s FBI record, and has access to other criminal law databases. Your client needs to be aware that ICE may know about his entire criminal record, so he must be totally truthful with you about his record and honest in any testimony in court.

Tab Position 1

A hearing on the merits might be held within several months, though sometimes the Immigration Courts get so backlogged, it could be two to three years before the merits hearing is held. This time is critical for building a strong case. You can supplement the application before the hearing. Your client will also have some time to work on developing more good equities. Generally you add to the application by submitting a hearing brief, affidavits, letters of support, and other documentation. Unless the immigration judge specifies a different time line, or you have a detained client, evidence is due at least 15 days before the hearing.42 This gives the judge time to read the evidence you present. See Appendix 12-B for aids to help you keep track of your client’s case.

Unit 12

A Guide for Immigration Advocates April 2014

§ 12.11 Preparing the Client for the Hearing For the most part, whether the judge grants § 240A(a) cancellation of removal will rest on the facts of any given case. Because only the client knows the facts of her life, legal workers must work in partnership with clients to prepare and present § 240A(a) cases. The first step is to explain the law to your client. This means making sure she understands the purpose of the waiver as well as the requirements for it. For example, when your client understands that these waivers are given to people who are not likely to be in trouble again, she can understand why it is important to show rehabilitation and remorse. This understanding will help your client know what facts of her life she should tell you about, and which she will need to present to the judge. There are several ways to explain the law to your client. See Exercise 11.2. You can explain that a § 240A(a) waiver is like a pardon for past mistakes. The judge decides whether the person deserves the pardon. To make this decision, the judge balances the negative factors against the positive ones. During the interview you might draw for the client a picture of scales to symbolize this balancing so the client can visualize the process. If the judge is convinced that the negative side weighs more, he will deny § 240A(a) relief. If the judge thinks the favorable side weighs more, he will grant the waiver. When you explain the law clearly, the applicant can see why she needs to present as many positive considerations as possible—in order to “tip the scales.” You can help by listing some things that are generally considered positive factors. See § 12.7. Many of these positive considerations might not exist yet, especially for people who have recently been released from jail. This can be discouraging. Remember, however, that you and

42

Immigration Court Practice Manual, Chapter 3.

12-25

your client might have five, ten, even fifteen months or more before the merits hearing. During this time your client can work hard to develop these positive factors in her life.

Unit 12

Example 12.11-a: Robert is a lawful permanent resident from Canada. He just served eight months in jail for armed robbery. Robert was transferred directly from state prison to ICE custody when his term ended. At the time of his master calendar hearing, the only proof of rehabilitation he had was his prison record. Robert is released on bond and his merit hearing is set for ten months later. Since his legal worker explained the law of § 240A(a) waivers to him, Robert knows he has to work hard so he can prove to the judge that he has been rehabilitated, and that the positive factors outweigh the negative in his case. Robert sets out a program for himself. He moves in with his mother, a lawful permanent resident, and helps her out around the house. He goes to church with her regularly and they have breakfast together after mass on Sunday. He goes to the church group for young adults. He gets a steady job and helps his mother out with the bills. Through these actions Robert hopes to convince the immigration judge that he will not be in trouble again and that his removal from the U.S. would result in extreme hardship to his mother and to himself. If the client is not released on bond, the situation obviously is much harder. This takes real dedication on the part of the client and his family and friends. Example 12.11-b: Let’s say Robert is not released from jail custody. He still can work on his case. If he learned or accomplished anything in jail, he can describe it and request a letter from the jail minister, counselor, or even a guard or supervisor. Robert can get on the phone and call his old friends, his old employer, and the minister at the church. If Robert’s mother supports him, she can visit these people and plead with them to offer Robert a job or write a letter for him. These people can write about how Robert was before he “went bad,” how much his mother needs and wants him, and how they believe that he will rehabilitate himself and should be given a second chance. There are other things clients can do to help prepare their cases. They can make lists of the positive and negative factors in their lives. It generally boosts your client’s morale to list the positive factors first. Your client can outline the three-story approach explained in § 12.9. It is also a good idea to have your client fill out a copy of the EOIR-42A (see Appendix 12-C), translated into his native language if necessary. All of these tasks strengthen the case. First, the facts of the case will be stronger because your client has understood the law and has been encouraged to tell you everything about his case that is relevant. Second, your client will do a better job as a witness because he will understand what needs to be proved. A well-prepared client is less likely to be surprised by questioning from the ICE attorney or the judge. Third, having helped build his case will give your client a sense of confidence and control over his life.

12-26

Tab Position 1

Immigrant Legal Resource Center April 2014

PART THREE: APPLYING TODAY FOR THE FORMER § 212(c) RELIEF § 12.12 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings A.

Overview, Basic Eligibility

Section 212(c), like cancellation, is relief that gives long-time permanent residents a chance to avoid deportation despite being inadmissible or deportable. The issues involved in § 212(c) cases often are complex and require an experienced attorney or accredited representative, but all advocates should know how to identify and refer clients who might qualify. The basic threshold question for eligibility is: 

Is the person a permanent resident who is deportable or inadmissible for a conviction received before April 1, 1997?

If the answer to that question may be yes, an expert in § 212(c) should review the person’s case to see if he or she actually is eligible. Note that there are some automatic disqualifiers and red flags that mean the person will not, or probably will not, be eligible for § 212(c):

44



A prior grant of suspension of deportation, cancellation of removal, or § 212(c) relief destroys eligibility for § 212(c). (However, a prior grant of other relief—for example a waiver of inadmissibility under INA §§ 212(h) or 209(c)—does not destroy eligibility.)



A person cannot get both § 212(c) and cancellation of removal. Therefore an LPR who needs § 212(c) to waive, for example, an aggravated felony offense from before April 1, 1997, but also needs cancellation to waive a conviction after April 1, 1997, is likely out of luck. However, the person can apply in the same hearing for § 212(c) to waive a preApril 1, 1997 conviction, and for a waiver other than cancellation, such as § 212(h), to waive the second, later conviction.



Section 212(c) will not waive an aggravated felony or felonies for which the person actually served five years, if the conviction occurred on or after November 29, 1990.

INS v. St. Cyr, 533 U.S. 289 (2001). Judulang v. Holder, 132 S.Ct. 476 (2011).

12-27

Unit 12

Former INA § 212(c) is a waiver of exclusion and deportation that Congress eliminated as of April 1, 1997. However, in INS v. St. Cyr the Supreme Court held that for some permanent residents who were convicted of crimes before April 1, 1997, § 212(c) is still available today, in removal proceedings or administrative applications.43 In Judulang v. Holder the Supreme Court further clarified who is eligible to apply for § 212(c).44

43

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12



Section 212(c) probably cannot waive a charge of deportability based on conviction of an aggravated felony, drug offense, firearms offense, certain moral turpitude convictions, or several other deportation grounds, if the conviction occurred between April 24, 1996 and April 1, 1997. However, § 212(c) is available to waive inadmissibility based on these types of convictions, for example in an application to re-adjust status or for admission at the border.

The rest of this section will discuss a brief history of cases and legislation on § 212(c), and then set out the current law for who can apply. Finally, it will discuss the standard for a discretionary grant of relief under § 212(c). A great thing about § 212(c) (and LPR cancellation) is that the standard to be granted § 212(c) as a matter of discretion is much easier to meet than, say, a standard of extreme hardship under § 212(h). If an applicant is eligible to apply and has a fairly clear record since 1997, he or she often can win by showing sufficient remorse and rehabilitation—especially if he or she has representation at the hearing. B.

Brief History of § 212(c)

This subpart provides a background in how the current rules for § 212(c) came into being. While this is helpful for advocates who want a deeper understanding of § 212(c), readers who want to go directly to the current eligibility requirements can look to Subpart C, below. The Former § 212(c) Relief. The former § 212(c) relief was a discretionary waiver of all grounds of exclusion (now called inadmissibility), which was extended by courts to also cover some charges of deportability. The § 212(c) waiver was available only to certain long-time permanent residents. To qualify, the person had to have accrued seven years of “lawful unrelinquished domicile.” Unlike LPR cancellation, the former § 212(c) relief did not have a statutory clock-stopping mechanism for the seven years. Time continued to accrue throughout administrative appeals (to the level of the BIA) and, if the person had contested deportability, through appeals to federal courts. In some cases, the seven years could start before the person became a permanent resident, for example during asylee or refugee status, or some other status that permitted the person to intend to remain permanently in the U.S. A permanent resident who met the above qualifications could apply under § 212(c) to waive almost any ground of inadmissibility or deportability, as long as she was not convicted of an offense making her deportable under the firearms ground or for entry without inspection (which were held not to be analogous to grounds of inadmissibility). After November 29, 1990, an applicant for § 212(c) was ineligible for relief if he had served a total of five years or more for one or more aggravated felony convictions.45 Thus a conviction for an aggravated felony such as sale of controlled substances or a theft offense resulting in imprisonment for a few years could be waived under § 212(c).

45

This change in the eligibility rules for § 212(c) was implemented by the Immigration Act of 1990 (IMMACT 90), effective November 29, 1990.

12-28

Tab Position 1

Immigrant Legal Resource Center April 2014

The Effect of AEDPA and IIRIRA. The AEDPA legislation enacted on April 24, 1996 drastically restricted the types of deportation grounds that could be waived under § 212(c). It barred waiver of the deportation grounds relating to conviction of an aggravated felony, drug offense, or firearms offense, or being a drug addict or abuser, and barred waiver of conviction of two moral turpitude offenses each with a year or more potential sentence. See discussion in Subsection C, below. The IIRIRA legislation enacted on September 30, 1996 added many new offenses to the list of aggravated felonies, thereby further reducing the availability of § 212(c) by increasing the kinds of offenses that could not be waived. The IIRIRA also eliminated § 212(c) relief entirely for persons in removal proceedings, which began on or after April 1, 1997.

Judulang v. Holder, Matter of Blake, and now Matter of Abdelghany, Changing Rules Regarding Which Grounds of Deportability Can Be Waived under § 212(c). A big question in § 212(c) law relates to which grounds of deportation can be waived. Section 212(c) is a waiver of inadmissibility, not deportability. However, long before 212(c) was eliminated in 1997, federal courts held, and the BIA agreed, that as a matter of Equal Protection § 212(c) also could waive a charge of deportability under certain circumstances.47 The test was: if the person had happened to leave the U.S., would the deportable conviction have caused them to be charged with being inadmissible upon their return? If so, § 212(c) could be used to waive the deportation charge. In some other decisions a somewhat different test applied: was the ground of deportation being charged analogous to a similar ground of inadmissibility? If so, § 212(c) could waive the deportation charge. This second test is the “comparable ground” test. In Matter of Blake, published in 2005, the BIA adopted a strict, and arguably new, interpretation of the comparable ground test. It held that because there is no “aggravated felony” ground of inadmissibility, § 212(c) may not be used to waive the aggravated felony deportation ground, unless the specific aggravated felony category at issue (e.g., drug trafficking, sexual abuse of a minor) had a comparable, specific inadmissibility ground. Mr. Blake was charged with being deportable for conviction of an aggravated felony offense of sexual abuse of a minor. The 46 47

INS v. St. Cyr, 533 U.S. 289, 325 (2001). This is sometimes called the Francis rule, after Francis v. INS, 532 F.2d 268 (2d Cir. 1976).

12-29

Unit 12

The St. Cyr Holding Permitting § 212(c) Applications in Removal Proceedings. In INS v. St. Cyr, 533 U.S. 289 (2001) the Supreme Court ruled that the AEDPA restrictions on § 212(c) and the IIRIRA elimination of § 212(c) cannot be applied retroactively to guilty pleas made before the effective dates of those Acts. The idea was that people like Mr. St. Cyr had relied on § 212(c) being available when they agreed to plead guilty. The only way the Court would upset such reliance would be if Congress had very specifically said that the AEDPA and IIRIRA amendments should apply retroactively to these cases—and Congress had not done that. The Court said, “We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.”46 The CIS published a regulation on applying for § 212(c) under St. Cyr. See 8 CFR § 1202.3(f)(5) (2004). Some sections of the regulation will be held invalidated by the recent Supreme Court case, Judulang v. Holder.

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

BIA held that because there is no “sexual abuse of a minor” ground of inadmissibility, § 212(c) was not available to waive the deportation charge. Advocates argued that in practice any conviction of sexual abuse of a minor also is a crime involving moral turpitude, which can cause inadmissibility—and in fact, in practice for many years aggravated felonies that amounted to crimes involving moral turpitude had been waived under § 212(c). The BIA rejected that argument. The BIA did hold that the aggravated felony “drug trafficking” had a sufficient analogous inadmissibility ground, and that could be waived under § 212(c).48 All federal courts except for the Second Circuit followed Mater of Blake and the DHS regulation that implemented Blake, regarding whether § 212(c) could waive an aggravated felony. The Supreme Court, however, reversed the Blake rule in Judulang v. Holder, 132 S. Ct. 476 (2011). The Court found the BIA’s comparable grounds test to be arbitrary and capricious. The Court remanded the case (sent it back) to the BIA with instructions to make a better rule, consistent with the Supreme Court’s analysis. The BIA has now created a new structure and a simpler standard for determining who is eligible for 212(c) relief, in Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014). The comparable grounds test is completely abandoned, and now the BIA has announced that the new rule is that 212(c) is still available for LPRs with convictions before April 1, 1997 and divided people into two basic groups: 1. LPRs with 7 years lawfully in the U.S. whose plea or conviction was entered before April 24, 1996, is eligible to apply for § 212(c) relief, unless: a. The LPR is subject to the national security, terrorism, persecutor, foreign policy or international child abductions grounds of inadmissibility;49 or b. The LPR has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions between November 29, 1990, and April 24, 1996. 2. Same as above, except the second group of LPRs had a plea or conviction entered between April 24, 1996, and April 1, 1997, for which there is one more basis for ineligibility: a. If proceedings commenced on or after April 24, 1996, and the conviction renders the applicant deportable under one or more of the deportability grounds enumerated in 440(d) of AEDPA—the person is ineligible for 212(c) relief. (Remember the AEDPA barred offenses include: aggravated felonies, drug offenses, firearms offenses, being a drug addict or abuser, and two moral turpitude offenses each with a year or more potential sentence). An excellent Practice Advisory provides more information about the Judulang ruling and how it can help clients now in proceedings, or clients who have been wrongly removed in the 48 49

See Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005). INA 212(a)(3)(A), (B), (C), (E), and (10)(C).

12-30

Tab Position 1

Immigrant Legal Resource Center April 2014

past. See Vargas, Morawetz, et al., “Implications of Judulang v. Holder” at www.nationalimmigrationproject.org/legalresources/practice_advisories/pa_Implications_%20of _Judalang_v_Holder.pdf.

C.

Statutory Eligibility: Who Can Apply for § 212(c) Relief Now?

Again, the basic threshold questions to see if a permanent resident might be eligible for § 212(c) are: Is the person being charged with inadmissibility or deportability based on conviction/s from before April 1, 1997, and has the person not been granted cancellation, suspension of deportation or § 212(c) before? 1. Seven years of “lawful unrelinquished domicile” To apply for § 212(c) an LPR must have seven years “lawful unrelinquished domicile.” This includes not only time in LPR status, but also in some other types of status, such as asylee or refuge, that permit the person to intend to reside permanently in the U.S. The good news for § 212(c) applicants today is that almost no one should have a problem with the seven years. First, the seven years did not have to be accrued at the time of the guilty plea, or by April 1, 1997. The applicant just needs the seven years as of the date that he or she will apply for § 212(c) (or, in the case of a motion to reopen a prior order of deportation or removal, had the seven years at time of the final decision).50 In fact, the Ninth Circuit upheld § 212(c) eligibility for a person who was not yet a permanent resident at time of plea, where the

50

See 8 CFR § 1003.44(b)(3); see also Alvarez-Hernandez v. Acosta, 401 F.3d 327, 329-332 (5th Cir. 2005).

12-31

Unit 12

Finally, it is important to understand that both the AEDPA and the Matter of Blake restrictions applied only to grounds of deportation and not to grounds of inadmissibility. This means that the restrictions could prevent a noncitizen from filing a § 212(c) application to waive a charge of deportability, but the same person might be able to waive a charge of inadmissibility. The 1996 AEDPA amendment by its terms set out certain grounds of deportability that could no longer be waived under 212(c). Despite AEDPA, any type of conviction received by plea through April 1, 1997 could be waived as a ground of inadmissibility. (The exception, for all § 212(c) cases, is that § 212(c) cannot waive one or more aggravated felony convictions on or after November 29, 1990 that resulted in an aggregate time actually served of five years or more). Similarly, the Matter of Blake restrictions—based upon whether a deportation ground was sufficiently similar to a corresponding ground of inadmissibility—also did not limit § 212(c) waivers of inadmissibility. Thus an inadmissible LPR who is seeking admission at the border, or who is seeking to “re-adjust status” as a defense to removal proceedings, could use § 212(c) to waive any inadmissibility ground, even if the inadmissible conviction happened to be an aggravated felony, firearms offense, or other deportable offenses. Matter of Azurin, 23 I&N Dec. 695 (BIA 2005).

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

person was a lawful temporary resident under the SAW program, and the conviction did not make the person ineligible to receive permanent residency.51 Second, the seven years has continued to accrue all this time for most persons who still are LPRs. Assuming that the applicant was an LPR when he or she pled guilty before April 1997, in 2012 the applicant will have at least 15 years of the required time. Unlike LPR cancellation of removal under INA 240(A)(a), there is no stop time rule in § 212(c). The § 212(c) “lawful unrelinquished domicile” continues after the commission of an offense, service of the NTA (or in the former deportation proceedings by an Order to Show Cause), and throughout the removal proceedings up to the final decision of the BIA, and in some cases through federal court appeal.52 Example: Juan pled guilty to moral turpitude offenses in 1994 and 1995, three years after he had first been admitted to the U.S. as a lawful permanent resident in 1991. Outside of the Ninth Circuit, Juan is not eligible for cancellation of removal under INA § 240A(a), because when he became deportable or inadmissible for moral turpitude crimes, the “clock stopped” on his accrual of seven years residence since any admission.53 But he is eligible for § 212(c) relief under St. Cyr. Although he did not have seven years lawful unrelinquished domicile at the time he pled, he has had it since 1998. In immigration proceedings arising within the Ninth Circuit Juan could apply for LPR cancellation of removal, because no conviction from before April 1, 1997 is deemed to stop the seven-year clock. See discussion of Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006) in § 12.3, Part D, above. 2. When can § 212(c) be used to waive a charge of deportability? a. Deportable for a conviction from before April 24, 1996 The BIA has now held that a permanent resident can use § 212(c) to waive a charge of being inadmissible or deportable based on a conviction by plea or trial from before April 1, 1997, with a few “significant” exceptions. The “comparable grounds” approach has been completely abandoned. because, as discussed in Subpart B above, the Supreme Court essentially instructed

51

See Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. 2006) (en banc). Mr. Perez-Enriquez was a temporary resident under the SAW program, one of the legalization programs in the 1980’s. People who immigrated under the SAW program had to prove admissibility when they obtained temporary residence, but not when they obtained permanent residence, which happened automatically on December 1, 1990. 52 See, e.g., Matter of Lok, 18 I&N Dec. 101(BIA 1981), aff’d 681 F.2d 107 (2d Cir. 1982). The Ninth Circuit held that unrelinquished domicile lasted through federal court appeal if the person had contested deportability. Wall v. INS, 722 F.2d 1442 (9th Cir. 1984), United States v. Jimenez-Marmelejo, 104 F.3d 1083 (9th Cir. 1996). 53 See Unit 5.

12-32

Tab Position 1

Immigrant Legal Resource Center April 2014

the BIA to do this in its 2011 decision, Judulang v. Holder.54 The BIA has ruled that no comparable ground of inadmissibility is necessary at all, the conviction may be either by plea or by trial, and the fact that the LPR may not have been removable at the time of conviction is irrelevant. The rule will now work like this:

Angel is put in removal proceedings in 2014 and charged with being deportable under the CIMT and aggravated felony deportation grounds. There is no “aggravated felony” or “theft” or “firearms” inadmissibility ground. Can Angel apply to waive these grounds under § 212(c)? Yes. As of 2014 he has amassed 22 years as an LPR, far more than the seven years that he needs. He is deportable under the aggravated felony, CIMT and firearms grounds for convictions to which he pled guilty before April 24, 1996, based on a guilty plea or a conviction after trial made at a time when he was an LPR. It does not matter that the theft offense is an aggravated felony. It does not matter that the firearms ground does not also cause him to be inadmissible. And it also does not matter that one conviction occurred after a plea and the other after a trial. Angel is clearly eligible to apply for § 212(c) relief.

PRACTICE TIP: A good solution for a client like Angel would be to file an application for adjustment of status as a defense to removal where this is possible. The BIA has held that a § 212(c) waiver can be submitted in conjunction with the adjustment status application, and so the 212(c) waiver would waive the theft and aggravated felony conviction grounds which occurred pre-AEDPA, and the adjustment would essentially waive the firearms conviction See Subpart 3, below.

b. Deportable for a conviction from between April 24, 1996 and April 1, 1997 The 1996 AEDPA55 severely limited the deportation grounds that could be waived by § 212(c). These limits apply to charges based on convictions received between April 24, 1996 54

In Judulang v. Holder, 132 S. Ct. 476 (2011), the Supreme Court disapproved the BIA’s rule in Matter of Blake, 23 I&N Dec. 722 (BIA 2005), where the BIA held that § 212(c) is only available if the deportation ground charged had an analogous inadmissibility ground. See Subpart B, above. 55 The relevant part of AEDPA discussed in this manual is § 440(d). Other parts of AEDPA have nothing to do with immigration law. See AEDPA discussion at Part B, above.

12-33

Unit 12

Example: Angel became a lawful permanent resident (LPR) in 1992. In 1995 he pled guilty to felony theft and was sentenced to 16 months. Theft under this particular state statute is both a crime involving moral turpitude (CIMT) and an aggravated felony as “theft” if a sentence of a year or more is imposed. Then in January of 1996 he was convicted at trial of a firearms offense.

Tab Position 1

A Guide for Immigration Advocates April 2014

and April 1, 1997, the date that § 212(c) ended. The AEDPA provides that § 212(c) is not available to people who are deportable for the following offenses:

Unit 12

     

Conviction for any aggravated felony; Conviction for a controlled substance violation; Drug addiction or abuse (no conviction necessary); Conviction for a firearms offense; Espionage and sabotage offenses as defined in former INA § 241(a)(2)(D); Two crimes of moral turpitude, both of which carry a potential sentence of a year or more. Example: What if Angel in the above example had pled guilty to the aggravated felony theft offense in August 1996? He would not be able to waive the aggravated felony deportation charge under § 212(c). The BIA kept this rule in the Abdelghany decision.

PRACTICE TIP: A good solution for a client like Angel would be to file an application for adjustment of status as a defense to removal where this is possible. The BIA has held that a § 212(c) waiver can be submitted in conjunction with the adjustment status application, and so the 212(c) waiver would waive the theft and aggravated felony conviction grounds which occurred pre-AEDPA, and the adjustment would essentially waive the firearms conviction. See Subpart 3, below.

All other deportation grounds can be waived for convictions occurring between these dates. For example the alien smuggling or document fraud deportation ground, and convictions of crimes involving moral turpitude that don’t meet the above test, still can be waived. There is no longer a requirement that the deportable conviction or conduct would make the person inadmissible as well. Example: Beverly became an LPR in 1991. In 1994 and October 1996 she was convicted of two theft offenses that were both CIMTs. One had a potential sentence of six months and the other a potential sentence of one year. She is now charged with being deportable for conviction of two CIMTs after admission, under INA § 237(a)(2). The offenses also make her inadmissible for CIMT. Can she apply to waive the deportation charges under § 212(c)? Yes. She can apply to waive the deportation charge under § 212(c), because she does not come within the AEDPA bar: she does not have two CIMT convictions, both of which have a potential sentence of a year.

12-34

Tab Position 1

Immigrant Legal Resource Center April 2014

3. Inadmissibility, adjustment of status and admission with § 212(c)

Second, as discussed in Part A above, the AEDPA provided that § 212(c) could not be used to waive several deportation grounds if they were based upon a conviction received between April 24, 1996 and April 1, 1997. These AEDPA restrictions do not apply to waiver of inadmissibility grounds, however. If the noncitizen can make the removal case turn on inadmissibility rather than deportability, for example by filing an application for adjustment of status, she may be able to apply for § 212(c). Example: Carla became a permanent resident in 1991 and was convicted of sale of heroin in November 1996. In 2012 she is placed in removal proceedings and charged with being deportable under the controlled substance ground and the aggravated felony “drug trafficking” ground. Under AEDPA, she cannot use § 212(c) to waive these deportation grounds because the conviction occurred between April 24, 1996 and April 1, 1997. However, if her U.S. citizen husband files a new I-130 petition for her, she can apply for adjustment of status as a defense to removal. She is inadmissible under drug grounds, but she can file an application to waive these inadmissibility grounds under § 212(c), along with the adjustment, because she received the conviction before April 1, 1997.57 When is inadmissibility the governing question in removal proceedings? An applicant for adjustment of status is subject to the grounds of inadmissibility. INA § 245(a). Filing an application for adjustment of status, or a self-petitioning VAWA application, will permit you to use § 212(c) to waive inadmissibility not deportability.58 An LPR who leaves the U.S. while inadmissible for a crime and attempts to return is held to be seeking admission, and can be charged with inadmissibility in removal proceedings. The 56

Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014); Matter of Azurin, 23 I&N Dec. 695 (BIA 2005). See Matter of Azurin, 23 I&N Dec. 695 (BIA 2005), affirming Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993). 58 See Azurin, Gabryelsky, above. 57

12-35

Unit 12

First, the law after Judulang and Abdelghany is clear that § 212(c) can be used to waive any ground of inadmissibility except 212(a)(3) security, terrorism, persecutor, foreign policy and 212(a)(10)(C) child abduction grounds, even if the conviction also is an aggravated felony.56 After Judulang and Abdelghany it is clear that § 212(c) also can be used to waive any deportation ground based on a conviction even if the conviction does not also make the person inadmissible It is also clear that the § 212(c) waiver may be used in conjunction with an application for adjustment of status. If your client qualifies for adjustment of status, he or she can assert this as a defense to removal. To determine whether the person can adjust status only the grounds of inadmissibility, not the grounds of deportability, are applicable. In such cases, you can file a § 212(c) application with it to waive the inadmissible moral turpitude convictions. If the adjustment and § 212(c) applications are granted, the LPR will have a new LPR card and not be deportable.

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

person can file an application for § 212(c) in response to these charges. Or, if the inadmissibility was not spotted at the border and the LPR was (wrongly) readmitted without having to file a waiver, the LPR becomes deportable under INA § 237(a)(1) for having been inadmissible at last admission. Generally a person who is deportable for having been inadmissible at last admission can apply for a waiver of the inadmissibility ground nunc pro tunc, meaning as if she were applying back at the border at her last admission. See, e.g., Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), Matter of Parodi, 17 I&N Dec. 608 (BIA 1980) (for § 212(h) waiver). This relief in the context of a 212(h) waiver application, was limited the BIA decision in Matter of Rivas, 26 I&N Dec. 130 (2013), which held that a nunc pro tunc 212(h) waiver is only available if a concurrent adjustment of status application is filed with it. A “standalone” § 212(h) waiver for LPRs not eligible for adjustment is not acceptable, according to the BIA. However, the last paragraph may no longer apply to many LPRs who might wish to apply for § 212(c), because under a recent Supreme Court decision, Vartelas v. Holder, they will be held not to be making a new admission at all. See practice tip below.

PRACTICE TIP: The general rule is that a lawful permanent resident who travels abroad will be held to be making a new “admission” to the U.S. if he or she is inadmissible based on a criminal conviction. See INA § 101(a)(13)(C) and discussion in Unit 3. The Supreme Court has upheld an exception to this rule, which applies if the conviction that makes the returning lawful permanent resident inadmissible was from before April 1, 1997. In that case, the LPR is not seeking a new admission at the border as long as his or her absence was “brief, casual and innocent.” See Vartelas v. Holder, 132 S. Ct. 1479 (2012) and see Practice Advisory at www.nationalimmigrationproject.org/legalresources/practice_advisories/cd_pa_Vartelas.pdf.

4. § 212(c) eligibility for those convicted by jury trial In INS v. St. Cyr the Supreme Court held that § 212(c) applies to those whose past convictions were entered into via a plea agreement, reasoning that those who entered pleas relied on the existence of § 212(c) when they gave up their right to a trial as part of their plea bargains. A showing of actual reliance was not required. After many years and Circuit Courts splits regarding whether § 212(c) also relief applies to those convicted at trial, the BIA has ultimately directed that it does with no restrictions or additional requirements of “reliance.” The BIA reasoned that, based on Supreme Court and prevailing Circuit Court precedents, the presumption against retroactive application of a new statute eliminates the need for a showing of detrimental reliance.

12-36

Tab Position 1

Immigrant Legal Resource Center April 2014

5. A permanent resident who actually served an aggregate of five years or more for conviction of one or more aggravated felonies is not eligible for § 212(c) if the conviction/s occurred between November 29, 1990 and April 24, 1996

6. An LPR does not need to be deportable at the time of conviction to be eligible for 212(c) relief Additionally, the BIA in Matter of Abdelghany decided that the lawful permanent resident need not have been deportable at the time he or she was convicted to be eligible for § 212(c) relief, reasoning that such a requirement would have impermissibly retroactive effect and would require Immigration Judges to focus on the law in effect at the time of conviction, which would be unpractical.61 This situation would come into play, for example, if a person was not deportable for a conviction when the conviction occurred in 1995, but subsequently became deportable for the same conviction, in 1996.

FOR MORE INFORMATION ON THIS SUBJECT, see: Remedies and Strategies for Permanent Resident Clients, ILRC Publication Immigration Law and Crimes, Westlaw Publishing Defending Immigrants in the Ninth Circuit, ILRC Publication American Immigration Law Foundation Website (www.ailf.org, see Practice Advisories) Immigrant Legal Resource Center Website (www.ilrc.org/criminal.php)

59

8 CFR § 1212.3(f)(4)(i). Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014). 61 Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014). 60

12-37

Unit 12

As noted above, § 212(c) was modified by IMMACT 90 to prohibit eligibility to those who have been convicted of one or more aggravated felonies and have served a term of imprisonment of at least 5 years for that felony or felonies. IMMACT 90 went into effect on November 29, 1990. People with aggravated felonies who have served a total of 5 years of more for that felony or felonies are still eligible for § 212(c) if their convictions were entered into before November 29, 1990. The regulations also permit this59 and the BIA has maintained this provision as is in Matter of Abdelghany.60

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Tab Position 1

=

APPENDIX 12-A SAMPLE ANSWERS TO EXERCISES

Tab Position 1

A Guide for Immigration Advocates April 2014

Sample answer to exercise 12.7: Richard could introduce the following things to convince the judge that he has rehabilitated and is remorseful.

   AND 

Richard's own testimony; the testimony of family and community members who knew Richard before, during and after his drug days; affidavits of family and friends who cannot testify in person; a certificate of completion of the drug rehabilitation program; letters from Richard's probation officer and prison officials describing Richard's excellent record; a letter from his employer.

Sample answer to exercise 12.8: a) Chen's arguments in support of the waiver are:    

he has rehabilitated as shown by the fact that he now has a job, spends more time with his family instead of out on the streets and does not hang out with his old "carstealing" friends; he has admitted he did wrong and has shown remorse for his past actions; he has a U.S. citizen wife and children and they would suffer if he were forced to return to Hong Kong; AND he now has a steady job and does not face the financial pressure which lured him into criminal behavior before;

b) Had Chen understood the requirements for a section 240A(a) cancellation waiver he could have helped the legal worker make his case stronger. First, his own testimony would have been more convincing if he had taken responsibility for his actions and expressed remorse. Furthermore, Chen could have suggested that other people testify for him. For example, Chen's wife, children, employer, probation officer or friends should have appeared as witnesses or submitted affidavits. They could have talked about ways in which he has rehabilitated and the other positive factors in having Chen remain in the U.S. c) You could have made sure Chen understood the legal requirements for section 240A(a) relief. You could have encouraged Chen to think about the positive and negative factors in his case, perhaps

Appendix 12-A-1

Unit 12

 

Unit 12

by making lists of these factors, or by drafting an affidavit explaining his situation. Chen needed to understand that he was an active participant in his case, and that his ideas about his case were important.

Appendix 12-A-2

Tab Position 1

Immigrant Legal Resource Center April 2014

APPENDIX 12-B § 240A(a) WAIVER CHECKLISTS

Tab Position 1

A Guide for Immigration Advocates April 2014

Below are two checklists which will be useful in preparing § 240A(a) cancellation case. The first one is the "Legal Worker To Do List". The second checklist is the "Client To Do List." Before using these checklists, please read the information on the checklists in Appendix 11-B, in Unit 11.

Unit 12

Appendix 12-B-1

Legal Worker Checklist for § 240A(a) Cases (To be kept in client's file)

1. Interview client and complete intake sheet.

Unit 12

2. Explain legal requirements, procedures, your organization and the entire § 240A(a) process to client. 3. Together with your client, determine eligibility for § 240A(a) cancellation. 4. Have client complete a copy of the application forms. Complete final copies of the forms. 5. Submit a copy of completed form EOIR 42A, filing fee, biometrics fee, your EOIR-28 if you are an attorney or BIA accredited representative, and a copy of the USCIS filing instructions provided by the Immigration Court to the appropriate USCIS Service Center Attorneys and accredited representatives must be signed up with EOIR’s new eRegistry program – which must be done in two steps – sign up online and then go to EOIR in person with a photo identification with your online information. Only needs to be done once – but EOIR ID number must then go on all documents for future cases. 6. Submit the fee receipt from USCIS, original form EOIR 42-A, copy of G-325A, photos, birth certificate of client, some basic documents relating to statutory eligibility such as copies of proof of relationship to USC or LPR spouse, parent or child (marriage, birth or naturalization certificates and copies of green cards), and proof of service to ICE attorney to the Court. Take along an additional copy of the front page of the form and ask the court clerk to stamp it as proof of receipt by the court and, if filing by mail, included a self-addressed stamped envelope for return of the stamped page. Serve the ICE attorney with copies of the application, fee receipt and the original G-325A. 7.

Submit a copy of the court stamped EOIR 42A page and the court notice of next hearing, with form I-765, photos, and filing fee, to the USCIS Service Center to obtain an employment authorization document for client.

8. Together with the client and her family write notes on how to convince the judge that the positive factors in allowing the client to stay in the U.S. outweigh the negative factors. Help client prepare her own compelling declaration and help her family write their declarations.

Appendix 12-B-2

Tab Position 1

Immigrant Legal Resource Center April 2014

9. Together with the client and her family, determine how the client and her family will suffer hardship if she is deported. Add these factors to their declarations. Gather other documents that will prove this, including work, school, financial, medical and other helpful documentation.

11. Obtain complete criminal records if your client has an arrest record. See if postconviction relief could eliminate the conviction. Determine which records are appropriate to submit and which are not “reviewable” record of conviction documents 12. Together with the client and her family, obtain documentation to show rehabilitation. Add this information to their declarations as well. 13. Prepare with the client for the direct examination, cross-examination and what will happen in court. 14. Practice direct examination and cross-examination. 15. More than two weeks prior to the hearing, submit to the court a prehearing brief, if necessary, and any documents proving your client's eligibility for the § 240A(a) cancellation.

Prepared by the Immigrant Legal Resource Center, 2014.

Appendix 12-B-3

Unit 12

10. If there seems to be a residence problem, together with the client and her family collect documentation to prove she fulfills the residence requirements. Address this issue in the declarations as well.

Tab Position 1

A Guide for Immigration Advocates April 2014

CLIENT "TO DO" LIST For § 240A(a) Cases To qualify for § 240A(a) cancellation we need to prove the following: 1. Your home has been in the United States for at least the last 7 years, after lawful admission.

Unit 12

2. You have been a permanent resident for at least five years. 3. The reasons why the judge should let you stay in the U.S. outweigh the reasons why the judge would want to deport you. 4. You have not been convicted of an aggravated felony. To help prepare your case, try to get the documents that are marked below:

1. Records of good behavior while in jail 2. Certificate of education or job skill program completed during or after you were in jail 3. Certificate of completion of drug or alcohol rehabilitation program 4. Letter of support from Parole Officer showing improvement since being released from jail 5. Evidence of present employment 6. Evidence of involvement in community activities 7. Affidavits from family members 8. Affidavits from friends and community members 9. Affidavits from church leaders or other community organizations Other

Prepared by the Immigrant Legal Resource Center, 2010

Appendix 12-B-4

Tab Position 1

Immigrant Legal Resource Center April 2014

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-C-1

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-C-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-C-3

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-C-4

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-C-5

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-C-6

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-C-7

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-C-8

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-C-9

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-C-10

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-C-11

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-C-12

APPENDIX 12-D Letters of Support

Tab Position 1

A Guide for Immigration Advocates April 2014

It may be generally helpful on your part to involve the applicant’s family in the case from the outset by discussing with them how they can play a role in preparing for the 240A(a) or 212(c) case. This will help you later when you work with family members in obtaining letters of support, and ensuring continued rehabilitation. There may be other people besides family you can contact for letters of support, including: Parole and Probation Officers and letters from Prison Guards: These (especially parole and probation letters) are important letters to get. Appendix 12-E-1 is a letter from a parole officer. 12-E-2 is a letter from a guard in jail who knew the 240A(a) or 212(c) applicant. 12-E-3 is an example of a letter you can send to a guard in jail or prison who knew your client.



People involved in employing or giving the client job training;



Letters from friends stating how they know the client; (co-workers, neighbors, customers the client met while on the job, etc.) and providing specific examples regarding how they know the client has rehabilitated, how important she is to her family, etc.



The attorney who represented the client in the criminal case; and



Professionals who assisted the person in developing a healthier life. (a psychiatrist, psychologist, social worker, leader of a 12-step program, etc.)

Be sure to ask people to use any letterhead they have, date the letters, include their address and phone, and include the phrase “under penalty of perjury” in their letter of support; judges take letters more seriously with the phrase. Some judges may not accept letters without this phrase. Appendix 12-E-4 is an example of a letter which uses the phrase, called a declaration. Note that all really important witnesses must be made available to testify, even if it is to be by phone. Otherwise, ICE may object to their evidence and the judge may not let it in. People who are writing less critical letters of support are not usually needed to testify, unless ICE requests it. Pages 12-E-5 to 12-E-12 are examples of letters in support of “Maria;” how well do you feel you know Maria after reading these letters of support for her?

Appendix 12-D-1

Unit 12



Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-E-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-E-2

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-E-3

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-E-4

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-E-5

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-E-6

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-E-7

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-E-8

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-E-9

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-E-10

Unit 12

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 12-E-11

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 12

Appendix 12-E-12

Unit 12

Tab Position 1

=

UNIT THIRTEEN ETHICAL DUTIES OF PARALEGALS

Tab Position 1

A Guide for Immigration Advocates April 2014

This Unit Covers:   

The difference between “authorized” and “unauthorized” practice of law, and how to find rules about what paralegals are permitted to do (Part One); Rules for ethical conduct for immigration paralegals and lawyers (Part Two); and Rules for becoming a BIA-accredited representative (Part Three)

This Unit Includes:

§ 13.14 § 13.15 § 13.16 § 13.17 § 13.18 § 13.19 § 13.20 § 13.21 § 13.22 § 13.23 § 13.24 § 13.25

Overview of Authorized and Unauthorized Practice of Law ........................... 13-2 What Is Authorized Practice of Law? .............................................................. 13-2 Explicitly Authorized Representation in Immigration Cases ........................... 13-3 Entering an Appearance ................................................................................... 13-6 Paralegals Working under the Supervision of a Lawyer .................................. 13-8 The Independent Paralegal and Immigration Consultants................................ 13-9 Overview of Ethical Duties ............................................................................ 13-13 What Are Legal Ethics? ................................................................................. 13-13 What Other Rules Govern Ethics of Nonlawyers? ......................................... 13-13 The Duty of Zealous Representation .............................................................. 13-14 The Duty of Competence ............................................................................... 13-14 Duty of Client Confidentiality and Privileged Information............................ 13-15 Grounds for Discipline before DHS Immigration Agencies and EOIR ........................................................................................ 13-17 Disciplinary System of the DHS and EOIR ................................................... 13-21 Summary Disciplinary Proceedings and Immediate Suspension ................... 13-22 Forms of Discipline ........................................................................................ 13-23 Reinstatement ................................................................................................. 13-23 Confidentiality in Disciplinary Proceedings .................................................. 13-24 Malpractice ..................................................................................................... 13-25 Tips for Giving Professional Service and Avoiding Professional Discipline ................................................................................... 13-26 Other Legal Actions by Disgruntled Clients .................................................. 13-27 Introduction to BIA Accreditation ................................................................. 13-27 How to Apply for Recognition of Your Agency ............................................ 13-28 How to Apply to Become an Accredited Representative ............................... 13-32 Limits of Recognition..................................................................................... 13-33

13-1

Unit 13

§ 13.1 § 13.2 § 13.3 § 13.4 § 13.5 § 13.6 § 13.7 § 13.8 § 13.9 § 13.10 § 13.11 § 13.12 § 13.13

PART ONE: AUTHORIZED AND UNAUTHORIZED PRACTICE OF LAW Dorothy works for a non-profit agency that offers immigration assistance. She has been a paralegal in the office for ten years. She is not a BIA accredited representative. Dorothy interviews clients, prepares forms, and writes declarations and affidavits. An attorney, Glinda, works in the agency’s Tacoma office nearby. Once a week, Dorothy and Glinda review all client files together and Glinda approves of all Dorothy’s work. Glinda signs the notices of representation filed and makes all court appearances. One day Dorothy talks to her neighbor, Elvira about her work. Elvira asks Dorothy if she doesn’t need a license to practice law to do what she does.

§ 13.1 Overview of Authorized and Unauthorized Practice of Law In this unit you will learn to distinguish what areas of the law paralegals may work in, and begin to see why Dorothy probably does not need a license to practice law to continue her work.

Unit 13

§ 13.2 What Is Authorized Practice of Law? In our society many people distinguish the work lawyers do from the work of nonlawyers. What lawyers do is called practicing law. When nonlawyers practice law, it is called unauthorized practice of law. Most states have laws that impose civil and/or criminal penalties for unauthorized practice of law. However, there are some ways that nonlawyers can provide services for immigration clients that are “authorized.” In order to understand what work by paralegals and other representatives is authorized, we must first understand the definitions of the “practice of law,” and “unauthorized practice of law.” Both state rules and the federal rules governing the Department of Homeland Security (DHS) Immigration Agencies and the Executive Office for Immigration Review (EOIR) immigration courts deal with the issue of the unauthorized practice of law. Each state has its own rules, but they almost all agree that persons who represent others in court, advise people on their legal problems, and draft legal documents are “practicing law.” Most states require that you be licensed as a lawyer before you do these things. Immigration law provides that immigrants in immigration proceedings may be represented by a selected representative who is authorized to practice law. INA § 292; 8 USC § 1362. Unlike public defenders in criminal proceedings, immigrants in immigration proceedings are not provided a representative by the government or one paid for by the government, so they must hire or find a representative with their own resources.

13-2

Tab Position 1

Immigrant Legal Resource Center April 2014

The federal regulations that govern practice before the DHS Immigration Agencies and the EOIR Immigration Courts define the term “representation” as including “practice and preparation.” 8 CFR §§ 1.2 & 1001.1(m). The regulations define “practice” as follows:

Tab Position 1

A Guide for Immigration Advocates April 2014

[T]he act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS, or any immigration judge, or the BIA. 8 CFR § 1001.1(i).1 They define “preparation” as: The term “preparation,” constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed DHS/Service forms by one whose remuneration, if any, is nominal and who does not hold himself out as qualified in legal matters or in immigration and naturalization procedure. 8 CFR §§ 1.2 1001.1(k) [emphasis added].

The only persons authorized by DHS and the Board of Immigration Appeals (BIA) to represent persons are listed in 8 CFR §§ 292.1 & 1292.1. (See further description, below.)

§ 13.3 Explicitly Authorized Representation in Immigration Cases Each state has its own rules that define and control the unauthorized practice of law. The State of California, for example, has a law that regulates and appears to permit nonlawyers and people whom the BIA has not accredited to act as “immigration consultants,” under limited circumstances. See, California Business and Professions Code, §§ 22440-22448. Please see § 13.6 for a further discussion of immigration consultants. Additionally for immigration purposes, if a federal law allows nonlawyers to practice law before a federal administrative 1

8 CFR § 1.2 has the same language, except for the references to “any immigration judge or the Board.” This opinion was written long before the existence of the CIS website (www.uscis.gov), where anyone can download immigration forms and instructions for filing. Therefore, although the opinion has never been repudiated, its continued viability is somewhat questionable. 2

13-3

Unit 13

On June 9, 1992, the INS General Counsel issued an opinion on whether unaccredited, nonlawyer “visa consultants” were unauthorized to assist persons with immigrant visa forms. His opinion was that, if they were advising people on whether they should file and which forms they should use, the consultant was representing the person and would therefore be in violation of the law. In 1995, the INS General Counsel’s office re-issued an opinion letter written on August 6, 1993, thereby upholding the 1992 opinion. This finding means that, according to the federal government, even just advising people on whether they should file an immigration application and which immigration forms to complete would be practicing law for federal purposes.2

agency, the state may not accuse those nonlawyers of unauthorized practice. Federal law is supreme in this area, and states may not make rules that contradict it. Sperry v. State of Florida ex. rel. Florida Bar Association, 373 U.S. 379 (1963). Federal law specifically allows the BIA to “accredit” certain nonlawyers to represent clients in some immigration matters. 8 CFR §§ 292.1 & 1292.1. If you are allowed by federal law to represent a client in an immigration case, the state you live in cannot accuse you of unauthorized practice of law.

Unit 13

DHS and EOIR regulations lay out who can represent an immigration client. See 8 CFR §§ 292.1 & 1292.1 for the full regulations, which are nearly identical.3 The texts of these two regulations are found in Appendix 13-B. If you represent a client it means you take responsibility for that case, and that the DHS and/or EOIR consider you responsible for the case, just as if you were a lawyer. Moreover, you are subject to the same federal regulations that govern the conduct of attorneys in immigration cases. You can find these regulations at 8 CFR §§ 292.3, and 1292.3.4 Authorized persons can do everything a lawyer can do within the immigration system: they can represent clients at immigration court, the BIA, and DHS immigration agency interviews as well as prepare and submit applications and advise clients about their legal rights. They cannot, however, appear in other federal or state courts; a lawyer must do that. A.

Nonlawyers Authorized to Represent Clients under the Federal Regulations

Under immigration regulations there are three types of people can represent clients even though they are not lawyers: BIA accredited representatives; supervised law school graduates and supervised law students; and “reputable individuals” who help a friend or family member. 1. Accredited Representatives: The largest category of nonlawyer legal workers authorized to represent clients in agency proceedings is BIA accredited representatives. There are several hundred accredited representatives in the United States. The BIA may officially “recognize” certain non-profit agencies that show they have expertise in immigration law and do not charge excessive fees to clients. 8 CFR §§ 292.2(a) & 1292.2(a). Paralegals in recognized agencies can apply to become BIA accredited representatives. 8 CFR §§ 292.2(d) & 1292.2(d). We will discuss how to obtain BIA accreditation later in this unit. BIA accredited representatives can represent clients in front of CIS, ICE or CBP, and they can also represent clients before the immigration court and the BIA, depending on their level of accreditation. They can prepare and

3

Because the Former INS was absorbed into the Department of Homeland Security in 2003, DHS and EOIR remains within the Department of Justice, the regulations for each are separate, though many of them, such as 8 CFR §§ 292 and 1292, are identical. 4 Note: EOIR is currently considering whether to change the requirements for accredited representatives in 8 CFR §§ 292.2, and 1292.2. Consult the latest issue of these regulations and the EOIR website (www.justice.gov/eoir/ra.htm) to make sure you know what the current requirements are.

13-4

Tab Position 1

Immigrant Legal Resource Center April 2014

submit applications and advise clients about their legal rights. Currently, accredited representatives must reapply for BIA accreditation every three years.

Tab Position 1

A Guide for Immigration Advocates April 2014

2. Law Students and Law Graduates: This category is for law students attending an accredited law school who are working either for a legal services program, a nonprofit organization, or for a law school clinical program. Law graduates (meaning people who have graduated from law school) who are not yet admitted to the bar and who work for a private law firm, a legal services organization, or for a nonprofit organization may also represent clients in immigration proceedings. 8 CFR §§ 292.1(a)(2) & 1292.1(a)(2). Law students and law graduates must get the client’s permission and that of the court or DHS official before whom they are appearing. The client may not pay them either directly or indirectly, although the program that the representative works for may accept fees or donations from the client. The regulations specifically provide that a law student or law school graduate may not receive any fee or compensation for specific services rendered for a person. However, the law student or law graduate may receive a salary or hourly pay from the firm or organization with which he or she is associated. 8 CFR § 1003.102(a)(3). If a client pays a law student or a law school graduate directly, the DHS or the EOIR may institute disciplinary proceedings against the practitioner.

3. Reputable Individuals: The last category is called “reputable individuals.” This category is meant to allow immigrants to be helped by someone who knows them such as a friend, family member, etc. To represent someone based on this provision, you must not regularly represent people in immigration matters, you must not charge the person you represent, and you must file a written declaration stating that you are not charging the person. The official before whom he or she wishes to appear must permit the appearance as a representative under this under this category. 8 CFR §§ 292.1(a)(3) & 1292.1(a)(3). B.

Disciplinary Action on Unauthorized Practice of Law

Any immigration practitioner who assists anyone (except as authorized under 8 CFR §§ 292 and 1292) in any activity that constitutes the unauthorized practice of law is subject to disciplinary proceedings. 8 CFR § 1003.102.

13-5

Unit 13

Law students and law graduates are required to file a statement with the DHS or EOIR attesting to the fact that they are being supervised by an attorney or an accredited representative and that the client is not paying them for their services. 8 CFR §§ 292.1(a)(2)(ii) and (iii) & 1292.1(a)(2)(ii) and (iii). The person before whom a law student or law graduate is appearing is allowed to require that a law student’s supervising faculty member, attorney or accredited representative accompany him or her. While law graduates and law students are required to be under the supervision of either an attorney or accredited representative, law graduates are not limited to representing clients only through legal aid programs, nonprofit organizations, or law school clinics. It is also important to note that the official before whom he or she wishes to appear must permit the appearance as a representative under this category.

§ 13.4 Entering an Appearance To act as a person’s representative, you must “enter an appearance” before a DHS immigration agency, the immigration court, or the BIA. To do this, you submit a Notice of Entry of Appearance form. Form EOIR-28 is used for appearances before the immigration court. (See Appendices 13-C & 13-D). Form G-28 is filed for applications and appearances with the CIS, ICE or CBP. (See Appendix 13-E). Form EOIR-27 is filed for appearances with the BIA. (See Appendix 13-H). You should always download and use the latest version of these forms.5 The DHS and the EOIR will not even talk with you about someone’s case if you do not have a Notice of Entry of Appearance on file for the person.

Unit 13

Once you have filed the appropriate Notice of Entry of Appearance form, the DHS or EOIR should treat you like a lawyer in the sense of sending all of its notices to you and contacting you about any problems with the case. This means that you too have a duty to inform DHS or the EOIR if your office moves, as well as the duty to inform your clients of all developments in their cases and to take appropriate action for each of your clients in response to all correspondence received from DHS or EOIR regarding their cases.

PRACTICE TIP: Make sure you keep in your own file extra notices of entry of appearance with your client’s original signature, or at least copies, because frequently either the agency loses the notice or you need to submit an additional Notice of Entry of Appearance with another part of the agency that does not have the client’s file.

Appendix 13-C is a completed copy of an EOIR-28. As you can see, most of it is straightforward. [There is also a blank copy of this form at Appendix 13-D.] At the top you fill in the name of the case, date, and file number. In the next boxes you fill in information about the person you are representing. Look for the words, “Check applicable items below.” Under these words are a series of choices for you to make, labeled 1 through 3. You must check one of these boxes in order to enter your appearance. Clients filing applications or visa petitions must sign the Notice of Entry of Appearance form if they wish to be represented in the petition or application process. However, the DHS only permits the petitioner on a visa petition to sign the Notice of Entry of Appearance form, because it is the petitioner who is submitting the application on behalf of the beneficiary. The beneficiary of the petition is not the person who is authorized to sign. See, 8 CFR § 103.2(a)(3).

5

EOIR forms can be downloaded from the EOIR website at: www.justice.gov/eoir/formslist.htm; CIS forms can be downloaded from the CIS website at: www.uscis.gov (this is the Home Page; once there, click on the Forms menu).

13-6

Tab Position 1

Immigrant Legal Resource Center April 2014

The G-28 Notice of Entry of Appearance form allows representatives to sign the form without the client’s signature in other situations. The representative’s signature attests that he or she is both authorized and qualified to represent the client. This is important, because sometimes you might need to represent someone who is in custody and getting his or her signature would be difficult, especially if the person is on the verge of being deported. The former INS and the Border Patrol were sometimes known to use 8 CFR § 103.2(a)(3) to bar immigrants who were newly detained from access to representatives who had been recently hired by their families or friends to represent them. This is a misreading of the regulation. If this type of situation should arise, where the detained person has not yet had an opportunity to sign the form, make sure that you insist upon the right to talk to your client and cite the language on the form. If a DHS agency denies you access to a detained client because the client has not yet signed a Notice of Entry of Appearance form, contact a legal support center or civil rights organization.6

Tab Position 1

A Guide for Immigration Advocates April 2014

Note that individuals seeking to appear as reputable individuals (as defined in 8 CFR § 292.1(a)(3)) may not use Form G-28. They must obtain permission from DHS before they appear to represent an applicant, petitioner, or respondent in an immigration matter.

A. You are Eileen, a fully accredited BIA accredited representative working for a non-profit agency. A client of the agency has asked you to represent her in a removal hearing where she has a cancellation of removal claim. Which box do you check on the EOIR-28 and why? B. You are Marta. You are neither a lawyer nor an accredited representative. You received political asylum ten years ago and are now a US citizen. Your undocumented brother Juan from Colombia is caught trying to cross the border into the US. He applies for political asylum and asks you to help him at his hearing. Which box do you check on the EOIR-28 and why? C. You are Leon. You work as a paralegal in a non-profit immigration law agency. You are not BIA accredited. Your boss is a very busy lawyer. Today, right after you finish reading this unit, your boss comes into your office and asks you to go to court for him. He says the appearance involves a very simple request for a change of venue. Which box do you check on the EOIR-28 and why?

6

Examples of such organizations are Detention Watch Network, the American Civil Liberties Union (ACLU) and the Southern Poverty Law Center.

13-7

Unit 13

Exercise 13.4 -- Introduction to the EOIR-28: Here are some imaginary fact situations. For each situation, figure out which box the legal worker would check on the EOIR-28 in order to enter an appearance. Use the regulations, 8 CFR §§ 292.1 & 1292.1 to help you determine if the legal worker can appear, and if so, which box the legal worker should check. If you check box 4, explain in a brief sentence why the legal worker is authorized to appear. You can check your answers against the answer sheet in Appendix 13-A. If you don’t think the regulation authorizes the legal worker to appear, write, “cannot appear” and explain why not. Here are the fact situations:

As we saw in the example above, many legal workers who assist immigration clients do not fit into the categories specifically authorized by federal regulations. Leon in Exercise 13.4 is an example of this. Because he does not fit into any of the categories specifically authorized by the regulation, he cannot enter a formal appearance to represent clients. But does this mean he cannot assist in a person’s immigration case in any way? Not necessarily. In this section we will discuss how people can provide some types of assistance that would not constitute the unauthorized practice of law.

§ 13.5 Paralegals Working under the Supervision of a Lawyer When no federal law explicitly authorizes nonlawyers to practice, the law of each state determines what paralegals can do. The question of when paralegals that are supervised by lawyers can do legal work is governed by ethical rules and state court decisions. Therefore the law in this area will be different from state to state.

Unit 13

Most states allow paralegals to do legal work if an attorney directly supervises them. The Code of Professional Responsibility, which is the basis for many state rules, approves of lawyers delegating work to paralegals. The lawyer must maintain the direct relationship with the client, supervise the paralegal’s work, and take full responsibility for the work performed. In addition to the federal laws governing practice by immigration paralegals, there are also sometimes state laws that govern what services non-attorneys can provide and how these services may be provided. For example, in California, it is illegal for a paralegal to perform any services for a client, unless a lawyer, a governmental agency, or a nonprofit agency with a lawyer on staff that employs the paralegal and supervises him or her. Any attorney who uses the services of a paralegal is also liable for any harm caused by the paralegal’s negligence or misconduct. California Business and Professions Code § 6452. California law further provides that any person who violates these provisions is guilty of an infraction for the first violation, and may be fined up to $2,500 for each client the paralegal has harmed. If the lawyer or paralegal is guilty of any subsequent violations, he or she is subject to misdemeanor charges that can include a fine of $2,500 for each client harmed, plus up to one year of imprisonment in a county jail. California Business and Professions Code § 6455. How much supervision is enough to show that paralegals are practicing under an attorney’s supervision? In a BIA decision denying an application to recognize an agency to provide immigration services (see § 13.17 below), the BIA found that the agency had been improperly submitting “Notices of Entry of Appearance” because the attorney working for the nonprofit agency and signing the Notices of Entry of Appearance “performed no services and indeed never met with the applicant’s clients.” In re Chaplain Services, Inc., 21 I&N Dec. 578, 581 (BIA 1996). This amount of supervision by the attorney was not enough, but it still remains hard to say what is adequate supervision, since the answer to this question depends on the difficulty of the work and the experience, training and skill of the paralegal.

13-8

Tab Position 1

Immigrant Legal Resource Center April 2014

In most cases, it is in the attorney’s interest to provide adequate guidance since he or she is professionally responsible for the work of the paralegal, and liable for the paralegal’s mistakes. In practice, however, a paralegal may find situations where he or she has to work hard to make sure he or she gets the supervision he or she needs. The paralegal should insist on adequate supervision and training, even when the attorney supervising him or her seems too busy to be bothered. The paralegal must be honest with herself or himself about what he or she knows and doesn’t know, and ask for the help he or she needs.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 13.6 The Independent Paralegal and Immigration Consultants The federal rules described in § 13.3, above, provides a narrow list of non-attorneys that would be authorized to “practice” immigration law. But there has been an on-going debate about whether independent paralegals (not working under the supervision of an attorney) should be allowed to do more representation on many issues, including immigration.

California also has a law that regulates immigration consultants. The California law on immigration consultants regulates nonlawyer immigration service providers as well. California Business and Professions Code § 22440 et. seq. Like the Illinois law, the California law sets out rules for immigration consultants in bonding, client contracts and advertising. However, it differs from the Illinois law by not regulating maximum fees for service. The California immigration consultant law also has a different definition of the services which consultants are permitted to offer. Under this section, “immigration consultants” can provide nonlegal advice or assistance on immigration matters. The question then is, what is nonlegal advice? According to the statute, an immigration consultant in California may do the following:   

Complete a form provided by a federal or state agency, but not advise a person on their answers; Translate a person’s answers; Obtain the supporting documents, e.g., birth or marriage certificates for the forms;

7

Implementing and authorized by Section 2AA of the Consumer Fraud and Deceptive Business Practices Act [815 ILCS 505/2AA].

13-9

Unit 13

In most states independent paralegals are not permitted to provide immigration legal services under state law. Several states, however, have passed laws regulating the practice of nonlawyer “immigration consultants.” Most of these laws were passed to deal with the problems of immigration consultants defrauding people with promised services that do not materialize or providing services in a recklessly legally uninformed manner. For example, the state of Illinois passed a law governing nonlawyer “immigration service providers” that sets out bonding or malpractice insurance requirements, maximum fees for immigration form completion and advertising and contract provisions. See Title 14 Illinois Administrative Code, Subtitle B: Consumer Protection, Chapter II: Attorney General, Part 485 Immigration Services.7

 

Submit the completed forms to DHS at the request of the applicant; and, Refer the person to someone who can legally represent the client in an immigration matter.

Unit 13

An immigration consultant may also perform other work as long as he or she does not provide any legal advice or assistance. California Business and Professions Code § 22441. In California, for example, these consultants must provide a written contract to their customers that includes, among other things, a statement that the consultant is not a lawyer. California Business and Professions Code §§ 22442. The contract must be in both English and the client’s native language and must contain a clause permitting the client to rescind the contract without penalty within 72 hours. California Business and Professions Code §§ 22442(f). The consultant must pass a background check, and will be prohibited from acting as a consultant if he or she has been convicted of a felony or certain misdemeanors. California Business and Professions Code § 22441.1. The consultant also must get bonded, as an additional protection against fraudulent immigration consultants. California Business and Professions Code § 22443.3. The amount of the bond to be posted by California immigration consultants is currently $50,000. California Business and Professions Code §§ 22443.1. And it is now unlawful for a person to disseminate any statement indicating or implying that she acts in the capacity of an immigration consultant without first filing a bond of with the Secretary of State. California Business and Professions Code § 22443.1. The consultant must also post a sign in her office stating that he or she is not an attorney and must give information showing that the consultant has complied with bonding requirements in California. California Business and Professions Code § 22442.2. Those that provide services free of charge are exempt from these regulations. Further, non-profit, tax-exempt organizations that provide services free of charge or for a reasonable fee are not required to provide a written contract nor are they required to obtain a bond. Continuing with the example of California, the consultant may not literally translate words from English into another language that imply that the consultant is an attorney. For example, if a consultant is also a notary public, he or she may not call himself a “notario,” a term in Spanish that implies that the consultant is an attorney. California Business and Professions Code § 22442.3. The consultant must also keep in close contact with the state government and must notify the California Secretary of State’s office within thirty days of any change of name, address, telephone number, or agent for service of process. California Business and Professions Code § 22442.4. The law further states that the consultant must give clients copies of the documents and forms that he or she completed on the client’s behalf, and, in addition must keep copies of all documents and forms for a client for three years from the last date of service for the client. California Business and Professions Code § 22443. Additionally, an immigration consultant may not keep a client’s original documents even if the consultant is keeping the documents to ensure that the client will pay her. This law makes it clear that such a practice is illegal by requiring that original documents be returned to the client immediately after a copy has been made. California Business and Professions Code § 22443.

13-10

Tab Position 1

Immigrant Legal Resource Center April 2014

In addition to stating what the immigration consultant must do, the law in California also enumerates what the immigration consultant may not do. The consultant may not:    

Tab Position 1

A Guide for Immigration Advocates April 2014

make any false or misleading statements to a client; make any promise or guarantee to a client unless the promise or guarantee is in writing and the consultant has some basis in fact for making that promise or guarantee; make any statement that he or she will obtain special favors or has special influence with the DHS; and, charge a referral fee to a client for services that the consultant cannot or will not perform. Moreover, the consultant must display a sign in her office stating that she will not charge a referral fee.

California Business and Professions Code § 22444. The laws governing California immigration consultants allow people who have claims against immigration consultants for violation of the laws to file lawsuits on their own behalf and—at the same time—also allows the Attorney General, district attorney, or city attorney to seek civil penalties not exceeding $100,000 on behalf of the people of California against immigration consultants who violate the Act. California Business and Professions Code § 22445. Any immigration consultant who violates this law can face penalties ranging from a $2,000 fine to a felony conviction. California Business and Professions Code § 22445.

California immigration consultants need to be careful when they go beyond the parameters of what they are allowed to do as part of the California immigration consultant law. Thus, whenever California immigration consultants go beyond merely filling out forms the situation could become problematic for them. For more information on this topic, please see In re Valinoti, 96-0-08095 (Cal. State Bar Review Dept. Dec.3, 2002). Other States Although we do not have the space to review the law for many other states, below we summarize a few key issues in Texas, Florida, and Arizona. For instance, in states that don’t have laws specifically governing nonlawyer immigration service providers, the state laws on unauthorized practice of law might also apply. These laws differ from state to state. In Texas, the State Supreme Court found that a husband and wife who interviewed clients and prepared immigration forms were practicing law. State Bar of Texas v. Cortez, 692 SW 2d 47, cert. denied 106 S.Ct. 385 (1985). Florida also limited immigration consulting in this way. Florida Bar Ass’n. v. Moreno Santana, 322 So.2d 13 (Fla. 1975); Florida Bar v. Matus, 528 So.2d 895, 896 (Fla. 1988); and Florida Bar v. Abreu, 833 So. 2d 752 (2002)

13-11

Unit 13

Additionally, in California the legislature passed a law in 2013 (AB 1159) that places additional requirements and restrictions related to fees, bonding and contracts on both immigration consultants and attorneys if a future federal immigration reform law is passed.

The Arizona Supreme Court issued regulations effective July 1, 2003 that authorize some people to become certified and licensed “document preparers.” Arizona Code of Judicial Administration § 7-208. Arizona also has a specific law listing the people authorized to assist clients in immigration cases in that state, called the Immigration and Nationality Law Practice Act. The provision of that law that describes who can prepare immigration documents is identical to federal law (see § 13.3 for a description of who is authorized under federal laws to assist in immigration cases). Immigration and Nationality Law Practice Act § 12-2702. However, there remains a question as to whether certified document preparers are permitted to prepare immigration documents. For this reason, an organization of legal document preparers attempted to pass a law in 2003 that would have explicitly authorized certified document preparers to prepare immigration documents. H.B. 2469, 46th Leg., 1st Reg. Sess. (Ariz. 2003). The proposed law did not pass. As it stands now, it appears that document preparers may prepare legal forms for immigration cases, but this preparation must meet the test under federal interpretations that the person be limited strictly to putting information on the form. Arizona Code of Judicial Administration § 7-208 (F). (For a discussion of the federal rules on unauthorized practice for persons who are not attorneys or accredited representatives, see § 13.3 above.) It is uncertain if the Arizona legislature will try again to pass a law clearly establishing what certified legal document preparers may do in immigration cases.

Unit 13

The state bar association in your state can tell you where to look to find the rules on unauthorized practice of law. You can also find these rules in your local law library.

PART TWO: ETHICAL DUTIES OF PARALEGALS Filomena Floja is an accredited representative. A client, Sarwan, comes to her office. Sarwan has a hearing soon in immigration court. He wants to apply for political asylum. Filomena has experience filling out visa petitions and doing applications for naturalization, but she has never gone to court. There are no attorneys or more experienced legal workers in her office. She knows nothing about applying for political asylum. She agrees to take the case without telling Sarwan about her lack of experience. At the immigration court hearing, Sarwan is given a deadline to submit his political asylum application. Filomena does not make a note of the due date and does not file the application on time. At a cocktail party the night after the application was due, a lawyer friend tells Filomena that Sarwan has been ordered removed by the judge in his absence due to Filomena’s mistake “That’s too bad,” she tells the lawyer, “but Sarwan will be ok. He told me his friend knows a U.S. citizen who is willing to marry him and file for his immigration papers if Sarwan pays her a lot of money. So, I’ll just tell him to go ahead with that.”

13-12

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 13.7 Overview of Ethical Duties It doesn’t take an expert in legal ethics to see that Filomena has done a terrible job handling Sarwan’s case. Filomena is obviously an imaginary character designed to show many ethical problems at once, and she may seem ridiculous to you. But many of the mistakes she made are very common. In this section we will talk about ethical duties of legal workers. Ethical duties are no more than what are right and wrong ways of dealing with client’s cases.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 13.8 What Are Legal Ethics? The standards by which we judge good and bad ways of treating people are called ethics. All attorneys are required to abide by certain ethical standards in the practice of law. State laws and state bar rules govern legal ethics. Each state bar has its own set of ethical rules attorneys must obey, and each state has some mechanism for enforcing these rules. When an attorney breaks an ethical rule, she can be admonished, censured, suspended, or disbarred. One good way to research your state’s ethics rules is to contact your state bar association.

Even persons involved in representation who are not technically covered by the rules need to know about the rules because these are also general rules of conduct that might be enforced in a civil suit for malpractice. Paralegals under the supervision of an attorney must be aware of ethical rules, because the attorney could be held responsible for any ethical violations the paralegal makes. These rules do not apply to government attorneys because government attorneys are subject to a disciplinary system that is run by the Office of Professional Responsibility for the Department of Justice. This department investigates allegations of misconduct against Department of Justice lawyers and judges. Governmental employees are also subject to the jurisdiction of the Department’s Office of Inspector General. 8 CFR § 1003.109.

§ 13.9 What Other Rules Govern Ethics of Nonlawyers? Aside from formal ethical rules discussed above, there are laws that insure that legal workers maintain ethical standards in their practice. Federal law imposes criminal penalties for

13-13

Unit 13

In addition, practitioners who are appearing before the DHS agencies, the Immigration Courts or BIA also have a set of ethical duties that are found in the regulations at 8 CFR §§ 292.3, 1003 and 1292.3. These duties apply to all attorneys and any “representatives” appearing as authorized in the regulations at 8 CFR §§ 292.1(a)(2)–(6) & 1292.1(a)(2)–(6), which includes accredited representatives, law students and law graduates and reputable individuals. The Department of Justice has stated in its preamble to the rules that the primary purpose of these rules is to protect the public, preserve the integrity of the immigration courts, and to maintain high professional standards. The rules are described in more detail in § 13.13, below.

certain misconduct. For example, a person who advises a client to lie to the DHS, or who lies to the DHS herself may be found guilty of a federal crime, under 18 USC § 1001. Most ethical questions that you will encounter are not as clear-cut as outright lying to an immigration official. It is these “gray areas” that legal ethics are supposed to help lawyers navigate. In the following sections we will discuss the major areas where legal workers tend to encounter “sticky situations.” Working with a group of nonlawyer immigration advocates, the ILRC drafted a sample set of rules for ethical conduct. This “Model Code of Professional Responsibility for Accredited Representatives” is found at Appendix 13-I. This code of ethics does not have the force of law. But it was written to assist nonprofit organizations in formulating their own office policies on issues of ethics and duties to our clients.

Unit 13

§ 13.10 The Duty of Zealous Representation Many legal workers feel that the most important duty owed to a client is to provide the most vigorous and effective representation possible. This duty is usually included in state Codes of Professional Responsibility and the American Bar Association Model Codes for attorneys. Interestingly, this duty does not appear in the DHS’ regulations for the conduct of attorneys and representatives. However, 8 CFR § 1003.102 states, “[n]othing in this regulation should be read to denigrate the practitioner’s duty to represent zealously his or her client within the bounds of the law.” The preamble to the DOJ rules reinforces this caveat by stating that the rule specifically prohibiting “contumelious or obnoxious conduct” is not “intended to impinge upon a practitioner’s zealous representation of his or her client.” Arguably, these provisions recognize the duty of a practitioner to represent his or her clients zealously. The duty of zealous representation means that your first loyalty is to your client—and not, for example, to other members of the client’s family or others who wish to influence her. It also means that you have a duty to put forward any reasonable arguments on behalf of the client, if it is in the client’s best interest to do so. However, a legal worker has other ethical responsibilities that balance this duty. For example, you cannot commit fraud on behalf of the client, and should not put forward “frivolous” (totally worthless) arguments, even if the client wants you to. The line between these sometimes conflicting concerns can be murky. It is important to consult with a more experienced person when you find yourself faced with these difficult situations.

§ 13.11 The Duty of Competence Being a competent representative means doing a good job for your client. Specifically, it means taking only cases you know you can handle, making sure the work gets done adequately and on time, and not neglecting cases. This duty appears in all of the model codes of professional

13-14

Tab Position 1

Immigrant Legal Resource Center April 2014

conduct and state rules governing attorney conduct, for obvious reasons and is a component of the duty of zealous representation.

Tab Position 1

A Guide for Immigration Advocates April 2014

The DOJ regulations have written into law this duty by providing that a practitioner whom an Immigration Judge or the BIA finds engages in ineffective assistance of counsel may be subject to disciplinary proceedings. 8 CFR § 1003.102(k). In the example at the beginning of this section, Filomena has not been a competent representative in many ways. First, she took a case that she did not have the knowledge or expertise to handle. Before agreeing to take Sarwan’s case, she should have explained to him that she didn’t know about political asylum. If Sarwan nonetheless wanted Filomena to represent him, Filomena should have found someone to supervise her and made sure she had a way of learning asylum law and procedures well enough to represent Sarwan; otherwise she should have referred his case to another office. Filomena also missed a filing deadline. By failing to timely file an application or any document with the DHS or the immigration court you can destroy your client’s chances to remain in the United States.

  

Inform every client as to the law on reporting address changes and the consequences of failure to appear at court dates, hearings and /or immigration interviews. Clarify with the client (preferably in writing) her duty to inform you of address and phone number changes, to keep in contact with you and to show up for hearings. If you lose contact with a client for whom you had previously filed a Notice of Entry of Appearance or decide not to represent him or her any longer, file a request to withdraw from his or her case to the immigration court and notice to DHS that you no longer represent the person.

Legal workers must have case management systems in place so they will not miss important deadlines. Unit 18 of this manual describes how to set up such systems and office calendars.

§ 13.12 Duty of Client Confidentiality and Privileged Information Paralegals and attorneys—and anyone else who works on a legal case or at a legal office—have an obligation to protect their client’s confidentiality. They must make sure that information that the client gives them is kept private. A practitioner may not disclose any information about a client to anyone—unless the client gives the practitioner permission to disclose the information. This privilege belongs to the client, not to the practitioner.

13-15

Unit 13

The law contains serious penalties for clients who fail to appear for court dates and Asylum Office interviews. See Unit 10 of this manual. To prevent not only having your client barred from needed immigration remedies, but also to protect yourself from lawsuits from clients, you must:

There are several reasons for this obligation. First, it is simply respectful of your client. Second, if your client knows that what he or she tells you will be kept confidential, she is likely to tell you more about her case. Therefore you will be better informed and have a stronger case. Third, legal workers have an ethical obligation not to tell others what their clients have told them. All states require that an attorney maintain client confidentiality. The State of California applies the same requirement to paralegals. “A paralegal is subject to the same duty as an attorney … to maintain inviolate the confidentiality, and at every peril to himself or herself to preserve the attorney-client privilege.…” California Business and Professions Code § 6453. Confidentiality means keeping information private both inside and outside the office. Make sure you interview the client in a private place where others cannot hear your conversation. Do not leave client files or other information lying around in public areas where they can be seen. If you share documents with other offices to use as models, make sure you redact or “black out” the name and any other identifying information of your client before sending the document. Before doing any work with the media, make sure your client is willing to use her real name, or willing to work with the media at all.

Unit 13

Outside of the office you should be equally careful about your client’s confidences. Do not talk to other people about your clients by name in social, business or family settings. In the example at the beginning of this section, Filomena breached her duty of confidentiality by discussing Sarwan’s case with her friend at the cocktail party. You are legally required to keep some information secret, even if DHS or the court tries to force you to reveal it. This is called privileged information. You cannot be forced, except in unusual situations, to reveal privileged information. However, if a client files a disciplinary complaint against you, the client waives the privilege and you may use confidential information to defend yourself against the allegations. What information is protected by this privilege? Communications—including letters and conversations—between an attorney and client made for the purposes of obtaining professional advice and assistance is privileged. Included is work you do in the office on a case, for example notes in a file. This privilege applies to attorneys and people working for attorneys. Outside of California, it is unclear to what extent privilege applies to paralegals who do not work for lawyers, but one expert thinks it does not. W.P. Statsky, The Regulation of Paralegals: Ethics, Professional Responsibility, and Other Forms of Control, at 82. Example 13.12: Carl Criminal comes to Letty Lawyer’s office for advice about his immigration status. Letty has Paula Paralegal interview Carl. In the course of the interview, Carl tells Paula that six months ago he robbed a liquor store, but that he was never caught. Neither the DHS nor law enforcement authorities can force Paula to testify about the robbery. The information Carl gave Paula while seeking legal advice is privileged. However, if Letty represents Carl in an application she cannot help him lie about the robbery in response to a question on a form or by a DHS official).

13-16

Tab Position 1

Immigrant Legal Resource Center April 2014

On the other hand, although no statute, regulation, or case law specifically addresses whether privileged information applies to BIA accredited representatives, it appears arguable that it does. See Ann Naffier, Attorney-Client Privilege for Nonlawyers? A Study of Board of Immigration Appeals-Accredited Representatives, Privilege and Confidentiality, 59 Drake L. Review 583 (2011).

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 13.13 Grounds for Discipline before DHS Immigration Agencies and EOIR The grounds for discipline under the current regulations are found in 8 CFR § 1003.102. Although the regulations list certain grounds for discipline, this list is not exclusive. In other words, an attorney or BIA representative can be disciplined for improper conduct that is not on the list. However, these grounds are not meant to interfere with a practitioner’s duty to represent his or her client zealously within the bounds of the law. 

Improper Fees. Attorneys can be disciplined for “any fee or compensation for services which may be deemed to be grossly excessive in relation to the services performed.” In determining whether an attorney charges grossly excessive fees, the government will look at the following:

o o o o o

The time and labor required; The novelty and difficulty of the questions involved; The skill required to perform the legal service properly; The likelihood, if apparent to the client, that the acceptance of the case will preclude other employment by the attorney; The fee customarily charged in the area for similar legal services; The amount involved and the results obtained; The time limitations imposed by the client or by the circumstances; The nature and length of the professional relationship with the client; and The experience, reputation, and ability of the attorney performing the service.

Accredited representatives, law students, and law school graduates may not accept any fee or compensation from the person being represented. Their compensation is limited to their salary. Any fee that an accredited representative, a law student, or a law school graduate receives either directly or indirectly from a client is an improper fee and the practitioner can be subject to disciplinary proceedings. 8 CFR § 1003.102(a)(2) & (3). 

Bribery or Coercion of DHS or EOIR Officers. Any attempt to bribe or coerce any official in relation to a proceeding is grounds for discipline. 8 CFR § 1003.102(b).



Lying. Prohibits knowingly or with reckless disregard, making a false statement of material fact or law, or willfully misleading, misinforming, threatening or deceiving any person concerning “any material and relevant matter in a case.” This ground includes offering false evidence either knowingly or with reckless disregard of the truth. If a practitioner has offered material evidence and has come to know that it is false, “the

13-17

Unit 13

o o o o

practitioner shall take appropriate remedial measures.” 8 CFR § 1003.102(c). If you find yourself in such a situation, it is vital that you talk to an expert attorney in legal ethics or an expert immigration law attorney to help you straighten out the situation before acting upon anything else in trying to remedy the situation. Finding New Clients in an Unethical Manner. This practice, known as “soliciting,” basically applies mostly to those with paying clients. Attorneys in private practice are not allowed to use non-attorney “runners” to solicit business for them. It applies both to doing it oneself and being associated with an office engaged in this practice. Additionally, if a practitioner advertises his or her services, he or she must include the words “Advertising Material” on the outside of the envelope and at the beginning and end of any recorded conversation. No one may distribute advertising material in or around the premises where an immigration court is located. 8 CFR § 1003.102(d).



Is Suspended or Disbarred or Has Resigned from a Bar with an Admission of Misconduct. This includes being disbarred or suspended to practice before any state or federal court or by the State Bar or being suspended or disbarred by executive agencies or governmental unit. 8 CFR § 1003.102(e).



Makes False or Misleading Statements on Qualifications or Services. You may not make a false statement about your qualifications to represent a client. This regulation would presumably cover someone who is not an accredited representative claiming to be one or an accredited representative saying falsely that he was an attorney. 8 CFR § 1003.102(f).



Engages in “Contumelious or Otherwise Obnoxious Conduct” in a Case. The regulation bars “contumelious or otherwise obnoxious conduct with regard to a case in which he or she acts in a representative capacity, which would constitute contempt of court in a judicial proceeding.” 8 CFR § 1003.102(g). The term “contumelious or otherwise obnoxious conduct” is an extremely general and vague term but it could include many types of conduct. However, the Department of Justice has stated that this provision is to address the type of conduct that would rise to the level of contempt. The comments to the regulations, further state that since Immigration Judges have been given contempt authority under § 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a finding of contempt will be a prerequisite to imposing disciplinary action pursuant to this section. 8 CFR § 1003.102(g).



Is Convicted of, or Has Pleaded Guilty or Nolo Contendere to a Serious Crime. The practitioner must have been found guilty or pleaded guilty or nolo contendere to a serious crime. The regulation defines a serious crime as any felony and any lesser crime which involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, dishonesty, bribery, extortion, misappropriation, theft, or an attempt or conspiracy or solicitation of another to commit a serious crime. A practitioner may not be suspended until the conviction is final, meaning that all appeals have been exhausted. Nonetheless, the government may subject the

Unit 13



13-18

Tab Position 1

Immigrant Legal Resource Center April 2014

practitioner to an interim order of suspension pending the outcome of the appeals. 8 CFR § 1003.102(h). 

Knowingly or with Reckless Disregard Falsely Certifies Copies. This regulation provides that anyone who “falsely certifies a copy of a document as being a true and complete copy of the original” is guilty of misconduct and is subject to discipline. 8 CFR § 1003.102(i).



Engages in Frivolous Behavior. This regulation provides that anyone who “engages in frivolous behavior in a proceeding before an Immigration Court, the Board, or any other administrative appellate body” may be disciplined. 8 CFR § 1003.102(j). The regulation defines frivolous behavior as “when [the practitioner] knows or reasonably should have known that his or her actions lack an arguable basis in law or in fact, or are taken for an improper purpose, such as to harass or to cause unnecessary delay.” The improper action could include “the making of an argument on any factual or legal question,” the submission of an application, the filing of a motion, or the filing of an appeal. When a practitioner signs a document, that act certifies that the document is well-grounded in fact and is warranted by existing law or by a good faith argument for the extension, modification, or reversal of existing law, or for the establishment of new law. It is not being filed for any improper purpose. 8 CFR § 1003.102(j).



Provides Ineffective Assistance of Counsel. A practitioner who engages in ineffective assistance of counsel as determined by a finding by the BIA or an Immigration Judge may be subject to discipline if the government files a disciplinary complaint within one year of the finding. 8 CFR § 1003.102(k). The BIA and the courts have defined ineffective assistance of counsel in the immigration context as being where “due process had been denied as a result of the practitioner’s conduct, i.e., where the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.… Also, one must show that he was prejudiced by his representative’s performance.” See, Comments to 8 CFR § 1003.102(k).



Fails to Appear for Scheduled Hearings. Anyone who repeatedly fails to appear for scheduled hearings in a timely manner without good cause may be subject to discipline. 8 CFR § 1003.102(l).

13-19

Unit 13

Representatives should keep in mind that the courts have usually interpreted frivolous behavior as barring only arguments or petitions that have no basis in law and fact and are solely filed for improper purposes, like gaining more time for a client. However, representatives also owe their clients a duty to represent them zealously. This means that representatives should not be afraid of being disciplined for filing immigration applications or appeals that have a basis in fact and law, even if they are not necessarily strong cases, as long as the client is informed of the likelihood of success and still wishes to have his or her case go forward.

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13



Assists Any Person in the Unauthorized Practice of Law. Any practitioner who assists a non-attorney in the unauthorized practice of law is subject to discipline. 8 CFR § 1003.102 (m). The Department of Justice believes that this ground is necessary “in order to protect the public from the mistakes of untrained and unqualified individuals, as well as the schemes of unscrupulous immigration practitioners.” See, Comments to 8 CFR § 1003.102(m).



Engages in Prejudicial Conduct That Undermines the Integrity of the Adjudicative Process. This would include impairing or interfering with the adjudicative process when the practitioner should reasonably know to avoid such conduct. 8 CFR § 1003.102(n).



Fails to Have the Legal Knowledge, Skill, Thoroughness and Preparation to Reasonably and Competently Represent a Client. A practitioner should engage in the inquiry into and analysis of the factual and legal elements of the problems and use competent methods and procedure to represent clients. 8 CFR § 1003.102(o).



Fails to Abide by the Client’s Decisions and Fails to Consult with the Client as to the Course and Strategy of the Case. A practitioner must also remember that the client is the ultimate decision maker in his or her case. 8 CFR § 1003.102(p).



Fails to Act with Reasonable Diligence and Promptness in Presenting a Client. 8 CFR § 1003.102(q).



Fails to Maintain Communication with the Client throughout the Duration of the Client-Practitioner Relationship. It is the obligation of the practitioner to take reasonable steps to communicate with the client in a language that the client understands. This also requires a practitioner to ensure that he or she keeps the client reasonably informed about any decisions in the case, to meet with the client in advance of a hearing or other matter to adequately prepare, to keep the client reasonably informed about the status of the case and more. 8 CFR § 1003.102(r).



Fails to Disclose Legal Authority Known to Be Directly Adverse to the Client’s Case and Not Disclosed by Opposing Counsel. 8 CFR § 1003.102(s).



Fails to Submit a Signed and Completed Notice of Entry of Appearance as Required by the Rules and Regulations. 8 CFR § 1003.102(t).



Repeatedly Files Notices, Motions, Briefs or Claims That Reflect Little or No Attention to the Specific Factual or Legal Issues Applicable to the Client’s Case. An example of this would be relying on boilerplate language that shows a substantial failure to competently and diligently represent the client. 8 CFR § 1003.102(u).

These rules apply to both attorneys and BIA representatives. A fact sheet of the EOIR’s Disciplinary Program and Professional Conduct Rules for Immigration Attorneys and

13-20

Tab Position 1

Immigrant Legal Resource Center April 2014

Representatives can be found online at www.justice.gov/eoir/press/2013/EOIRsDisciplinaryProgr amFactSheet02272013.pdf.

Tab Position 1

A Guide for Immigration Advocates April 2014

NOTE: Duty Not to Mislead or Misinform the DHS or EOIR. It is unethical to tell your client to commit fraud, or to assist your client in committing fraud. This includes assisting in visa fraud, submitting false evidence, misrepresenting facts to the DHS, and any other fraudulent behavior. This prohibition absolutely includes clients whom you think may be trying to commit marriage fraud. Committing fraud at a DHS immigration agency will hurt the client if he or she is caught, and can subject you to legal penalties, potentially even criminal penalties.

Filomena from our example above is clearly thinking about violating this rule. If she goes through with her plan to tell Sarwan to commit marriage fraud, and then to help him obtain a visa through marriage fraud, she has violated her ethical obligation not to assist with fraud or criminal conduct. She is also breaking the law. If you know that a client intends to commit fraud, you must not represent him or her. You also may not advise a client to commit an illegal act, such as enter the U.S. without inspection.

The basic rule is: you are the client’s zealous advocate, but you must never intentionally lie to DHS, advise a client to commit an illegal act, or represent someone who is going to commit fraud or another crime.

§ 13.14 Disciplinary System of the DHS and EOIR When a practitioner is accused of misconduct, either the DHS or the EOIR Office of General Counsel may investigate the allegations. The DHS may investigate and prosecute those cases in which the practitioner appeared before a DHS immigration agency as an adjudicative body, for example, in affirmative asylum applications, adjustment of status interviews, and visa petition cases. The EOIR will investigate and prosecute those cases where the practitioners appear before the BIA and the Immigration Courts. However, both DHS and EOIR use the same hearing and appeal process. In a proceeding conducted by the EOIR, anyone can file a disciplinary complaint with the Office of General Counsel of the EOIR by filing a form EOIR-44. The complaint must be in writing and must state in detail the information that supports the basis for the complaint. It must include the names and addresses of the person complaining, the practitioner, the dates of the conduct or behavior, the nature of the conduct or behavior, the individuals involved, and the harm or damages the person making the complaint sustained. 8 CFR § 1003.104(a). 13-21

Unit 13

On the other hand, this does not mean that you must be the judge or prosecutor; you are the person’s advocate. You are not obliged to volunteer bad information if DHS does not ask a question about it and it is not a requirement for an application. You are permitted to explain the legal requirements first to a client and then ask for the facts about the person’s story.

Once the EOIR receives a complaint, the Office of General Counsel will do a preliminary investigation. If the office determines that a complaint is without merit, it may close the investigation. The Office of General Counsel may also issue warning letters, and admonitions, and may enter into agreements with practitioners in lieu of discipline. 8 CFR § 1003.104(b) & (c). If the preliminary investigation turns up some evidence of misconduct the Office of General Counsel will issue a Notice of Intent to Discipline. This notice will contain a statement of the charges, a copy of the preliminary inquiry support, the proposed disciplinary sanctions, and the procedure for filing an answer or requesting a hearing. The EOIR will serve a copy of this notice on the practitioner either by certified mail to his or her last known address, or by personal service. 8 CFR § 1003.105(a).

Unit 13

The practitioner has thirty days in which to file an answer to the Notice of Intent to Discipline. 8 CFR § 1003.105(c). If the practitioner files an answer, the Chief Immigration Judge will appoint either an Immigration Judge or an Administrative Law Judge to hear the case. The judge may not hear the case if he or she is also the complainant. Similarly, an Immigration Judge may not hear the case of a practitioner who regularly appears before her. 8 CFR § 1003.106. At the hearing, the government must prove the allegations in the Notice of Intent to Discipline by clear, convincing and unequivocal evidence. 8 CFR § 1003.106(b). These proceedings are open to the public. Assuming that the practitioner does appear at the hearing, the judge will make a decision on the case. Either side can then appeal the decision to the BIA. To file an appeal, the practitioner must file a form EOIR-45. 8 CFR § 1003.106(c). The BIA will then follow all of the established appeal procedures in immigration cases. The BIA’s decision becomes final fifteen days after it is issued to allow the practitioner time to comply with the order, which may include withdrawing from all cases. 8 CFR § 1003.106(c). If the practitioner is displeased with the BIA’s decision, he or she can get judicial review in federal district court under 28 USC § 1331. If the practitioner does not appear at the hearing, the judge can decide the case based on the evidence presented. Once the judge issues an order in the case, the order will go into effect fifteen days later. And the practitioner loses the right to further appeal. The practitioner can use that fifteen-day window to file a motion to reopen the case showing that his or her failure to appear at the hearing was due to exceptional circumstances including the serious illness of the practitioner, or the death of an immediate family member. 8 CFR § 1003.106(a)(3).

§ 13.15 Summary Disciplinary Proceedings and Immediate Suspension Both the EOIR and DHS may institute summary disciplinary proceedings. When a practitioner has been convicted of or pleaded guilty to a serious crime, or has been subject to discipline either by a state or by a federal agency, the BIA can issue an order immediately suspending the practitioner from practicing before the EOIR and the DHS. 8 CFR § 1003.103. Once the conviction is final, the BIA may then issue a final order of discipline. A final conviction is conclusive proof of misconduct, which means that the practitioner cannot challenge it in disciplinary proceedings, unless there are extraordinary circumstances. However, a

13-22

Tab Position 1

Immigrant Legal Resource Center April 2014

practitioner can always challenge a finding that he or she engaged in professional misconduct. In order to challenge the finding, the practitioner must show by clear, convincing, and unequivocal evidence one of the following:   

Tab Position 1

A Guide for Immigration Advocates April 2014

The practitioner did not have an opportunity to present his or her case, because he or she did not receive proper notice or was not given a fair chance to be heard on the case. In other words, the practitioner was denied due process; There was not enough proof to establish the attorney’s misconduct; or, Imposing discipline would result in a grave injustice.

8 CFR § 1003.103(b)(2). Once the order of discipline or the conviction is final, the BIA can then issue a final order of discipline for the practitioner. 8 CFR § 1003.103(b)

§ 13.16 Forms of Discipline

   

Disbarment: Disbarment is permanent and the practitioner may not practice before the DHS, the BIA, the Immigration Courts or before all three. However, it is important to note, that if the disbars a practitioner he or she can always apply for reinstatement; Suspension: Suspension, which includes immediate suspension, is for a set period of time, during which the practitioner may not practice either before the DHS, the BIA, the Immigration Courts or before all three; Public or Private Censure; or Other Disciplinary Sanctions as the Judge or BIA Deem Appropriate: The regulations do not state what other sanctions may be imposed. But, under 8 CFR § 1003.104(c), the EOIR Disciplinary Counsel may issue warning letters, and admonitions, and may enter into agreements in lieu of discipline. Presumably, the BIA or the Judge has the same powers.

§ 13.17 Reinstatement Once a practitioner has been disciplined, his or her legal career is not over. Not even if he or she has received the ultimate discipline of disbarment or expulsion. Once the period of suspension is over, the practitioner will be allowed to practice again, as long as he or she meets the definition of a practitioner. In other words, he or she must either be an attorney, an accredited representative, a law student, a law school graduate or a reputable individual. The practitioner simply has to file a notice before the BIA that he or she still meets the definition of a practitioner

13-23

Unit 13

What kind of discipline can the BIA order? If Filomena were disciplined for her unprofessional behavior, what sanctions would she face? Would these sanctions sufficiently protect the public? Are these sanctions fair to the practitioner? The regulations provide for four categories of sanctions, 8 CFR § 1003.101:

under 8 CFR §§ 292.1 1001(f) & (j), & 1292.1. The BIA will then reinstate the practitioner. 8 CFR § 1003.107(a). If the BIA has disbarred or expelled a practitioner, or has suspended the practitioner for more than one year, then he or she can file a petition for reinstatement directly with the BIA before the specified period is over. The practitioner may file the petition either after one-half of the suspension period has passed or after one year, whichever is greater. 8 CFR § 1003.107(b). The practitioner must meet the definition of an attorney, or a representative and he or she will have to show by clear and convincing evidence that he or she possesses the moral and professional qualifications to represent clients and that his or her reinstatement will not harm the administration of justice. 8 CFR § 1003.107(b)(1). The EOIR Disciplinary Counsel or DHS may oppose the petition by including evidence of complaints filed against the practitioner after he or she was disbarred, expelled or suspended by the BIA. The BIA will then consider the petition and if the BIA denies the petition, the practitioner will not be able to file another petition for reinstatement until the end of one year from the date of the BIA’s previous denial. 8 CFR § 1003.107(b)(2).

Unit 13

§ 13.18 Confidentiality in Disciplinary Proceedings All practitioners have met with clients who have unreasonable expectations and anger that is unreasonably focused on the practitioner; for example, the client who is furious at you because he cannot file a visa petition for his grandparent who raised him. Fortunately, the preliminary inquiry phase of a disciplinary proceeding is confidential. However, the EOIR Office of General Counsel may disclose information concerning a complaint or an inquiry where the need to disclose the information to protect the public outweighs the need for confidentiality. The regulations list the following examples:    

The practitioner has caused, or is likely to cause, harm to clients or the public, or has interfered with the administration of justice, such that the public or specific individuals should know about the allegations of other misconduct. The practitioner has committed criminal acts or is under investigation by law enforcement authorities. A disciplinary or regulatory body is investigating the practitioner, or has committed acts or made omissions that may reasonably result in such investigation. Many people have filed complaints against the practitioner, and the Office of General Counsel has decided not to pursue all of the complaints. The government may tell the complainants of the status of the other complaints against the practitioner and the type of discipline the government imposed on the practitioner.

8 CFR § 1003.108(a)(1). The government may also disclose information to the following individuals in order to conduct a preliminary investigation [see 8 CFR § 1003.108(a)(2)]:

13-24

Tab Position 1

Immigrant Legal Resource Center April 2014

   

To witnesses or potential witnesses; To other governmental agencies responsible either for law enforcement or disciplinary and regulatory investigations; To the complainants; and To the practitioner or the practitioner’s attorney.

Tab Position 1

A Guide for Immigration Advocates April 2014

While it appears that the government can easily override the confidentiality provisions in the statute, they do provide the practitioner with some protection.

§ 13.19 Malpractice Everybody makes mistakes. However, when you provide legal services for people mistakes can be costly. If you make a serious mistake, even if it is careless, you may be guilty of malpractice.

When someone sues a professional for malpractice, they are saying that the person was unreasonably careless in handling their case. The legal term for this unreasonable carelessness is negligence. Whether or not the carelessness actually amounts to malpractice depends on whether the person’s actions measure up to a generally accepted level of competence. This generally accepted level of competence is called the standard of care. In general, the standard of care imposed on legal workers is that they must have the same knowledge and skill as is normally possessed by other legal workers doing the same kind of work in a similar community. See Restatement of Torts 2nd § 229A. This standard may be higher or lower if the legal worker tells the client that he has more or less expertise than the average legal worker. If a legal worker fails to tell the client that she is not a lawyer, and is doing the work of an attorney, she will be held to the same standard as an attorney. See T.E. Eimermann, Fundamentals of Paralegalism, at 475 (1987). State law sets the standard of care required by legal workers. The standard expressed above will change somewhat from state to state. Check with your local law library or an attorney in the community who is an expert in malpractice issues if you need to research malpractice law in more detail.

13-25

Unit 13

As the old saying goes, an ounce of prevention is worth a pound of cure. This is particularly true as regards malpractice. This section will describe legal liability for errors you might make in providing professional services. This discussion is intended mainly to help you avoid making such mistakes. It is not a substitute for supervision of your work and training. Of course, if you think (or know) you have made a serious mistake in handling a case, you must talk to your supervisor or someone with more experience right away.

§ 13.20 Tips for Giving Professional Service and Avoiding Professional Discipline The most common ways that legal workers violate professional standards for representation include: mishandling clients’ money or property; missing deadlines; not communicating with clients; and giving incorrect legal advice. You can avoid all of these mistakes. If you take money from clients to pay filing or other fees, make sure you keep that money separate from your own office accounts. Establish a client trust account and keep close track of the client’s money and when it is paid out. Alternatively, you can have the client give you a money order or certified check made out to DHS or CIS. Always give the client a receipt for money he or she gives to you. Putting the client’s money for fees into your own account is called commingling and is a serious disciplinary violation in several states. More importantly, if you put the money into your office account and your account balance dips below the amount that your clients have given you to pay for fees, you may be guilty of misappropriating, or stealing client funds, even if you intend to repay the money the next day.



Return client telephone calls. One of the most common disciplinary complaints is that a practitioner has not returned a client’s telephone calls and the client does not know what is happening with their case. It is important to return your clients’ calls within a reasonable time period. Try to return all telephone calls within twenty-four hours. Doing so may help you avoid the disciplinary system entirely.



Maintain good files, and an adequate calendaring and call-up system. If you miss a filing deadline you can destroy your client’s chances of remaining in the United States. See Unit 18 of this manual. Missing deadlines is perhaps the most common basis for a malpractice claim against legal representatives.



Make sure you have adequate training and supervision. Immigration law is complicated. If you don’t know the answer to a question, look it up or ask someone with more experience. In addition, the law changes frequently and legal workers need to keep up on those changes. Make sure that whatever legal resources you use are up to date. It is dangerous to rely on immigration law manuals that are old, as you may be missing something important.



Be honest and know your limits. At times it is hard to admit to a person who is prepared to trust you that there is nothing you can do for her, or that you simply don’t know enough to help with her case. But legal workers must be honest with themselves and their clients about their own limitations.



If you have made a mistake, do not hide it. If you do make a mistake like missing a filing deadline, tell the client. Lying to the client in the hopes that you can “fix things” without the client knowing is the worst thing you can do. In some situations you can try to fix the

Unit 13



13-26

Tab Position 1

Immigrant Legal Resource Center April 2014

mistake yourself. In others, you should refer the client to another legal worker. The client must have the choice of going to another legal worker if he or she wants to.

Tab Position 1

A Guide for Immigration Advocates April 2014

We noted above the importance of good management of money given to you by your client to pay filing fees, etc. Poor financial management was one of the reasons cited by the BIA in a decision to withdraw an agency’s BIA recognition. Matter of Baptist Educational Center, 20 I&N Dec. 723 (BIA1993). Among other serious problems, the BIA in that case criticized the agency for never having established a bank account of its own and for not having any system for accounting for its expenses. Make sure that your office has its own account. In a nonprofit organization, clients’ fees should never be deposited directly to any employee’s personal bank account! Be sure that you have a good accounting system for all money taken in and expended.

§ 13.21 Other Legal Actions by Disgruntled Clients

PART THREE: BIA ACCREDITATION § 13.22 Introduction to BIA Accreditation As discussed above, federal agencies can specifically authorize nonlawyers to practice before them. Federal regulations allow some staff members of recognized nonprofit agencies to represent clients before the DHS, the Immigration Court, and the BIA. These staff members are known as BIA accredited representatives. The requirements for recognition of agencies and accreditation of the employees seeking to be accredited representatives are set forth in 8 CFR §§ 292.2 & 1292.2. For individual staff members to be able to apply for accreditation, the BIA must “recognize” the nonprofit organization where the staff member works. The applications for recognition of the organization and accreditation of staff can be filed simultaneously. To be recognized, the agency must:  

Be a non-profit social service, charitable, religious, or similar organization; Show that it has experience, information, and knowledge in immigration law and procedure; and

13-27

Unit 13

Up to this point, we have been speaking mostly about negligence or careless work. But a client may sue a legal worker on other grounds as well. The client may claim that the legal worker went beyond carelessness and actually meant to harm the client. For example, the client may claim that the legal worker stole money from him, or committed fraud. These kinds of misconduct by legal workers are called intentional torts. Most intentional torts are also basis for criminal charges. Legal workers can avoid liability for these serious offenses by following the advice given above. It is particularly important to recognize your own limits, and to treat your clients and their property with honesty and respect.



Demonstrate that it charges only “nominal fees” for its services and does not impose excessive membership fees.

8 CFR §§ 292.2(a) & 1292.2(a). After the agency has been recognized, it may apply to have individual staff members be its accredited representatives. (The agency may simultaneously submit its application for recognition and the application to have a staff member become an accredited representative.) Once a staff person is accredited, he or she has the same privileges and responsibilities as attorneys when representing clients in administrative immigration matters. If fully accredited, (see § 13.24) accredited representatives may file briefs and other documents and appear in immigration court and before the BIA (this is also known as “level two” BIA accreditation). Even those partially accredited may appear at DHS interviews with their clients (this is also known as “level one” BIA accreditation). Accredited representatives may not appear in federal or state court, however. Only attorneys can appear in those courts.

§ 13.23 How to Apply for Recognition of Your Agency

Unit 13

As of the date this manual was being written (April 2014), the BIA and DHS were considering making substantial changes to the accreditation process. Therefore, it is critical that you consult the BIA website and learn of any changes in the accreditation process that may have taken place since this manual was published. Go to: www.justice. gov/eoir/ra.htm.

Useful Information on How to Become BIA Accredited: As mentioned above, the BIA has a number of materials on accreditation on its website,8 including an overview of the process, which is a good place to start. The BIA also has a very helpful “Frequently Asked Questions” document which may be found on the EOIR website and is included in this manual as Appendix 13-G. In addition, the Catholic Legal Immigration Network (CLINIC) has a Toolkit for BIA Recognition & Accreditation that includes many useful materials, including a Step by Step Guide for BIA Accreditation and Recognition.9

To obtain recognition, the agency must submit a form EOIR-31 (formerly called form G27)10 to the BIA. The agency should also attach documentation that shows that it meets the requirements of 8 CFR §§ 292.2 & 1292.2. These documents should include: proof of taxexempt status, if available; a copy of the organization’s Charter, Constitution, Articles of Incorporation and/or Bylaws; letters of support; a list of the organization’s staff or a diagram of 8

See www.justice.gov/eoir/ra.htm. Go to: www.cliniclegal.org/resources/toolkit-bia-recogition-accreditation to access this toolkit. 10 The application is still referred to as a G-27 in the regulations, even though the G-27 is no longer in existence and the EOIR-31 is the proper form to use. 9

13-28

Tab Position 1

Immigrant Legal Resource Center April 2014

the organization’s structure, showing how staff members are supervised, a list of reference materials available to the agency; and a list of membership dues or fees charged, if any, or if no fees are charged, a statement to that effect.

Tab Position 1

A Guide for Immigration Advocates April 2014

The agency must serve a copy of the entire application packet on both the local CIS District Director and the Chief Counsel for ICE who have jurisdiction over the area in which the organization is located.11 An authorized representative of the agency seeking accreditation must sign the proof of service on the back of the application form before submitting the original package to the BIA. Within thirty days of receiving your agency’s application, the CIS District Director or ICE Chief Counsel must either recommend that the BIA approve or deny the application, or request more time to investigate. After the CIS District Director or ICE Chief Counsel makes his or her recommendation, the agency has 30 days to file a response to the BIA. The BIA can hear oral argument on an application, if it chooses. The BIA will then make its decision. 8 CFR § 292.2(b) & 1292.2(b). Although processing times for BIA recognition applications vary, the standard processing time for the BIA to make a decision on an application is within three months of all of the documents being submitted by both the applicant organization and DHS.

Although the form is very easy to fill out, you should be aware of several key issues: Knowledge and Experience Requirement: You have to show that your agency has experience with immigration cases of a variety of types. You need to convince the BIA that your agency can handle a broad range of immigration matters, such as adjustment, visa processing and naturalization. See Matter of Lutheran Ministries of Florida, 20 I&N Dec. 185 (BIA 1990); see also Matter of EAC, Inc., Applicant, 24 I&N Dec. 556 (BIA 2008), either by showing that it has a local attorney on staff or under contractual agreement, or a fully accredited representative; or a partially accredited representative with access to additional expertise. Immigration Law Resources: You need to show that agency staff has access to basic immigration law resources. The very basics are: the Immigration and Nationality Act (INA), found at 8 United States Code; volume 8 of the Code of Federal Regulations (CFR); and the Administrative Decisions Under the Immigration and Nationality Laws of the United States (BIA 11

To find out the address of your local CIS District Office, go to www.uscis.gov. To find out the name of the Chief Counsel and the correct address to serve ICE, go to: www.ice.gov/about/district_offices.htm.

13-29

Unit 13

The application for recognition form EOIR-31 is itself straightforward and there is no application fee. A blank current form EOIR-31 is included in this unit as Appendix 13-F. We have included the letters of reference or other supporting documentation that were a part of this application, to best illustrate the application process. You can see what was submitted to the BIA by looking at the cover letter in support of the application, which lists the exhibits submitted (see Appendices 13-J and K).

Unit 13

decisions), otherwise known as the I&N Dec. The BIA denied accreditation to one applicant because they did not demonstrate that their staff had ready access to the Immigration and Nationality Act and to the Code of Federal Regulations. See, Lutheran Ministries at 186. All these resources (that is, the INA, CFR, and BIA decisions) are available online.12 The BIA has acknowledged that access to legal resources may include electronic or internet access. Matter of EAC, Inc., Applicant, 24 I&N Dec. 556 (BIA 2008). Your agency should also have other materials such as Interpreter Releases and at least a few basic updated resource books about immigration law. See Units 8 and 9 of this manual for information on how to locate these materials. You will also need to show what resources your organization has for getting advice on complex cases. You may either have a staff attorney who specializes in immigration law, or you may have a formal consulting relationship with an immigration attorney or organization. Nominal Fees: To gain recognition, your agency must prove that it charges only “nominal” fees and that it does not impose any excessive membership dues on people seeking assistance. Matter of EAC, Inc., Applicant, 24 I&N Dec. 556 (BIA 2008). It is easier to figure out what fees are not “nominal” compared to what fees are. See Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA, 1986). Nominal fees are not intended as a means for the agency to totally fund itself. Also, nominal fees are not meant to be a method of charging some clients who can afford the fees help pay the costs of providing services for other clients who cannot afford the fees. The BIA has never expressly stated what nominal fees are. However, the BIA has stated that nominal fees are “a very small quantity or something existing in name only as distinguished from something real or actual.” See, American Paralegal Academy at 387. Furthermore, in the FAQs (see Appendix 13-G), the BIA states that while “nominal” is not defined as a specific dollar amount, it “refers to a small quantity. As a rule of thumb, fees should be consistent with what low income immigrant served by the organization can afford to pay.” Non-profit programs that ask clients to pay small fees to help cover some overhead expenses, or that use a sliding scale fee schedule based on client income should be all right. Informing the BIA that you waive fees entirely for the indigent may help. A case that may provide some guidance on the issue of what the BIA might consider “nominal fees” is In re Chaplain Services, Inc., 21 I&N Dec. 578 (BIA 1996). In its decision, the BIA listed the fee schedule submitted by the applicant agency for recognition. Chaplain at 580. The BIA stated that “[t]he list of the applicant’s fees submitted in support of its request reflects charges that appear to be nominal in amount.” Chaplain at 581-582. It is important to note, however, that the BIA still denied recognition to the agency in this case in part because there had been allegations by ex-clients that the agency had charged excessive and not voluntary fees in the past. This case underlines the importance of establishing that the fees you charge from clients are voluntary and are waived for persons without income. The Chaplain Services case also provides important guidance for agencies on the issue of the line between “nominal” fees and fees that are supporting the program. In denying the agency 12

You can access these resources through the following websites: www.uscis.gov, www.justice.gov/eoir, or simply do an internet search for “Code of Federal Regulations” or “Executive Office for Immigration Review.”

13-30

Tab Position 1

Immigrant Legal Resource Center April 2014

recognition, the BIA noted that it was concerned about the applicant agency’s “true purpose” because, although the applicant agency submitted its nonprofit status papers, it had submitted “no documentation concerning its sources of funding to reflect how such extensive operations are financially supported.” (Chaplain at 582).

Tab Position 1

A Guide for Immigration Advocates April 2014

The BIA had never required proof of income to support programs from non-profit agencies before, and it may not be making that a requirement for all agencies, since it notes that the allegations of excessive fees, unauthorized practice of law, among other reasons in this case, made it unusual. It might be wise, nonetheless, for applicants to submit some small statement of the sources of their other income. In doing such a statement of non-fees based income, include grants from foundations, donations from individuals or any public money that the organization receives. But also be sure to include all “in kind” donations to the program, like the value of free rent, and the value of volunteer time donated. The nominal fee limitation has in the past ten years become such a barrier that it actually has caused many nonprofit organizations to stop providing immigration services at a time when the demand for their services has increased dramatically. Nonprofits were able to operate within the confines of the nominal fee requirement in past decades when private foundations, individuals, religious institutions, and local government were able and willing to make significant contributions to subsidize these agencies. However, all of the above sources have dried up to a considerable extent in recent years.

In January 2008 CIS held a “stakeholders” meeting on the unauthorized practice of law that included immigration attorneys, government personnel, and nonprofit personnel concerned about the prevalence of immigration consultants who defraud their clients. One of the conclusions that came out of that meeting was that there is a desperate need for more accredited agencies, especially in rural areas, and that perhaps the BIA and DHS need to revisit the requirement that accredited agencies only charge nominal fees. In March of 2012 EOIR held two other stakeholders meetings specifically on the accreditation process, and one of the issues discussed was whether accredited agencies should be required to charge only nominal fees. It remains to be seen what, if any, changes in the accreditation process and its requirements may be forthcoming, but it is encouraging that both CIS and EOIR recognize that the shortage of accredited agencies is a problem that they should address, and that they are attempting to address it. If your organization has separate satellite offices, it must file a separate application for recognition of each office. The organization must show that each office has at its disposal adequate knowledge, information, and experience in immigration law and that it charges only nominal fees. Matter of Florida Rural Legal Services, 20 I&N Dec. 639, 640 (BIA 1993) and Matter of EAC, Inc., Applicant, 24 I&N Dec. 556 (BIA 2008).

13-31

Unit 13

Since nonprofits are unable under the “nominal fee” structure to charge moderate fees that might enable them to survive, many agencies across the country are instead ending their immigration services. This situation seems ripe for reform and in fact efforts to reform the accreditation process may be made in the not too distant future.

§ 13.24 How to Apply to Become an Accredited Representative After the agency has been recognized it may apply for accreditation of individual representatives. This request may also be made along with the agency’s request, as shown in our sample in Appendix 13-K.

Unit 13

The individual applicant may apply for partial accreditation just to appear before the DHS, known as “level one” or “partial accreditation,” or for “level two” or “full accreditation” to appear at immigration court as well. The applicant should include a summary of her experience and training. 8 CFR §§ 292.2(d) & 1292.2(d). The individual should make clear whether she wants to be accredited to represent clients before the DHS only or the DHS, the immigration court, and the BIA. All accredited representatives on the staff of a recognized organization must have a broad knowledge of immigration law and procedure, even if the organization only intends to provide limited services through one or more partially accredited representatives. Matter of EAC, Inc., Applicant, 24 I&N Dec. 563 (BIA 2008); Matter of Central California Legal Services, Inc., 26 I&N Dec. 105 (BIA 2013). However, this does not mean that an accredited representative must have experience with every area of immigration law. Rather, it means that “an accredited representative must be able to readily identify immigration issues of all types, even in areas where no services are provided, and [must have] the ability to discern when it is in the best interests of the aliens served to refer those with more complex immigration issues elsewhere.” Matter of EAC, Inc., Applicant, 24 I&N Dec. 563, at 563-564 (BIA 2008); Matter of Central California Legal Services, Inc., 26 I&N Dec. 105 (BIA 2013). Therefore, “an application for accreditation must fully set forth the nature and extent of the proposed representative’s experience and knowledge of immigration and nationality law and procedure and the category of accreditation sought, either full or partial. The request for accreditation should include the proposed representative’s resume, letters of recommendation, and evidence of all immigration training that he or she has completed. Detailed descriptions of the topics addressed in recent immigration trainings should also be provided to show that the individual has the knowledge and experience in immigration law and procedure required for the services that he or she will provide through the organization.” Matter of EAC, Inc., Applicant, 24 I&N Dec. 563, at 564 (BIA 2008). An accredited representative must reapply for accreditation every three years. 8 CFR §§ 292.2(d) 1292.2(d). In order to have continuing accreditation while one’s application for reaccreditation is pending, the application must be submitted at least 60 days before the expiration of accreditation. The process of review and approval is the same as for agency recognition. First the ICE Chief Counsel’s Office and CIS District Director review the application and recommend denial, approval, or more time to investigate within thirty days. Then the agency has thirty days to respond to the Chief Counsel and District Director’s suggestion. The BIA may request oral argument, and then make a decision.

13-32

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 13.25 Limits of Recognition An organization that the BIA has recognized must meet the requirements on a continuing basis. That is, the agency must be a non-profit religious, charitable, social service or similar organization that makes only nominal charges and has at its disposal adequate knowledge, information, and experience. The BIA may withdraw recognition of an agency if it fails to maintain these qualifications. 8 CFR §§ 292.2(c) & 1292.2(c).

Tab Position 1

A Guide for Immigration Advocates April 2014

FOR MORE INFORMATION ON THIS SUBJECT, see: American Bar Association, Code of Professional Responsibility (1969), and Model Rules of Professional Conduct (1983), both available at: www.americanbar.org/groups/professional_respo nsibility/publications/model_rules_of_professional_conduct.html Catholic Legal Immigration Network (CLINIC), Toolkit for BIA Recognition & Accreditation, available at: www.cliniclegal.org/resources/toolkit-bia-recogition-accreditation

Unit 13

13-33

Unit 13

Tab Position 1

=

APPENDIX 13-A ANSWERS TO EXERCISES

Tab Position 1

A Guide for Immigration Advocates April 2014

Below are the answers to exercise 13.4. If you do not understand any answer, ask the trainer at your next session. A. Eileen will check the box that says: “I am an accredited representative as defined in 8 CFR § 1292.1(a)(4) with the following recognized organization:” According to 8 CFR §§ 292.1(a)(4) & 1292.1(a)(4) a BIA accredited representative may represent others before the agency. B. Marta will check the box that says: “I am a reputable individual as defined in 8 CFR § 1292.1(a)(3).” 8 CFR §§ 292.1(a)(3) & 1292.1(a)(3) provide that reputable individuals of good moral character who appear without payment, who have a pre-existing relationship with the client, and whose appearance is approved by the judge may represent people. Marta will write either on the back of the EOIR-28 or on a separate piece of paper: "I am a reputable individual of good moral character appearing on an individual cases basis at the request of Juan, the respondent in this case. I am appearing without payment of any kind. Respondent is my brother, I therefore have a pre-existing relationship with him."

C. Leon cannot fill out the EOIR-28. He does not meet any of the requirements of 8 CFR § 292.1 and therefore cannot enter a formal appearance. Leon's boss should not have asked Leon to go to court for him.

Appendix 13-A-1

Unit 13

Note, however that while it would be legally fine to represent this person under the representation rules, it would be quite foolish to do so. The law for asylum cases is extremely challenging for people who are not specialists (see warnings in Unit 14 and 15.) Any person who is not skilled in the law should not be undertaking representation in an asylum case.

Electronic Code of Federal Regulations (e-CFR) Title 8: Aliens and Nationality DHS REGULATIONS PART 292—REPRESENTATION AND APPEARANCES § 292.1 Representation of others. (a) A person entitled to representation may be represented by any of the following, subject to the limitations in 8 CFR 103.2(a)(3): (1) Attorneys in the United States. Any attorney as defined in §1.1(f) of this chapter. (2) Law students and law graduates not yet admitted to the bar . A law student who is enrolled in an accredited U.S. law school, or a graduate of an accredited U.S. law school who is not yet admitted to the bar, provided that:

Unit 13

(i) He or she is appearing at the request of the person entitled to representation; (ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; (iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; and (iv) The law student's or law graduate's appearance is permitted by the DHS official before whom he or she wishes to appear. The DHS official may require that a law student be accompanied by the supervising faculty member, attorney, or accredited representative. (3) Reputable individuals. Any reputable individual of good moral character, provided that: (i) He is appearing on an individual case basis, at the request of the person entitled to representation;

Appendix 13-B-1

Tab Position 1

Immigrant Legal Resource Center April 2014

(ii) He is appearing without direct or indirect renumeration and files a written declaration to that effect;

Tab Position 1

A Guide for Immigration Advocates April 2014

(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and (iv) His or her appearance is permitted by the DHS official before whom he or she seeks to appear, provided that such permission will not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself or herself out to the public as qualified to do so. (4) Accredited representatives. A person representing an organization described in §292.2 of this chapter who has been accredited by the Board. (5) Accredited officials. An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his official capacity and with the alien's consent.

(b) Persons formerly authorized to practice. A person, other than a representative of an organization described in §292.2 of this chapter, who on December 23, 1952, was authorized to practice before the Board and the Service may continue to act as a representative, subject to the provisions of §292.3 of this chapter. (c) Former employees. No person previously employed by the Department of Justice shall be permitted to act as a representative in any case in violation of the provisions of 28 CFR 45.735–7. (d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby. (e) Except as set forth in this section, no other person or persons shall represent others in any case.

Appendix 13-B-2

Unit 13

(6) Attorneys outside the United States. An attorney, other than one described in 8 CFR 1.1(f), who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which he or she resides and who is engaged in such practice, may represent parties in matters before DHS, provided that he or she represents persons only in matters outside the geographical confines of the United States as defined in section 101(a)(38) of the Act, and that the DHS official before whom he or she wishes to appear allows such representation as a matter of discretion.

[40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996; 62 FR 23635, May 1, 1997; 75 FR 5227, Feb. 2, 2010] § 292.2 Organizations qualified for recognition; requests for recognition; withdrawal of recognition; accreditation of representatives; roster. (a) Qualifications of organizations. A non-profit religious, charitable, social service, or similar organization established in the United States and recognized as such by the Board may designate a representative or representatives to practice before the Service alone or the Service and the Board (including practice before the Immigration Court). Such organization must establish to the satisfaction of the Board that: (1) It makes only nominal charges and assesses no excessive membership dues for persons given assistance; and

Unit 13

(2) It has at its disposal adequate knowledge, information and experience. (b) Requests for recognition. An organization having the qualifications prescribed in paragraph (a) of this section may file an application for recognition on a Form G–27 directly with the Board, along with proof of service of a copy of the application on the district director having jurisdiction over the area in which the organization is located. The district director, within 30 days from the date of service, shall forward to the Board a recommendation for approval or disapproval of the application and the reasons therefor, or request a specified period of time in which to conduct an investigation or otherwise obtain relevant information regarding the applicant. The district director shall include proof of service of a copy of such recommendation or request on the organization. The organization shall have 30 days in which to file a response with the Board to a recommendation by a district director that is other than favorable, along with proof of service of a copy of such response on the district director. If the Board approves a request for time to conduct an investigation, or in its discretion remands the application to the district director for further information, the organization shall be advised of the time granted for such purpose. The Service shall promptly forward the results of any investigation or inquiry to the Board, along with its recommendations for approval or disapproval and the reasons therefor, and proof of service of a copy of the submission on the organization. The organization shall have 30 days from the date of such service to file a response with the Board to any matters raised therein, with proof of service of a copy of the response on the district director. Requests for extensions of filing times must be submitted in writing with the reasons therefor and may be granted by the Board in its discretion. Oral argument may be heard before the Board in its discretion at such date and time as the Board may direct. The organization and Service shall be informed by the Board of the action taken regarding an application. Any recognized organization shall promptly notify the Board of any changes in its name, address, or public telephone number.

Appendix 13-B-3

Tab Position 1

Immigrant Legal Resource Center April 2014

(c) Withdrawal of recognition. The Board may withdraw the recognition of any organization which has failed to maintain the qualifications required by §292.2(a). Withdrawal of recognition may be accomplished in accordance with the following procedure:

Tab Position 1

A Guide for Immigration Advocates April 2014

(1) The Service, by the district director within whose jurisdiction the organization is located, may conduct an investigation into any organization it believes no longer meets the standards for recognition. (2) If the investigation establishes to the satisfaction of the district director that withdrawal proceedings should be instituted, he shall cause a written statement of the grounds upon which withdrawal is sought to be served upon the organization, with notice to show cause why its recognition should not be withdrawn. The notice will call upon the organization to appear before a special inquiry officer for a hearing at a time and place stated, not less than 30 days after service of the notice. (3) The special inquiry officer shall hold a hearing, receive evidence, make findings of fact, state his recommendations, and forward the complete record to the Board.

(5) The Board shall consider the entire record and render its decision. The order of the Board shall constitute the final disposition of the proceedings. (d) Accreditation of representatives. An organization recognized by the Board under paragraph (b) of this section may apply for accreditation of persons of good moral character as its representatives. An organization may apply to have a representative accredited to practice before the Service alone or the Service and the Board (including practice before immigration judges). An application for accreditation shall fully set forth the nature and extent of the proposed representative's experience and knowledge of immigration and naturalization law and procedure and the category of accreditation sought. No individual may submit an application on his or her own behalf. An application shall be filed directly with the Board, along with proof of service of a copy of the application on the district director having jurisdiction over the area in which the requesting organization is located. The district director, within 30 days from the date of service, shall forward to the Board a recommendation for approval or disapproval of the application and the reasons therefor, or request a specified period of time in which to conduct an investigation or otherwise obtain relevant information regarding the applicant. The district director shall include proof of service of a copy of such recommendation or request on the organization. The organization shall have 30 days in which to file a response with the Board to a recommendation by a distrct director that is other than favorable, with proof of service of a copy of such response on the district director. If the Board approves a request for time to conduct an investigation, or in its discretion

Appendix 13-B-4

Unit 13

(4) The organization and the Service shall have the opportunity of appearing at oral argument before the Board at a time specified by the Board.

Unit 13

remands the application to the district director for further information, the organization shall be advised of the time granted for such purpose. The district director shall promptly forward the results of any investigation or inquiry to the Board, along with a recommendation for approval or disapproval and the reasons therefor, and proof of service of a copy of the submission on the organization. The organization shall have 30 days from the date of service to file a response with the Board to any matters raised therein, with proof or service of a copy of the response on the district director. Requests for extensions of filing times must be submitted in writing with the reasons therefor and may be granted by the Board in its discretion. Oral argument may be heard before the Board in its discretion at such date and time as the Board may direct. The Board may approve or disapprove an application in whole or in part and shall inform the organization and the district director of the action taken with regard to an application. The accreditation of a representative shall be valid for a period of three years only; however, the accreditation shall remain valid pending Board consideration of an application for renewal of accreditation if the application is filed at least 60 days before the third anniversary of the date of the Board's prior accreditation of the representative. Accreditation terminates when the Board's recognition of the organization ceases for any reason or when the representative's employment or other connection with the organization ceases. The organization shall promptly notify the Board of such changes. (e) Roster. The Board shall maintain an alphabetical roster of recognized organizations and their accredited representatives. A copy of the roster shall be furnished to the Commissioner and he shall be advised from time to time of changes therein. [40 FR 23272, May 29, 1975, as amended at 49 FR 44086, Nov. 2, 1984; 62 FR 9075, Feb. 28, 1997] § 292.3 Professional conduct for practitioners—Rules and procedures. (a) General provisions. (1) Authority to sanction. An adjudicating official or the Board of Immigration Appeals (Board) may impose disciplinary sanctions against any practitioner if it finds it to be in the public interest to do so. It will be in the public interest to impose disciplinary sanctions against a practitioner who is authorized to practice before DHS when such person has engaged in criminal, unethical, or unprofessional conduct, or in frivolous behavior, as set forth in 8 CFR 1003.102. In accordance with the disciplinary proceedings set forth in 8 CFR part 1003, an adjudicating official or the Board may impose any of the following disciplinary sanctions: (i) Expulsion which is permanent, from practice before the Board and the Immigration Courts, or DHS, or before all three authorities; (ii) Suspension, including immediate suspension, from practice before the Board and the Immigration Courts, or DHS, or before all three authorities;

Appendix 13-B-5

Tab Position 1

Immigrant Legal Resource Center April 2014

(iii) Public or private censure; or (iv) Such other disciplinary sanctions as the adjudicating official or the Board deems appropriate.

Tab Position 1

A Guide for Immigration Advocates April 2014

(2) Persons subject to sanctions. Persons subject to sanctions include any practitioner. A practitioner is any attorney as defined in 8 CFR 1.1(f) who does not represent the federal government, or any representative as defined in 8 CFR 1.1(j). Attorneys employed by DHS will be subject to discipline pursuant to paragraph (i) of this section. (b) Grounds of discipline. It is deemed to be in the public interest for the adjudicating official or the Board to impose disciplinary sanctions as described in paragraph (a)(1) of this section against any practitioner who falls within one or more of the categories enumerated in 8 CFR 1003.102. These categories do not constitute the exclusive grounds for which disciplinary sanctions may be imposed in the public interest. Nothing in this regulation should be read to denigrate the practitioner's duty to represent zealously his or her client within the bounds of the law.

(2) Copies and proof of service. A copy of the petition will be forwarded to EOIR, which may submit a written request to the Board that entry of any order immediately suspending a practitioner before DHS also apply to the practitioner's authority to practice before the Board and the Immigration Courts. Proof of service on the practitioner of EOIR's request to broaden the scope of any immediate suspension must be filed with the Board. (3) Summary disciplinary proceedings. Summary disciplinary proceedings will be conducted in accordance with the provisions set forth in 8 CFR 1003.103. DHS shall promptly initiate summary disciplinary proceedings against any practitioner described in paragraph (c)(1) of this section by the issuance of a Notice of Intent to Discipline, upon receipt of a certified copy of the order, judgment, and/or record evidencing the underlying criminal conviction, discipline, or resignation, and accompanied by a certified copy of such document. Delays in initiation of summary disciplinary proceedings under

Appendix 13-B-6

Unit 13

(c) Immediate suspension and summary disciplinary proceedings; duty of practitioner to notify DHS of conviction or discipline. (1) Immediate suspension proceedings. Immediate suspension proceedings will be conducted in accordance with the provisions set forth in 8 CFR 1003.103. DHS shall file a petition with the Board to suspend immediately from practice before DHS any practitioner who has been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in 8 CFR 1003.102(h), any practitioner who has been suspended or disbarred by, or while a disciplinary investigation or proceeding is pending has resigned from, the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, or any Federal court; or who has been placed on an interim suspension pending a final resolution of the underlying disciplinary matter.

this section will not impact an immediate suspension imposed pursuant to paragraph (c)(1) of this section. Any such proceeding will not be concluded until all direct appeals from an underlying criminal conviction have been completed.

Unit 13

(4) Duty of practitioner to notify DHS of conviction or discipline. Within 30 days of the issuance of the initial order, even if an appeal of the conviction or discipline is pending, of any conviction or discipline for professional misconduct entered on or after July 27, 2000, a practitioner must notify DHS disciplinary counsel if the practitioner has been: Found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in 8 CFR 1003.102(h); suspended or disbarred by, or while a disciplinary investigation or proceeding is pending has resigned from, the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, or any Federal court; or placed on an interim suspension pending a final resolution of the underlying disciplinary matter. Failure to notify DHS disciplinary counsel as required may result in immediate suspension as set forth in paragraph (c)(1) of this section. (d) Filing of complaints of misconduct occurring before DHS; preliminary inquiry; resolutions; referral of complaints. (1) Filing of complaints of misconduct occurring before DHS. Complaints of criminal, unethical, or unprofessional conduct, or of frivolous behavior by a practitioner before DHS must be filed with the DHS disciplinary counsel. Disciplinary complaints must be submitted in writing and must state in detail the information that supports the basis for the complaint, including, but not limited to, the names and addresses of the complainant and the practitioner, the date(s) of the conduct or behavior, the nature of the conduct or behavior, the individuals involved, the harm or damages sustained by the complainant, and any other relevant information. The DHS disciplinary counsel will notify EOIR disciplinary counsel of any disciplinary complaint that pertains, in whole or in part, to a matter before the Board or the Immigration Courts. (2) Preliminary inquiry. Upon receipt of a disciplinary complaint or on its own initiative, the DHS disciplinary counsel will initiate a preliminary inquiry. If a complaint is filed by a client or former client, the complainant thereby waives the attorney-client privilege and any other applicable privilege, to the extent necessary to conduct a preliminary inquiry and any subsequent proceeding based thereon. If the DHS disciplinary counsel determines that a complaint is without merit, no further action will be taken. The DHS disciplinary counsel may, in his or her discretion, close a preliminary inquiry if the complainant fails to comply with reasonable requests for assistance, information, or documentation. The complainant and the practitioner will be notified of any such determination in writing. (3) Resolutions reached prior to the issuance of a Notice of Intent to Discipline. The DHS disciplinary counsel may, in his or her discretion, issue warning letters and admonitions, and may enter into agreements in lieu of discipline, prior to the issuance of a Notice of Intent to Discipline.

Appendix 13-B-7

Tab Position 1

Immigrant Legal Resource Center April 2014

(e) Notice of Intent to Discipline. (1) Issuance of Notice to Practitioner. If, upon completion of the preliminary inquiry, the DHS disciplinary counsel determines that sufficient prima facie evidence exists to warrant charging a practitioner with professional misconduct as set forth in 8 CFR 1003.102, it will file with the Board and issue to the practitioner who was the subject of the preliminary inquiry a Notice of Intent to Discipline. Service of this notice will be made upon the practitioner by either certified mail to his or her last known address, as defined in paragraph (e)(2) of this section, or by personal delivery. Such notice shall contain a statement of the charge(s), a copy of the preliminary inquiry report, the proposed disciplinary sanctions to be imposed, the procedure for filing an answer or requesting a hearing, and the mailing address and telephone number of the Board. In summary disciplinary proceedings brought pursuant to §292.3(c), a preliminary inquiry report is not required to be filed with the Notice of Intent to Discipline. Notice of Intent to Discipline proceedings will be conducted in accordance with the provisions set forth in 8 CFR 1003.105 and 1003.106.

Tab Position 1

A Guide for Immigration Advocates April 2014

(2) Practitioner's address. For the purposes of this section, the last known address of a practitioner is the practitioner's address as it appears in DHS records if the practitioner is actively representing an applicant or petitioner before DHS on the date the DHS disciplinary counsel issues the Notice of Intent to Discipline. If the practitioner does not have a matter pending before DHS on the date of the issuance of a Notice of Intent to Discipline, then the last known address for a practitioner will be as follows:

(ii) Accredited representatives: The address of a recognized organization with which the accredited representative is affiliated. (iii) Accredited officials: The address of the embassy of the foreign government that employs the accredited official. (iv) All other practitioners: The address for the practitioner that appears in DHS records for the application or petition proceeding in which the DHS official permitted the practitioner to appear. (3) Copy of Notice to EOIR; reciprocity of disciplinary sanctions. A copy of the Notice of Intent to Discipline shall be forwarded to the EOIR disciplinary counsel. Under Department of Justice regulations in 8 CFR chapter V, the EOIR disciplinary counsel may submit a written request to the Board or the adjudicating official requesting that any discipline imposed upon a practitioner which restricts his or her authority to practice before DHS also apply to the practitioner's authority to practice before the Board and the Immigration Courts. Proof of service on the practitioner of any request to broaden the scope of the proposed discipline must be filed with the Board or the adjudicating official.

Appendix 13-B-8

Unit 13

(i) Attorneys in the United States: The attorney's address that is on record with a state jurisdiction that licensed the attorney to practice law.

(4) Answer. The practitioner shall file a written answer or a written request for a hearing to the Notice of Intent to Discipline in accordance with 8 CFR 1003.105. If a practitioner fails to file a timely answer, proceedings will be conducted according to 8 CFR 1003.105. (f) Right to be heard and disposition; decision; appeal; and reinstatement after expulsion or suspension. Upon the filing of an answer, the matter shall be heard, decided, and appeals filed according to the procedures set forth in 8 CFR 1003.106. Reinstatement proceedings after expulsion or suspension shall be conducted according to the procedures set forth in 8 CFR 1003.107.

Unit 13

(g) Referral. In addition to, or in lieu of, initiating disciplinary proceedings against a practitioner, the DHS disciplinary counsel may notify any appropriate Federal and/or state disciplinary or regulatory authority of any complaint filed against a practitioner. Any final administrative decision imposing sanctions against a practitioner (other than a private censure) will be reported to any such disciplinary or regulatory authority in every jurisdiction where the disciplined practitioner is admitted or otherwise authorized to practice. (h) Confidentiality. (1) Complaints and preliminary inquiries. Except as otherwise provided by law or regulation or as authorized by this regulation, information concerning complaints or preliminary inquiries is confidential. A practitioner whose conduct is the subject of a complaint or preliminary inquiry, however, may waive confidentiality, except that the DHS disciplinary counsel may decline to permit a waiver of confidentiality if it is determined that an ongoing preliminary inquiry may be substantially prejudiced by a public disclosure before the filing of a Notice of Intent to Discipline. (i) Disclosure of information for the purpose of protecting the public. The DHS disciplinary counsel may disclose information concerning a complaint or preliminary inquiry for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality in circumstances including, but not limited to, the following: (A) A practitioner has caused, or is likely to cause, harm to client(s), the public, or the administration of justice, such that the public or specific individuals should be advised of the nature of the allegations. If disclosure of information is made pursuant to this paragraph, the DHS disciplinary counsel may define the scope of information disseminated and may limit the disclosure of information to specified individuals or entities; (B) A practitioner has committed criminal acts or is under investigation by law enforcement authorities;

Appendix 13-B-9

Tab Position 1

Immigrant Legal Resource Center April 2014

(C) A practitioner is under investigation by a disciplinary or regulatory authority, or has committed acts or made omissions that may reasonably result in investigation by such an authority;

Tab Position 1

A Guide for Immigration Advocates April 2014

(D) A practitioner is the subject of multiple disciplinary complaints and the DHS disciplinary counsel has determined not to pursue all of the complaints. The DHS disciplinary counsel may inform complainants whose allegations have not been pursued of the status of any other preliminary inquiries or the manner in which any other complaint(s) against the practitioner have been resolved. (ii) Disclosure of information for the purpose of conducting a preliminary inquiry. The DHS disciplinary counsel may, in his or her discretion, disclose documents and information concerning complaints and preliminary inquiries to the following individuals or entities: (A) To witnesses or potential witnesses in conjunction with a complaint or preliminary inquiry; (B) To other governmental agencies responsible for the enforcement of civil or criminal laws;

(D) To the complainant or a lawful designee; and (E) To the practitioner who is the subject of the complaint or preliminary inquiry or the practitioner's counsel of record. (2) Resolutions reached prior to the issuance of a Notice of Intent to Discipline. Resolutions, such as warning letters, admonitions, and agreements in lieu of discipline, reached prior to the issuance of a Notice of Intent to Discipline, will remain confidential. However, such resolutions may become part of the public record if the practitioner becomes subject to a subsequent Notice of Intent to Discipline. (3) Notices of Intent to Discipline and action subsequent thereto. Notices of Intent to Discipline and any action that takes place subsequent to their issuance, except for the imposition of private censures, may be disclosed to the public, except that private censures may become part of the public record if introduced as evidence of a prior record of discipline in any subsequent disciplinary proceeding. Settlement agreements reached after the issuance of a Notice of Intent to Discipline may be disclosed to the public upon final approval by the adjudicating official or the Board. Disciplinary hearings are open to the public, except as noted in 8 CFR 1003.106(a)(v).

Appendix 13-B-10

Unit 13

(C) To agencies and other jurisdictions responsible for conducting disciplinary investigations or proceedings;

(i) Discipline of government attorneys. Complaints regarding the conduct or behavior of DHS attorneys shall be directed to the Office of the Inspector General, DHS. If disciplinary action is warranted, it will be administered pursuant to the Department's attorney discipline procedures. [75 FR 5228, Feb. 2, 2010]

Unit 13

§ 292.4 Appearances. (a) Authority to appear and act. An appearance must be filed on the appropriate form as prescribed by DHS by the attorney or accredited representative appearing in each case. The form must be properly completed and signed by the petitioner, applicant, or respondent to authorize representation in order for the appearance to be recognized by DHS. The appearance will be recognized by the specific immigration component of DHS in which it was filed until the conclusion of the matter for which it was entered. This does not change the requirement that a new form must be filed with an appeal filed with the Administrative Appeals Office of USCIS. Substitution may be permitted upon the written withdrawal of the attorney or accredited representative of record or upon the filing of a new form by a new attorney or accredited representative. When an appearance is made by a person acting in a representative capacity, his or her personal appearance or signature will constitute a representation that under the provisions of this chapter he or she is authorized and qualified to appear as a representative as provided in 8 CFR 103.2(a)(3) and 292.1. Further proof of authority to act in a representative capacity may be required. (b) Availability of records. During the time a case is pending, and except as otherwise provided in §103.2(b) of this chapter, a party to a proceeding or his attorney or representative shall be permitted to examine the record of proceeding in a DHS office. He may, in conformity with §103.10 of this chapter, obtain copies of DHS records or information therefrom and copies of documents or transcripts of evidence furnished by him. Upon request, he may in addition, be loaned a copy of the testimony and exhibits contained in the record of proceeding upon giving his receipt for such copies and pledging that it will be surrendered upon final disposition of the case or upon demand. If extra copies of exhibits do not exist, they shall not be furnished free on loan; however, they shall be made available for copying or purchase of copies as provided in §103.10 of this chapter. [23 FR 2673, Apr. 23, 1958, as amended at 32 FR 9633, July 4, 1967; 52 FR 2941, Jan. 29, 1987; 59 FR 1466, Jan. 11, 1994; 75 FR 5230, Feb. 2, 2010]

Appendix 13-B-11

Tab Position 1

Immigrant Legal Resource Center April 2014

EOIR REGULATIONS

Tab Position 1

A Guide for Immigration Advocates April 2014

PART 1292—REPRESENTATION AND APPEARANCES § 1292.1 Representation of others. (a) A person entitled to representation may be represented by any of the following: (1) Attorneys in the United States. Any attorney as defined in §1001.1(f) of this chapter. (2) Disclosure of information for the purpose of conducting a preliminary inquiry. The EOIR disciplinary counsel, in the exercise of discretion, may disclose documents and information concerning complaints and preliminary inquiries to the following individuals and entities: (i) He or she is appearing at the request of the person entitled to representation;

(iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; and (iv) The law student's or law graduate's appearance is permitted by the official before whom he or she wishes to appear (namely an immigration judge, district director, officerin-charge, regional director, the Commissioner, or the Board). The official or officials may require that a law student be accompanied by the supervising faculty member, attorney, or accredited representative. (3) Reputable individuals. Any reputable individual of good moral character, provided that: (i) He is appearing on an individual case basis, at the request of the person entitled to representation; (ii) He is appearing without direct or indirect renumeration and files a written declaration to that effect;

Appendix 13-B-12

Unit 13

(ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents;

(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and (iv) His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so. (4) Accredited representatives. A person representing an organization described in §1292.2 of this chapter who has been accredited by the Board.

Unit 13

(5) Accredited officials. An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his official capacity and with the alien's consent. (b) Persons formerly authorized to practice. A person, other than a representative of an organization described in §1292.2 of this chapter, who on December 23, 1952, was authorized to practice before the Board and the Service may continue to act as a representative, subject to the provisions of §1292.3 of this chapter. (c) Former employees. No person previously employed by the Department of Justice shall be permitted to act as a representative in any case in violation of the provisions of 28 CFR 45.735–7. (d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby. (e) Except as set forth in this section, no other person or persons shall represent others in any case. [40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996; 62 FR 23635, May 1, 1997; 73 FR 76927, Dec. 18, 2008]

Appendix 13-B-13

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 1292.2 Organizations qualified for recognition; requests for recognition; withdrawal of recognition; accreditation of representatives; roster.

Tab Position 1

A Guide for Immigration Advocates April 2014

(a) Qualifications of organizations. A non-profit religious, charitable, social service, or similar organization established in the United States and recognized as such by the Board may designate a representative or representatives to practice before the Service alone or the Service and the Board (including practice before the Immigration Court). Such organization must establish to the satisfaction of the Board that: (1) It makes only nominal charges and assesses no excessive membership dues for persons given assistance; and (2) It has at its disposal adequate knowledge, information and experience.

(c) Withdrawal of recognition. The Board may withdraw the recognition of any organization which has failed to maintain the qualifications required by §1292.2(a). Withdrawal of recognition may be accomplished in accordance with the following procedure: Appendix 13-B-14

Unit 13

(b) Requests for recognition. An organization having the qualifications prescribed in paragraph (a) of this section may file an application for recognition on a Form G–27 directly with the Board, along with proof of service of a copy of the application on the district director having jurisdiction over the area in which the organization is located. The district director, within 30 days from the date of service, shall forward to the Board a recommendation for approval or disapproval of the application and the reasons therefor, or request a specified period of time in which to conduct an investigation or otherwise obtain relevant information regarding the applicant. The district director shall include proof of service of a copy of such recommendation or request on the organization. The organization shall have 30 days in which to file a response with the Board to a recommendation by a district director that is other than favorable, along with proof of service of a copy of such response on the district director. If the Board approves a request for time to conduct an investigation, or in its discretion remands the application to the district director for further information, the organization shall be advised of the time granted for such purpose. The Service shall promptly forward the results of any investigation or inquiry to the Board, along with its recommendations for approval or disapproval and the reasons therefor, and proof of service of a copy of the submission on the organization. The organization shall have 30 days from the date of such service to file a response with the Board to any matters raised therein, with proof of service of a copy of the response on the district director. Requests for extensions of filing times must be submitted in writing with the reasons therefor and may be granted by the Board in its discretion. Oral argument may be heard before the Board in its discretion at such date and time as the Board may direct. The organization and Service shall be informed by the Board of the action taken regarding an application. Any recognized organization shall promptly notify the Board of any changes in its name, address, or public telephone number.

(1) The Service, by the district director within whose jurisdiction the organization is located, may conduct an investigation into any organization it believes no longer meets the standards for recognition. (2) If the investigation establishes to the satisfaction of the district director that withdrawal proceedings should be instituted, he shall cause a written statement of the grounds upon which withdrawal is sought to be served upon the organization, with notice to show cause why its recognition should not be withdrawn. The notice will call upon the organization to appear before a special inquiry officer for a hearing at a time and place stated, not less than 30 days after service of the notice. (3) The special inquiry officer shall hold a hearing, receive evidence, make findings of fact, state his recommendations, and forward the complete record to the Board. (4) The organization and the Service shall have the opportunity of appearing at oral argument before the Board at a time specified by the Board.

Unit 13

(5) The Board shall consider the entire record and render its decision. The order of the Board shall constitute the final disposition of the proceedings. (d) Accreditation of representatives. An organization recognized by the Board under paragraph (b) of this section may apply for accreditation of persons of good moral character as its representatives. An organization may apply to have a representative accredited to practice before the Service alone or the Service and the Board (including practice before immigration judges). An application for accreditation shall fully set forth the nature and extent of the proposed representative's experience and knowledge of immigration and naturalization law and procedure and the category of accreditation sought. No individual may submit an application on his or her own behalf. An application shall be filed directly with the Board, along with proof of service of a copy of the application on the district director having jurisdiction over the area in which the requesting organization is located. The district director, within 30 days from the date of service, shall forward to the Board a recommendation for approval or disapproval of the application and the reasons therefor, or request a specified period of time in which to conduct an investigation or otherwise obtain relevant information regarding the applicant. The district director shall include proof of service of a copy of such recommendation or request on the organization. The organization shall have 30 days in which to file a response with the Board to a recommendation by a distrct director that is other than favorable, with proof of service of a copy of such response on the district director. If the Board approves a request for time to conduct an investigation, or in its discretion remands the application to the district director for further information, the organization shall be advised of the time granted for such purpose. The district director shall promptly forward the results of any investigation or inquiry to the Board, along with a recommendation for approval or disapproval and the reasons therefor, and proof of service of a copy of the submission on the organization. The organization shall have 30 days from the date of service to file a response with the Board to any matters raised Appendix 13-B-15

Tab Position 1

Immigrant Legal Resource Center April 2014

therein, with proof or service of a copy of the response on the district director. Requests for extensions of filing times must be submitted in writing with the reasons therefor and may be granted by the Board in its discretion. Oral argument may be heard before the Board in its discretion at such date and time as the Board may direct. The Board may approve or disapprove an application in whole or in part and shall inform the organization and the district director of the action taken with regard to an application. The accreditation of a representative shall be valid for a period of three years only; however, the accreditation shall remain valid pending Board consideration of an application for renewal of accreditation if the application is filed at least 60 days before the third anniversary of the date of the Board's prior accreditation of the representative. Accreditation terminates when the Board's recognition of the organization ceases for any reason or when the representative's employment or other connection with the organization ceases. The organization shall promptly notify the Board of such changes.

Tab Position 1

A Guide for Immigration Advocates April 2014

(e) Roster. The Board shall maintain an alphabetical roster of recognized organizations and their accredited representatives. A copy of the roster shall be furnished to the Commissioner and he shall be advised from time to time of changes therein. [40 FR 23272, May 29, 1975, as amended at 49 FR 44086, Nov. 2, 1984; 62 FR 9075, Feb. 28, 1997]

(a) General provisions —(1) Authority to sanction. An adjudicating official or the Board of Immigration Appeals (the Board) may impose disciplinary sanctions against any practitioner if it finds it to be in the public interest to do so. It will be in the public interest to impose disciplinary sanctions against a practitioner who is authorized to practice before the Service when such person has engaged in criminal, unethical, or unprofessional conduct, or in frivolous behavior, as set forth in §1003.102 of this chapter. In accordance with the disciplinary proceedings set forth in part 1003 of this chapter, an adjudicating official or the Board may impose any of the following disciplinary sanctions: (i) Expulsion, which is permanent, from practice before the Board and the Immigration Courts or the Service, or before all three authorities; (ii) Suspension, including immediate suspension, from practice before the Board and the Immigration Courts or the Service, or before all three authorities; (iii) Public or private censure; or (iv) Such other disciplinary sanctions as the adjudicating official or the Board deems appropriate.

Appendix 13-B-16

Unit 13

§ 1292.3 Professional conduct for practitioners—Rules and procedures.

(2) Persons subject to sanctions. Persons subject to sanctions include any practitioner. A practitioner is any attorney as defined in §1001.1(f) of this chapter who does not represent the federal government, or any representative as defined in §1001.1(j) of this chapter. Attorneys employed by the Department of Justice shall be subject to discipline pursuant to paragraph (i) of this section.

Unit 13

(b) Grounds of discipline as set forth in §1003.102 of this chapter. It is deemed to be in the public interest for the adjudicating official or the Board to impose disciplinary sanctions as described in paragraph (a)(1) of this section against any practitioner who falls within one or more of the categories enumerated in §1003.102 of this chapter, with the exception of paragraphs (k) and (l) of that section, but these categories do not constitute the exclusive grounds for which disciplinary sanctions may be imposed in the public interest. Nothing in this regulation should be read to denigrate the practitioner's duty to represent zealously his or her client within the bounds of the law. (c) Immediate suspension and summary disciplinary proceedings; duty of practitioner to notify the Service of conviction or discipline —(1) Petition. The Office of the General Counsel of the Service shall petition the Board to suspend immediately from practice before the Service any practitioner who has been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in §1003.102(h) of this chapter, or who has been disbarred or suspended on an interim or final basis by, or has resigned with an admission of misconduct from, the highest court of any state, possession, territory, commonwealth, or the District of Columbia, or any Federal court. A copy of the petition shall be forwarded to the Office of the General Counsel of EOIR, which may submit a written request to the Board that entry of any order immediately suspending a practitioner before the Service also apply to the practitioner's authority to practice before the Board or the Immigration Courts. Proof of service on the practitioner of EOIR's request to broaden the scope of any immediate suspension must be filed with the Board. (2) Immediate suspension. Upon the filing of a petition for immediate suspension by the Office of the General Counsel of the Service, together with a certified copy of a court record finding that a practitioner has been so found guilty of a serious crime, or has been so disciplined or has so resigned, the Board shall forthwith enter an order immediately suspending the practitioner from practice before the Service and/or the Board and Immigration Courts, notwithstanding the pendency of an appeal, if any, of the underlying conviction or discipline, pending final disposition of a summary proceeding, as provided in paragraph (c)(3) of this section. Such immediate suspension will continue until imposition of a final administrative decision. Upon good cause shown, the Board may set aside such order of immediate suspension when it appears in the interest of justice to do so. If a final administrative decision includes the imposition of a period of suspension, time spent by the practitioner under immediate suspension pursuant to this paragraph may be credited toward the period of suspension imposed under the final administrative decision.

Appendix 13-B-17

Tab Position 1

Immigrant Legal Resource Center April 2014

(3) Summary disciplinary proceedings. The Office of the General Counsel of the Service shall promptly initiate summary disciplinary proceedings against any practitioner described in paragraph (c)(1) of this section. Summary proceedings shall be initiated by the issuance of a Notice of Intent to Discipline, accompanied by a certified copy of the order, judgment and/or record evidencing the underlying criminal conviction or discipline. Summary proceedings shall be conducted in accordance with the provisions set forth in §§1003.105 and 1003.106 of this chapter. Any such proceeding shall not be concluded until all direct appeals from an underlying criminal conviction have been completed.

Tab Position 1

A Guide for Immigration Advocates April 2014

(i) In matters concerning criminal convictions, a certified copy of the court record, docket entry, or plea shall be conclusive evidence of the commission of that crime in any summary disciplinary hearing based thereon. (ii) In the case of a summary proceeding based upon a final order of disbarment or suspension, or a resignation with an admission of misconduct, ( i.e. , reciprocal discipline), a certified copy of a judgment or order of discipline shall establish a rebuttable presumption of the professional misconduct. Disciplinary sanctions shall follow in such a proceeding unless the attorney can rebut the presumption by demonstrating by clear, unequivocal, and convincing evidence that:

(B) There was such an infirmity of proof establishing the practitioner's professional misconduct as to give rise to the clear conviction that the adjudicating official could not, consistent with his or her duty, accept as final the conclusion on that subject; or (C) The imposition of discipline by the adjudicating official would result in grave injustice. (4) Duty of practitioner to notify the Service of conviction or discipline. Any practitioner who has been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in §1003.102(h) of this chapter, or who has been disbarred or suspended by, or who has resigned with an admission of misconduct from, the highest court of any state, possession, territory, commonwealth, or the District of Columbia, or by any Federal court, must notify the Office of the General Counsel of the Service of any such conviction or disciplinary action within 30 days of the issuance of the initial order, even if an appeal of the conviction or discipline is pending. Failure to do so may result in immediate suspension as set forth in paragraph (c)(1) of this section. This duty to notify applies only to convictions for serious crimes or to orders imposing discipline for professional misconduct entered on or after July 27, 2000. (d) Filing of complaints; preliminary inquiries; resolutions; referral of complaints —(1) Filing of complaints —(i) Misconduct occurring before Service. Complaints of criminal, unethical, or unprofessional conduct, or of frivolous behavior before the Service by a

Appendix 13-B-18

Unit 13

(A) The underlying disciplinary proceeding was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;

practitioner shall be filed with the Office of the General Counsel of the Service. Disciplinary complaints must be submitted in writing and must state in detail the information that supports the basis for the complaint, including, but not limited to, the names and addresses of the complainant and the practitioner, the date(s) of the conduct or behavior, the nature of the conduct or behavior, the individuals involved, the harm or damages sustained by the complainant, and any other relevant information. Any individual may file a complaint with the Office of the General Counsel of the Service. The Office of the General Counsel of the Service shall notify the Office of the General Counsel of EOIR of any disciplinary complaint that pertains, in whole or in part, to a matter before the Board or the Immigration Courts.

Unit 13

(ii) Misconduct occurring before the Board and the Immigration Courts. Complaints of criminal, unethical, or unprofessional conduct, or of frivolous behavior before the Board and the Immigration Courts by a practitioner shall be filed with the Office of the General Counsel of EOIR pursuant to the procedures set forth in §1003.104(a) of this chapter. (2) Preliminary inquiry. Upon receipt of a disciplinary complaint or on its own initiative, the Office of the General Counsel of the Service will initiate a preliminary inquiry. If a complaint is filed by a client or former client, the complainant thereby waives the attorney-client privilege and any other applicable privilege, to the extent necessary to conduct a preliminary inquiry and any subsequent proceeding based thereon. If the Office of the General Counsel of the Service determines that a complaint is without merit, no further action will be taken. The Office of the General Counsel of the Service may, in its discretion, close a preliminary inquiry if the complainant fails to comply with reasonable requests for assistance, information, or documentation. The complainant and the practitioner shall be notified of any such determination in writing. (3) Resolutions reached prior to the issuance of a Notice of Intent to Discipline. The Office of the General Counsel of the Service, in its discretion, may issue warning letters and admonitions, and may enter into agreements in lieu of discipline, prior to the issuance of a Notice of Intent to Discipline. (4) Referral of complaints of criminal conduct. If the Office of the General Counsel of the Service receives credible information or allegations that a practitioner has engaged in criminal conduct, the Office of the General Counsel of the Service shall refer the matter to the Inspector General and, if appropriate, to the Federal Bureau of Investigation. In such cases, in making the decision to pursue disciplinary sanctions, the Office of the General Counsel of the Service shall coordinate in advance with the appropriate investigative and prosecutorial authorities within the Department to ensure that neither the disciplinary process nor criminal prosecutions are jeopardized. (e) Notice of Intent to Discipline —(1) Issuance of Notice to practitioner. If, upon completion of the preliminary inquiry, the Office of the General Counsel of the Service determines that sufficient prima facie evidence exists to warrant charging a practitioner with professional misconduct as set forth in §1003.102 of this chapter, it will issue a Appendix 13-B-19

Tab Position 1

Immigrant Legal Resource Center April 2014

Notice of Intent to Discipline to the practitioner named in the complaint. This notice will be served upon the practitioner by personal service as defined in §103.5a of 8 CFR chapter I. Such notice shall contain a statement of the charge(s), a copy of the preliminary inquiry report, the proposed disciplinary sanctions to be imposed, the procedure for filing an answer or requesting a hearing, and the mailing address and telephone number of the Board.

Tab Position 1

A Guide for Immigration Advocates April 2014

(2) Copy of Notice to EOIR; reciprocity of disciplinary sanctions. A copy of the Notice of Intent to Discipline shall be forwarded to the Office of the General Counsel of EOIR. The Office of the General Counsel of EOIR may submit a written request to the Board or the adjudicating official requesting that any discipline imposed upon a practitioner which restricts his or her authority to practice before the Service also apply to the practitioner's authority to practice before the Board and the Immigration Courts. Proof of service on the practitioner of any request to broaden the scope of the proposed discipline must be filed with the adjudicating official. (3) Answer —(i) Filing. The practitioner shall file a written answer to the Notice of Intent to Discipline with the Board as provided in §1003.105(c) of this chapter.

(A) Such a motion is filed within 15 days of service of the final order; and (B) His or her failure to file an answer was due to exceptional circumstances (such as serious illness of the practitioner or death of an immediate relative of the practitioner, but not including less compelling circumstances) beyond the control of the practitioner. (f) Hearing and disposition; appeal; reinstatement proceedings. Upon the filing of an answer, the matter shall be heard and decided according to the procedures set forth in §1003.106(a), (b), and (c) of this chapter. The Office of the General Counsel of the Service shall represent the government. Reinstatement proceedings shall be conducted according to the procedures set forth in §3.107 of this chapter.

Appendix 13-B-20

Unit 13

(ii) Failure to file an answer. Failure to file an answer within the time period prescribed in the Notice of Intent to Discipline, except where the time to answer is extended by the Board, shall constitute an admission of the allegations in the Notice of Intent to Discipline and no further evidence with respect to such allegations need be adduced. Upon such a default by the practitioner, the Office of the General Counsel of the Service shall submit to the Board proof of personal service of the Notice of Intent to Discipline. The practitioner shall be precluded thereafter from requesting a hearing on the matter. The Board shall adopt the recommended disciplinary sanctions in the Notice of Intent to Discipline and issue a final order as provided in §3.105(d) of this chapter. A practitioner may file a motion to set aside a final order of discipline issued pursuant to this paragraph, with service of such motion on the Office of the General Counsel of the Service, provided:

(g) Referral. In addition to, or in lieu of, initiating disciplinary proceedings against a practitioner, the Office of the General Counsel of the Service may notify any appropriate Federal and/or state disciplinary or regulatory authority of any complaint filed against a practitioner. Any final administrative decision imposing sanctions against a practitioner (other than a private censure) shall be reported to any such disciplinary or regulatory authority in every jurisdiction where the disciplined practitioner is admitted or otherwise authorized to practice. In addition, the Office of the General Counsel of the Service shall transmit notice of all public discipline imposed under this rule to the National Lawyer Regulatory Data Bank maintained by the American Bar Association.

Unit 13

(h) Confidentiality —(1) Complaints and preliminary inquiries. Except as otherwise provided by law or regulation, information concerning complaints or preliminary inquiries is confidential. A practitioner whose conduct is the subject of a complaint or preliminary inquiry, however, may waive confidentiality, except that the Office of the General Counsel of the Service may decline to permit a waiver of confidentiality if it is determined that an ongoing preliminary inquiry may be substantially prejudiced by a public disclosure before the filing of a Notice of Intent to Discipline. (i) Disclosure of information for the purpose of protecting the public. The Office of the General Counsel of the Service may disclose information concerning a complaint or preliminary inquiry for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality in circumstances including, but not limited to, the following: (A) A practitioner has caused, or is likely to cause, harm to client(s), the public, or the administration of justice, such that the public or specific individuals should be advised of the nature of the allegations. If disclosure of information is made pursuant to this paragraph, the Office of the General Counsel of the Service may define the scope of information disseminated and may limit the disclosure of information to specified individuals or entities; (B) A practitioner has committed criminal acts or is under investigation by law enforcement authorities; (C) A practitioner is under investigation by a disciplinary or regulatory authority, or has committed acts or made omissions that may reasonably result in investigation by such an authority; (D) A practitioner is the subject of multiple disciplinary complaints and the Office of the General Counsel of the Service has determined not to pursue all of the complaints. The Office of the General Counsel of the Service may inform complainants whose allegations have not been pursued of the status of any other preliminary inquiries or the manner in which any other complaint(s) against the practitioner have been resolved.

Appendix 13-B-21

Tab Position 1

Immigrant Legal Resource Center April 2014

(ii) Disclosure of information for the purpose of conducting a preliminary inquiry. The Office of the General Counsel of the Service, in the exercise of discretion, may disclose documents and information concerning complaints and preliminary inquiries to the following individuals or entities:

Tab Position 1

A Guide for Immigration Advocates April 2014

(A) To witnesses or potential witnesses in conjunction with a complaint or preliminary inquiry; (B) To other governmental agencies responsible for the enforcement of civil or criminal laws; (C) To agencies and other jurisdictions responsible for conducting disciplinary investigations or proceedings; (D) To the complainant or a lawful designee; and (E) To the practitioner who is the subject of the complaint or preliminary inquiry or the practitioner's counsel of record.

(3) Notices of Intent to Discipline and action subsequent thereto. Notices of Intent to Discipline and any action that takes place subsequent to their issuance, except for the imposition of private censures, may be disclosed to the public, except that private censures may become part of the public record if introduced as evidence of a prior record of discipline in any subsequent disciplinary proceeding. Settlement agreements reached after the issuance of a Notice of Intent to Discipline may be disclosed to the public upon final approval by the adjudicating official or the Board. Disciplinary hearings are open to the public, except as noted in §3.106(a)(v) of this chapter. (i) Discipline of government attorneys. Complaints regarding the conduct or behavior of Department attorneys, Immigration Judges, or Board Members shall be directed to the Office of Professional Responsibility, United States Department of Justice. If disciplinary action is warranted, it shall be administered pursuant to the Department's attorney discipline procedures. [65 FR 39531, June 27, 2000]

Appendix 13-B-22

Unit 13

(2) Resolutions reached prior to the issuance of a Notice of Intent to Discipline. Resolutions, such as warning letters, admonitions, and agreements in lieu of discipline, reached prior to the issuance of a Notice of Intent to Discipline, will remain confidential. However, such resolutions may become part of the public record if the practitioner becomes subject to a subsequent Notice of Intent to Discipline.

§ 1292.4 Appearances.

Unit 13

(a) An appearance shall be filed on the appropriate form by the attorney or representative appearing in each case. During Immigration Judge or Board proceedings, withdrawal and/or substitution of counsel is permitted only in accordance with §§1003.16 and 1003.36 respectively. During proceedings before the Service, substitution may be permitted upon the written withdrawal of the attorney or representative of record, or upon notification of the new attorney or representative. When an appearance is made by a person acting in a representative capacity, his or her personal appearance or signature shall constitute a representation that under the provisions of this chapter he or she is authorized and qualified to represent. Further proof of authority to act in a representative capacity may be required. A notice of appearance entered in application or petition proceedings must be signed by the applicant or petitioner to authorize representation in order for the appearance to be recognized by the Service. (b) Availability of records. During the time a case is pending, and except as otherwise provided in §103.2(b) of 8 CFR chapter I, a party to a proceeding or his attorney or representative shall be permitted to examine the record of proceeding in a Service office. He may, in conformity with §103.10 of 8 CFR chapter I, obtain copies of Service records or information therefrom and copies of documents or transcripts of evidence furnished by him. Upon request, he may in addition, be loaned a copy of the testimony and exhibits contained in the record of proceeding upon giving his receipt for such copies and pledging that it will be surrendered upon final disposition of the case or upon demand. If extra copies of exhibits do not exist, they shall not be furnished free on loan; however, they shall be made available for copying or purchase of copies as provided in §103.10 of 8 CFR chapter I. [23 FR 2673, Apr. 23, 1958, as amended at 32 FR 9633, July 4, 1967; 52 FR 2941, Jan. 29, 1987; 59 FR 1466, Jan. 11, 1994]

Appendix 13-B-23

Tab Position 1

Immigrant Legal Resource Center April 2014

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-C-1

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-C-2

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-D-1

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-D-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-E-1

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-E-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-F-1

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-F-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-F-3

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-2

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-3

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-4

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-5

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-6

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-7

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-8

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-9

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-10

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-11

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-12

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-13

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-14

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-15

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-16

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-17

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-18

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-19

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-20

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-21

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-22

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-23

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-24

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-25

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-G-26

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-G-27

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-H-1

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-H-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-I-1

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-I-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-I-3

Unit 13

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 13-I-4

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 13

Appendix 13-I-5

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-1

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-2

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-3

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-4

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-5

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-6

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-7

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-8

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-9

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-10

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-11

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-12

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-13

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-14

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-15

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-16

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-17

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-18

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-19

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-20

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-21

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-22

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-23

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-24

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-25

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-26

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-27

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-28

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-29

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-30

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-31

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-32

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-33

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-34

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-35

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-36

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-37

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-38

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-39

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-40

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-41

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-42

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-43

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-44

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-45

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-46

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-47

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-48

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-49

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-50

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-51

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-52

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-53

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-54

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-55

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-56

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-57

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-58

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-59

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-60

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-61

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-62

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-63

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-64

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-65

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-66

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-67

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-68

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-69

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-70

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-71

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-72

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-73

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-74

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-75

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-76

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-77

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-78

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-79

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-80

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-81

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-82

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-83

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-84

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-85

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-86

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-87

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-88

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-89

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-90

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-91

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-J-92

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-J-93

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

 

Appendix 13-J-94

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-1

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-2

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-3

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-4

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-5

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-6

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-7

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-8

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-9

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-10

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-11

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-12

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-13

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-14

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-15

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-16

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-17

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-18

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-19

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-20

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-21

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-22

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-23

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-24

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-25

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-26

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-27

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-28

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-29

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-30

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-31

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-32

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-33

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-34

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-35

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-36

Unit 13

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 13-K-37

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 13

Appendix 13-K-38

Unit 13

Tab Position 1

=

UNIT FOURTEEN ASYLUM

Tab Position 1

A Guide for Immigration Advocates April 2014

This Unit Covers: § 14.1 § 14.2 § 14.3 § 14.4 § 14.5 § 14.6 § 14.7 § 14.8 § 14.9 § 14.10 § 14.11 § 14.12 § 14.13 § 14.14 § 14.15 § 14.16 § 14.17 § 14.18 § 14.19

Overview of Asylum Law ................................................................................ 14-2 The Statute: Legal Requirements for Eligibility for Asylum ........................... 14-3 Other Sources of the Law on Asylum: The Regulations, Case Law and the U.N. Handbook .................................................................................... 14-4 Well-Founded Fear of Persecution ................................................................... 14-6 Past Persecution................................................................................................ 14-8 What Is Persecution? ........................................................................................ 14-9 Persecutors: Government and Non-Governmental Forces ............................. 14-17 Connecting Persecution to the “Enumerated Grounds” ................................. 14-19 Political Opinion ............................................................................................ 14-23 Imputed Political Opinion .............................................................................. 14-26 Membership in a Particular Social Group ...................................................... 14-30 Nationality ...................................................................................................... 14-49 Race ................................................................................................................ 14-51 Religion .......................................................................................................... 14-52 The REAL ID Act and Corroboration ............................................................ 14-55 Bars to Asylum and Discretion ...................................................................... 14-56 Affirmative Applications before the CIS ....................................................... 14-57 Defensive Asylum in Removal Proceedings .................................................. 14-61 “Should I Apply for Asylum?” Analysis of Risks and Benefits.................... 14-65

PART ONE: LEGAL REQUIREMENTS FOR ASYLUM In 1981 the Guatemalan army attacked residents of Miguel and Angelina’s hometown of San Miguel Acatan in Huehuetenango, Guatemala. Uniformed soldiers entered Miguel’s parents’ house, dragged his parents out of the house, pushed them against a wall and shot them to death. Miguel and Angelina witnessed this as well as the killing of other town residents, while they hid from the soldiers. They stayed hidden all day and when it became dark, they fled the town with their small child and headed towards Mexico. They left in such haste that they never even returned home to gather their belongings. 14-1

Unit 14

Sections of this unit use many “case citations” and also describe and analyze case decisions on asylum. Advocates who wish to do asylum applications need to become comfortable with the use of case citations and understand how to analyze case decisions. (For more information of case citations and the court systems, see Units 8 and 9 of this guide.) In this unit, we have only discussed decisions by the federal courts or BIA that serve as precedent.

According to Miguel, the army killed his parents because the army thought that the Mayan Indian peasants in San Miguel support the guerrillas. This attack was one of hundreds that the Guatemalan army conducted against the people of the towns and villages in the highland areas between 1981 and 1983.

§ 14.1 Overview of Asylum Law People who have fled their country because they fear persecution may seek asylum so that they may remain in the United States. Unlike other parts of immigration law, asylum and asylum-related protections are derived from international refugee law. International refugee law is designed to serve as substitute protection where the person’s own country has failed to protect the individual, because the country is either unable or unwilling to protect an individual from persecution. The primary sources on international refugee protection are the 1951 U.N. Convention Relating to the Status of Refugees (“Refugee Convention”) and the 1967 U.N. Protocol Relating to the Status of Refugees. The Refugee Convention provides the definition of a refugee in Article 1 as “A person who is outside any country of such person’s nationality and unable or unwilling to avail him or herself of the protection of that country because of persecution on account of race, religion, nationality, membership is a particular social group, or political opinion.”

Unit 14

Article 33 creates the non-refoulment obligation that “[n]o contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Both these definitions are incorporated into U.S. asylum law as discussed below. The United States is a signatory to the U.N. Protocol Relating to the Status of Refugees which incorporated the articles of the Refugee Convention. In 1980, Congress passed the Refugee Act which was intended to bring U.S. law into conformity with established international refugee law. The Refugee Act is incorporated into federal immigration law at Immigration and Nationality Act §§ 207 and 208. INA § 208 provides the eligibility requirements and procedural framework for people who are physically present in the United States to apply for asylum. INA § 207 contains provisions relating to the admission of refugees—those people who are overseas and have fled their own country, often to a neighboring country, and seek refuge in the U.S. Thus, an asylee is someone who first comes to the U.S., then seeks protection, and a refugee is someone who seeks protection of the U.S. while still outside the United States. There is a good deal of material to learn about asylum law. In this unit we will discuss the sources of asylum law, who is eligible to apply, and the procedures for applying. In the next unit (Unit 15) we will discuss who is not eligible for asylum, restriction on removal, and how to write a declaration.

14-2

Tab Position 1

Immigrant Legal Resource Center April 2014

In several sections of this unit you will see “Questions for Discussion.” Please think about these questions and make notes of your answers.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 14.2 The Statute: Legal Requirements for Eligibility for Asylum The Refugee Act of 1980, which is incorporated into federal law as § 208 of the Immigration and Nationality Act (INA), provides the eligibility requirements and procedural framework for people who are physically present in the United States to apply for asylum. Persons who are outside the United States must apply for refugee status pursuant to INA § 207 (see note below). Please read INA § 208. INA § 101(a)(42) defines “refugee,” which is incorporated by reference into the basic asylum statute at INA § 208(b)(1). The refugee definition is the key to asylum law. A refugee is defined as a person who: “… who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”1 An asylum applicant must meet the definition of a refugee. Thus, she must show that she has: 1. a well-founded fear2 2. of persecution3 3. on account of race, religion, national origin, membership in a particular social group, or political opinion.4

To qualify for asylum, the person must meet every one of these requirements. In this unit we will discuss what all of the requirements mean.

1

INA § 101(a)(42)(A). See § 14.4. 3 See § 14.6. 4 See §§ 14.8–14.14. 5 8 CFR § 208.13(b). 6 See § 14.5. 2

14-3

Unit 14

Federal regulations say that “The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.”5 The word “or” here is important because it tells us that the person can meet the definition in one of two ways: by showing he or she already has suffered past persecution OR that he or she has a well-founded fear of persecution in the future, with one of the enumerated grounds being at least one central reason for the persecution.6

NOTE: Refugee Status. People who are outside the United States and who fear persecution in their home country can apply for refugee status under INA § 207. If the application is approved, the person can enter the U.S. legally as a refugee. The person must meet the same legal test as someone who applies for asylum. Only people from certain countries may apply for refugee status. The U.S. President must designate the country as being of “special humanitarian concern.” In the past these countries have included Iraq, Cuba, the former Soviet Union, Vietnam and Cambodia.

§ 14.3 Other Sources of the Law on Asylum: The Regulations, Case Law and the U.N. Handbook Besides the statute, we find guidance on asylum law in the regulations, decisions of the BIA and the federal courts, and some international law sources. The Regulations. As in all immigration law, we look to regulations to “fill in the details” about what the statute says. This is especially true in asylum law. Take a good look at 8 CFR § 208. Besides discussing procedure, the regulations define many key terms about who is eligible for asylum. They can be useful in asylum cases. The BIA and the Circuit Courts of Appeal. In asylum law, different courts have different interpretations of the law. You must pay close attention to what court cases will control in your region, because it may make a difference in what your client must prove to win asylum.

Unit 14

We discuss the Board of Immigration Appeals (BIA) and the Federal Circuit Courts of Appeal in Unit 9. As you remember, the BIA is the administrative appeals court for immigration cases. Unless it has been overruled by a higher court decision in your region, the BIA’s published case decisions will be the controlling law (precedent) for who can get asylum and exactly what the legal terms mean across the country. Sometimes BIA decisions will conflict with opinions issued by the federal courts, and immigration judges will look to the highest courts for guidance in deciding their individual cases. But the rules surrounding statutory interpretation can complicate matters, making it difficult to identify the highest authority. While federal courts have the power to review administrative decisions, that power is limited when a statute’s plain language doesn’t speak clearly to the adjudicated issue. If a statute is ambiguous, then federal courts must defer to the agency’s interpretation, as long as it’s a reasonable construction of the statute.7 This rule, referred to as Chevron deference, gives the BIA wide discretion in interpreting and applying asylum law on issues for which the statutes don’t 7

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 847 (1984).

14-4

Tab Position 1

Immigrant Legal Resource Center April 2014

provide clear answers. Chevron deference also works retroactively, meaning that if a federal court is the first to issue an interpretation of a statute, an agency’s later interpretation will trump, provided the statute is ambiguous.8

Tab Position 1

A Guide for Immigration Advocates April 2014

Since rules of statutory interpretation limit judicial review, making it difficult to identify which court’s decisions are most binding, we advise advocates to always consult with an experienced immigration attorney anytime these issues arise. The Supreme Court. Another source of asylum law is the U.S. Supreme Court. U.S. Supreme Court decisions are the controlling law, or precedent, for every court in the country, including the U.S. Circuit Courts and the BIA. The Supreme Court is the highest judicial authority in the U.S. The U.N. Handbook. U.S. immigration law on asylum is very similar to international refugee law. The U.S. became a party in 1968 to the U.N. Protocol and Convention Relating to the Status of Refugee, an international treaty that sets out refugee protections. And in 1980, the U.S. rewrote its basic immigration law in order to provide refugees with the same rights to asylum as they have under international law. Because U.S. law is based on international law, we have access to an important tool for asylum cases: the Handbook on Procedures and Criteria for Determining Refugee Status, referred to as the “U.N. Handbook,” written by the United Nations High Commissioner for Refugees (UNHCR). Although the U.N. Handbook was written to explain international law, courts have held that it can be used to provide guidance in asylum cases in the United States. Although it is not legally binding in the U.S., the U.S. Supreme Court stated that it strongly approves of the use of the U.N. Handbook as a source in interpreting U.S. asylum and refugee law. Both federal courts and the Board of Immigration Appeals have frequently cited to it.9 The Handbook is divided into numbered paragraphs. Each paragraph discusses a different short topic or gives a definition. Some of these definitions may be more generous to the asylum applicant than other law and so may help you in an asylum case.10

8

Natl. Cable & Telecomm. Assoc. v. Brand X, 545 U.S. 967 (2005). See INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987). 10 A copy of the U.N. Handbook is available at www.unhcr.org/publ/PUBL/3d4aba564.pdf. You can also purchase a copy by contacting: United Nations High Commissioner for Refugees, 1775 K Street N.W., Suite 300, Washington, DC 20006; 202-296-5191. Private immigration law offices and law libraries with international law sections should have a copy. 9

14-5

Unit 14

In addition to the Handbook, the UNHCR has released guidelines on a variety of topics in refugee law. The topics on these guidelines include membership in a particular social group, gender-related persecution, gang-based persecution, persecution based on sexual orientation and gender identity and children’s asylum claims, among others. They can be found on the UNHCR’s website at www.unhcr.ch.

The following sections will discuss the various elements a person must prove to demonstrate that she qualifies for asylum.

§ 14.4 Well-Founded Fear of Persecution The first element we need to understand is “well-founded fear of persecution.” An applicant can establish a well-founded fear of future persecution either by showing that she has suffered persecution in the past (discussed at § 14.5), or by proving there is a “reasonable possibility” that she will suffer such persecution in the future. But what is a “reasonable possibility”? In the case of Cardoza-Fonseca, the Supreme Court explained that this standard requires evidence not only of the objective nature of the circumstances that lead to a person’s fear of persecution, but also of the subjective feelings and mental state of the applicant.11 Thus, an asylum applicant must show that she has a subjectively genuine and objectively reasonable fear of returning to their country of nationality.12 Fear: The Subjective Prong. The first question is whether the client is afraid. We call this subjective because it focuses on the feelings and perceptions of the person applying for asylum. Example 14.4-a: In the example at the beginning of the unit, do you think Miguel and Angelina fear persecution? They say that they do. Plus, the fact that Miguel and Angelina saw Miguel’s parents being killed while they were hiding, and then left town that night without even returning home to gather their belongings, strongly suggests that they felt fear.

Unit 14

NOTE: The facts of the hypothetical are such that Miguel and Angelina entered the U.S. in the 1980’s. In this and other exercises in this unit and Unit 15, please ignore the fact that they would not be normally eligible to apply for asylum because they have been present in the U.S. for more than one year. See Unit 15 on the time bars.

Well-Founded Fear: The Objective Prong or Reality Check. The most difficult question in asylum cases is whether the client’s fear is well-founded. It must be well-founded “objectively,” in the real world. In 8 CFR § 208.13, the CIS regulations define “well-founded fear” as a “reasonable possibility” of persecution, which has been quantified as a 10% chance of

11

Cardoza-Fonseca, 480 U.S. 421, at 430-431(1987). Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009); Singh II, 69 F.3d at 378 (citing Shirazi-Parza v. INS, 14 F.3d 1424, 1427 (9th Cir. 1994).

12

14-6

Tab Position 1

Immigrant Legal Resource Center April 2014

being persecuted.13 In other words, it is not enough that the person feel afraid, the person must have a reasonable or rational basis for being afraid. Note that this is a more generous standard than that for withholding of removal, which will be discussed later.

Tab Position 1

A Guide for Immigration Advocates April 2014

The objective prong of the well-founded fear analysis can be satisfied in two different ways. The first is to establish that the applicant suffered past persecution, giving rise to the rebuttable presumption of future persecution, as discussed in § 14.5. The second is to show that the applicant has “good reason” to fear future persecution through “credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.”14 Under that standard, an applicant has established a well-founded fear if she shows that a reasonable person in her circumstances would fear persecution.15 Objective evidence, including specific facts, must support a reasonable fear that the applicant faces persecution.16 Where such evidence is not available, persuasive and credible testimony can support a reasonable fear that the applicant faces persecution.17

Questions for Discussion 14.4: Is Miguel and Angelina’s fear “well-founded?” Do they face a “reasonable possibility” of being persecuted? What evidence can they present to show that, in 13

14-7

Unit 14

INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 448 (1987) (“There is simply no room in the United Nation’s definition for concluding that because an applicant only has a 10 percent chance of being shot, tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’ of the event happening.”) 14 Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009); Duarte de Guinac, 179 F.3d at 1159. 15 Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987), overruled on other grounds by Pincherskaia v. INS, 118 F.3d 641, 647-48 (9th Cir. 1997); Guevara-Flores v. INS, 786 F.2d 1242, 1249 (5th Cir. 1986); Carcamo-Flores v. INS, 805 F.2d 60, 68 (2d Cir. 1986); see 8 CFR § 208.13(a). But see Matter of H-L-H& Z-Y-Z, 25 I&N Dec. 209, 209 (BIA 2010) (holding that respondent failed to show, through State Department documents and particularized evidence, that a reasonable person in her circumstance would fear being subjected to forced sterilization or other sanctions, rising to the level of persecution, for having 2 children in US in violation of China’s one child policy). 16 Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir. 1986) (stating that the objective component requires a showing by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the applicant faces persecution); Matter of R-O-, 20 I&N Dec. 455 (BIA 1992); De Souza v. INS, 999 F.2d 1156 (7th Cir. 1993) (applicant of Indian ethnicity failed to present “specific, detailed facts which would show that she would be singled out for persecution if she returned to Kenya”); Matter of Mogharrabi, 19 I&N Dec. at 441; Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (a fear is not objectively reasonable if it lacks “solid support” and is merely “speculative at best”); Singh II, 63 F.3d at 1505, (“The objective component requires the applicant to show by credible, direct, and specific evidence that persecution is a reasonable possibility”); Shan Zhu Qui v. Holder, 611 F.3d 403 (7th Cir. 2010) (holding that substantial evidence, in the form of testimony and State Department reports, did not support a finding that petitioner lacked a well-founded fear of future persecution in China due to his Falun Gong practice even if he could not identify the type of punishment to which he would be subjected); Wanyama v. Holder, 698 F.3d 1032, 1036 (8th Cir. 2012) (rejecting a claim of well-founded fear because the applicant had “presented no evidence beyond speculation” to prove he would be persecuted by the government.) 17 See 8 CFR § 208.13(a) (stating that an applicant’s credible testimony may be sufficient to meet the burden of proof without other corroborating evidence).

reality, they have reason to be afraid? What real facts can they point to that show that other people in their position would be afraid? Miguel and Angelina can present evidence of what happened in the past when the army invaded their town and killed Miguel’s parents to show that there is a reasonable possibility that the government would persecute them in the future. Does it help their case if their legal worker presents evidence of similar attacks by the army against other Indian towns and villages in the area? Read 8 CFR § 208.13(b)(2)(i)(A).

§ 14.5 Past Persecution As discussed above, an asylum applicant will most often be required to show that he or she has a well-founded fear of persecution in the future. However, some people who have suffered past persecution may be granted asylum, even if they no longer have a well-founded fear of future persecution.18 This is often referred to as “humanitarian asylum,” and is generally reserved for more severe cases.19 In order to qualify for this “humanitarian asylum,” the applicant must either demonstrate compelling reasons for being unwilling or unable to return to the country of persecution arising out of the severity of past persecution, or demonstrate a reasonable possibility that he or she may suffer other serious harm if removed to that country.20

Unit 14

Additionally, if the applicant can show past persecution on account of a protected ground, it is presumed that the applicant has a fear of persecution in the future.21 With this presumption, the burden of proof then shifts to the government to show that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution.22 Unless the government can meet this burden, an applicant showing past persecution qualifies for asylum. However, an applicant should always provide evidence to support their fear of future persecution, because asylum is a discretionary benefit and the likelihood of future persecution remains a relevant factor for consideration by the adjudicator in the exercise of discretion.23

18

8 CFR § 1208.13(b)(1)(iii); Matter of Chen, 20 I&N Dec.16 (BIA 1989). Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). 20 8 CFR 208.13(b)(1)(iii)(A) and (B). 21 8 CFR § 208.13(b)(1) (2011). 22 INA § 101(a)(42)(A); 8 USC § 1101(a)(42)(A) (2008) (defining “refugee” as any person who cannot be returned to her country because of “persecution or a well-founded fear of persecution on account of that person’s race, religion, nationality, membership in a particular social group, or political opinion”) (emphasis added). 23 See Rodriguez-Matamoros v. INS, 86 F.3d 158, 161 (9th Cir. 1996); Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir. 1995) (“In determining whether to grant asylum as a discretionary matter, the likelihood of future persecution is a particularly important factor to consider”). See also 8 CFR § 208.13(b)(1)(i)(A). 19

14-8

Tab Position 1

Immigrant Legal Resource Center April 2014

Example 14.5: John is from Czechoslovakia. He was imprisoned by the government from 1983-1987 because of his political beliefs and activities. He was never charged with a crime. Czechoslovakia held democratic elections in 1990, which changed the government. John would not fear persecution if he were to return to the Czech Republic now. Therefore, although John can demonstrate past persecution, the government may be able to rebut the presumption of a fear of persecution in the future.

Tab Position 1

A Guide for Immigration Advocates April 2014

If John meets the standard for “humanitarian asylum,” he may be granted asylum without proof of a well-founded fear of future persecution. But this type of grant, based only on past persecution, is reserved only for the most severe cases. John would be more likely to qualify for this if he faced particular brutality or torture while he was imprisoned. For the burden of proof to shift to the government as described above (as a result of the rebuttable presumption of future persecution), the persecution the applicant is presumed to fear in the future must be on account of the same ground as the persecution experienced in the past. If the applicant’s fear of future persecution is unrelated to the past persecution, the applicant continues to bear the burden of establishing that the fear is “well-founded.”24 In other words, the presumption raised by a finding of past persecution applies only to a fear of persecution based on the original persecution, and not to a fear of persecution from a new source unrelated to the past persecution.”25

Question for Discussion 14.5: Back to the case of Miguel and Angelina. At the time of the attack, Guatemala had a military government. Since then, there has been an election and now there is a civilian President. If you represented DHS in this case, what would you say about this change of government? What would you say if you were Miguel and Angelina’s legal representative?

§ 14.6 What Is Persecution? Neither the Immigration and Nationality Act nor the BIA has fully defined the term persecution. Generally, case law has described persecution simply as “a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as 24 25

8 CFR § 208.13(b)(1). Id.

14-9

Unit 14

The DHS argues that now that there is a civilian government in Guatemala, Miguel and Angelina do not have a well-founded fear of persecution. Assuming for the moment that the DHS is correct, can Miguel and Angelina still meet the refugee definition based on past persecution? Was the army’s killing of Miguel’s parents “past persecution” of Miguel and Angelina? What about the fact that they had to flee their home in order to survive?

offensive.”26 This general definition encompasses many forms of harm beyond physical harm, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.27 Physical harm is, therefore, not an essential feature of persecution.28 Nevertheless, the concept of persecution is an extreme one that does not include every sort of treatment our society regards as offensive, appalling or reprehensible.29 Because the INA does not define persecution, the Courts of Appeal “must defer to the Board’s interpretation unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’”30 Thus, there is a lot of variety in the factual situations determined to rise to the level of persecution in the federal appellate courts. A.

Cumulative Effect

In determining whether the actions taken against an individual constitute persecution, the BIA and the courts should evaluate the harmful incidents “cumulatively,” and determine whether the combination of those actions rises to the level of persecution.31 This approach is reiterated in the U.N. Handbook, which states: “[A]n applicant may have been subjected to various measures not in themselves amounting to persecution (e.g., discrimination in various forms), in some cases combined with adverse factors (e.g., general atmosphere of insecurity in the country of origin).

Unit 14

26

Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). See also, Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)); see also, Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); see also the U.N. Handbook paragraphs 45–64. 27 In re T-Z-, 24 I&N Dec. 163,171 (BIA 2007) (quoting H.R. Rep. No. 95-1452, at 5, as reprinted in 1978 USCCAN 4700, 4704, 1978 WL 8575 (“House Report”)). 28 Haider v. Holder, 595 F.3d 276 (6th Cir. 2010). 29 See INS v. Stevic, 104 S.Ct. 2489, 2500, n. 22 (1984) (persecution requires more than “mere harassment or annoyance”); see also Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998); see also Ouda v. INS, 324 F.3d 445, 452 (6th Cir. 2003) (persecution requires “more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty”); See also Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) (“Persecution ‘does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional’”) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)); Bucur v. INS, 109 F.3d 399, 402 (7th Cir. 1997) (“[D]iscrimination is not persecution.”) 30 Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (quoting Romero v. INS, 39 F.3d 977, 980 (9th Cir. 1994) and Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)). 31 See Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (“The key question is whether, looking at the cumulative effect of all the incidents petitioner has suffered, the treatment she received rises to the level of persecution”); Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996) (“[W]hile a single incident, in some circumstances, may not rise to the level of persecution, the cumulative effect of several incidents may constitute persecution”); Singh v. INS, 94 F.3d 1353, 1358 (9th Cir. 1996); Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 26 (BIA 1998) (“We find that these incidents constitute more than mere discrimination and harassment. In the aggregate, they rise to the level of persecution as contemplated by the Act”). See also Bracic v. Holder, 603 F.3d 1027, 1035-36 (8th Cir. 2010) (finding past persecution where respondent was approached by 5 men dressed in black, asked his name, called a traitor and then beaten to the point of unconsciousness was more than a mere “episode of physical mistreatment” when one of the assailants, dressed in a police uniform waited at his door and there was numerous other claims of police mistreatment, credible threats and beatings from soldiers, police and spy groups that had the authority to execute Muslims.)

14-10

Tab Position 1

Immigrant Legal Resource Center April 2014

In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on ‘cumulative grounds.’”32 B.

Tab Position 1

A Guide for Immigration Advocates April 2014

Applicant’s Subjective Beliefs Must Be Considered

The U.N. Handbook states that whether certain forms of mistreatment would constitute persecution will depend, in part, on the subjective character of the asylum applicant. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.33 It is possible, therefore, that a particular form of mistreatment will constitute persecution when applied to one applicant but not when applied to another. For example, in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), the Court found that requiring women to wear the Chador might be so abhorrent to some women that it would be tantamount to persecution. Similarly, the U.N. Handbook at note 40 at 14, states: The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in light of such opinions and feelings that any actual or anticipated measures against him must be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary. C.

The Persecutor Need Not Intend to Harm the Applicant

32

The OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS (1992), ¶52, available at www.hrea.org/learn/tutorials/refugees/Handbook/hbtoc.htm (hereinafter U.N. Handbook). 33 The OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS (1992), ¶52. 34 Matter of Acosta, 19 I&N Dec. 211, 223 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987); see also Mogharrabi, 19 I&N Dec. 439, 446 (BIA 1987). 35 See Pitcherskaia v. INS, 118 F.3d 641, 648 (9th Cir. 1997) (“To the extent that Acosta and Mogharrabi require an alien to prove the persecutor harbored a subjective intent to punish, we reject their holding”). 36 Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996). 37 Pitcherskaia v. INS, 118 F.3d 641, 647 (9th Cir. 1997).

14-11

Unit 14

While older BIA cases held that to constitute persecution, “harm or suffering must be inflicted upon a [victim] in order to punish him for possessing a belief or characteristic [the] persecutor seeks to overcome,”34 current jurisprudence rejects this approach.35 In Matter of Kasinga, for example, the Board held that female genital mutilation was a form of persecution and expressly held that a “subjective ‘punitive’ or ‘malignant’ intent is not required for harm to constitute persecution.”36 Similarly, the Ninth Circuit has held that the “definition of persecution is objective, in that it turns not on the subjective intent of the persecutor but rather on what a reasonable person would deem ‘offensive.’ That the persecutor inflicts the suffering or harm in an attempt to elicit information … for his own sadistic pleasure … to ‘cure’ his victim, or to ‘save his soul’ is irrelevant.”37

Tab Position 1

Immigrant Legal Resource Center April 2014

D.

Special Cases of Persecution 1. Coercive population control

In 1996, the statutory definition of refugee was amended to specifically designate coercive population control methods as persecution. The Immigration and Nationality Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, provides that: “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.”38 IIRIRA previously contained a provision limiting to 1,000 per year the number of applications that could be granted on this ground. This limitation was repealed in 2005, and there is currently no numerical cap.39 However, over the course of the last few years it has become increasingly more difficult for an applicant to establish persecution on these grounds, as courts have increasingly limited the breath of applicability of § 101(a)(42). As explained by the BIA, there are 4 categories relating to coercive population control through which applicants can establish persecution:

Unit 14

1. Persons who have been forced to abort a pregnancy; 2. Persons who have been forced to undergo voluntary sterilization; 3. Persons that have been persecuted for failing or refusing to submit to procedures or otherwise resisted population control programs; and 4. Persons who have a well-founded fear that they will be forced to undergo such a procedure or be subject to persecution for failing, refusing or resisting to comply.40 A person that falls within the first or second category, who has been forced to undergo either sterilization or an abortion, is automatically eligible for asylum.41 The third and fourth categories make asylum available to an immigrant who has not undergone compelled abortion or sterilization, but who can show past persecution for failing or refusing to undergo such a

38

INA § 101(a)(42)(B); 8 USC § 1101 (a)(42)(B). 8 USCA § 1157(a)(5) (2008). 40 Fei Mei Cheng v. Att’y Gen., 623 F.3d 175, 184 (3d Cir. 2010). See also Matter of M-F-W- & L-G-, 24 I&N Dec. 633, 635 (BIA 2008). 41 Fei Mei Cheng, 623 F.3d at 184. 39

14-12

procedure, or a well-founded fear of abortion, sterilization, or persecution on account of such failure, refusal, or resistance.42

Tab Position 1

A Guide for Immigration Advocates April 2014

2. Prosecution and persecution It is important to note the difference between persecution and prosecution. Prosecution is just a normal punishment that any citizen receives as a result of breaking a country’s laws. This is not considered to be “persecution.” For example, prosecution for a non-political crime is not persecution.43 Sometimes, however, prosecution can be a form of persecution. For example, if prosecution is motivated by political opinion or another enumerated ground and the punishment is sufficiently severe, prosecution under a legitimate law may be persecution.44 The fact that an applicant has been subjected to criminal prosecution can also be evidence of persecution where:   

The punishment is imposed without judicial process (absent evidence of a legitimate prosecutorial purpose;45 The punishment is excessive in the context of the accepted norms of civilized society, violates internationally-accepted norms, or is disproportionate to the crime alleged;46 or The punishment is a pretext, actually imposed, not for the alleged crime, but to punish the individual because of race, religion, nationality, membership in a particular social group, or political opinion.47

42

Id. See U.N. HANDBOOK, at 15-16 (paragraphs 56-60); see also Ramirez Rivas v. INS, 899 F.2d 864 (9th Cir. 1990) (even punishment of persons who are actually guilty of criminal acts amounts to persecution if the punishment is excessive and arbitrary [extrajudicial]). Certiorari granted and Judgment vacated on other grounds as stated in INS v. Ramirez Rivas, 502 U.S. 1025 (U.S. 2002). 44 Edimo-Doualla v. Gonzales, 464 F.3d 276, 286-87 (2d Cir. 2006). 45 See Blanco-Lopez v. INS, 858 F.2d 531, 533-34 (9th Cir. 1988) (stating that when a government harms or punishes someone without undertaking formal prosecutorial measures, it engages in persecution and not legitimate prosecution) superseded by statute on other grounds as stated in Parussimova v. Mukasey, 555 F.3d 734, 1182 (9th Cir. 2009). 46 Being charged with criminal conduct or subjected to excessive punishment on account of one of the five protected grounds may be both prosecuted and persecuted. See U.N. HANDBOOK, ¶ 56-60; Ramirez Rivas v. INS, 899 F.2d 864, 868 (9th Cir. 1990) (stating that even punishment of persons who are actually guilty of criminal acts amounts to persecution if the punishment is excessive or arbitrary and inflicted with a political motive), certiorari granted and judgment vacated on other grounds as stated in INS v. Ramirez Rivas, 502 U.S. 1025 (U.S. 2002). 47 See Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) (stating that even if anti-sodomy laws are not persecution, a gay Mexican who was arrested and raped qualified for asylum and withholding of removal); Singh v. Ilchert, 63 F.3d 1501, 1508-09 (9th Cir.1995) (holding that torture inflicted upon petitioner, a civilian deemed to be a political opponent during a civil war, must be presumed to be on account of his imputed political opinion because no charges were filed) (“Singh II”), superseded by statute on other grounds; Ratnam v. INS, 154 F.3d 990, 993 (9th Cir. 1998). 43

Unit 14

14-13

To determine whether the government’s motivations for criminal persecution are improper, circuits look to the substance and context of the law that the native country is attempting to enforce.48 Example 14.6-a: Felix is a professor who has been critical of the army. He is arrested in the middle of the night by army forces, charged with possessing a gun, and thrown in detention. He is in detention for six months. No charges have yet been filed. He has been beaten in detention. This should be held to be persecution, not prosecution. It does not look like a regular, legal prosecution. Felix is receiving “excessive punishment” based on his political opinion. 3. Economic deprivation Economic harm can amount to persecution, commonly known as “economic persecution.” Economic persecution can involve the deliberate deprivation of basic necessities that are essential to life or freedom, the imposition of severe fines, a sweeping limitation of opportunities to continue to work in an established profession, or the wholesale seizure of assets even though the basic necessities of life might be still attainable.49 To demonstrate economic persecution an applicant must show that he suffered a “substantial” economic disadvantage.50 Substantial economic disadvantage does not mean that an

Unit 14

48

See Cruz-Samayoa v. Holder, 607 F.3d 1145 (6th Cir. 2010), 1151-52 (ruling that criminal prosecution faced by petitioner, charged with murder, attempted murder, serious injuries, sedition, public intimidation, instigation to commit crimes, etc., was not a pretext for persecution but “legitimate criminal prosecution” for violating laws of general applicability that would constitute crimes under the laws of the United States); see also Guchshenkov v. Ashcroft, 366 F.3d 554, 559 (7th Cir.2004) (“that prosecution for activities that would be illegal under our own laws is not grounds for asylum …”); but see Perkovic v. INS, 33 F.3d 615, 622 (6th Cir. 1994) (finding that criminal prosecution under laws in the former Yugoslavia that “outlaw[ed] and punishe[d] peaceful expression of dissenting political opinion, the mere possession of Albanian cultural artifacts, the exercise of citizens’ rights to petition their government, and the association of individuals in political groups with objectives of which the government d[id] not approve” amounted to political persecution and not legitimate criminal prosecution). 49 In re T-Z-, 24 I&N Dec. 163, 171, 174 (BIA 2007). See Fei Mei Cheng v. U.S. Att’y Gen., 623 F.3d 175, 195 (3d Cir. 2010) (holding that the wholesale seizure of assets, including the family farm and truck, which served as the exclusive source of the family’s livelihood, constituted economic persecution). But see Zhi Wei Pang v. Holder, 665 F.3d 1226, 1231 (10th Cir. 2012) (holding that a fine equivalent to five years’ worth of wages plus confiscation of some property did not constitute economic persecution). 50 Chand v. INS, 222 F.3d 1066, 1073 (9th Cir. 2000) (“We have recognized that purely economic harm can rise to the level of persecution where there is ‘a probability of deliberate imposition of substantial economic disadvantage’ upon the applicant on account of a protected ground”) (quoting Kovac v. INS, 407 F.3d 102, 107 (9th Cir. 1969)); accord Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996); Borca v. INS, 77 F.3d 210, 216-17 (7th Cir. 1996). But see Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (defining persecution as including only those economic restrictions that are so severe that they “constitute a threat to life or freedom”) (quoting Fatin, 12 F.3d at 1240); Rhasel v. Att’y Gen. of U.S., 277 Fed. Appx. 201, 203 (3d Cir. 2008) (holding that a single incidence of robbery and burning of applicant’s motorbike, without infliction of injury, did not constitute persecution).

14-14

Tab Position 1

Immigrant Legal Resource Center April 2014

applicant needs to show a total deprivation of livelihood or a complete loss of economic opportunity,51 but it does require that that he or she shows “more than mere economic discrimination.”52

Tab Position 1

A Guide for Immigration Advocates April 2014

As noted by the BIA and various circuits, the imposition of a modest fine or diminished earning capacity alone will not support a claim of asylum.53 Similarly, a compulsory change in occupation, by itself, is unlikely to qualify as persecution.54 But courts do consider the aggregate effect of various forms of financial impositions, which, cumulatively can rise to the level of economic persecution.55 For example, in Gonzalez v. INS, the Ninth Circuit found that a Nicaraguan had “suffered economic persecution” because her “ration card had been taken away,” her family’s property was confiscated, and she was “forced to liquidate her business because she was denied the card she would need from the Ministry of Commerce to buy inventory.”56 Similarly, the Sixth Circuit found that the invalidation of an applicant’s medical degree 51

14-15

Unit 14

In re T-Z-, 24 I&N Dec. at 171-73(clarifying that applicants need not necessarily “reach near-starvation levels” in order for severe economic sanctions to constitute persecution). See also Li v. Atty. Gen. of U.S., 400 F.3d 157, 168-69 (3d Cir. 2005); Stserba v. Holder, 646 F.3d 964, 976 (6th Cir. 2011). 52 In re T-Z-, 24 I&N Dec. at 173. 53 Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (“That Nagoulko was fired from her job as a kindergarten teacher because of her religious beliefs, while discriminatory, is not the type of economic deprivation that rises to the level of persecution. Nagoulko found steady work at the furnace factory for seven years after she was fired from her teaching job. And she eventually was able to work at a mission contributing directly to her religious community in a job that she apparently embraced and enjoyed”); Medhin v. Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003) (“Although severe, state sanctioned economic deprivation might rise to the level of persecution, Medhin has alleged only the loss of one job due to his ethnicity. At most, he has suffered discrimination, and though deplorable, discrimination is not persecution”) (internal quotations omitted); Khourassany, 208 F.3d at 1100-01 (9th Cir. 2000) (upholding determination that Arab Israeli had not suffered persecution where he was neither physically attacked nor threatened with harm, and where, despite being forced to close one restaurant, he continued to operate several other businesses); Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir. 2000) (“[A] diminished earning capacity, standing alone, cannot support a grant of asylum”). Fei Mei Cheng v. Att’y Gen, 623 F.3d 175 (3d Cir. 2010) (“The imposition of “modest fines” is, of course, insufficient to rise to the level of persecution”) (citing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam)); M-F-W- & L-G-, 24 I&N Dec. 633, 641(BIA 2008); In re T-Z-, 24 I&N Dec. at 171; Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding that simple robbery was not sufficiently severe to rise to the level of persecution when the only harms suffered were loss of property and minor injury). 54 In re T-Z-, 24 I&N Dec. at 174. 55 Chen v. Holder, 604 F.3d 324, 334 (7th Cir. 2010) (“In the aggregate, a fine of more than a year and a half’s salary; blacklisting from any government employment and from most other forms of legitimate employment; the loss of health benefits, school tuition, and food rations; and the confiscation of household furniture and appliances from a relatively poor family constitute deliberate imposition of severe economic disadvantage which could threaten his family’s freedom if not their lives”) (quoting Li, 400 F.3d at 169); Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996) (holding that deliberate imposition of severe economic disadvantage, deprivation of food, housing, employment “or other essentials of life” is persecution). 56 Gonzalez v. INS, 82 F.3d 903, 906, 910 (9th Cir. 1996). See also Baballah v. Ashcroft, 367 F.3d 1067, 1075 (9th Cir. 2004) (holding that the Israeli Marines’ deliberate interference with petitioner’s fishing business, when coupled with physical assaults, compelled a finding of persecution).

constituted economic persecution because it was a “sweeping limitation” of job opportunities that made it nearly impossible to work as a pediatrician.57 Example 14.6-b: A fisherman refuses to pay “protection money” to local squads who are supported by the National Government. The squads decide that the fisherman is antigovernment, break up his boats, and threaten to kill him if he tries to fish. They know that he has no other way to feed his family. This might be held to be persecution. Extortion demanded or extracted by the government has been found to constitute persecution.58 4. Military service The refusal to obey laws regarding compulsory military service will generally not constitute persecution.59 Courts have continuously asserted that a sovereign nation enjoys the right to enforce its laws of conscription, and that penalties for evasion are not considered persecution.60 Generally, “punishment for refusing to serve would not be persecution […] on account of the objector’s religious or political opinion […] but instead would be because of his refusal to fight for the government.”61 However, “[A] person may qualify as a refugee if he is singled out for military service because he is a member of an enumerated group or if—where he refuses service—he is subject to disproportional punishment on account of his group membership.”62 Of course, soldiers who are beaten or persecuted in other ways by their

Unit 14

57

Stserba, 646 F.3d at 977. But see Lopez-Amador v. Holder, 649 F.3d 880, 886 (8th Cir. 2011) (holding that fewer opportunities to find many clients did not constitute economic persecution). 58 See Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir. 2000) ( “Extortion demanded or extracted by the government, in part because of the petitioner’s political opinion, can constitute persecution on the basis of a statutorily protected ground”); Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996) (finding applicant was persecuted where soldiers robbed her every day for a week, looted her family’s house at gunpoint, and threatened to kill and rape her if she reported the robbery to the police); Desir v. Ilchert, 840 F.2d 727-28 (9th Cir. 1988) (finding that the refusal to submit to extortion and pay bribes to Haitian security forces, a “government by thievery,” constituted a political choice for which petitioner was persecuted for by being arrested, beaten and directly fired upon for failing to submit). 59 Matter of A-G-, 19 I&N Dec. 502, 506 (BIA 1987), aff’d sub nom, M.A. v. INS, 899 F.2d 304, 312 (4th Cir. 1990) (en banc) superseded by statute on other grounds; Ilchuk v. Att’y Gen. of U.S., 434 F.3d 618, 625 (3d Cir. 2006) (“There is no dispute that military service itself is not persecution, nor are reasonable penalties for failure to serve”); Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992); Khalaf v. INS, 909 F.2d 589, 592 (1st Cir. 1990); Alonzo v. INS, 915 F.2d 546, 548 (9th Cir. 1990). 60 Lukwago v. Ashcroft, 329 F.3d 157, 168-69 (3d Cir. 2003) (quoting M.A., 899 F.2d at 312 See also Foroglou v. INS, 170 F.3d 68, 71 (1st Cir. 1999), (“It is not persecution for a government to require military service of its citizens”); Kaveh-Haghigy v. INS, 783 F.2d 1321 (9th Cir. 1986); Kraster v. INS, 101 F.3d 1213, 1217 (7th Cir. 1996); Matter of A-G-, 19 I&N Dec. at 506. 61 Foroglou, 170 F.3d at 71. 62 Id. See also Nguyen v. Reno, 211 F.3d 692, 696 (1st Cir. 2000) (quoting Foroglou, 170 F.3d at 71); Alonzo, 915 F.2d at 548 (“A government’s conscription efforts do not constitute persecution on account of political or religious beliefs except in those rare cases where a disproportionately severe punishment would result on account of those political or religious beliefs”); Begzatowski v. INS, 278 F.3d 665, 670 (7th Cir. 2002) (holding that an ethnic Albanian who was physically abused, deprived of bathing facilities, denied

14-16

Tab Position 1

Immigrant Legal Resource Center April 2014

commanding officers because of a protected ground may also qualify for asylum and withholding of deportation.63

Tab Position 1

A Guide for Immigration Advocates April 2014

Question for Discussion 14-6: Can the applicant claim persecution if he can show that he will be disproportionately punished (e.g., death or torture) for his refusal to serve? Yes, the Ninth Circuit granted asylum where it held that refusal to serve in the Salvadoran military could result in persecution on account of imputed political opinion.64

§ 14.7 Persecutors: Government and Non-Governmental Forces In order to establish persecution, an asylum seeker must demonstrate that he is unable or unwilling to avail himself or herself of the protections of the country of his or her nationality or habitual residence.65 Thus, persecution must be inflicted either by the government or by a private person or organization that the government is unable or unwilling to control.66 A “state” actor is one who is a member of the government, or a part of a governmentsupported organization. “[T]here is no distinction between the direct actions of the government and the actions of a group that is recognized and sponsored by the government.”67 “[W]hen the

14-17

Unit 14

training, and sent into battle without bullets during service in the Yugoslavian army established past persecution); Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000) (holding that an ethnic Slovenian who was “singled out” among military recruits and beaten because of “his cultural background” established past persecution); MeKhoukh v. Ashcroft, 358 F.3d 118, 126 (1st Cir. 2004). Cf. Pedro-Mateo v. INS, 224 F.3d 1147, 1151 (9th Cir. 2000) (rejecting claim that in Guatemala, Kanjobal Indians “have been recruited because of their race, political opinion” or other protected ground). 63 Duarte de Guinac v. INS, 179 F.3d 1156, 1163 (9th Cir. 1999) (holding that a Guatemalan soldier, of Quiche ethnicity, who was subjected to repeated beatings and severe verbal harassment by his Hispanic superiors qualified for asylum and withholding of removal). 64 Canas-Segovia v. INS, 970 F.2d 599 (9th Cir. 1992). 65 INA § 101 (a)(42)(A). 66 Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997); see also Borja v. INS, 175 F.3d 732, 736 n.1 (9th Cir. 1999) (en banc) (“[P]ersecution cognizable under the [Immigration and Naturalization] Act can emanate from sections of the population that do not accept the laws of the country at issue, sections that the government of that country is either unwilling or unable to control”) superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir.2009); Guillen-Hernandez v. Holder, 592 F.3d 883, 886 (8th Cir. 2010) (“Persecution is a harm that is inflicted either by the government of a country or by a person or an organization that the government is unable or unwilling to control”) (internal quotations omitted). But see Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (Concluding that the harassment the Truongs faced in Italy was neither committed by the government or forces they could not control where the contention that the harassment came at the hands of communist forces was speculative and the Truongs simply did not know who their assailants were and what motivations they had.) 67 Montoya-Ulloa v. INS, 79 F.3d 930, 931 n.1 (9th Cir. 1996) (holding that an applicant who was harassed, threatened, and beaten by the Sandinista Youth, a group that was recognized and sponsored by the Sandinista government, suffered persecution). See also, 8 CFR § 208.13(b)(3)(ii) (“In cases in which the

government is responsible for persecution … no inquiry into whether the persecution was reported to police is necessary.”68 When a non-state actor is the persecutor, an applicant need not establish that the government “is sponsoring or promoting or condoning the violence”—just that it is unable or unwilling to control it.69 An applicant can do this by showing that the government, despite efforts, is unable to protect the applicant, or by showing the government does not take actions to protect the applicant. Additionally, “there is no exception to the asylum statute for violence from family members; if the government is unable or unwilling to control persecution, it matters not who inflicts it.”70 In making this determination, courts sometimes consider whether the government failed to solve other similar crimes or provide protection when asked.71 Example 14.7-a: Maria is a student activist in El Salvador. She receives notes from a right wing death squad, “El Mano Blanco,” threatening her life if she continues her “communist” activities. There is evidence linking death squads to the government. Maria must demonstrate that the Salvadoran government is either unable or unwilling to control the death squad activity.

Unit 14

Example 14.7-b: Miguel is a member of the Civil Patrol in El Salvador. He joined because the government forced him to. Guerrilla supporters sent him a number of warnings that he must leave this job, which makes him a “traitor to the people.” A commander in a nearby town was assassinated after receiving similar notes. Miguel must show that the government is unable to control the guerrillas.

persecutor is a government or is government-sponsored […] it shall be presumed that internal relocation would not be reasonable.…”) 68 Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004); Chanchavac v. INS, 207 F.3d 584 (9th Cir. 2000) (holding that attacks by military personnel constituted persecution, without requiring a complaint to civilian authorities). 69 Thomas v. Ashcroft, 359 F.3d 1169, 1179-80 (9th Cir. 2004) vacated on other grounds by Gonzales v. Thomas, 547 U.S. 183 (2006). Guillen-Hernandez v. Holder, 592 F.3d 883, 886-87 (8th Cir. 2010) (holding that petitioners were not persecuted when their father and brother were murdered and the killer was not captured because there was no evidence that the murders were inflicted by the government or that the government was unwilling to control the murder when an extensive police investigation, trial and conviction of the murderer took place); Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (“[T]he Truongs’ professed belief that the Italian government was complicit in or unwilling to stop their harassment is undermined by the fact that the Truongs repeatedly sought assistance from the Italian police, who dutifully made reports after each incident and indicated they would investigate. Without more, we are reluctant to infer government complicity or indifference from the mere fact that Italian police were unable to locate the Truongs’ unknown assailants”). 70 Faruk v. Ashcroft, 378 F.3d 940, 943 (9th Cir. 2004). 71 Afriyie v. Holder, 613 F.3d 924, 932 (9th Cir. 2010) (“Where, as here, an asylum applicant testifies to specific incidents in which individuals closely connected to the asylum applicant unsuccessfully sought police protection or investigation for crimes related to the ones against him, such testimony is certainly pertinent and must be considered”).

14-18

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 14.8 Connecting Persecution to the “Enumerated Grounds” A.

Proving Nexus and the Case of Elias-Zacarias

Tab Position 1

A Guide for Immigration Advocates April 2014

The requirement that there be a nexus between the persecution and one of the enumerated grounds has become one of the most complex areas of asylum law. In 1992, the Supreme Court squarely addressed the nexus element in INS v. Elias-Zacarias, 502 U.S. 478 (1992), and thus shaped the current legal landscape for the “on account of” element. In Elias-Zacarias, the Supreme Court held that, to prove this element, an asylum applicant must show proof of the persecutor’s motivation and must thus demonstrate that the persecutor harmed the applicant “on account of” one of the enumerated grounds. The enumerated ground at issue in Elias-Zacarias was political opinion. According to the facts, a guerrilla group who was recruiting men to help them overthrow the Guatemalan government visited eighteen-year old Elias-Zacarias at his home in Guatemala and, armed with machine guns, asked him to join their forces. Elias-Zacarias refused but gave no reasons for this refusal. The guerrillas promised to return. Fearing that the guerrillas would return to kill him, Elias-Zacarias fled Guatemala. Presented with these facts, the Court held that persecution on account of political opinion is not established by the fact that the coercing guerrillas had “political” motives. In order to satisfy § 101(a)(42), the persecution must be on account of the victim’s political opinion, not the persecutor’s. The Court explained that the “generalized” political motive of the guerrillas was not enough to meet the nexus requirement.72 Although the guerrillas’ recruitment efforts were part of a larger effort to overthrow the Guatemalan government, indisputably a political motive, the Court shifted the focus to Elias-Zacarias’ political opinion: “[t]he ordinary meaning of the phrase ‘persecution on account of … political opinion’ … is persecution on account of the victim’s political opinion, not the persecutor’s.”73 The Court reasoned that “[e]ven a person who supports a guerrilla movement might resist recruitment for a variety of reasons—fear of combat, a desire to remain with one’s family and friends, a desire to earn a better living in civilian life, to mention only a few.”74

Proving the persecutor’s motive has shown to be a harsh requirement for asylum seekers, who now must provide evidence of why their persecutors persecute them. The sections below will further illustrate this, but it is worth noting that the Court in Elias-Zacarias stated that an asylum 72

Elias-Zacarias, 502 U.S. at 482. Elias-Zacarias, 502 U.S. at 482. 74 Elias-Zacarias, 502 U.S. at 482. 75 This describes the theory of imputed political opinion, which will be discussed later in this section. 73

14-19

Unit 14

The Court noted that Elias-Zacarias had not only failed to give the guerrillas any reasons for refusing to join their ranks but had also expressed to the Court a non-political reason for doing so (mainly that he had refused to join the guerrillas out of fear that the Guatemalan government would retaliate against him and his family). Therefore, the Court reasoned, Elias-Zacarias had failed to show that the guerrillas’ persecution of him was on account of his political opinions or on account of his persecutors’ belief, however mistaken, that he held such an opinion.75

applicant “must provide some evidence of the [persecutor’s motive], direct or circumstantial.”76 While it is always best to provide direct evidence showing the persecutor’s intentions, such as letters written to the victim or public statements made, more often circumstantial evidence will be the only evidence available to demonstrate the motives of the persecutor. In the discussion above, it is important to distinguish a persecutor’s motive from his or her intent. This is one important principle articulated in the case of In re S-P-, 21 I&N Dec. 486, 496 (BIA 1996), discussed in more detail below, where the Board explained that specific proof of a persecutor’s motive which is linked to a protected ground is required, but proof of a persecutor’s subjective intent is not. Therefore, in order to constitute persecution, the harm suffered need not have been intended to be harmful. A harmful act can constitute persecution even if it was delivered with benign intent on the part of the persecutor. For example, in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), also discussed in more detail below under gender-based particular social groups, the Board found the practice of “female genital mutilation” to meet the standard for persecution, notwithstanding the fact that the person inflicting the harm did not intend to punish or harm the victim. An asylum applicant is thus required to prove that the actions of her persecutor would cause a harm that amounts to persecution, and that those actions would be motivated by the applicant’s political opinion, religion, ethnicity/race, nationality or membership in a particular social group; however, she does not need to show that in acting thus, the persecutor’s intention would be to harm her.

Unit 14

B.

“Mixed Motives” and the REAL ID Act

Often, the persecutor harms the applicant for a number of different reasons. Many, if not most, acts of persecution involve more than one motive. It is common for more than one statutory ground, enumerated in the definition of a refugee, to be applicable in a particular case. For example, an applicant may have been harmed due to her political opinion and her race, or due to the fact that she belonged to a particular social group and that she held certain religious beliefs. Where more than one statutory ground is implicated, an applicant may want to apply for asylum based on all the grounds that apply to avoid waiving an argument, and because different adjudicators might be more inclined to grant the claim on certain grounds.77 However, for each ground to count independently as a claim to asylum, there must be a nexus between the persecution and each ground. For example there must be evidence that the persecution was on account of both religion and political opinion independently. It is conceivable to have all five grounds present in one case, though whenever more 76

Elias-Zacarias, 502 U.S. at 483. See also, Gafoor v. INS, 231 F.3d 645, 650 (9th Cir. 2000) (“[M]otives can be difficult to pin down.… Persecutors do not always take the time to tell their victims all the reasons they are being beaten or kidnapped or killed. Sometimes, they may not want their motives known for fear of public condemnation; other times, the motives may be so clear to both parties that no explanation is needed.… Because it is so difficult to prove motives with any precision, the Supreme Court does not require an applicant to provide direct evidence that his persecutors were motivated by one of the protected grounds; instead, compelling circumstantial evidence is sufficient”) superseded by statute, REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, as recognized by De Leon v. Holder, 488 Fed.Appx. 239 (9th Cir. 2012). 77 Note that, while immigration judges may indicate on what ground they are approving an application; a CIS asylum officer almost never does. Therefore, it may be hard to ever know whether the CIS was more compelled to grant asylum based on one claim by the applicant than another.

14-20

Tab Position 1

Immigrant Legal Resource Center April 2014

than one is present, one will usually predominate and should be emphasized in the application materials. Nonetheless, only one ground of persecution can be sufficient for winning asylum.

Tab Position 1

A Guide for Immigration Advocates April 2014

It is also possible for acts of persecution to involve a protected ground and a non-protected ground. These “mixed motive” cases are those where one of the grounds for the persecution facing the applicant is a reason not protected by statute, and the other is an enumerated statutory ground: race, religion, nationality, political opinion or social group. A persecutor may have a legitimate motive, such as enforcement of a legitimate state policy, or personal motives like revenge. For example, an applicant could be persecuted on account of her race and because of a personal land dispute between her family and the persecutor (a reason not protected in the statute). Particular problems have arisen where military recruitment, economic greed/extortion, and criminal prosecution are involved in addition to one of the five enumerated grounds. In mixed motive cases, filed after May 11, 2005, the REAL ID Act of 2005 specifies that the applicant “must establish” that one of the five enumerated grounds “was or will be at least one central reason for persecuting the applicant,”78 In the REAL ID Act, Congress specified that for a ground to be a central motive, “it clearly would not be sufficient if the protected characteristic was incidental or tangential to the persecutor’s motivation.”79 Under the “one central reason” standard, therefore, the applicant must demonstrate that even if the persecutors were motivated by a reason not found in the statutory definition of a “refugee,” (e.g., the persecutor’s desire to obtain information or to extort money), their actions were also motivated by a cognizable ground, such as to punish the applicant on account of his political opinion. The applicant must be able to express that the statutory reason was a central reason motivating the persecutory, regardless of other motives. This is very important because real-life persecutors often engage in torture and other human rights violations for a variety of motives, but the applicant should focus on proving that the cognizable ground was a central motive.

PRACTICE TIP: Check the date of your client’s initial asylum application. For applications filed before the REAL ID Act, the pre-REAL ID Act Standards and case law are still applicable.80

Unit 14

78

REAL ID Act of 2005 § 101(a)(3)(B)(i), 8 USCA § 1158(b)(1)(B)(i) (West 2008) (emphasis in text added). For the BIA’s interpretation of the “central reason” test, see In re J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007) (concluding that the BIA’s standard in mixed motive cases has “not been radically altered by the amendments.”) 79 See H.R. CONF. REP. No. 109-72, at 163. See, e.g., Morgan Morgan v. Holder, 634 F.3d 53 (1st Cir. 2011) (Petitioner claimed harms he suffered were on account of his Coptic Christian belief, but the court found that the harms he suffered were in response to his interference in a romantic relationship between a Coptic Christian woman and a Muslim man.) 80 See, e.g., Aligwekwe v. Holder, 345 Fed. Appx. 915, 920 n.4 (5th Cir. 2002).

14-21

Examples. For many cases, connecting the persecution to an enumerated ground boils down to two questions: 1. Does the person believe that a persecutor is (or was) suspicious of her or hostile toward her (or people like her) for some reason, and therefore might try to (or did) harm her? 2. Does the reason the persecutor is (or was) suspicious or hostile have to do with any of the five grounds, i.e., political opinion, membership in a social group, race, religion or nationality? If the answer to both these questions is yes, then the person probably has an asylum claim. Consider the story of Antonio. Example 14.8-a: Antonio is from a village in Peru. The guerrillas and army were fighting near him, and he tells you that he left because he was afraid that he might accidentally get hit by a bullet. Does he have an asylum claim? On those facts, probably not. Antonio is afraid he could get hurt accidentally. He has not identified a persecutor who has a reason to be suspicious of him (or people like him) and who might harm him on purpose. Example 14.8-b: After talking with Antonio further, you find that at times guerrillas came to his house for food. The main reason he left was that he feared that the army would find out about this and kill him as a “subversive.” This happened to three other men in his village.

Unit 14

Now we have the beginning of an asylum claim. Antonio is afraid that a persecutor (the army) may be suspicious of him for one of the five reasons (his political stance, being a “guerrilla sympathizer”). He fears that because of this, the army might kill him (the persecution). In fact, this has happened to other people in Antonio’s situation—his fear is reasonable.

Exercise § 14.8: Based only on the following information, does either of these people face persecution on account of one of the five grounds? Suggested answers are at Appendix 14-A. 1. Pablo has been seeing a young woman. This has enraged the woman’s father and he tells Pablo, “Get out of town or die!” 2. Yusef is a student in Somalia who demonstrated against the government. Last month ten other student demonstrators were assassinated by military police as suspected “oppositionists.” Yusef received a note that said “Get out of town or die!”

Our clients have unique information about their personal experience, and can provide a personal account of the events and conditions that caused them to leave their country. Our job is to connect their fear of persecution to one of the five enumerated grounds. It’s really a team 14-22

Tab Position 1

Immigrant Legal Resource Center April 2014

effort, combining our knowledge of asylum law with our clients’ knowledge of their personal history and conditions in their country.

Tab Position 1

A Guide for Immigration Advocates April 2014

What about Miguel and Angelina’s case? Can you connect their persecution claim to the enumerated grounds? We will be answering this question in the next sections.

§ 14.9 Political Opinion A.

Overview

The first enumerated ground of asylum that we will discuss is political opinion. Frequently people face persecution because of their political opinions, which may include opinions they hold in private and opinions they have openly expressed. When a person expresses his or her opinion, he may do so in the form of actions taken or by simply stating an opinion. Persecution may be on account of a political opinion the asylum applicant actually holds or on account of one the persecutor has imputed to him.81 The latter type of political opinion, “imputed political opinion” will be discussed in § 14.10.

Question for Discussion 14.9: When the Guatemalan army invaded San Miguel Acatan and killed Miguel’s parents, they also killed their neighbor Gregorio. Gregorio and his sister Maria had been active in a farmworker’s union for many years. After the army’s most recent killing of union activists, Maria and Gregorio began openly supporting the guerrillas because they believed it was their only remaining option to continue fighting for the union. Do you think the army persecuted Gregorio because of his political activity or opinion? Why? Maria (Gregorio’s sister) has fled to the U.S. and is seeking asylum. Do you think she has a wellfounded fear of persecution on account of political opinion?

B.

Opinion That Is “Political”

81

See, e.g., Chen v. Holder, --- F.3d ---, 2010 WL 1688491 (7th Cir. 2010); Haider v. Holder, 595 F.3d 276, 285 (6th Cir. 2010); Marroquin-Ochoma v. Holder, 574 F.3d 574, 577 (8th Cir. 2009). 82 Meza-Menay v. INS, 139 F.3d 759, 763 (9th Cir. 1998); see also Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987) (finding that a belief that the armed forces were responsible for lawlessness, rape, torture and murder constituted a political opinion even where the applicant did not participate in politics), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc).

14-23

Unit 14

What qualifies as “political” opinion? Neither the statute nor the regulations define the term. However, the courts have characterized a variety of activities and beliefs as political in nature. An applicant need not have been politically active to hold a political opinion. “(A)n asylum petitioner may hold a political opinion within the meaning of the INA even if the petitioner did not participate in organized political activities.”82 Therefore, political opinion includes support of “fundamental

rights” such as”[t]he right to privacy, the right to have a family, the right to bodily integrity, and the right to unfettered reproductive choice.”83 The case of Osorio v. INS, for example, illustrates how economic activities were found to be of a political nature and therefore qualified as an expression of “political opinion.”84 Osorio had been a union activist in Guatemala and suffered as a result.85 The BIA, relying on EliasZacarias, had held that because “the fundamental nature of the dispute was economic, concerning wages and the reinstatement of workers,” the existence of a “generalized ‘political’ motive underlying the government’s action is inadequate.”86 The Second Circuit rejected this approach, holding it was improper to ignore the “political context” of the dispute: Any attempt to unravel economic from political motives is untenable.… [S]ubstantial evidence … compels the view that Guatemalan authorities persecuted Osorio because he and his union posed a political threat to their authority via their organized opposition activities.87 It went on to say: In a country where the standard of living is low, and where the government suppresses civil liberties and commits widespread human rights violations, unions (and student organizations) are often the only vehicles for political expression.88 Other activities the courts have found to be political in nature include actions against government corruption,89 membership in community-based religious organizations,90 and affiliation with former91 and current92 political leaders.

Unit 14

83

See Matter of C-Y-Z-, 21 I&N Dec. 915, 921-22 (BIA 1997) (“The view that these are fundamental rights, and that the election to exercise them should be respected and not trampled, constitutes a political opinion”) (concurring opinion), overruled on other grounds by Att’y Gen. Order No. 2964-2008 (May 15, 2008). 84 Osorio v. INS, 18 F.3d 1017 (2d Cir.1994). 85 Osorio, 18 F.3d 1017. 86 Osorio, 18 F.3d at 1028. 87 Id. at 1029. 88 Id. at 1029-30. For another example of the political nature of economic-based activities, see VeraValera v. INS, 147 F.3d 1036 (9th Cir. 1998) (holding that accusations that the head of a street vendors’ cooperative was a spy for the government constituted targeting due to imputed political opinion). 89 See, e.g., Grava v. INS, 205 F.3d 1177 (9th Cir. 2000) (granting asylum to a “whistleblower”); Borca v. INS, 77 F.3d 210 (7th Cir. 1996); see also Gafoor, 231 F.3d 645 (finding past persecution in the case of an Indo-Fijian police officer beaten after arresting a high-ranking army official for rape); Castro v. Holder, 597 F.3d 93 (9th Cir.2010); Baghdasaryan, 592 F.3d 1018 (9th Cir. 2010). 90 Cordero-Trejo v. INS, 40 F.3d 482, 487 n.5 (1st Cir. 1994). 91 Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996) (finding eligibility based on applicant’s family connections to ousted Somoza government in Nicaragua). 92 Espinoza-Cortez v. Att’y Gen., 607 F.3d 101, 110 (3d Cir. 2010) (distinguishing the case from EliasZacarias because the applicant had close ties with the Colombian government and finding that the FARC persecuted the petitioner due to imputed political opinion because of those ties).

14-24

Tab Position 1

Immigrant Legal Resource Center April 2014

The key for the practitioner, then, is to focus on the context of the activities, beliefs, and affiliations of the client. Explore with the client the nature of the problems and why she acted as she did, even if the actions were subtle and less overt than those in Osorio. Only then can the attorney help to paint an accurate picture for the judge or asylum officer. This is the key to winning the case. C.

Tab Position 1

A Guide for Immigration Advocates April 2014

Expression of Political Opinion

A political opinion can be expressed non-verbally, or it can be stated only in private.93 As Deborah Anker writes in her treatise on asylum law, “the distinction between activities and opinions commonly causes confusion. Decision-makers often comment on the lack of specific political activities or organizational membership when explaining denial of asylum. Any implication that the applicant must act on her political beliefs in order to be entitled to protection, however, is a misunderstanding of the meaning of the political opinion ground and the purposes of refugee protection.”94 Overt expression of political opinion, including the expression of an opinion of neutrality, is one way in which an applicant can show he or she possesses such an opinion.95 However, political opinion can also be expressed through actions, including elective membership in particular groups such as political, student, peasant, union, and professional organizations;96 and participation in activities such as demonstrations, propaganda distribution, and slogan painting.97 Participation in activities of an organization can constitute political activity even where the person was not a member. For example, many students participate in student strikes and demonstrations even though they are not members of student organizations. Also, members of certain organizations are often persecuted without regard to their level of commitment or involvement in the group’s activities. Examples of political opinions encompass acting on beliefs that threaten or are viewed as threatening by a persecutor (e.g., refusing to be an informer,98 exposing government corruption,99 resisting extortion by government agents,100 and fleeing sexual abuse).101 Note, however, the Ninth 93

14-25

Unit 14

Rivas-Martinez v. INS, 997 F.2d 1143, 1147 (5th Cir. 1993). DEBORAH E. ANKER, LAW OF ASYLUM IN THE UNITED STATES 297 (Paul T. Lufkin ed. 3d ed. 1999) (internal footnote omitted). 95 See Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997). 96 Osorio, 18 F.3d 1017, 1030 (finding that union activities expressed a political opinion); CarranzaHernandez v. INS, 12 F.3d 4, 7 n.1 (2d Cir. 1993) (proceeding on the assumption that “persecution for union activities entitles an alien to asylum.”) 97 Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir. 1985); see also Canjura-Flores v. INS, 784 F.2d 885, 889 (9th Cir. 1985) (reversing BIA denial withholding, based on applicant’s testimony that he was involved in certain political activities). 98 Fengchu Chang v. INS, 119 F.3d 1055, 1062 (3d Cir. 1997), superseded by statute on other grounds, REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, as recognized in Parussimova v. Mukasey, 533 F.3d 1128 (9th Cir. 2008). 99 Borca, 77 F.3d 210. 100 Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir. 1988). 94

Circuit denied asylum in Chanco v. INS to an applicant who faced prosecution in the Philippines for participation in a military coup, because the applicant had failed to pursue peaceful means of protest which were available to him.102 1. Neutrality A person who refuses to take sides in a country’s internal conflict often offends one or both sides with his visible nonparticipation. Neutrality can also be a political opinion, but it is often difficult to prove persecution on the basis of neutrality, given the necessity to prove persecutor motives and connection of the persecution to an enumerated ground. Merely holding a neutral opinion does not qualify one for asylum.103 The Supreme Court in Elias-Zacarias, when confronted with this issue, distinguished between political opinion and “such quite different concepts as indifference, indecisiveness, and risk averseness.”104 In Elias-Zacarias, the Supreme Court stated in dicta: “Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so.”105 The Court, however, did not foreclose the possibility that a neutral opinion could be a political opinion forming the basis of an asylum claim. The Ninth Circuit is the only circuit to have affirmatively recognized neutrality as a political opinion. The Ninth Circuit follows the doctrine of “hazardous neutrality,” in which a lack of political opinion may constitute a political opinion for purposes of the INA.106

§ 14.10 Imputed Political Opinion In the previous section, Maria and Gregorio were persecuted for their actual political opinions as guerrilla supporters. What happens when the persecutors persecute someone because they believe the person has a certain political opinion, whether the person has that opinion or not? Let’s return to Miguel and Angelina’s case.

Unit 14

Example 14.10-a: Guatemalan soldiers assassinated Miguel’s parents. Miguel’s parents had never been involved in political activities or stated a political opinion against the government. Why were they killed?

101

Lazo-Majano, 813 F.2d 1432. Chanco v. INS, 82 F.3d 298, 302 (9th Cir. 1996) (“[W]hen peaceful means of protest are available … prosecution in these circumstances is no different from prosecution for a common law crime.”) 103 See, e.g., Alonzo v. INS, 915 F.2d 546 (9th Cir. 1990) (finding that a Guatemalan man had never revealed his neutrality to the government nor provided any evidence that they would ever discover it); Avciouglu v. Mukasey, 300 Fed. Appx. 474, 476 (9th Cir. 2008) (denying asylum because of a lack of evidence that the Turkish government was aware of any beliefs of conscientious objection). 104 502 U.S. at 483. 105 Id. 106 Rivera-Moreno v. INS, 213 F.3d 481, 483 (9th Cir. 2000). 102

14-26

Tab Position 1

Immigrant Legal Resource Center April 2014

The attack on the citizens of San Miguel Acatan was one of many that the Guatemalan army conducted against the Indian population in the towns and villages in the highland areas from 1981 to 1983. The attacks were a result of the government’s belief that a high percentage of the Indian population supported the guerrillas. The government was particularly suspicious of San Miguel Acatan where the guerrillas had a strong presence and a good deal of civilian support.

Tab Position 1

A Guide for Immigration Advocates April 2014

Miguel explained why he believes the army killed his parents: “The army believes that all the campesinos (peasants) are with the guerrillas … but we were not … for what some do, they blame us all.” Were Miguel’s parents persecuted on account of political opinion? The army killed them just like they killed Gregorio, for political reasons. Advocates argue that persecution resulting from a group’s belief about the victim’s political opinion should be held to be “on account of political opinion.” We call this the imputed political opinion (IPO) theory because the persecutor imputes or attributes a certain political belief to the victim. The IPO theory recognizes that persecution can occur where the persecutor imputes or attributes to the victim certain political opinions, even where the victim does not hold or has not expressed such opinions. The applicant’s own beliefs are unimportant. The focus here is on the subjective belief of the persecutor, rather than the applicant’s actual political opinions. The applicant must present evidence of the characteristics and conditions from which political opinion will be inferred and imputed to her. The Ninth Circuit adopted the IPO theory in Hernandez-Ortiz v. INS.107 The court wrote: “[W]hen … an alien establishes a prima facie case that he is likely to be persecuted because of the government’s belief about his views or loyalties; his actual political conduct, be it silence or affirmative advocacy and his actual political views, be they neutrality or partisanship, are irrelevant; whatever the circumstances, the persecution is properly categorized as being “on account of … political opinion.’”

The court in Hernandez-Ortiz also expanded the reach of IPO by creating a presumption that a persecutor’s motivation was political in certain cases. The court said, “If there is no

107

Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir. l985).

14-27

Unit 14

The court’s recognition in Hernandez-Ortiz that persons are persecuted for beliefs or allegiances attributed to them by others, was a major breakthrough in asylum case law. The court’s holding that the actual political opinion of the applicant is often irrelevant is based on its understanding that the mere perceptions of persecutors will often trigger acts of persecution. A person killed by government authorities who believe him to be a guerrilla supporter is just as dead, whether that belief is correct or not.

evidence of a legitimate prosecutorial purpose for a government’s harassment of a person … there arises a presumption that the motive for harassment is political.”108 However, in 2005 Congress stepped in, feeling it was necessary to correct the Ninth Circuit’s mixed motives jurisprudence that had “substantially undermined a proper analysis of mixed motives cases.”109 Congress voiced its objection to the Ninth Circuit’s case law in cases such as Hernandez-Ortiz and Singh v. Ilchert,110 in the REAL ID Act of 2005. Congress commented that the Ninth Circuit’s presumption rule “improperly favor[ed] asylum applicants who claim that they have been accused of engaging in terrorist, militant, or guerrilla activity.”111 Congressmembers asserted that the Ninth Circuit cases violated Elias-Zacarias, “which requires asylum applicants to provide evidence of motivation,” and improperly shifted the burden to the government to prove that the foreign government had a legitimate purpose for harassing the person or that the person is actually a terrorist or persecutor.112 The REAL ID Act was thus intended to “eliminate this presumption” and require aliens in all instances to offer evidence of the persecutor’s motive.113 The existence of imputed political opinion is less clear where the victim has violated the law,114 including “illegal departure” laws,115 and refused to participate in human rights violations

Unit 14

108

Hernandez-Ortiz v. INS, 777 F.2d at 516 (“When a government exerts its military strength against an individual or a group within its population and there is no reason to believe that the individual or group has engaged in any criminal activity or other conduct that would provide a legitimate basis for governmental action, the most reasonable presumption is that the government’s actions are politically motivated.”) 109 H.R. Cong. Rep. No. 109-72, at 163. 110 Singh v. Ilchert, 69 F.3d 375 (9th Cir. 1995) (finding asylum eligibility where a Sikh who did not support Sikh separatists was tortured by the Indian government for his apparent support of the separatists). 111 H.R. Cong. Rep. No. 109-72, at 163. 112 H.R. Cong. Rep. No. 109-72, at 163. 113 H.R. Cong. Rep. No. 109-72, at 163. This was accomplished through the addition of the “central reason” language; see § 4.2(G). H.R. Cong. Rep. No. 109-72, at 163. This was accomplished through the addition of the “central reason” language. See § 3.1.B.; REAL ID Act of 2005 § 101(a)(3)(B)(i), 8 USCA § 1158(b)(1)(B)(i) (West 2008). 114 See also Perkovic v. INS, 33 F.3d 615, 617 (6th Cir. 1994) (finding asylum eligibility where ethnic Albanians were beaten and interrogated by Yugoslav police for engaging in peaceful protest; the court noted that the government had criminalized a broad range of political opinion and manifestations of Albanian culture). 115 See Li v. INS, 92 F.3d 985, 988 (9th Cir. 1996) (stating that “]c]riminal prosecution for illegal departure is generally not considered to be persecution” but noting exception when a person demonstrates that exit control laws as applied to him were “especially unconscionable or were merely a pretext to persecute him for his beliefs or characteristics”) (citing Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992)); INS Memo at 4, (illegal departure laws can impinge on the fundamental right to leave and return to one’s country); Sovich v. Esperdy, 319 F.2d 21, 28 (2d Cir. 1963) (“[I]t would be naïve to suppose that … that punishment for illegal departure … is not politically motivated.”) But see Abedini, 971 F.2d at 191 (denying asylum to Iranian who fled when served with a warrant for his arrest on the charge of distributing “Western” videos, stating that “[the applicant] faces a possibility of prosecution for an act deemed criminal in Iranian society, which is made applicable to all people in that country” and finding that applicant had presented no evidence of political opinion, express or imputed).

14-28

Tab Position 1

Immigrant Legal Resource Center April 2014

(these situations have arisen in the case law in the context of evasion of mandatory military service).116 Still, the imputed political opinion theory is useful in establishing the basis for the persecution alleged in many instances, particularly when applicants have not been active politically or have not publicly expressed their views. IPO reflects the realities of persecution in countries where governments and others frequently persecute people based on the persecutor’s perception of the victim’s political opinion rather on his or her actual opinion.

Tab Position 1

A Guide for Immigration Advocates April 2014

Application of IPO by Courts, the BIA and ICE. The imputed political opinion theory is broadly recognized today. It has been the basis for asylum eligibility at all levels of review. Case law demonstrates an understanding that persecutors can impute a political opinion because of their knowledge of the political opinion and activity of a close relative,117 because of membership in a group,118 or because of ties to the government.119 116

14-29

Unit 14

De Valle, 901 F.2d at 792 (noting that punishment for desertion is generally not viewed as persecution); Matter of A-G-, 19 I&N Dec. 502, 506 (BIA 1987), (stating “the long-accepted position that it is not persecution for a country to require military service of its citizens” but recognizing exceptions in “rare cases”); Ramos-Vasquez, 57 F.3d at 864 (finding asylum eligibility based on refusal to serve, noting that petitioner was not a “draft evader” since he had “served in the military for thirteen years and hoped for, but was repeatedly denied, an opportunity to leave the service honorably”). 117 Rios v. Ashcroft, 287 F.3d 895 (9th Cir. 2002); see also Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002) (discussing the risks faced by the members of a policeman’s family who are “associated with the police solely by virtue of [their] kinship ties”); Ramirez-Rivas, 899 F.2d 864 (9th Cir. 1990) (the applicant was at risk because she visited politically active relatives held in prison), cert. granted, judgment vacated, 502 U.S. 1025 (1992); but see Molina-Estrada v. INS, 293 F.3d 1089 (9th Cir. 2002) (denying withholding of removal as applicant failed to establish that his father had a political opinion which could be imputed onto him. Applicant had been injured as a result of an attack intended for his father, a military leader); Sangha, 103 F.3d 1482 (denying asylum on the basis of imputed political opinion where only one member of the victim’s family was politically active, and that activism was of recent vintage); De Valle v. INS, 901 F.2d 787, 791 (9th Cir. 1990) (denying asylum to wife of a Salvadoran army deserter who based her claim on a “doubly imputed” political opinion, stating that “she has failed to make the individualized showing … that she will face persecution for holding a political opinion,” where the applicant had not shown that she had been targeted for her husband’s imputed opinions) (emphasis in original). 118 Singh v. Ilchert, 69 F.3d 375 (9th Cir. 1995) (finding asylum eligibility where a Sikh who did not support Sikh separatists was tortured by the Indian government for his apparent support of the separatists); Agbuya v. INS, 241 F.3d 1224 (9th Cir. 2001)(finding that applicant, a former employee in the personnel department of a mining company, had a well-founded fear of persecution from a guerrilla force in the Philippines because of her role in extensive company layoffs); Castellanos-Castillo v. INS, 1999 U.S. App. LEXIS 22490 (9th Cir. 1999) (unpublished opinion) (finding applicant was persecuted by guerrillas in Guatemala because of his imputed political opinion, not merely because of his position of leadership in an association of workers); Gafoor, 231 F.3d 645 (holding applicant, an Indo-Fijian, was persecuted on the bases of race and imputed political opinion, and not merely for revenge, after arresting a high-ranking Fijian army officer for rape). 119 Lim v. INS, 224 F.3d 929 (9th Cir. 2000) (granting asylum for former Filipino police officer who had investigated the New People’s Army and was being followed and receiving death threats as a result, on the grounds that the threats were partly motivated by IPO); Lopez-Galarza, 99 F.3d 954 (finding eligibility based on applicant’s family connections to ousted Somoza government in Nicaragua); but see Matter of Fuentes, 19 I&N Dec. at 661 (finding applicant who feared reprisals from guerrillas in his Salvadoran hometown after he left his service as a government-employed policeman not eligible, and opining that “the

Example 14-10-b: The Indian police arrested Mr. Singh. The police believed that Singh was associated with Sikh militants. The police threatened him with death, shot, beat and tortured him without ever charging him with any crime. The BIA reasoned that since the abuse was in order to extract information about militants, it could not constitute persecution on the basis of political opinion. The Ninth Circuit reversed the BIA decision, which stated that such abuse cannot constitute lawful government action. The court held that the police sought information from Singh precisely because the police imputed to him a political opinion of support for the Sikh separatists. Singh v. Ilchert, 63 F.3d 1501 (9th Cir. 1995). The BIA has a different position on the issue than the 9th Circuit’s. See Matter of R, 20 I&N Dec. 621 (BIA 1992). Yet, the BIA has to follow the 9th Circuit’s rule on cases arising out of the 9th Circuit’s jurisdiction. See Matter of S-P-, Int. Dec. 3287 (BIA 1996).

§ 14.11 Membership in a Particular Social Group Membership in a particular social group (PSG) is another basis for asylum enumerated in the refugee definition. This is the next largest ground for asylum claims, after political opinion. To win an asylum case based on social group, the applicant must show: (1) that the she is a member of a particular social group; and (2) that he or she faces persecution because of that membership. Let’s look at each of these requirements.

Unit 14

A.

What Is a “Particular Social Group”?

The first thing to bear in mind about this category is that it does not require formal membership in an official or identifiable group organization, such as a political party, labor union, church, or the like. An easier way to conceptualize it would be to analyze whether the applicant would be included, in the eyes of others (the persecutors or would-be persecutors), in a grouping of persons who were or would be targeted because they are seen as different than or threatening to the persecutors.

dangers the police face are no more related to their personal characteristics or political beliefs than are the dangers faced by military combatants”). Note that in Fuentes, the applicant did not show any evidence of actual attribution or targeting by the guerrillas. Also note that fear of anti-government forces based on past military service is not grounds for asylum. See also Chanco, 82 F.3d at 302-03 (“To the extent Chanco expects to be targeted as a current member of the military, the BIA properly found that this danger does not constitute persecution on account of political opinion or membership in a particular social group”) (citing Matter of Fuentes, 19 I&N Dec. 658); see also Arriaga-Barrientos v. United States, 925 F.2d 1177 (9th Cir. 1991).

14-30

Tab Position 1

Immigrant Legal Resource Center April 2014

There is no definition of “particular social group” in the INA, but the U.N. Handbook defines it as a group of “persons of similar background, habits or social status.”120 In other words, a social group is a group of people who share or are defined by certain characteristics. Characteristics could be a combination of age, geographic location, class background, ethnic background, family ties, and gender. 1.

Tab Position 1

A Guide for Immigration Advocates April 2014

Matter of Acosta and the “immutable characteristic” standard

In 1985, the BIA put forth a test for determining whether or not a person was a “member of a particular social group” in Matter of Acosta,121 requiring that members of a particular social group share a “common, immutable characteristic.” In Matter of Acosta, the BIA defined “immutable characteristic” as “one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”122 In that case, the BIA evaluated whether or not a group comprised of “COTAXI drivers and persons engaged in the transportation industry in El Salvador” constituted a particular social group. Acosta claimed that he was persecuted as such because the COTAXI drivers were targeted by the guerrillas when they refused to participate in work stoppages. However, the BIA rejected this construction of a social group, finding that neither “being a taxi driver in San Salvador” nor “refusing to participate in guerrilla-sponsored work stoppage” is an immutable characteristic. The persecution could be stopped by changing jobs or cooperating with the work stoppages. The court went on to explain that the shared characteristic amongst members of a particular social group might be “an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience,” but the court was careful not to provide too specific a definition of who is a member of a qualifying group by stating that “the particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis.”123

120

HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS (1992 UNHR) (hereinafter U.N. HANDBOOK) at ¶ 78, p.13. 121 Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). 122 Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). 123 Id. at 227. 124 Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir. 1985) (Family relations can be a social group). 125 Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) (Iranian women who refuse to conform to the government’s gender-specific laws and social norms constitute a particular social group). 126 Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003) (Tattooed youth in El Salvador are not a particular social group). 127 Lwin v. INS, 144 F.3d 505 (7th Cir. 1998) (Parents of Burmese student dissidents are a particular social group).

14-31

Unit 14

Matter of Acosta, therefore, did not provide clear guidance on how a particular social group was to be defined. However, over the next two decades, the “immutable characteristic” test was eventually adopted by the First Circuit,124 the Third Circuit,125 the Sixth Circuit126 and the Seventh Circuit;127 and it led to a significant and positive expansion of asylum protection for groups previously not recognized. For example, in Matter of Kasinga, the BIA recognized the particular social group of “[y]oung women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who

oppose the practice.”128 This case became the seminal case in what has become a long history of case law analyzing protection against gender-based persecution. Similarly, the case of Matter of Toboso-Alfonso recognized gay men in Cuba as a particular social group.129 The Ninth Circuit, however, appeared to create a different standard in the case of SanchezTrujillo v. INS, requiring a “voluntary associational relationship” among the members of the group.130 This requirement has no basis in the statute or in the U.N. Handbook and is actually fundamentally inconsistent with many sociological indices of social groups, which are involuntary and which were recognized by the BIA and other circuits (e.g., age, sex, social class, etc.) Sanchez-Trujillo also articulated a four-element test for a social group claim that remains valid: (1) definition of the parameters of the social group, (2) evidence that the applicant is a member of the social group, (3) evidence that the social group is being persecuted, and (4) the presence of special circumstances that permit a per se finding and which do not require findings of individual persecution of members of the group.131 The Ninth Circuit reconciled the contradicting standards set by these two tests for particular social group in the case of Hernandez-Montiel.132 In that case, the Ninth Circuit recognized the particular social group of “gay men with female sexual identities in Mexico” and held that a particular social group is one united by a “voluntary association” or by an “innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.”133 The Second Circuit adopted the “voluntary associational relationship” standard and added that the particular social group had to be “recognizable and discrete.”134 The UNHCR guidelines clarify that a particular social group is “a group of persons who share a common characteristic other

128

Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990). The actual group discussed in the case refers to “homosexuals” but this case has paved the way for protection for individuals fleeing from sexual orientation—and gender identity-based persecution. 130 Sanchez-Trujillo, 801 F.2d 1571, 1576 (9th Cir. 1986) (emphasis added) (affirming the BIA’s determination that young, urban, working-class males who had never demonstrated loyalty to the government did not constitute a particular social group). 131 Sanchez-Trujillo, 801 F.2d at 1574. Other Ninth Circuit cases denying social group claims include: De Valle, 901 F.2d 787 (family members of military deserters); Arriaga-Barrientos v. United States, 925 F.2d 1177 (9th Cir. 1991), opinion amended and superseded, 937 F.2d 411 (persons who are or have been in the Guatemalan military). But see Cruz-Navarro, 232 F.3d 1024 (holding “persons who are persecuted because of their status as a former police or military officer … may constitute a cognizable social group under the INA”). 132 Hernandez-Montiel, 225 F.3d 1084, 1093 (9th Cir. 2000). 133 Hernandez-Montiel, 225 F.3d 1084, overruled on other grounds by Thomas, 409 F.3d 1177, vacated by 547 U.S. 183 (2006). 134 See Gomez v. INS, 947 F. 2d 660 (2d Cir. 1991).

Unit 14

129

14-32

Tab Position 1

Immigrant Legal Resource Center April 2014

than their risk of being persecuted, or who are perceived as a group by society.”135 The guidelines go on to give priority to the immutable characteristic analysis by stating that the question of social perception is only “an alternative to be considered if and only if a determination is made that the group characteristic is neither immutable nor fundamental.”136

Tab Position 1

A Guide for Immigration Advocates April 2014

2. Matter of S-E-G- and the new “social visibility” and “particularity” standards After two decades of examining refugee protection based on the “particular social group” ground, the BIA complicated this analysis through several cases that introduced new standards for determining whether a group qualifies for refugee protection or not. In the case of Matter of C-A-, the BIA rejected the social group of “confidential informants against the Cali [drug] cartel” in Colombia.137 Although the court said that it continued to apply the “immutable characteristic” standard, it added the element of “social visibility” of the members of a purported social group, calling it “an important consideration in identifying the existence of a ‘particular social group.’” Applying this standard again in Matter of A-M-E- & J-G-U, the BIA rejected the social group of “affluent Guatemalans” noting that it not only lacked sufficient “social visibility” but that it also lacked adequate “particularity” to constitute a particular social group.138 In order to have social visibility, applicants must demonstrate that the “shared characteristic of the group be recognizable by others in the community.”139 The BIA reaffirmed its reading of these two new elements into the particular social group ground for protection in the case of Matter of S-E-G.140 In that case, the BIA considered two different groups: “Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities” and the “family members” of such youth. However, the BIA rejected the proposed social groups, imposing again the “social visibility” and “particularity” elements. The BIA stated that “membership in a particular social group requires that the group have particular and well-defined boundaries;” and it pointed to the “requirement that the shared characteristic of the group should be recognized by others in the community.”

Unit 14

135

Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, U.N. Refugee Agency, U.N. Doc. HCR/GIP/02/02 (2002). 136 Id. 137 Matter of C-A-, 23 I&N Dec. 951 (BIA 2006). 138 Matter of A-M-E- & J-G-U, 24 I&N Dec. 69 (BIA 2007). 139 In re A-M-E & J-G-U, 24 I&N Dec. 69, 74 (BIA 2007) (citing Matter of C-A-, 23 I&N Dec. at 957) (holding that noncriminal informants working against a Colombian drug cartel were not part of a particular social group). 140 24 I&N Dec. 579 (BIA 2008).

14-33

In the years that followed Matter of S-E-G-, most circuits adopted “social visibility.”141 However, there is a wide range of disagreement over the details of what “social visibility” and “particularity” really mean. It is one of the more controversial areas of asylum law and practitioners are advised to keep a close eye on the development of litigation on this topic. For example, regarding the requirement of particularity, in Perdomo v. Holder, the Ninth Circuit reversed a ruling by the BIA that said that “all women in Guatemala” could not be a cognizable social group because it was overbroad.142 The court stated that “size and breadth of a group alone does not preclude it from qualifying as a social group.”143 On the other hand, the Eighth Circuit in Raffington v. INS, held that “the mentally ill [in Jamaica] are too large and diverse a group to qualify” as a particular social group because it was not “a collection of people closely affiliated with each other, who are actuated by some common impulse or interest.”144 In regards to “social visibility,” there is even a more stark division among the circuits. The Third and Seventh Circuits have actually rejected the “social visibility” requirement imposed by the BIA. In the case of Gatimi v. Holder, the Seventh Circuit vacated and remanded the BIA decision which held that defectors from Mungiki sect in Kenya were not a “particular social group” for asylum purposes based on the group’s lack of “social visibility.”145 The court in Gatimi found the requirement of “social visibility” to be inconsistent with the immutability test for social group articulated in Acosta, asserting that it put an unreasonable burden on hopeful asylees who would take pains to avoid being socially visible in order to avoid becoming the target of persecution. The court maintained this stance in Benitez Ramos v. Holder, holding that “‘(v)isibility’ in the literal sense in which the Board has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership.”146 Likewise, in Valdiviezo-Galdamez v. Att’y Gen. of the United States, the Third Circuit rejected the BIA’s finding that the proposed social group—”young men who have been actively recruited by gangs and who have refused to join the gangs”—lacked particularity and social

Unit 14

141

See, e.g., Orellana-Monson v. Holder, 685 F.3d 511, 522 (5th Cir. 2012) (interpreting the social visibility criterion as asking whether “people who were recruited to join gangs but refused to do so would be ‘perceived as a group’ by society”); Ramos-Lopez v. Holder, 563 F.3d 855, 859-61 (9th Cir. 2009) (young Honduran men who resist being recruited into gangs); Santos-Lemus v. Mukasey, 542 F.3d 738, 744-45 (9th Cir. 2008)(Salvadoran man fleeing gang persecution); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir. 2009) (Brazilian informants against drug smugglers); Davila-Mejia v. Mukasey, 531 F.3d 624, 628-29 (8th Cir. 2008) (competing Guatemalan owners of family businesses); Koudriachova v. Gonzales, 490 F.3d 255, 261 (2d Cir. 2007)(the Second Circuit refers to “social visibility” and “particularity” as “factors” rather than requirements); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007) (per curiam) (affluent Guatemalans); Castillo-Arias, 446 F.3d at 1194-95, 1197 (11th Cir. 2006) (informants on the Colombian drug cartel). 142 Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010). 143 Id. 144 Raffington v. INS, 340 F.3d 720, 723 (8th Cir. 2003). 145 Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009). 146 Benitez Ramos, 589 F.3d 426 (7th Cir. 2009).

14-34

Tab Position 1

Immigrant Legal Resource Center April 2014

visibility.147 Pointing precisely at Matter of Kasinga and Matter of Toboso-Alfonso, the Third Circuit found the “social visibility” and “particularity” requirements to be inconsistent with prior decisions from the BIA.148 The court rejected an understanding of “social visibility” as an “onsight” visibility requirement and explained instead that the usefulness of “social visibility” to help identify a particular social group was limited to helping to discern group perceptibility by others in society.

Tab Position 1

A Guide for Immigration Advocates April 2014

The Ninth Circuit has not entirely rejected the “social visibility” requirement. However, in the case of Henriquez-Rivas v. Holder, the court adopted an altered version of “social visibility” that does not require “on-site visibility” either, but relies more on the perception of the persecutors: “… a requirement of “on-sight” visibility would be inconsistent with previous BIA decisions and likely impermissible under the statute. Instead, the key … is whether the social groups are “understood by others to constitute social groups.”149 The Tenth Circuit similarly altered the definition of social visibility in the case of RiveraBarrientos v. Holder, affirming that social visibility does not demand that a relevant trait be visually or otherwise easily identified, but instead that “the relevant trait be potentially identifiable by members of the community, either because it is evident or because the information defining the characteristic is publicly accessible.”150 Finally, both the Second and the Fifth Circuits seem to have also rejected an “on-sight” visibility definition of “social visibility.”151 In conclusion, the “social visibility” and “particularity” factors treated by the BIA as requirements have led to the denial of many asylum claims based on membership in a particular social group. These factors have shown to be a greater problem for claims involving gang-related and gender-based persecution, and less so for sexual orientation or gender-identity (SOGI)-based claims (which still face other challenges, of course). While practitioners should continue to challenge, where appropriate, the BIA’s treatment of these factors as required elements, it is important to keep them in mind when articulating a particular social group.

147

Valdiviezo-Galdamez v. Att’y Gen. of the United States, 663 F.3d 582 (3d Cir. 2011). Valdiviezo-Galdamez, 663 F.3d at 604 (“[S]ocial visibility … is an unreasonable addition to the requirements for establishing refugee status where that status turns upon persecution on account of membership in a particular social group”) (internal quotations omitted). 149 Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087-1088 (9th Circ. 2013). 150 Rivera-Barrientos v. Holder, 666 F.3d 641, 652 (10th Cir. 2012). 151 See Orellana-Monson v. Holder, 685 F.3d 511, 522 (5th Cir. 2012); Koudriachova v. Gonzales, 490 F.3d 255, 261 (2d Cir. 2007). 148

14-35

Unit 14

In determining the parameters of the applicable social group, one strategic consideration is to decide how narrowly to define the social group. In order to constitute a social group, the definition has to be broad enough to include significant numbers of persons. It should contain some of the traditional indices of social group such as social class (position) or occupation. On the other hand, if the practitioner defines the social group too broadly, she runs the risk that the adjudicator will be less likely to grant relief because of a fear of “opening the floodgates.”

It is also important to avoid articulating a circular social group. When practitioners define the social group by the harm that their clients suffered or feared, they risk a denial of asylum because they failed to establish membership in a sufficiently narrow particular social group. “The individuals in the group must share a narrowing characteristic other than their risk of being persecuted.”152 Defining a social group circularly presents a problem when trying to establish a nexus between the persecution and the social group. It would be illogical reasoning to say individuals are subject to persecution because they are members of a social group who would be targeted for that specific persecution. B.

Family Ties

Family relationships may be the basis of a particular social group. However, it is not sufficient for someone merely to have a family relationship to a specific person (presumably the main target of the persecution). An asylum applicant has to then prove that this relationship is the basis for the persecution feared. Otherwise, “it will not matter whether the family is a ‘social group’ or not because refugee status will be denied on the ‘on account of’ prong in any event.”153 Attenuated family links, such as those of distant relatives, will not on their own be sufficient evidence that one is a member of a “particular social group.” Rather, the familial relationship must be a “strong and discernible bond” such that it becomes a “foreseeable basis for personal persecution.”154

Unit 14

In Tchoukhrova v. Gonzalez, the Ninth Circuit held that disabled Russian children AND their parents constitute a particular social group.155 The Court stated that in Russia, disabled children constitute a distinct and identifiable group, and they share not only a common characteristic, but also a common experience. Moreover, Russian parents who provide care for their disabled children act in a manner that is so fundamental to their identities that they should not be required to change. However, the court did not decide whether such persons constitute a social group in every country. Other circuits have also recognized family relationships as the basis to find “membership in a particular social group.”156 Additionally, the Ninth Circuit Court of Appeals in Aguirre-Cervantes v. INS, where the petitioner was abused by her father, found that the abuse constituted persecution on account of her membership in a particular social group consisting of her immediate family, whose members were also abused by her father.157

152

Kante v. Holder, 634 F.3d 321, 326 (6th Cir. 2011). Lin v. Ashcroft, 356 F.3d 1027, 1040 (9th Cir. 2004). 154 Lin, 356 F.3d at 1040. 155 Tchoukhrova v. Gonzalez, 404 F. 3d 1181 (9th Cir. 2005). 156 See Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993) (granting asylum because of persecution the applicant suffered based on his relationship with his brother); Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004) (holding that “family” constitutes a particular social group); Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997) (recognizing that family could constitute a particular social group). 157 Aguirre-Cervantes v. INS, 242 F.3d 1169 (9th Cir. 2001). 153

14-36

Tab Position 1

Immigrant Legal Resource Center April 2014

Cases such as Demiraj v. Holder in the Fifth Circuit have emphasized the need to establish a nexus between the family relationship and the persecution, in addition to simply demonstrating a family relationship to a target of persecution.158 In Demiraj, the court found that although being a member of the Demiraj family (the wife and son of a prosecution witness) constituted a particular social group, the petitioners failed to adequately show that their fear of persecution was on account of being a member of their family. The court explained that because the applicants’ persecutors did not seek to overcome the characteristics of wife and son of Mr. Demiraj, but rather sought to hurt the petitioners because they were important to Mr. Demiraj, the persecution was on account of a “personal motivation” rather than the family ties and therefore there was no nexus.159

Tab Position 1

A Guide for Immigration Advocates April 2014

Some courts have rejected “membership in a particular social group” based on family relationships because of the social visibility and particularity requirements. For example, in the case of Bonilla-Morales v. Holder, the Sixth Circuit rejected the social group of “family members of youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected such membership” because it lacked particularity and social visibility.160 On the other hand, in the Fourth Circuit, “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses” satisfied the requirements of a particular social group, because the added element of prosecutorial witnesses fulfilled the particularity and visibility requirements.161 C.

Clan Membership

The BIA held in Matter of H- that membership in the Marehan clan of Somalia is classified as a social group, given the shared ties of kinship and identifiable linguistic commonalities.162 Quoting the State Department’s Country Reports, the BIA noted that “victims were singled out for no other reason than their clan affiliation.”163 Furthermore, the General Counsel’s office issued a memo in December 1993 finding that clan membership in Somalia can meet the definition of membership in a particular social group. The opinion notes that clan membership is a highly recognizable, immutable characteristic that is acquired at birth and is inextricably linked to family ties. It is the type of affiliation that, in the words of Acosta, is “beyond the power of an individual to change or that is so fundamental that it ought not to be required to be changed.”164

158

Demiraj v. Holder, 631 F.3d 194 (5th Cir. 2011). Demiraj, 631 F.3d at 199. 160 Bonilla-Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010); see Matter of S-E-G-, 24 I&N Dec. 579, 583 (BIA 2008). 161 Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011). 162 In re H-, 21 I&N Dec. 337. 163 Id. (quoting the Committees on Foreign Relations and Foreign Affairs, Country Reports on Human Rights Practices for 1992, 103d Cong., 1st Sess. 235 (Joint Comm. Print 1993)). 164 Id. (citing Matter of Acosta, 19 I&N Dec. at 234). 159

14-37

Unit 14

Questions for Discussion 14.11: Defining a Social Group. Miguel and Angelina are Mayan Indians of the Kanjobal group. Like most families in the village, they grow corn, beans and a type of chili not found in other villages. The guerrillas were very active in the province where

they lived (Huehuetenango) and the Guatemalan army believes that many Indian peasants support the guerrillas. About 60-70% of Guatemala’s entire population is Mayan Indian. How would you define the particular social group to which Miguel and Angelina belong? Do you think DHS or the courts would approve of defining Mayan Indians as a social group? A very broad definition of Miguel and Angelina’s social group would be all Guatemalans of Mayan (Indian) origin. This definition of Miguel and Angelina’s social group includes such a large group of people that it is probably politically unacceptable to the DHS and the courts. The underlying fear is that broad definitions of a social group result in “opening the floodgates” to too many people. A narrow definition of Miguel and Angelina’s social group is Kanjobal Indians from San Miguel Acatan. A slightly broader definition is Kanjobal Indians from the highland area of Guatemala in which there was strong guerilla presence. What makes these definitions more acceptable to the DHS and the courts? Is it important to include in the definition the fact that all persons in this social group harvested a particular type of chili not found in other areas? Why or why not?

Unit 14

PRACTICE TIP: Don’t be afraid to advance theories of persecution based on more than one ground. Your clients may fit into several of the enumerated grounds at the same time. However, you must make sure to demonstrate nexus between the persecution and each of the grounds claimed.

Exercise 14.11: Chao Non is from China. He has come to you for help in filing his asylum claim. Chao was a University student in China. He never took part in any student protest activities. However, the government believed most students were political opponents. Since the repression against the student movement, Chao Non was threatened a number of times with incarceration, so he eventually fled to the U.S. Which of the enumerated grounds apply to Chao Non’s case? See Appendix 14-A for answers.

14-38

Tab Position 1

Immigrant Legal Resource Center April 2014

D.

Gender and Domestic Violence as a Particular Social Group165

The issue of “gender asylum” continues to be a leading issue in refugee law and policy. Gender meets the BIA’s “immutable characteristics” test for a social group. The Board in Matter of Acosta articulated the standard for particular social group and listed “sex” as an example of a characteristic defining a social group.166 Therefore, it is established law that gender can be among the defining characteristics of a social group,167 in combination with other relevant immutable/fundamental characteristics, such as nationality,168 bodily integrity169 and refusal to conform or submit.170

Tab Position 1

A Guide for Immigration Advocates April 2014

As mentioned previously, it is important to consider all grounds that might apply in a given case. For instance, gender claims often involve a social group and political opinion. Imputed political opinion can be used as the basis in gender-related asylum claims, where the victim has opposed laws that discriminate on the basis of gender, or where she fears persecution on the basis of feminist beliefs.171 Actual political opinion of the applicant can also be the basis for asylum in a gender-related case. The actions of women, whether organizationally or individually, who resist or defy laws and practices in their countries, whether they are religious (e.g., those common in fundamentalist countries), legal (e.g., discrimination regarding employment, education, etc.), or cultural (e.g., female genital mutilation, ‘bride burning’ and state and domestic violence against women) should be seen as expressing political opinions. One of the first cases in the areas of opposition to gender-discriminatory laws was Fatin v. INS, which examined Iranian laws that prescribe strict dress and conduct laws for women and which involved membership in a particular social group in addition to political opinion.172 The Third Circuit upheld the BIA in denying asylum, because the court found that the record contained insufficient evidence that the sanctions imposed for violation of the laws amounted to persecution. However, the decision is significant because it established that support for the equality of women and for women’s rights is a cognizable political opinion. If a case is such that a claim may be based on both imputed political opinion, and membership in a particular social group, it will be very important to establish a nexus clearly and For specific technical assistance on the complex issues involved in gender-based asylum, see Center for Gender & Refugee Studies or the Tahirih Justice Center. 166 Matter of Acosta, 19 I&N Dec. at 232 (“[T]he shared characteristic might be an innate one such as sex.…”) 167 See Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993); Fisher v. INS, 79 F.3d 955 (9th Cir. 1996); Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). 168 Matter of Kasinga, 21 I&N Dec. 357; Hernandez-Montiel, 225 F.3d 1084. 169 Matter of Kasinga, 21 I&N Dec. 357. 170 Fatin, 12 F.3d at 1240; Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994), superseded by statute on other grounds, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3006-546. 171 Claims arising from expressed feminist beliefs will be discussed in § 4.5, below, on the grounds of persecution on account of membership in a social group, because that is the context in which they most often occur. 172 Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993).

14-39

Unit 14

165

separately for each claim. Analyzing a case that way will also help you articulate a “particular social group” that is more likely to meet the legal standards of “social visibility” and “particularity.” For example, although the court in Fatin accepted gender as a characteristic sufficient to constitute a social group, it found that the petitioner failed to establish that she had a well-founded fear of persecution based solely on gender.173 However, the court suggested that Fatin’s social group claim would have had merit if she had presented compelling evidence of her membership in a more circumscribed group of Iranian women who either “refuse[d] to conform” to such gender-specific laws or for whom such compliance would be “profoundly abhorrent.”174 The Seventh Circuit applied similar reasoning in Sharif v. INS, when it denied asylum to the respondent who failed to establish past or future persecution based on her status as a “westernized woman.”175 A similar reluctance to recognize gender-based persecution when the particular social group is too broad could be seen in Safaie v. INS, where the Eighth Circuit found that gender is overbroad and that “no factfinder could reasonably conclude that all Iranian women had a well-founded fear of persecution based solely on their gender.”176 The enforcement of the strict dress code and rules of the Iranian government did not rise to persecution, even though they may be extreme by Western standards.

Unit 14

In Kante v. Holder, one of the reasons the applicant was denied asylum was because her social group was defined as “women subjected to rape as a form of government control” when there was no other similar characteristic that the individuals in this group shared.177 On the other hand, in Gomez-Zuluaga v. U.S. Att’y Gen, the Third Circuit recognized that “women who have escaped involuntary servitude after being abducted and confined by the FARC,” was a social group that was sufficiently immutable, narrow and distinctive to support a claim for well-founded fear of future persecution.178 As in all other areas of asylum law, it may be significant that these cases were heard by different circuit courts. But the circular reasoning in the first case made the very persecution a characteristic of the social group; whereas in the second case, the nexus was not problematic because it was persecution that happened in the past, that would likely cause her persecutors to persecute her again in the future. Therefore, in gender-based asylum claims, it will be particularly important to identify the characteristics that define a particular social group and to identify the persecution feared by that group; and it will be essential not to confuse the two, as they are separate requirements. A successful gender-based asylum claim will show a nexus between the persecution feared and those characteristics that render a “particular social group.” 173

Fatin, 12 F.3d at 1240. Fatin, 12 F.3d at 1241, 1242 (emphasis in original). 175 Sharif v. INS, 87 F.3d 932 (7th Cir. 1996). 176 Safaie, 25 F.3d at 640. 177 Kante, 634 F.3d 321, 345-46 (6th Cir. 2011). 178 Gomez-Zuluaga v. U.S. Att’y Gen, 527 F.3d 330 (3d Cir. 2008). It is worth noting that this group would likely not be useful for a claim based on past persecution. The characteristics which define the group must exist at the time of persecution. Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003). But see Sarkisian v. Att’y Gen., 322 Fed. Appx. 136 (3d Cir. 2009) (denying asylum on the basis that there was no wellfounded fear of future persecution on account of the applicant’s status as a victim of past persecution.) 174

14-40

Tab Position 1

Immigrant Legal Resource Center April 2014

One obstacle will be that adjudicators may not recognize the types of harm directed at women as forms of persecution. For instance, sexual abuse or rape are often misconstrued as personal rather than political, even when perpetrated by government officials.179 Understanding the ways in which different forms of gender-based violence arise to the level of persecution and the often-complex cultural context in which they do so, will not only be important to help you articulate a successful social group that is separate from the persecution itself, it will also be important to help educate the adjudicator.

Tab Position 1

A Guide for Immigration Advocates April 2014

1. Female genital mutilation The landmark case Matter of Kasinga granted asylum to the applicant, Ms. Kasinga, who had a legitimate fear of female genital mutilation (FGM).180 The BIA held that a well-founded fear of FGM could be the basis for a viable claim to asylum based on membership in a particular social group.181 The Board ruled that Ms. Kasinga belonged to the social group of “[y]oung women of the Tchamba-Kunsuntu Tribe, who have not had FGM, as practiced by the tribe, and who oppose the practice,”182 demonstrating how other protected grounds, such as nationality or ethnicity, may intersect with membership in a particular social group. Additionally, the BIA rejected the punitive or malignant intent argument asserted by the INS for persecution.183 The decision marks an increased level of sensitivity for gender-based asylum claims. Although parents cannot derive asylum status from their children, when it comes to fearing FGM for your daughter, the Sixth Circuit has recognized that the mental anguish that parents can suffer constitutes direct persecution on the parents.184 Unfortunately, most circuits see this claim for asylum as derivative instead of direct.185 Although the Second Circuit has not addressed this specific issue, it has suggested exploring humanitarian asylum as another possible avenue for immigration relief:

179

14-41

Unit 14

See Campos-Guardado v. INS, 809 F.2d 285 (5th Cir. 1987). The applicant was forced to watch the brutal politically-motivated murder of her relatives and raped while attackers shouted political slogans. The Board found that the rape was not on account of her political opinion and that threats of reprisals were “personally motivated” and thus not on account of the enumerated grounds. Id. See also Guidelines for the Protection of Refugee Women, U.D. Doc. ES/SCP/67 ¶ 56, p. 13 [hereinafter UNHCR GUIDELINES] (“[E]ven victims of rape by military forces face difficulties in obtaining refugee status when the adjudicators of their refugee claim view such attacks as a normal part of warfare.”) 180 Matter of Kasinga, 21 I&N Dec. 357. 181 Matter of Kasinga, 21 I&N Dec. at 358. Similarly, in Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005), the court held that women opposed to FGM who belong to an ethnic group practicing FGM is a proper formulation of a social group. Note, however, that this court did not find actual opposition to FGM to be material in the formulation of the group. 182 Matter of Kasinga, 21 I&N Dec. at 357. 183 Matter of Kasinga, 21 I&N Dec. at 365. 184 Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004). 185 See Gumaneh v. Mukasey, 535 F.3d 785, 790 (8th Cir. 2008), Niang v. Gonzales, 492 F.3d 505, 510-14 (4th Cir. 2007), Olowo v. Ashcroft, 368 F.3d 692, 700-04 (7th Cir. 2004).

“Should [the parent] press the argument, the Board may consider on remand whether the mental anguish of a mother who was herself a victim of genital mutilation who faces the choice of seeing her daughter suffer the same fate, or avoiding that outcome by separation from her child, may qualify as such ‘other serious harm.’”186 Similarly, spouses of women who may undergo FGM typically cannot prove per se persecution based on those facts alone. However, these fears can be used to bolster an independent claim of asylum. In Gatimi v. Holder, 578 F.3d 611 (7th Cir.2009), the Mungiki sought to perform FGM on the applicant’s wife because he had defected from the group. Because the applicant refused to produce his wife, he was threatened, kidnapped and tortured. The Seventh Circuit found that in this case, genital mutilation of the applicant’s wife did constitute persecution of the applicant.187 2. Claims based on domestic violence In re R-A-, 22 I&N Dec. 906 (BIA 1999), denying asylum on a claim based on domestic violence, was the first published BIA case on this issue. Rody Alvarado fled Guatemala to avoid continued rape and beatings by her husband. The applicant expressed her opinions by resisting her husband, trying to flee, seeking police intervention and filing legal actions against him. The BIA held that she had not shown that her husband raped and beat her because of her political opinion: [Applicant’s husband said nothing] relating to what he thought her political views to be, or that the violence towards her was attributable to her actual or imputed beliefs. Moreover, this is not a case where there is meaningful evidence that this respondent held or evinced a political opinion, unless one assumes that the common human desire not to be harmed or abused is in itself a political opinion.188

Unit 14

The Board went on to state that even if the husband imputed to his wife the view that women should not be dominated by men, “it does not necessarily follow that he harmed [her] because of those beliefs, rather than because of his own personal or psychological makeup coupled with his troubled perception of her actions.”189 The court’s conclusion was that the harm was personal and thus not protected under the statute. In 2001, Attorney General Reno vacated the Board’s decision, but stayed proceedings pending the publication in final form of proposed regulations.190 The proposed regulations have never been made final. However, the DHS issued a brief regarding its position on In re R-A- in 2004, conceding that the petitioner qualified for asylum as a member of a particular social group. It explained that the Immigration Judge had originally defined Alvarado’s social group as 186

Kone v. Holder, 596 F.3d 141, 153 (2d Cir. 2010). Gatimi, 578 F.3d at 617 (“If your house is burned down, or your child killed, in order to harm you, the fact that you are not touched does not mean that those acts cannot constitute persecution of you”). 188 In re R-A-, 22 I&N Dec. at 915. 189 In re R-A-, 22 I&N Dec. at 916. 190 65 Fed. Reg. 76588-98 (Dec. 7, 2000). 187

14-42

Tab Position 1

Immigrant Legal Resource Center April 2014

“‘Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.’”191 This definition is circular and thus the group does not qualify as a particular social group. However, the DHS argued that “the social group in this case would more accurately be defined as ‘married women in Guatemala who are unable to leave the relationship,’ and that such a formulation would meet the requirements for a particular social group.”192

Tab Position 1

A Guide for Immigration Advocates April 2014

In September 2008, Attorney General Mukasey issued an order lifting the stay and directing the BIA to revisit the issues in Matter of R-A- and related cases and to issue a new decision.193 Because the case was originally litigated prior to the new BIA requirements on social visibility and particularity of social groups, the BIA remanded the case back to the immigration judge, who granted Rody Alvarado asylum in 2009, after 14 years of adjudication. In re R-A- was decided on the grounds of membership in a particular social group as well as political opinion. The Board essentially created new criteria for determining whether a cognizable social group exists. These factors are: whether victims of spousal abuse view themselves as members of the defined social group; whether their male oppressors see their victimized companions as part of this group; and whether the characteristic of being abused is an important one within the applicant’s society.194 Advocates have criticized the original BIA decision and its reasoning for not appreciating the existence of domestic violence in Guatemala as a social phenomenon occurring in the context of social and legal acceptability.195 Possible approaches to domestic violence-based claims include:    

defining the domestic violence as a human rights abuse and cite to applicable international law whether or not the applicant’s home country is a signatory. emphasizing any level of government involvement in the mistreatment feared. exploring closely the possibility of race, religion, or nationality as additional bases for the claim (in addition, of course, to political opinion).196 considering defining the particular social group in the context of the applicant’s failure or refusal to conform to existing societal and legal constraints.

Department of Homeland Security’s Position on Respondent’s Eligibility for Relief 14, Feb. 19, 2004, available at http://cgrs.uchastings.edu/documents/legal/dhs_brief_ra.pdf. 192 DHS Br. 26-28. 193 Matter of R-A-, 24 I&N Dec. 629, 630-631 (A.G. 2008). 194 The National Immigration Project of the National Lawyers Guild and the American Immigration Law Foundation have published “Asylum and Gender -- Matter of R-A--- BIA Decision: Practice Pointers,” a useful analysis for practitioners presenting claims in the wake of the decision. 195 For an excellent critique of the R-A- decision, see Pamela Goldberg and Bernadette Passade Cisse, Gender Issues in Asylum Law After Matter of R-A-, Immigration Briefings, No. 00-2 (February 2000). 196 The Lazo-Majano v. INS decision was one of the first to recognize that sexual violence perpetrated against a woman by an intimate companion can be the successful basis of an asylum claim. The Ninth Circuit granted asylum to the Salvadoran applicant who was repeatedly raped by an army sergeant. Although the court granted asylum based on cynically imputed political opinion, it stated that her resistance to the violence perpetrated against her could constitute the expression of a political opinion.

14-43

Unit 14

191



addressing the issue of countrywide danger; often the only place a divorced woman or single mother can afford to live and get the needed support regarding work and child care is with her family which is usually in the vicinity of the abuser and his family, thus increasing her vulnerability.

Country conditions experts can be particularly helpful in establishing evidence where written documentation is lacking or tends to undercut the claim. Experts can also help establish the contextspecific aspects of the elements, such as social visibility, why a particular opinion is political, etc. In 2002, the UNHCR issued helpful guidelines on social group and gender issues, and advocates should consult and consider using them in arguments.197 Of course, gender cases are not solely about the social group and political opinion grounds. If possible, cases should also be argued on the basis of religion,198 race, or nationality. 3. Forced marriage

Unit 14

The Department of State recognizes that forced marriages constitute a human rights violation under international law.199 In the case of Tang v. Gonzales, 200 Fed. Appx. 68, 70 (2d Cir. 2006), the Second Circuit found that “women who [have] been sold into marriage and who live[] in a region … where forced marriages are considered valid and enforceable” constitute a particular social group.200 Other circuits and the BIA have yet to rule on the issue,201 but it seems that it just a matter of time before the BIA publishes a decision on the issue. In Bi Xia Qu v. Holder, 618 F.3d 602 (6th Cir. 2010) the Sixth Circuit remanded the case back to the BIA to determine whether the petitioner was targeted “because she was a woman [who could be forced] into marriage in a place where forced marriages are accepted.”202 In cases involving forced marriages, it will be important to explain what is meant by a “forced marriage” (for example, distinguishing it from an “arranged marriage”); and to avoid circularity (defining the social group by the persecution that members fear).

197

See UNHCR, Guidelines on International Protection: Membership in a Particular Social Group (HCR/GIP/02/01), 7 May 2002), available at www.unhcr.org/publ/PUBL/3d58dea.pdf; Guidelines on International Protection: Gender-Related Persecution (HCR/GIP/02/01, 7 May 2002), available at www.unhcr.org/publ/PUBL/3d58ddef4.pdf. 198 Matter of S-A-, 22 I&N Dec. 1328. 199 U.S. Dep’t of State, Foreign Affairs Manual, Consular Affairs, Force and Arranged Marriage of Adults, 7 FAM § 1459(b)(c). 200 See also Himanje v. Gonzales, 184 Fed. Appx. 105, 107 (2d Cir. 2006) (citing Gao v. Gonzales, 440 F.3d 62, 70 (2d Cir. 2006), vacated on procedural grounds by Keisler v. Gao, 552 U.S. 801 (2007)). 201 The BIA has ruled that an arranged marriage between adults is not considered per se persecution. Matter of A-T-, 24 I&N Dec. 296, 302 (BIA 2007), vacated on other grounds by 24 I&N Dec. 617 (A.G. 2008). 202 Bi Xia Qu, 618 F.3d at 608.

14-44

Tab Position 1

Immigrant Legal Resource Center April 2014

E.

Sexual Orientation: LGBT Claims as a Particular Social Group203

In Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), the BIA recognized sexual orientation to constitute a particular social group by virtue of meeting the Acosta test of being an immutable characteristic that one cannot or should not be required to change. In that case, a Cuban man who had been systematically harassed, frequently jailed, sent to a forced labor camp, and threatened with long imprisonment because of his sexual orientation was granted withholding of removal. Because the particular social group involved in sexual orientation cases has directly been identified in precedential case law, the element of “immutability” remains the main requirement in such a case. Furthermore, at least the Third Circuit has recognized that sexual orientation can be imputed, and that an applicant’s actual sexual orientation is not relevant if homosexuality is imputed to him or her.204 However, applicants of claims based on sexual orientation or gender identity often face obstacles due to misconceptions about, or even prejudicial attitudes towards, lesbian, gay, bisexual and transgender immigrants.

Tab Position 1

A Guide for Immigration Advocates April 2014

For example, in the case of In re Soto Vega, No. A95-880-786 (BIA 2004), the BIA affirmed a denial of asylum by an immigration judge because, Soto Vega, a Mexican national who had been the victim of harassment and violence for being gay, did not “look gay.” Although Soto Vega was eventually granted Asylum after the Ninth Circuit remanded the case on appeal,205 it is an example of the challenges faced by applicants filing claims based on sexual orientation and gender identity. Similarly, in Todorovic v. U.S. Att’y Gen., 621 F.3d 1318 (11th Cir. 2010), the petitioner did not appear “overtly gay” to the immigration judge, who denied the application on adverse credibility grounds. Because the BIA’s decision was possibly tainted by the stereotyping of the immigration judge, the Eleventh Circuit reviewed the credibility finding, vacated and remanded the decision to the BIA to make new factual findings in order to determine the nexus between the particular social group of homosexual men and the persecution that the applicant suffered.206

203

For more information on this area of asylum, please visit ILRC’s LGBT Immigrant Rights webpage at www.ilrc.org. Other helpful resources may also be found at the websites of organizations such as Immigration Equality, The National Center for Lesbian Rights, and the Transgender Law Center. 204 Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003). 205 Vega v. Gonzalez, 183 Fed. Appx. 627 (9th Cir. 2006). 206 See also Ali v. Mukasey, 529 F.3d 478, 492 (2d Cir 2008) (remanding on the basis that the IJ impermissibly relied on “preconceived notions of homosexuality”). 207 Hernandez-Montiel v. INS, 225 F.3d at 1089.

14-45

Unit 14

In Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), the Ninth Circuit reversed a BIA decision that denied asylum to a Mexican national who identified as a “gay man with a female sexual identity.” The Board found that the applicant had failed to establish “the abuse he suffered was because of his membership in a particular social group,” which the Board defined as “homosexual males who dress as females.”207 The Board also stated the man had failed to show his decision to dress as a female was an “immutable characteristic.” In its reversal, the court held that “sexual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” The court went on to recognize that “the

appropriate ‘particular social group’ is that group in Mexico made up of gay men with female sexual identities” and that Hernandez-Montiel had been persecuted on account of membership in that group. Asylum claims based on sexual orientation or gender identity face many particular issues that practitioners should understand when taking on one of these cases. These issues include any one or several of the following examples: applicants that had been “in the closet” in their home country without any overt problems and who fear returning to their home country after “coming out;” applicants with either a past or current heterosexual marriage; applicants who identify as bisexual, an identity often misunderstood by immigration officials as being a choice rather than an immutable characteristic. Exhaustive documentation of country conditions, expert witness testimony, and evidence of the fate of “similarly situated” persons will all be crucial to prevailing in this type of claim. F.

Gang-Based Claims208

In Matter of S-E-G-, 24 I&N Dec, 579, 583-84 (BIA 2008), the BIA denied asylum protection to “Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities,” reaffirming “social visibility” and “particularity” as additional elements for an asylum claim based on particular social group. These factors have thus become the main issues in question in gang-related cases and have been the cause for denial of asylum time and time again in cases involving youth who flee persecution based on a refusal to join a gang.209 The courts have also been reluctant to grant asylum in gangrelated cases based on one of the other protected grounds, such as political opinion or religious beliefs.

Unit 14

1. Former gang members In Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), the Seventh Circuit explicitly held that former membership in a street gang could serve as the basis for a particular social group. Relying heavily on the concept of immutability, the court stressed that former membership in a group “is a characteristic impossible to change.”210 This concept of an immutable “former membership status” is firmly established in the Seventh Circuit.211 Similar views have also been

208

For more information, practitioners are advised to visit the websites of organizations such as The Center for Gender and Refugee Studies, The Immigrant Law Center of Minnesota, The Capitol Area Immigrants’ Rights Coalition; and the National Center for Refugee and Immigrant Children. 209 See Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009) (finding there was “no evidence that those recruited by gangs were socially visible”); Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) (“young men in El Salvador resisting gang membership” failed as a particular social group because the group lacked social distinction and lacked particularity); Lizama v. Holder, 629 F.3d 440, 444 (4th Cir. 2011). 210 Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009). 211 Gatimi, 578 F.3d 611. See also, Sepulveda v. Gonzalez, 464 F.3d 770 (4th Cir. 2006).

14-46

Tab Position 1

Immigrant Legal Resource Center April 2014

espoused by the Third and Sixth Circuits.212 The willingness to accept former gang membership as a particular social group, however, seems to be primarily predicated on the repudiation of (or at least refusal to apply) the social visibility and particularity requirements.

Tab Position 1

A Guide for Immigration Advocates April 2014

2. People refusing recruitment by gangs There is an extensive history of federal courts refusing to recognize particular social groups predicated on resistance to recruitment from a gang.213 This is despite the concession that a past experience in refusing to join is an irreversible and immutable characteristic.214 Regardless of the potential flaws of the logic articulated in S-E-G-, it has been almost universally accepted as a signal that groups relying on resistance to recruitment will not survive scrutiny. The overall trend is to cite S-E-G- as a blanket ban on such groups without much analysis of the underlying facts specific to each case.215 For example, even when the Tenth Circuit found that the group “El Salvadoran women between ages of 12 and 25 who resisted gang recruitment” actually met the particularity requirement, it ruled that the group failed to meet the social visibility requirement because the persecutors “do not perceive this section of the population as set apart.”216 In general, these claims arise from the northern triangle in Central America and may also have insufficient evidence of nexus. Courts may perceive the persecution as reflecting “a state of general lawlessness” as opposed to targeting on account of membership in a PSG.217 For example, in Santos-Lemus v. Mukasey, 542 F.3d 738, 738 (9th Cir. 2008), the Ninth Circuit found that a group of young Salvadorian men who resist gang recruitment were not socially visible because the “harassment” to which they were subjected was seemingly just a “part of general criminality and civil unrest.” Moreover, policies like mano dura (the anti-gang policies in the

212

14-47

Unit 14

See Lukwago v. Ashcroft, 329 F.3d 157, 178–79 (3d Cir. 2003) (holding that former members of a guerrilla group constituted a particular social group); Urbina-Mejia v. Holder, 597 F.3d 360, 366 (6th Cir. 2010) (finding that applicant’s former membership in a gang formed the basis for a PSG). 213 See, e.g., Matter of S-E-G-, 24 I&N Dec. 579; Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012); RamosLopez v. Holder, 563 F.3d 885 (9th Cir. 2009); Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010). 214 Matter of S-E-G-, 24 I&N Dec. 579 (“[Y]outh who have been targeted for recruitment by, and resisted, criminal gangs may have a shared past experience, which, by definition, cannot be changed”); U.N. High Commissioner for Refugees, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs, ¶ 36, (March 2010). 215 See Lisa Frydman & Neha Desai, Beacon of Hope or Failure of Protection? U.S. Treatment of Asylum Claims Based on Persecution by Organized Gangs, 12-10 Immigr. Briefings 1 (Oct. 2012); see, e.g., OrtizPuentes v. Holder, 662 F.3d 481, 483 (8th Cir. 2011) (quoting Constanza v. Holder, 647 F.3d 749, 754 (8th Cir. 2011)); Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 2010). 216 Rivera Barrientos v. Holder, 658 F.3d 1222, 1231-32 (10th Cir. 2011) as corrected on denial of reh’g en banc sub nom. 666 F.3d 641 (2012). At the administrative level, a group of “Salvadoran women who are viewed as property by virtue of the fact that they were successfully victimized by gang members once before,” was considered a cognizable PSG. In the Matter of Anon, Baltimore 2011. 217 Olivia-Flores v. Holder, 477 Fed. Appx. 774, 776 (2d Cir. 2012); Santos-Lemus v. Mukasey, 542 F.3d 738, 738 (9th Cir. 2008).

Northern Triangle) often work against applicants if courts consider the presence of these laws to be evidence that the local government is at least willing to offer protection.218 Attempts to incorporate other characteristics into the group’s definition (in addition to youth) have also failed to garner designation as a PSG. Specifically, the First Circuit recently rejected a group of “young Salvadoran men who have already resisted gang recruitment and whose parents are unavailable to protect them,”219 although some groups defined on the basis of an immutable family tie which relates to gang activity, however, have fared better.220 Practitioners with asylum claims involving gang-related persecution or social groups should research the case law in their jurisdiction, as this is a developing area of law where advocates are fiercely challenging the many obstacles currently facing these claims. Furthermore, there are other issues that could become an obstacle in these cases, such as if the applicant is found to have committed violent acts as a former member of a gang. Advocates should think critically about cases that may appear to be gang-based and see what other elements are present in the client’s case that could serve as a stronger claim. The gang-based aspect may not need to be the crux of the claim. For example, advocates have had some success in cases where religion has played a role in gang’s persecution of the individual, e.g., an individual is targeted by the gang for his or her religion. Constructing gang-based claims as family group claims, when the gang has targeted the entire family for retribution has also yielded some successes. Immigration Judges have found evidence of police connection to gangs persuasive as well, e.g., when a victim files a complaint with the police and that information is then given to the gang.

Unit 14

Please also see Essentials of Asylum Law for a more detailed discussion of social group.

218

See Cisneros-Diaz v. Holder, 415 Fed. Appx. 940 (10th Cir. 2010); see also Washington Office on Latin America (WOLA), Central American Gang-Related Asylum: A Resource Guide, May 2008. 219 Mayorga-Vidal v. Holder, 675 F.3d 9 (1st Cir. 2012). 220 Crespin-Valladares v. Holder, 632 F.3d 117, 126 (4th Cir. 2011) (reversing a finding that family members of prosecution witnesses against a gang lacked the social visibility necessary for a PSG); There has been some success at the administrative level with family-related elements. A 2010 EOIR decision from Arlington acknowledged a group of “male siblings of those murdered by gangs who resist active recruitment efforts by the same gang. In Matter of Anon, Arlington 2010. The IJ explicitly distinguished this case from S-E-G- by citing the expert testimony which stated that young, male, family members of gang targets are specifically attacked in order to reduce the chance of vengeance killings. When coupled with the small size of the applicant’s town (implying that community members know other members family structure), this testimony was held to satisfy the social visibility requirement which was failed in S-E-G-.

14-48

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 14.12 Nationality A.

Defining the Term

Tab Position 1

A Guide for Immigration Advocates April 2014

The term “nationality” is a misleading choice because it compels one to think in terms of citizenship and national borders. In fact, the concept is primarily focused on ethnic and linguistic groups. According to the U.N. Handbook: The term “nationality” … is not to be understood only as “citizenship.” It refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term “race.” … [I]n certain circumstances, the fact of belonging to such a [linguistic or ethnic] minority may in itself give rise to well-founded fear of persecution.221 Example 14.12 (a): Esther Saroyan was a citizen of the former Soviet Union and is of Armenian nationality. She lived in the city of Baku in the Azerbaijan Republic of the former USSR. In 1990, there were a lot of inter-ethnic conflicts in Baku. Azerbaijani civilians attacked Armenians in Baku, the capital of the republic. Several hundred Armenians were killed, and thousands had their property destroyed and had to flee. During one of the many conflicts, Esther was attacked. The mob beat her repeatedly, knocking out some of her front teeth and causing her to suffer internal bleeding. Esther attempted to get help from the local Azerbaijani police station but they refused to help. Esther was persecuted because of her Armenian nationality. Example 14.12 (b): The situation of the Kurds in Iraq during the government of Saddam Hussein illustrates persecution on account of nationality. Kurds are Sunni Moslems, like the dominant ruling group, and are members of the same race. However, they were persecuted because they are a minority ethnic group or nationality within Iraq. B.

Overlap with Other Grounds for Asylum

The co-existence within the boundaries of a State of two or more national (ethnic, linguistic) groups may create situations of conflict and also situations of persecution or danger of persecution. It may not always be easy to distinguish between persecution for reasons of nationality and persecutions for reasons of political opinion when a conflict between national groups is combined with political movements, particularly where a political movement is identified with a specific “nationality.” Kurds from Iraq, Tamils in Sri Lanka, Sikhs in India and ethnic Hungarians in Romania are examples of the convergence of the nationality and political opinion grounds of persecution. 221

U.N. HANDBOOK at ¶ 74.

14-49

Unit 14

Nationality Cases Often also Involve Other Enumerated Grounds; Race, Political Opinion and Religion. Persecution on account of nationality often overlaps with actual or imputed political opinion, as well as race, and religion. As the U.N. Handbook states:

C.

Case Law

The Ninth Circuit held that an applicant from Indonesia had a well-founded fear of persecution on account of her Chinese ethnicity, also noting that anti-Chinese violence was fueled in part by religious tensions between the majority Muslims and Chinese Christians.222 The BIA denied the asylum claim of a Tamil from Sri Lanka claiming persecution on account of ethnicity.223 The Seventh Circuit dismissed the claim of a woman of Indian descent born in Kenya, stating that her claim bordered on frivolity.224 The applicant alleged that the Kenyan government refused to grant her citizenship because of her ethnic origins, and that she was subjected to continual racial discrimination and harassment. The BIA also denied an asylum claim based on nationality of ethnic Chinese applicant from the Philippines.225 In Begzatowski v. INS, 278 F.3d 665 (7th Cir. 2002), the Seventh Circuit found that petitioner, an ethnic Albanian, had established past persecution based on ethnicity because of his treatment while in the Yugoslavian army. Unlike their Serbian counterparts, Albanian solders were physically abused, denied training, and deprived of ammunition; their sole purpose was to serve as human shields for Serbian soldiers. In Ananeh-Firempong, the First Circuit granted asylum in part because the applicant belonged to a particular tribe.226 Although tribal or ethnic identification fits the criteria for nationality, the court based its favorable decision on the social group theory.227 Practitioners should cite the favorable Ananeh-Firempong case in factually similar cases in pursuing asylum based on nationality as well as social group.228

Unit 14

In Gao v. Gonzalez, 424 F. 3d 122 (2d Cir. 2005), the applicant sold Falun Gong books although the applicant was not a practitioner of the movement. The Second Circuit held that petitioner’s thoughts, actions and motives are irrelevant, but rather the focus should be on whether the authorities perceived petitioner as a supporter of the movement and persecuted him based on that perception. This would be enough to constitute a persecution on account of political opinion.

222

Sael v. Ashcroft, 386 F. 3d. 922 (9th Cir. 2004). Matter of T, Int. Dec. 3187 (BIA 1992). 224 De Souza v. INS, 999 F.2d 1156 (7th Cir. 1993). 225 In re V-T-S-, Int. Dec. 3308 (BIA Mar. 6, 1997). 226 Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir. 1985). See also Makonnen v. INS, 44 F.3d 1378 (8th Cir. 1995), where the Eighth Circuit found that the BIA had applied an erroneous standard in denying asylum to an Ethiopian national of Oromo descent who, along with her family, was affiliated with the Oromo Liberation Front during the 1980’s and 1990’s. The BIA had concluded that because Makonnen did not produce sufficient evidence of a “pattern and practice” of persecution against all the Oromo people by the Mengistu regime in Ethiopia, she was required to prove that she would be (or would have been) singled out for persecution. The Eighth Circuit rejected the BIA’s reasoning. 227 Id. See § 4.6. 228 See also Gebremichael v. INS, 10 F.3d 28 (1st Cir.1993). 223

14-50

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 14.13 Race The U.N. Handbook states that “race … has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as ‘races’ in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population.”229

Tab Position 1

A Guide for Immigration Advocates April 2014

Example 14.13: Sandra is a Black South African. It used to be that under the old apartheid laws in South Africa, Black South Africans were not permitted to vote in national elections. The government also imposed severe limitations on where they could live, work, and go to school. Frustrated with this repressive system in South Africa, Sandra came to the U.S.

Question for Discussion 14.13-a: Did Sandra face persecution in South Africa? Was it on account of race? Did all Black South Africans face persecution on account of race? Does it matter that Sandra was not singled out as an individual for especially harsh treatment? You may have already recognized that the grounds of race and nationality (and sometimes also social group) often apply to the same case. Let’s look at another example. Question for Discussion 14.13-b: The Guatemalan army’s attack on Miguel and Angelina’s hometown of San Miguel Acatan was one of many that it conducted in the highland areas populated by Indians from 1981 to 1983. The government’s actions were a result of its belief that a high percentage of the Mayan Indian population supported the guerrillas. The army completely destroyed over 400 Indian villages during this period. Also, during this period, the army was particularly suspicious of Kanjobal Indians in the San Miguel Acatan area because the guerrillas were very active in that area. Were Miguel and Angelina (and the other villagers) persecuted on account of their Mayan Indian race? Were they also persecuted because they are Kanjobal Indians? Why did the Army commit acts of violence against the villagers?

229

U.N. HANDBOOK, at ¶ 68. See Damaize-Job v. INS, 787 F.2d 1332 (9th Cir. 1986) (applicant had been imprisoned for three months, tortured and threatened with death, while the persecution of Miskitos by the Sandinistas was welldocumented). 231 Surita v. INS, 95 F.3d 814 (9th Cir. 1996). 230

14-51

Unit 14

Although race-based persecution is prevalent in countries whose citizens seek asylum, very few reported cases are based on this ground. There are several noteworthy exceptions. In one Ninth Circuit case a Miskito Indian established a clear probability of persecution by the Sandinista government of Nicaragua.230 The Ninth Circuit in Surita v. INS231 found that the applicant was persecuted on account of race. Ethnic Fijians subjected the applicant, an Indo-Fijian in Fiji, to threats

and multiple robberies because she was racially different from them.232 Several immigration courts have granted Guatemalan Indian cases based at least in part on race. The underlying basis of the Guatemalan persecution claims is that the government imputes disloyalty and political opposition to persons of indigenous peoples. The paucity of court decisions in this area is attributable to the reality that race is often a secondary basis to any of the other grounds. There is an especially high likelihood of overlap with national origin. The U.N. Handbook, paragraphs 68 and 69 defines the terms “race” and “persecution on the basis of race” in generous terms, which may be useful in arguing an asylum case based on this ground of persecution. Paragraph 68 states that race may entail “membership of a specific social group of common descent forming a minority within a larger population.” Paragraph 69 states that discrimination on racial grounds will amount to persecution if, “as a result of racial discrimination, a person’s human dignity is affected to such an extent as to be incompatible with the most elementary and inalienable human rights, or where the disregard of racial barriers is subject to serious consequences.”

§ 14.14 Religion Persons often face persecution for belonging to a certain religious group. This group persecution is very similar to the grounds of race and nationality discussed previously. A religion-based claim can be based upon the right to hold a belief or the right to practice one’s belief, or both. However, it is essential that the persecution be based on the applicant’s religion and not the persecutor’s. The U.N. Handbook emphasizes the protection of the “right to freedom of thought, conscience and religion, which includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.”233

Unit 14

Example 14.14: The Muslim Azerbaijani civilians who attacked Esther (in Example 14.2) did so in part because they knew that Armenians were Christian. Therefore, in addition to nationality, the persecution was also on account of religion. Unfortunately history, as well as current television news, provides many more examples of such persecution (e.g., the Jews in Nazi-controlled Europe, Muslims and Christians in Beirut, Christians, Baha’is and Jews in Iran, Catholics in Northern Ireland, etc.) Religion-based asylum claims are increasing due to the rise of anti-religious or fundamentalist societies. Frequently, there is nominal or no separation of church and state, and violation of religious laws may be enforced by criminal prosecution. Criminal prosecution in this context should not be viewed as a bar to asylum eligibility but, rather, as an example of actual

232

Surita, 95 F.3d at 819; see also Gafoor, 231 F.3d 645 (granting of asylum to Indo-Fijian police officer who arrested a high-ranking Fijian army officer for rape and was beaten and told to “go back to India” as a result). 233 U.N. HANDBOOK at ¶ 71.

14-52

Tab Position 1

Immigrant Legal Resource Center April 2014

persecution and verification of the past or threatened persecution.234 Conversion out of the dominant religion of a country (known as apostasy) can often draw the most severe penalties, legal and religious. The Seventh Circuit has found a well-founded fear of persecution for an Iranian convert to Christianity where Islamic law provided the death sentence for apostasy.235 Likewise, the Eight Circuit court held that an Afghan applicant who had abandoned Islam and had converted to Christianity suffered past persecution after he was beaten by militia men who found bibles in his house and warned him not to engage in Christian activities.

Tab Position 1

A Guide for Immigration Advocates April 2014

Resisting Military Conscription Asylum claims based on religious persecution often arise in the context of persons who avoid military conscription, generally due to prosecution for conscientious objection.236 The key is relating the refusal to serve to certain beliefs of the applicant. Although the U.N. Handbook suggested that refugee status may be granted to those whose refusal to serve in the military is based on “genuine reasons of conscience,”237 including genuine religious convictions, the BIA and the Ninth Circuit have rejected such religion-based conscientious objector claims.238 In Canas II, the Ninth Circuit held that “[i]n light of Elias-Zacarias’ adoption of a motive requirement, [applicant] can no longer prove religious persecution” where applicant was unable to “show some evidence of his persecutor’s intent.”239 The court held that the government was likely to prosecute CanasSegovia for his refusal to serve and not on account of his religion, even though his refusal to serve was based on his religious beliefs. The Seventh Circuit also denied asylum to a Jehovah’s Witness who refused to fulfill his obligation to serve in the military in Dobrican v. INS, 77 F.3d 164 (7th Cir. 1996). However, unlike Canas, the court stated, “[i]f Dobrican had made any showing before the IJ that today’s Romanian military would fail to accommodate his religiously based pacifism, this might be a different case on the facts, in which we would need to address that issue.”240 In Barraza-Rivera v. INS, 913 F.2d 1443 (9th Cir. 1990), the Ninth Circuit held that the applicant established a well-founded fear of persecution based on his refusal to carry out orders from a Salvadoran military officer to commit two executions. The court held that “persecution can result

See Chapter 5 for discussion of criminal prosecution as a bar to asylum eligibility. Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992); see also Najafi v. INS, 104 F.3d 943 (7th Cir. 1997); Ahmadshah v. Ashcroft, 396 F. 3d 917 (2005)(found to have been persecution on account of religion due to persecution for crime of apostasy). 236 See, e.g., Matter of Vigil, 19 I&N Dec. 572; Khalaf v. INS, 909 F.2d 589 (1st Cir. 1990); KavehHaghigy v. INS, 783 F.2d 1321 (9th Cir. 1986). 237 U.N. HANDBOOK at ¶ 173. 238 See Matter of Canas-Segovia, 19 I&N Dec. 697 (BIA 1988), aff’d, Canas II, 970 F.2d 599. 239 Canas II, 970 F.2d at 601. For an in-depth discussion of the conscientious objector theory, see Karen Musalo “Swords into Ploughshares: Why the United States Should Provide Refuge to Young Men Who Refuse to Bear Arms for Reasons of Conscience,” 26 San Diego L. Rev. 849 (1989). 240 Dobrican, 77 F.3d at 167. 235

14-53

Unit 14

234

from resisting conscription for reasons of conscience or refusing to comply with military orders after induction because they violate standards of human decency.”241 The Barraza-Rivera decision is distinguishable from the court’s denial of the conscientious objector theory in Canas-Segovia. The military was likely to persecute Barraza-Rivera for refusing to carry out military orders requiring inhumane conduct, whereas the government was likely to prosecute Canas-Segovia for his refusal to submit to conscription, a law of general applicability.242

Exercise 14.14: Stating an Asylum Claim. Each of these people fled his or her country and wants to apply for asylum. For each story, see if you can complete this sentence: “The person fears persecution by [name the persecutor] based on [name the enumerated ground].” At some point in every asylum case you must make a statement like this to define the person’s claim. The answer to the first question appears below. Sample answers to other questions are at Appendix 14-A. Sample Question: Juan Jose is a medical student at the University of El Salvador. He is not politically active. The Association of Medical Students has come out against the government and the government suspects all medical students of being subversive and several students have been murdered. Sample Answer: Juan Jose fears persecution by death squads based on his membership in a social group, medical students at the University of El Salvador. Death squads are a group the government is unwilling or unable to control. Death squads persecute the medical students for being “subversives.”

Unit 14

In addition, Juan Jose fears persecution based on imputed political opinion. 1. Maria is a labor organizer in Honduras. The military has staged a bloody crackdown on labor activists. 2. The Honduran military has not only arrested union people, but has jailed their family members as well. Maria has a 15-year-old daughter, Cecilia. Cecilia has never participated in union activity. 3. Kanchana is a manager of a government-owned business in Sri Lanka. JVP guerrillas announce that there will be a general strike. They warn Kanchana that if he doesn’t shut down the business for the strike they will kill him for being pro-government. The last time this happened, Kanchana refused to close his store and he was kidnapped by JVP and beaten for three days before he was released. When Kanchana asks government permission to close the business, officials refuse and threaten to kill him if he “cooperates” with JVP.

241

Barraza-Rivera, 913 F.2d at 1451. See Canas II, 970 F.2d 599; see also Matter of A-G-, 19 I&N Dec. at 502 (“Persecution for failure to serve in the military may be established in those rare cases where a disproportionately severe punishment would result on account of one of the five grounds”).

242

14-54

Tab Position 1

Immigrant Legal Resource Center April 2014

4. Sarwan is a member of the Sikh religion in the Punjab region in India. National Police have made mass arrests of Sikhs suspected of being “terrorists.” Many Sikhs have been held for months without being charged, and have been tortured.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 14.15 The REAL ID Act and Corroboration The REAL ID Act, which became law on May 11, 2005, contains five separate titles.243 Title I § 101 “Preventing Terrorists from Obtaining Relief from Removal,” addresses asylum and withholding of removal. Therefore, applications for asylum filed after the date of enactment of this law are subject to it. Procedurally, the REAL ID Act makes four changes to INA § 208 in general. One such change is that it added a new clause (B) “Burden of Proof” to § 208(b)(1). This new clause basically makes clear that the burden of proof is on the applicant to demonstrate that he or she is a “refugee” as defined in 8 USC 1101(a)(42), and that one of the enumerated grounds was or will be at least “one central reason” for the applicant’s persecution. Furthermore, although according to the regulations, an asylum applicant’s credible testimony alone may be enough to satisfy the burden of proof,244 since the passage of the REAL ID Act, the Asylum Officer or the Immigration Judge adjudicating an asylum claim may require additional corroborative evidence to establish the facts of the asylum application. This is because the REAL ID Act created new standards governing when the trier of fact may require an applicant to submit corroborating evidence: “… [w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony,” such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.245 Thus, even if the judge finds an applicant’s testimony credible, the judge may still require the applicant to produce corroborative evidence.

243

The REAL ID Act, Pub.L. 109-13, 119 Stat. 302. See 8 CFR 208.12(a). 245 INA § 208 (b)(B)(ii). 244

14-55

Unit 14

Example 14.4: Jean from Cameroon claims in his asylum application that he was apprehended and beaten seriously at a meeting of a political opposition group. At the first immigration court hearing on the asylum application, the immigration judge required him to provide external documentation at the next hearing. Jean requested the hospital records from his family in Cameroon, which would disclose his injuries. However, Jean’s family tells him that is too dangerous to obtain the records as they might too be targeted. Jean’s practitioner helps him draft a declaration stating that he does not have the evidence and cannot “reasonably” obtain it as his family might be persecuted in Cameroon. In this case the judge might decide that corroboration is not required as Jean’s testimony is credible, and he cannot reasonably obtain the evidence despite his efforts.

The REAL ID also enumerates a list of factors upon which adjudicators are allowed to base an adverse credibility determination. These factors include the demeanor, candor, or responsiveness of an applicant or witness, the inherent plausibility of his or her account, and any inconsistencies or falsehoods within an applicant’s or witnesses’ current or prior statements or between those statements and other evidence in the record, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”246

NOTE: This list of factors is not exhaustive. The language of INA § 208(b)(B)(iii) requires the IJ to consider the “totality of the circumstances and all relevant factors” in basing a credibility determination of any of the enumerated list of factors.

Thus, the standard for asylum is a bit more complex than it appeared at first glance. The person must demonstrate that he or she either has a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion” in the future, or suffered that persecution in the past. But, with the passage of the REAL ID, the burden is now on the person to show that one of these enumerated grounds was or will be at least one central reason for the persecution. Practitioners should review all the facts and statements in their client’s cases. List all types of corroborating evidence an adjudicator might reasonably expect, and with respect to each such item, either obtain it, or, if it is not obtainable, build a record as to why it cannot be obtained. After the REAL ID Act, it is important that the applicant provide corroboration where possible. Should corroboration not be available, the applicant should explain in the declaration or in testimony why further evidence is not available, or why it is not reasonable for the applicant to obtain it. Documenting the unavailability of corroborating evidence is critical to overcoming the strict standards of the REAL ID Act.

Unit 14

Also see Chapter 4 in the Immigrant Legal Resource Center’s manual, Essentials of Asylum Law.

§ 14.16 Bars to Asylum and Discretion Even if someone meets the requirements to asylum, they may not be able to receive it because there are certain bars to obtaining asylum (e.g., persecution of others). So far, this unit has focused on what it takes to prove that one is a refugee in order to qualify for asylum. We should keep in mind that asylum is discretionary, and that CIS or an immigration judge can still deny asylum if there are negative factors in the case even where the applicant meets the refugee definition. Bars to asylum and the role of discretion will be discussed in detail in Unit 15. 246

INA § 208 (b)(B)(iii).

14-56

Tab Position 1

Immigrant Legal Resource Center April 2014

PART TWO: OVERVIEW OF THE PROCESS OF APPLYING FOR ASYLUM

Tab Position 1

A Guide for Immigration Advocates April 2014

NOTE ON APPLICATIONS FILED ON OR AFTER APRIL 1, 1997: This unit includes a description of some of the changes enacted by IIRIRA in asylum law. Most, but not all, of the changes affect applications filed on or after April 1, 1997. This unit does not cover the special procedures governing people who express a fear of persecution upon their arrival at a U.S. border. As a practical matter, most of the clients you will come across will have already entered the U.S. and will not be subject to these special procedures, which are mentioned in Unit 10, Part Three, § 10.18 (Expedited Removal Proceedings). NOTE ON APPLICATIONS FOR UNACCOMPANIED MINORS: An unaccompanied minor is defined at 6 USC § 279(g)(2) as an undocumented person under the age of 18 who does not have a parent or legal guardian willing or able to provide care and physical custody. The asylum process for unaccompanied minors is very different under the Trafficking Victims Protection and Reauthorization Act of 2008. Advocates should consult an immigration attorney with expertise in children’s asylum claims for these cases. Also see Chapter 12 of Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth.

§ 14.17 Affirmative Applications before the CIS A.

Overview

An affirmative asylum application is one filed with the U.S. Citizenship and Immigration Services (CIS) by an individual who is inside the United States, who has not been apprehended by Immigration and Customs Enforcement (ICE) and who is not in removal proceedings. If the CIS denies the application, the case is referred to immigration court, where the applicant will proceed with a defensive application before an immigration judge, as described in § 14.18.

Once CIS has received the completed application and accepted it, it will send a receipt notice to the applicant or to the representative if a Notice of Entry of Appearance on Form G-28 is submitted with the asylum application. The notice of receipt is important because it not only assures that the packet has been received, and prior to the elapsing of one year since date of entry if that is an issue, but it also signifies the beginning of the 150-day and 180-day ‘clocks’ for employment authorization purposes, as described below. 247

See 8 CFR § 208.3(b) and 8 CFR § 208.16(a).

14-57

Unit 14

The applicant will need to file Form I-589, Application for Asylum and for Withholding of Removal, with the designated CIS service center. An application for asylum automatically constitutes an application for withholding of removal as well, although the asylum officer will not decide whether an applicant is entitled to withholding.247

Soon after receiving the application, the CIS will also issue a biometrics appointment notice directing the applicant to a local Application Support Center (ASC) to submit his or her biometrics. Once the biometrics have been submitted, CIS will schedule the applicant for an interview. The necessary background and security checks must be completed before an application can be approved; and it is these checks that sometimes delay the decision on of the application. If the application is approved, the applicant will receive asylum protection in the United States, along with all the benefits this entails. See Appendix 14.B. Otherwise, the application may be referred to immigration court and the applicant would receive a Notice to Appear (NTA) in court to present his or her application to an immigration judge. This happens in cases where an asylum applicant is not in lawful immigration status. However, if the applicant is in fact in lawful status, such as through a valid and current nonimmigrant visa, the CIS would not refer the case to immigration court but would simply deny it and allow the individual to continue to remain in the U.S. in whatever status they hold. The affirmative process is administered by the Asylum Office of the CIS. This branch was established to supervise specially-trained asylum officers whose sole duty is to hear and adjudicate applications for asylum and withholding of removal. B.

Time Limit: One-Year Rule

The asylum application must be filed within one year of the alien’s arrival in the United States. INA § 208(a)(2)(B). There are two exceptions to the one-year rule. First, a late-filing person can show that she now meets the well-founded fear standard by virtue of changed circumstances that affect her eligibility for asylum (for example, changes in her home country, changes in her immigration status such as the expiration of a valid nonimmigrant visa, or perhaps changes such as eliminating a conviction so that she is no longer barred from asylum). Or, the person must show that extraordinary circumstances occasioned the delay in filing. INA § 208(a)(2)(D). See Unit 15 for a more detailed discussion of the One-Year Rule.

Unit 14

C.

Applying for Employment Authorization

The filing of an application for asylum does not automatically result in the person obtaining employment authorization. An applicant must apply for a work permit Pursuant to 8 CFR § 274a.12(c)(8). However, the statute prohibits the granting of employment authorization until 180 days after the filing of the asylum application.248 The regulations also specify that an asylum applicant cannot file an application for employment authorization until at least 150 days after the date on which the asylum application was properly filed.249 In essence, the CIS has 30 days to grant or deny an application for employment authorization based on asylum, but it cannot actually issue the applicant an employment authorization document, or EAD card, until after 180 days from the asylum application filing date.250 Of course, this timeline applies assuming that the asylum application remains pending for this time. If the CIS recommends the asylum application 248

INA § 208(d)(2). 8 CFR 208.7. 250 8 CFR § 208.7(a). 249

14-58

Tab Position 1

Immigrant Legal Resource Center April 2014

for approval, the soon-to-be asylee may proceed to apply for employment authorization still pursuant to, 274a.12(c)(8), with that notice of recommended approval.

Tab Position 1

A Guide for Immigration Advocates April 2014

This timeline to apply for employment authorization is related to, but somewhat separate from, the administrative adjudication timeline, or the time mandated by statute for the CIS to adjudicate an asylum application, which requires that a final decision be made on an asylum application within 180 days after the application is filed, unless there are exceptional circumstances.251 Basically, if the government takes longer than the 180 days mandated by statute for an administrative adjudication of an asylum application, the applicant becomes eligible to receive work authorization. Therefore, the timeline referred to as the “Asylum Clock” is the method by which the government calculates the 180-day waiting period before an asylum applicant is eligible for work authorization. The Asylum Clock begins when a complete asylum application has been filed affirmatively with CIS or defensively with the immigration court. It is rare for the problems associated with the Asylum Clock to affect an applicant whose application is successfully adjudicated by the CIS, through the affirmative process, simply because most such applications should be adjudicated within the 180 day period allotted by law. However, applicants should be aware that any delay in the processing of the application for asylum that is caused by the applicant—such as a failure to appear at a biometrics appointment or at an asylum interview— may cause the Asylum Clock to stop. In that case, an applicant may not be able to submit an application for work authorization even if more than 180 have passed after the filing of his or her asylum application, because the days after the event that stopped the Asylum Clock will not be counted. Thanks to a recent settlement agreement in the case of A.B.T. et al. v. USCIS, et al., No. CV11-2108-RAJ (W.D. Wash.), an applicant who misses an asylum interview will receive a letter from CIS notifying them that missing the interview will affect their chances of obtaining a work permit and the CIS will now give applicants 45 days to show good cause for missing the interview. Therefore, it is important to discuss this with your clients so they are aware of the timeline for applying for work authorization and the ways in which their actions may affect this timeline. D.

Applying for Travel Authorization

Another important warning to give your clients regarding travel abroad is that, even with the proper authorization through an Advance Parole, if an asylum applicant returns to the country 251 252

INA § 208(d)(5)(A)(iii); 8 CFR § 208.7(a)(2). The applicant will be requesting Advance Parole pursuant to 8 CFR § 212.5(f), as an asylum applicant.

14-59

Unit 14

Asylum applicants are permitted to travel abroad while their asylum application is pending. However, it is important to let your clients know that they cannot leave the U.S. without a current and valid Advance Parole Document or they will be considered to have abandoned their application for asylum. Therefore, an asylum applicant with a pending application must apply for Advance Parole on Form I-131 in order to obtain travel authorization.252

of claimed persecution, this will also be considered an abandonment of the asylum application, unless they are able to show “compelling reasons for such return.”253 This is because, by travelling back to the country of claimed persecution, the applicant is considered to be availing him or herself of the protections of that country. As noted in Appendix 14.B, this continues to be true even after an asylum application is approved. An asylee risks losing his or her asylum status if he or she returns to the country of persecution. Considering the processing time of 180 days for an affirmative asylum application it may be advisable for the applicant not to plan any travel during that time, if at all possible. This could cause them to miss their biometrics appointment or asylum interview; and, even if they are able to show good cause for requesting a rescheduling of these appointments, the case would be delayed. E.

The Interview

According to the statute, the initial interview on the asylum application should be scheduled no later than 45 days after the application filing date.254 Therefore, an applicant should be scheduled to be interviewed within 5-7 weeks after filing the application on Form I-589, after submitting his or her biometrics at an Application Support Center (ASC). The interview should take place either at one of the eight Asylum Offices or at a CIS field office and should take approximately one hour, although the time will vary from case to case. However, expect to possibly wait in the lobby for several hours after the time for which the interview was scheduled.

Unit 14

There are eight regional asylum offices, located in San Francisco, Los Angeles, Houston, Chicago, Miami, Arlington (Virginia), Newark and New York; and for applicants not located at any of these cities, asylum officers will travel to other large cities in their regions for applicants in those areas. For example, Seattle is served by the San Francisco office and Minneapolis by the Chicago office. Applicants who need to be interviewed at a CIS field office may take longer to receive an interview notice, simply because they have to wait for an asylum officer to travel to the local field office to interview asylum applicants. The interview is conducted in an office with only the asylum officer representing the government. Unlike immigration court, there is no government attorney in the room and there is no record being made of what transpires during the interview. If the applicant needs English translation at the interview, bear in mind that, unlike Immigration Court, no interpreter is provided by the Asylum Office. Therefore, the applicant must make sure to bring an interpreter with him or her to the interview. After the interview, the asylum officer will reach one of two decisions: either to ‘refer’ the case to immigration court or to grant asylum. A supervisory asylum officer reviews the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, the supervisory asylum officer may refer the decision to asylum division headquarters staff for additional review. 253 254

8 CFR § 212.5(f). INA § 208(d)(5)(A)((ii).

14-60

Tab Position 1

Immigrant Legal Resource Center April 2014

F.

Adjudication of the Asylum Application

If the asylum request is granted, the client will first receive a notice captioned “Recommended Approval.” This indicates that the CIS will conduct a thorough computer check on his background through his fingerprints in order to determine if there are events in the past that weren’t divulged by the applicant which would warrant a referral (denial). Examples of this are prior criminal convictions and prior orders of removal or deportation. The vast majority of asylum applicants successfully pass through the Recommended Approval stage to ultimately receive their “Asylum Approval” letters. Once a person become an asylee, she can obtain employment authorization, if she didn’t already qualify for it; she can petition for asylee status of relatives who could not be granted derivative asylum along with the principal applicant; and can apply to adjust her own status to become a lawful permanent resident (get a green card) one year later. See Appendix 14-B regarding the benefits afforded to asylees.

Tab Position 1

A Guide for Immigration Advocates April 2014

If the decision is to refer, the client will receive two documents in the mail. One is a Referral Notice which succinctly states the reason why the petition was not granted. The other is a Notice to Appear in local immigration court and other documents, usually with a date and time to appear in court for the scheduling of the asylum hearing. The practitioner should be aware that, in all cases that are referred, the Asylum Officer prepares a typewritten “Assessment to Refer” which is a distillation of the notes taken at the asylum interview. This document is often introduced into evidence by the CIS Trial Attorney in preparation for the asylum hearing. A copy should be sought early on, either by requesting one from the Trial Attorney at the Master Calendar hearing and/or by filing a Freedom of Information Act (FOIA) request for it. The officer’s handwritten notes, which are taken at the asylum interview itself, should also be sought at an early stage. These documents must be examined carefully because they are, of necessity, injurious to your client’s claim.

§ 14.18 Defensive Asylum in Removal Proceedings A.

Overview

An asylum applicant may end up presenting a defensive asylum application in different ways. First is the example of an asylum application that is filed for the first time with an

14-61

Unit 14

A defensive asylum application is one presented when an individual is in removal proceedings in immigration court, before an immigration judge. Immigration judges work under the Executive Office for Immigration Review (EOIR), a branch of the U.S. Department of Justice that is separate from the Department of Homeland Security (DHS). Also included in the EOIR branch of the Justice Department is the Board of Immigration Appeals (BIA). The individual against whom removal proceedings are brought is referred to as the “respondent.” Please see Unit 10 for more information on removal proceedings.

immigration court as a defense to removal when an individual faces removal proceedings.255 Because these applications are filed with the immigration court, the one-year deadline should be one of the main concerns the legal advocate should have in mind in these cases. Second, if a person expresses a fear of returning to his or her home country upon arriving in the U.S., they will go through what is called a “credible fear interview,” after which they may be placed in removal proceedings to be given an opportunity to present a defensive asylum application. Another way in which an individual may end up presenting an asylum application in court is after the US Citizenship and Immigration Services (CIS) has not granted his or her affirmatively filed application and refers it to court for consideration. B.

Filing in Court and the One-Year Deadline

Unit 14

As discussed in more detail in Unit 15, the one-year deadline is one of the bars to asylum, because it prevents an individual from applying for asylum after one year from the date on which they arrived in the U.S.256 In the case of defensive asylum applications, where the applicant is filing for the first time in front of the court, the representative must be mindful of this rule and in some cases motion to advance a hearing to meet this deadline. In cases that were affirmatively filed, then referred to court, the filing date is the date the application was initially filed with CIS. The referral to court does not require a new filing. For cases where the asylum application is filed for the first time in immigration court, it will be considered filed the date it is received by the courts. Furthermore, EOIR has stated in a memorandum issued on November 15, 2011257 that an application is not considered officially filed until it is filed with a judge at a hearing. Therefore, it is crucial that the applicant not miss the one-year deadline while she waits for her first hearing with the court, referred to as a master calendar hearing (see below). If an applicant has received an NTA with the hearing date set either “to be determined,” you should call the court’s case information system at one of the following numbers in order to find out when the date of the master calendar hearing is: 1-800-898-7180 or 240-314-1500. If the master calendar hearing is set for a date after the one-year mark from the date the applicant arrived in the U.S., you must file a motion with the court, requesting an advance hearing in order to file the asylum application within the one-year deadline, usually titled a “motion to advance master calendar hearing.” This may be advisable even if the one-year deadline has passed, if the applicant is raising one of the exceptions to the deadline. Advancing the hearing is still important in these cases because the applicant must prove she filed within a reasonable time given the exception. In that case, the judge may ask for briefing on the exception that is being claimed: either the “extraordinary circumstances” exception or the “changed circumstances” exception, both of which are discussed in Unit 15. 255

Someone that is currently in Immigration Court has either been served with a Form I-862, Notice to Appear; Form I-863, Notice of Referral to Immigration Judge; Form I-221, Order to Show Cause and Notice of Hearing; or Form I-122, Notice to Applicant for Admission Detained for Hearing Before an Immigration Judge. 256 INA § 208(a)(2)(B). 257 EOIR Memorandum, Operating Policies and Procedures Memorandum: the Asylum Clock. Brian M. O’Leary, Chief Immigration Judge. November 15, 2011.

14-62

Tab Position 1

Immigrant Legal Resource Center April 2014

C.

The “Asylum Clock” and Qualifying for Work Authorization

The filing of an application for asylum does not automatically result in the person obtaining employment authorization. The statute prohibits the granting of employment authorization until 180 days after the filing of an asylum application.258 The timeline referred to as the “asylum clock” is the method by which government immigration agencies calculate the 180-day waiting period before an asylum applicant is eligible for work authorization. See § 14.18 above for more details on this.

Tab Position 1

A Guide for Immigration Advocates April 2014

Historically, problems and inconsistencies with the handling of the Asylum clock by both EOIR and the CIS, in addition to significant court backlogs, have led many asylum applicants to wait for much longer periods than the 180 days to receive a work permit while their applications are pending. Fortunately, a recent settlement agreement in the case of A.B.T. et al. v. USCIS, et al., No. CV11-2108-RAJ (W.D. Wash.) has made significant changes to the asylum clock.259 Per the District Court’s order, the settlement is to be implemented as of December 3, 2013 over a two-year period. The settlement challenged and resolved the following five main issues: 1. As mentioned above, the asylum clock only starts when a complete asylum application is filed; and currently, EOIR only allows an applicant to file her application at a hearing in front of an immigration judge. However, serious backlogs in immigration court result in long waiting periods in order for asylum applicants to appear in court for their first hearing. In addition to the problem this poses for individuals needing to file an application within one-year of their arrival in the U.S. (discussed above), this is also problematic for asylum applicants who wish to make sure that the time they spend waiting for a court hearing counts towards the 180 days of the Asylum Clock that will allow them to obtain work authorization.

2. Currently, the Asylum Clock will be stopped if an applicant does not choose to have an expedited merits hearing which can be set in as little as 14 days after the master calendar hearing. This is due to the fact that an asylum applicant has the right to have his case heard and have a decision within 180 days. However, since 14 days is very little time, the A.B.T. agreement reached will now require an immigration judge to offer a non258

INA § 208(d)(2), 8 USC § 1158(d)(2). The lawsuit was filed in December 2011 by the American Immigration Council’s Legal Action Center (LAC), the Northwest Immigrant Rights Project (NWIRP), the Massachusetts Law Reform Institute, and the Seattle law firm Gibbs Houston Pauw. For more information about the lawsuit, please visit www.legalactioncenter.org/litigation/asylum-clock.

259

14-63

Unit 14

The A.B.T. settlement resolved this issue by now allowing applicants to “lodge” an asylum application with an immigration court clerk instead of at a hearing. Although the application still needs to be filed in open court in order to be considered properly “filed” within the one-year deadline, once the application is at least lodged at the window of the immigration court, it will start the Asylum Clock of 180 days for employment authorization eligibility.

detained applicant a hearing that is at least 45 days out without causing the Asylum Clock to be stopped. This will allow applicants and advocates more time to prepare an expedited asylum case while not punishing the asylum applicant by stopping the Asylum Clock. 3. Another issue addressed by the A.B.T. settlement agreement involves the waiting time when the case is appealed to the BIA. Once an asylum application is denied by the Judge, the clock is stopped. This is an issue particularly for those that are successful in appealing their decision, because even though they are successful and eventually obtain asylum, during the appeals process, which can take several years, they are still left without the opportunity to apply for work authorization. The A.B.T. settlement will now allow the Asylum Clock to restart again on the day the BIA remands the case to the immigration judge. Furthermore, the applicant will be able to count or add the number of days that the case was pending on appeal since the denial. For example, if the BIA remand happened 120 days after the Judge’s denial, the applicant can count the 120 days towards their 180-day waiting period. 4. Furthermore, applicants had been awarded insufficient notice about the consequences of failing to appear at an asylum interview and were only given 15 days to show good cause for missing the interview. As part of the settlement agreement, an applicant who misses an asylum interview will now receive a letter from CIS notifying them that missing the interview will affect their chances of obtaining a work permit and will now give applicants 45 days to show good cause for missing the interview.

Unit 14

5. Additionally, the newly reached A.B.T. settlement, the immigration court will provide a written notice to asylum applicants and their advocates about the Asylum Clock, the adjournment code, the reason for adjournment, and the impact of the different adjournment codes on obtaining employment authorization. This is important because prior to the settlement, the judge could stop the clock by continuing a hearing for a specific reason without notification to the respondent. 6. Finally, the A.B.T. settlement agreement will allow class members to submit a claim if their employment authorization request was wrongly denied. If the claim does not resolve the issue, the applicant may file a claim with the District Court.

Case Strategy: Because an applicant can now lodge an application at the window, many applicants will become eligible for work authorization prior to their first master calendar hearing, or shortly thereafter, which is often several months away. This will mean some applicants will prefer to slow down their case and not accept an expedited hearing. Others will still need to advance the master calendar hearing for purposes of meeting the one-year filing deadline. Timing of submitting the application and choosing whether or not to expedite a case are both important issues that you should discuss thoroughly with the client.

14-64

Tab Position 1

Immigrant Legal Resource Center April 2014

Note that not all asylum applicants are subject to the asylum clock. Individuals that have filed an asylum application prior to January 4, 1995 or pursuant to the settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (“ABC” cases), or whose application have been recommended for approval, are all exempt from the asylum clock or waiting period.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 14.19 “Should I Apply for Asylum?” Analysis of Risks and Benefits Probably the most important initial task of practitioners advising persons who wish to apply for asylum is to inform them of the risks as well as the benefits. The risk analysis is particularly critical in asylum cases because a denial of an affirmative application will trigger removal proceedings for most applicants. Many persons who wish to apply for asylum affirmatively are anxious to obtain work authorization or otherwise legalize their status. You need to explain to them that they will not receive work authorization merely by filing an asylum application. You also need to emphasize that by applying for asylum they are beginning a process that could result in their removal from the United States. The benefits of winning asylum are great. If CIS or the immigration judge grants the application for asylum the person becomes an asylee. An asylee can: apply for permanent residency one year after approval; immediately apply for asylum status for spouse and children; obtain travel papers and employment authorization; and apply for some public benefits. See §§ 15.13–15.15 and Appendix 14.B.

Question for Discussion § 14.19: Miguel and Angelina make an appointment with you, seeking your help in applying for asylum. What will you advise them? What are the benefits of applying for asylum for Miguel and Angelina? What are the risks? Would it be useful to have a group discussion about the risks and benefits with a number of potential asylum clients?

Essentials of Asylum Law, an ILRC Publication (www.ilrc.org/publications)

14-65

Unit 14

FOR MORE INFORMATION ON THIS SUBJECT, see:

Unit 14

Tab Position 1

=

APPENDIX 14-A Answers to Exercises

Tab Position 1

A Guide for Immigration Advocates April 2014

Exercise 14.8 1. Under these facts, Pablo is not eligible. He is not afraid of persecution based on one of the five grounds. He has the bad luck to be involved in a personal fight. 2. Yusef can state an asylum claim. He is afraid that the military will kill him to punish him for membership in a group that they suspect is subversive (student protesters) and because of his political opinion. Exercise 14.11 Considering the facts behind Chao Non’s persecution, he may have a claim based on imputed political opinion and one based on particular social group. Because Chao Non was a university student, the government believed that he was a political opponent. Due to this belief, the government moved to persecute him. It did not matter that the government was mistaken. Additionally, a claim under social group can be asserted. The social group could be “students from X University” or “University students from schools where there was support for Tiananmen Square protest.” Both theories could be put forth in the same asylum application, so long as your argument for one claim did not undermine the evidence in favor of the other. Exercise 14.15 1. Maria fears persecution from the military based on political opinion. In addition, Honduran labor organizers may qualify as a social group. 2. Maria's daughter Cecilia fears persecution from the military based on imputed political opinion and on social group as a family member of a social activist. “Family ties” has been suggested as a basis for social group. See § 14.11.

Did you notice that Kanchana can claim asylum based on past persecution, because he was kidnapped and tortured? The past persecution claim must be tied to one of the five grounds, just like the “well founded fear” claim. 4. Based on these facts, it appears that Sarwan fears persecution from the National Police based on religion. The practitioner should explore whether the asylum claim may also be based on political opinion (imputed or actual) and nationality. Being Sikh in India may be considered a nationality as well as a religion.

Appendix14-A-1

Unit 14

3. Kanchana fears persecution from JVP guerrillas based on social group. The social group may be businesspeople in the region who refuse to cooperate with JVP guerrilla actions. In the Ninth Circuit, Kanchana could claim asylum based on imputed political opinion. If Kanchana really is anti-guerilla, he has a claim under actual political opinion.

APPENDIX 14-B AFTER WINNING ASYLUM: BENEFITS FOR ASYLEES After an asylee is granted asylum, he or she may receive an Asylum Approval Letter from the United States Citizenship and Immigration Services (USCIS) or an Order Granting Asylum from an Immigration Judge with the Executive Office of Immigration Review (EOIR). The asylee should also obtain an I-94 card with a stamp showing he or she has been granted asylum. Asylees who were granted asylum status by the CIS should receive the I-94 card along with the approval letter granting asylum. Otherwise, asylees who were granted asylum by an immigration judge will need to apply for this I-94 card by scheduling an InfoPass appointment at a local CIS office. Note that an order from immigration court is not final unless the Immigration and Customs Enforcement (ICE) waives the right to appeal the decision granting asylum or until 30 days have passed since the decision granting asylum and ICE has not yet filed the appeal (which you can find out by calling EOIR’s case status line at 1-800-898-7180). Asylum status comes with significant benefits in addition to legal authorization to live and work in the U.S. These benefits are listed below and this appendix provides a brief overview of each: 1. 2. 3. 4.

The right to apply for certain public benefits; The right to apply for asylum status for the asylee’s spouse and children; The right to employment authorization; The right to travel outside the U.S. (with the exception of the country of persecution, see this section if applicable); and 5. The right to apply for permanent residency one year after receiving asylum.

Unit 14

1.

The Right to Apply for Certain Public Benefits

Asylees are eligible for a series of public benefits, such as health and medical services, including treatment for victims of torture; cash assistance; employment assistance; food stamps and others. Most importantly, you should advise your clients to visit the Office of Refugee Resettlement (ORR) within 31 days of being granted asylum because there may be deadlines associated with some of the benefits available for refugees, such as programs that assist with finding a job, getting a health assessment, learning English, and financial assistance. The ORR is part of the Administration for Children & Families of the U.S. Department of Health and Human Services. Otherwise, to learn more about benefits to which your asylee clients may be entitled, visit the website of the Catholic Legal Immigration Network, Inc. (CLINIC) at https://cliniclegal.org/resources/toolkits/asylee-information. 2.

The Right to Apply for Asylum Status for the Asylee’s Spouse and Children

If the spouse or child of an asylee was not included in the asylee’s original asylum application, as a derivative applicant, the asylee must file a Refugee/Asylee Relative Petition on Form I-730 for her spouse and each child separately. See INA § 208(b)(3). The asylee may file

Appendix 14-B-1

Tab Position 1

Immigrant Legal Resource Center April 2014

this petition whether her spouse or child is in the U.S. or abroad. When the spouse or child is outside the United States, he or she will need to be interviewed and be issued a travel document by a U.S. Embassy or Consulate with the Department of State. Therefore, this process will usually take longer than a petition for a derivative asylee who is present in the U.S.

Tab Position 1

A Guide for Immigration Advocates April 2014

The asylee must file the I-730 petition within two years from the date on which she was granted asylum status. Under certain circumstances, an asylee may be able to file Form I-730 after the two years have passed. The regulations at 8 CFR § 208.21 allow the CIS to grant the application beyond the 2 year deadline for humanitarian purposes. However, the asylee will need to provide a compelling explanation as to why she was unable to file within the deadline, such as evidence of a health condition that prevented her from filing. In order to obtain derivative asylee status for a spouse, the spousal relationship must have existed on the date the principal asylee was granted asylum. Furthermore, the principal asylee may only file an I-730 petition for a child who was under 21 and unmarried on the date the principal asylee (the parent) filed her asylum application. Thanks to the Child Status Protection Act (CSPA), as of August 6, 2002, a child who was under 21 and unmarried when her parent applied for asylum will remain eligible to apply for derivative status through an I-730 petition even if she turns 21 before the petition is approved. See INA § 208(b)(3)(B). Moreover, the protections of the CSPA apply at the time of applying for adjustment of status as well. Therefore, a derivative asylee will be eligible to apply for adjustment of status a year after he or she was granted derivative asylum, even if he or she is over 21. 3.

The Right to Employment Authorization

Asylum status comes with the right to work in the U.S. The regulations refer to this as being “authorized employment incident to status.” This means that an asylee is not required to have an Employment Authorization Document (EAD card) in order to be authorized to work. Asylees are authorized to work by being granted asylum.

Even if not required to have an EAD card, an asylee should receive one upon being granted asylum. If the asylee was granted an affirmative asylum application by CIS, she should receive an EAD card in the mail shortly thereafter. Otherwise, if granted asylum by an immigration judge in court, the asylee should schedule an InfoPass appointment at a local CIS office to apply for an EAD as well as an I-94 card. However, the EAD card will be mailed to the asylee in the weeks following the appointment. The EAD card should be valid for 2 years. In order to apply for a new card later on, an asylee will need to apply pursuant to 8 CFR § 274a.12(a)(5). When applying for an EAD card as an asylee, a person must indicate “(a)(5)” on question 16 of the Application for Employment Authorization on Form I-765. It is recommended that asylees obtain an EAD card.

Appendix 14-B-2

Unit 14

Therefore, in order to apply for employment, asylees must meet the requirements of the Employment Eligibility Verification Form I-9, which requires both, photo identification and work authorization, either in one document or in two separate documents. Therefore an asylee has several options for how they can prove work eligibility.

In addition to its use when applying for employment, it can also be convenient when applying for a driver’s license. An asylee may also apply for employment authorization with photo identification, such as a driver’s license, and a social security card reflecting no employment restrictions. An unrestricted social security card can also be used to document eligibility for employment. An asylee must apply for an unrestricted social security card by bringing the document that shows he has been granted asylum (see the top of this appendix) to a social security office. Visit the Social Security Administration’s website for information on where and how to apply for a social security card: www.socialsecurity.gov. 4.

The Right to Travel outside the U.S.

Asylees may travel abroad with a refugee travel document. A refugee travel document is valid for one year, since it is intended for temporary travel abroad. A person should obtain the refugee travel document before leaving the U.S. In order to apply for a refugee travel document, an asylee will need to file an Application for a Travel Document on Form I-131 with the CIS. A refugee travel document serves as the travel document an asylee presents at the port of entry of another country in order to identify himself as an asylee of the United States. Therefore, the asylee must make sure she will be allowed to enter the country to which she is travelling with a refugee travel document from the U.S.

Unit 14

The reason an asylee is required to obtain a refugee travel document in order to travel abroad is not only because she will need it to seek to reenter the U.S. as an asylee. More importantly, after being granted asylum in the U.S., an asylee should no longer be using the passport from the country of persecution in order to travel. Furthermore, even with a refugee travel document, asylees should not travel back to their country of persecution.

WARNING: By applying for asylum, a person has stated that her country is either not able or not willing to protect her. Travelling abroad with a passport from that country would mean presenting herself as a national of that country and would thus be contradictory to the claim for protection from that country. According to INA § 208(c)(2): “Asylum granted under subsection (b) does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that - … (D) the alien has voluntarily availed himself or herself of the protection of the alien’s country of nationality or, in the case of an alien having no nationality, the alien’s country of last habitual residence, by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country.”

Appendix 14-B-3

Tab Position 1

Immigrant Legal Resource Center April 2014

An asylee who either travels with a passport from the country of persecution or travels to the country of persecution could be considered to be “availing” herself of the protection of that country. Furthermore, the CIS has said that travel back to the country of persecution may be considered as an indication that circumstances have changed in the asylee’s country of persecution, such that she no longer requires asylum protection; a possible sign of fraud in the asylum application; or evidence that the asylee’s fear of persecution is not genuine. Therefore, by travelling back to the country of persecution, an asylee would not only risk losing her asylum status, she may also risk losing her ability to obtain lawful permanent resident status as an asylee or even her eligibility for naturalization.

Tab Position 1

A Guide for Immigration Advocates April 2014

It is important to let clients know that they take this risk even if they are already lawful permanent residents. According to CIS, a person who is granted asylum in the U.S. is considered an “asylee” until she obtains U.S. citizenship. Therefore, either an asylee or a lawful permanent resident who obtained such status through asylum may be placed in removal proceedings to terminate asylum status, if they travel back to the country of persecution. Should an asylee wish to travel back to the country of persecution, she should be aware of the risks involved and be prepared to establish upon her return to the US that a) she had compelling reasons to travel back to the country of persecution; and b) she is still in need of asylum protection as the conditions have not changed to allow her to return to the country of persecution on a permanent basis. 5.

The Right to Apply for Permanent Residency One Year after Receiving Asylum

An asylee who is applying for adjustment of status must also show that he is not inadmissible to the U.S. under the grounds of inadmissibility at INA § 212. However, note that some of the grounds of inadmissibility do not apply to asylees, notably, the ground involving a

Appendix 14-B-4

Unit 14

One year after being granted asylum, an “asylee” is entitled to apply for adjustment of status with the CIS, in order to become a lawful permanent resident. The provision of the law under which an asylee applies for adjustment of status is found at INA § 209 and is, therefore, different from regular adjustment of status. This provision requires that an asylee have been physically present in the U.S. for at least one year after being granted asylum. Therefore, the adjustment application will need to include evidence of physical presence; such as lease agreements; school or employment records; medical records; proof of payment of bills; proof of mail received at a U.S. address; etc. Therefore, it is a good idea to let a new asylee know about this requirement so that they can begin to collect this evidence early on, to make it easier to submit it with an adjustment application after a year. The fact that an asylee is eligible to apply for adjustment of status after one year does not mean that he is required to do so. If an asylee applies for adjustment after more than one year has passed from the date of his grant of asylum, he is not required by the statute to show physical presence in the U.S. for more than one year. However, he is required to show that he has not become firmly resettled in another country. Therefore, evidence of residence in the US for the entire length of time since becoming an asylee can be helpful to meet that requirement as well. See the regulations governing the adjustment process for asylees at 8 CFR § 209.2

person who is found to be a public charge. Not only is an asylee permitted to access the public benefits to which he is entitled without fear of being denied adjustment of status, there are certain public benefits specifically designated for asylees, which you should encourage your clients to seek (see below).

Unit 14

Additionally, if an asylee is subject to one of the other grounds of inadmissibility, he must apply for a special waiver of inadmissibility under INA § 209(c). This waiver can be more generous that the regular waivers under the various sections of INA § 212, as it allows the CIS to approve such a waiver “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” Therefore, there is no “extreme hardship” requirement. However, it is important to let your clients know that inadmissibility under INA § 212(a)(2)(C), regarding drug trafficking, or under most subsections of INA § 212(a)(3), regarding terrorist activity, cannot be waived. Furthermore, asylum status can be terminated, and an asylee can be placed in removal proceedings, if he is found to have been convicted of a particularly serious crime, which includes aggravated felonies and other crimes as determined on a case-by-case basis.

Appendix 14-B-5

Tab Position 1

Immigrant Legal Resource Center April 2014

UNIT FIFTEEN ASYLUM AND WITHHOLDING OF REMOVAL; STATUTORY BARS TO ASYLUM AND WITHHOLDING ON REMOVAL; PREPARING A DECLARATION

Tab Position 1

A Guide for Immigration Advocates April 2014

This Unit Covers: (Part One)  The differences between asylum and withholding of removal;  Benefits of asylum and withholding of removal;  The grounds of disqualification (“bars”) that apply to both asylum and withholding of removal;  The grounds of disqualification (“bars”) that apply only to asylum;  Discretion in asylum.  Convention Against Torture (Part Two)  How to prepare a declaration for an asylum case This Unit Includes: § 15.1 § 15.2 § 15.3 § 15.4 § 15.5 § 15.6 § 15.7 § 15.8 § 15.9 § 15.10 § 15.11 § 15.12 § 15.13

Comparing Asylum and Withholding of Removal ........................................... 15-2 Differences in the Legal Standard .................................................................... 15-3 Differences in Benefits ..................................................................................... 15-6 Bars to Both Asylum and Withholding of Removal ........................................ 15-8 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal ................................................................................ 15-20 Discretion in Asylum Cases ........................................................................... 15-26 Relief under the Torture Convention.............................................................. 15-28 Overview of Declarations ............................................................................... 15-29 Organization of an Asylum Declaration ......................................................... 15-29 Use of Details in Declarations ........................................................................ 15-30 Working Together with Your Client to Write the Declaration ....................... 15-30 Interviewing the Applicant (The Circle Method) ........................................... 15-33 Drafting a Declaration .................................................................................... 15-34

PART ONE: ASYLUM AND WITHHOLDING OF REMOVAL Felix is a labor organizer in Honduras. The police detained and tortured him for several days; as part of the torture his throat was partially slit. He was released, but the police

Unit 15

15-1

said that they would “come for him later.” He immediately fled the country, and it is clear that he will face great danger if he is deported to Honduras. In the United States Felix felt isolated, angry and ill from the effects of the torture; he also suffered from post-traumatic stress disorder. He could not get a job. Felix was convicted in the U.S. of burglarizing an unoccupied dwelling. He was sentenced to one year in prison. ICE picked Felix up from prison and CIS began removal proceedings.

§ 15.1 Comparing Asylum and Withholding of Removal Besides asylum, there is a second way that people who fear persecution can get permission to stay in the United States: withholding of removal under INA § 241(b)(3). Withholding of removal, which is called “Restriction on Removal” in the Immigration and Nationality Act (INA), is referred to as “withholding” because it replaced a prior provision that was called withholding of deportation. In spite of the statutory change, practitioners and even immigration judges more commonly use the term “withholding” rather than “restriction on removal.” Therefore, we will use the more widely used “withholding” in this unit. There are important differences between asylum and withholding of removal. Withholding of removal has fewer bars than asylum, but it has a higher standard: an applicant must show that it is “more likely than not” that she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion upon deportation to her home country. Withholding of removal is, therefore, a protection for individuals who can meet that higher standard but who have some negative equity that prevents them from being granted asylum. Withholding is similar to asylum in many ways, but it offers inferior benefits (most significantly, it does not lead to permanent resident status). Nevertheless, withholding remains a crucial option: it may allow release from ICE detention and it provides permission to remain in the U.S. lawfully, with some procedural protections against reversal of the withholding decision. An individual who receives withholding can also get employment authorization. Recent statutory changes, by expanding legal preclusions to asylum, have significantly increased the number of situations in which withholding is the only available remedy. (At the end of this unit, we will briefly discuss the Convention Against Torture, which offers protection to a very limited group of applicants that cannot qualify for asylum or withholding of removal. See § 15.7.) Appendix 15-A compares these various forms of relief. Let’s compare the wording of the main parts of these two provisions.

Unit 15

Withholding of Removal, INA § 241(b)(3)(A). The Attorney General may not remove an immigrant to a country if the Attorney General decides that the immigrant’s life or freedom would be threatened in that country on account of race, religion, nationality, membership in a particular social group, or political opinion. Asylum, INA § 208(b)(1). The Attorney General may grant asylum if the Attorney General determines that such an immigrant is a refugee within the meaning of § 101(a)(42)(A).

15-2

Tab Position 1

Immigrant Legal Resource Center April 2014

[Note: § 101(a)(42)(A) is the definition of refugee discussed in the previous unit, i.e., a person who fears returning to his country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”]

Tab Position 1

A Guide for Immigration Advocates April 2014

Four different sections show the major differences between asylum and withholding. The three major differences are: 1. The Legal Standard. The legal test for withholding of removal is stricter than the one for asylum. To win withholding, the person must show that it is more likely than not that she will in fact be persecuted. See § 15.2. 2. Benefits. Asylum offers greater benefits than withholding, such as the opportunity to apply for permanent residency and bring in family members as derivatives. See § 15.3. 3. Different Statutory Bars. Certain people are absolutely barred, or disqualified, from receiving asylum. Even if an applicant has the requisite well-founded fear or has suffered past persecution, they may be disqualified from receiving asylum if they fall under one of the bars described in the statute. Many, but not all, of these bars also apply to withholding of removal, Thus, a person can be barred from asylum, but still be eligible for withholding. The bars to withholding of removal and asylum are discussed below in §§ 15.4–5. 4. Discretion. Withholding of removal is mandatory. That means that if the person meets the legal requirements for withholding, the judge must grant the case. On the other hand, asylum is granted as a matter of discretion. Even if the person meets all the requirements, the judge or CIS may decide not to grant asylum if there are negative factors. See § 15.6. If this subject confuses you, don’t worry. Everyone is confused when they first study this. The best way to understand these differences is to discuss them one by one.

§ 15.2 Differences in the Legal Standard Let’s compare the language in the statute that describes what a person must prove in order to qualify for asylum or withholding. Withholding under § 241(b)(3):

Must show “life or freedom would be threatened”

Asylum under § 208:

Must show “persecution or a well-founded fear of persecution”

15-3

Unit 15

Does the term “would be threatened” have a different meaning than the term “wellfounded fear?” Is threat to “life or freedom” the same as “persecution?” The Supreme Court has

ruled that they are different. Withholding has a higher standard of proof than asylum. The applicant must present a stronger persecution claim to win withholding than to win asylum. Standard for Withholding of Removal. The standard for withholding is based on the words in the statute which require the person to show that his “life or freedom would be threatened” if he returned. The U.S. Supreme Court analyzed those words and said that they mean that the person must show that she faces a “clear probability” of persecution, or that it is “more likely than not” that she will be persecuted.1 This is called the clear probability standard for withholding (although the Stevic case talks about withholding of deportation, the legal standard is the same as the current “restriction on removal” or “withholding”). Based on the Stevic case, the standard is quantified as a more than 50 percent likelihood of persecution.2 Standard for Asylum. We studied the legal test for asylum in Unit 14. The Supreme Court has ruled that a “well-founded fear of persecution” is an easier standard to meet than the “clear probability” test for withholding.3 CIS regulations state that a well-founded fear means that there must be a “reasonable possibility” that the person would suffer persecution. 8 CFR § 208.13(2). A concurring opinion in Cardoza-Fonseca quantified the standard as a one-in-ten chance of persecution.4 Example 15.2: Mr. Garcia actively participated in demonstrations, slogan painting, and distribution of leaflets for a left-wing organization in Colombia. The Colombian government did not know about Mr. Garcia specifically. The court held that he had a well-founded fear of persecution as required for asylum because there was a real possibility that the government would become aware of his activities in the future. The court said that Mr. Garcia did not qualify for withholding of removal because he did not face a clear probability of persecution since the government was not specifically aware of his activity.5 The standards for asylum and withholding are similar in one important respect. In both cases the persecution claim must be on account of one of the five enumerated grounds—race, religion, nationality, social group or political opinion. See § 14.8. A.

Past Persecution Does Not Meet Standard for Withholding of Removal

Past persecution, by itself, does not qualify a person for withholding. In the last unit, we discussed how a person can satisfy the refugee definition for asylum just by showing that he or she has suffered past persecution. See § 14.5. This comes from the refugee definition which states that “… persecution or a well-founded fear of persecution” meet the refugee definition. In

1

Stevic v. INS, 467 U.S. 407 (1984). Id. 3 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). 4 Id. 5 See Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir. 1985).

Unit 15

2

15-4

Tab Position 1

Immigrant Legal Resource Center April 2014

contrast, the definition for withholding only refers to future persecution because the applicant must show that his or her life or freedom “would be threatened.”

Tab Position 1

A Guide for Immigration Advocates April 2014

However, withholding is analogous to asylum in that a determination that an applicant suffered past persecution creates a presumption that the applicant’s life or freedom will be threatened in the future.6 In a case where the applicant can show past persecution, it is the government’s burden to rebut the presumption. To rebut the resumption of future persecution, the government must either show “by a preponderance of the evidence” that there has been a fundamental change in circumstances, so that the applicant no longer faces a clear probability of persecution, or show that the applicant could avoid future persecution by relocating to another part of the proposed country of removal, and such a relocation would be reasonable.7 Example 15.2-a: John was from the former Czechoslovakia. The government imprisoned him because of his political beliefs from 1983–1987. He was never charged with a crime. Czechoslovakia held democratic elections in 1990, which completely changed the government. John has no fear of persecution if he were to return to his former home, now the Czech Republic. Did John suffer past persecution? Yes, because his imprisonment was on account of his political opinion. He is eligible for asylum. Does this past persecution qualify him for withholding? No, the persecution that John suffered in the past does not make him afraid of persecution in the future because conditions have changed. In this sense, withholding of removal is strictly forward-looking. B.

Narrower Definition of Persecution for Withholding of Removal

To qualify for withholding, one must show that his or her “life or freedom would be threatened.” This is more restrictive than the standard for asylum, which is a “well-founded fear of persecution.” The different kinds of persecution, which may qualify for an asylum case, are discussed in § 14.6. People who fear forms of persecution other than a threat to their lives or freedom might qualify for asylum, but not withholding. Example 15.2-b: John is from a country that does not permit any member of his religious group to operate any type of business. This total withdrawal of economic opportunity may be persecution for purposes of asylum. However, an immigration judge might find that John does not qualify for withholding because neither his life nor freedom is in danger.

7

8 CFR § 208.16(b)(1). 8 CFR § 208.16(b)(1).

Unit 15

6

15-5

§ 15.3 Differences in Benefits The successful asylum applicant (called the asylee) has many more benefits than the person who has been granted withholding. These benefits include: eligibility for permanent residency, the right to immediately apply for his or her spouse and children, and the right to travel. Withholding only prohibits the U.S. government from deporting the person to the country from which he fled persecution and allows the applicant to obtain work authorization. Removal is only withheld as long as the person would be in danger if he were to return to that country. A.

Permanent Residence

An asylee has the right to apply for permanent residency one year after receiving asylum (from either the IJ or CIS). The applicant submits an application for adjustment of status (including the I-485, other forms, and supporting documents). The process is similar to adjustment of status for relatives as described in Unit 7. However, it is easier to qualify because some of the grounds of inadmissibility (e.g., public charge) do not apply to an asylee. In contrast, the person who only obtained withholding, but was denied asylum, does not have the right to apply for permanent residence. The government is willing to let such persons stay in the U.S. However, the government does not give them the benefit of becoming permanent residents. A permanent resident will be able to naturalize to a U.S. citizen in the future. Starting in 2005, the REAL ID Act amended INA § 209 to eliminate the annual caps on both the number of asylees who are eligible to adjust their status to that of lawful permanent residents, and the number of asylum applications that may be granted to immigrants who were subjected to coercive population controls. Example 15.3-a: John and Jim are identical twins from El Salvador. (See also Example 15.12) They had the same problems in El Salvador and have the same fear of return. Jim was denied asylum because of his drunk driving convictions, but was granted withholding of removal. His removal to El Salvador has been withheld. He can remain in the United States, but he will not be able to apply for permanent residence. He will never have the right to become a U.S. citizen. On February 1, 1990, John was granted asylum so he will be able to apply for adjustment of status one year later on February 1, 1991. He will be on a pathway to citizenship.

Unit 15

B.

Applying for Child or Spouse

The spouse or child of an asylee is entitled to derivative asylum status. “Derivative asylum status” means that a person derives (obtains) asylum status based on the fact that his or her spouse or parent already has asylum. This is based on INA § 208(b)(3). It does not matter

15-6

Tab Position 1

Immigrant Legal Resource Center April 2014

whether the spouse or child is living inside or outside the U.S. The asylee must file derivative asylum application for his spouse or child within two years of the grant of asylum. Additionally, if the spouse or child is included in the initial asylum application, they will receive asylum at the same time as the principal applicant. Someone who was granted withholding of removal has no ability to include a spouse or child and cannot petition to have them join. The protection extends only to the individual. However, a family member may have their own valid asylum or withholding claim to pursue independently.

Tab Position 1

A Guide for Immigration Advocates April 2014

Derivative Asylum for Spouses. Requires that the marriage must have taken place before the person’s asylum application was granted. Example 15.3-b: Maria is from Guatemala. She has a very strong asylum application and may win asylum at her hearing. She met Mario, who is also from Guatemala, in the United States. He does not have a particularly strong asylum claim, and is afraid to apply for asylum. Maria and Mario are living together and have a child born here. They are not married.

Question for Discussion § 15.3-c: What advice would you give to Maria and Mario? Will Mario be able to obtain derivative asylum status if they get married after the CIS (or immigration court) grants her asylum application?

Derivative Asylum for Children: The Child Status Protection Act (CSPA). Before the Child Status Protection Act (CSPA) became effective on August 6, 2002, a child of an asylee who turned 21 before the parent was granted asylum or refugee status could not be a derivative beneficiary of the parent. The CSPA now allows such children to be derivative beneficiaries in certain situations and to thus receive derivative asylee status. There are several groups of children whose status is affected by the CSPA: Unmarried Child, in the U.S. and Under 21 When the Parent’s Asylum Application Is Filed, and Included on the Parent’s Application: If an unmarried child who is living in the U.S. was included on her parent’s asylum application, and that application was filed on or after the CSPA effective date of 8/6/02, the child will be able to derive asylee status and adjust her status to that of a lawful permanent resident, even if she later turns 21. It doesn’t matter whether she turns 21 before or after the approval of the asylum application, or before or after she applies for adjustment of status.



Unmarried Child in the U.S. and Under 21 When the Parent’s Asylum Application Is Filed, but the Child Is NOT Included on the Parent’s Application: If an unmarried child who is living in the U.S. was not included on her parent’s asylum application, the principal must file an asylee relative petition (Form I-730) within two years of the date the asylum application is granted in order for the child to derive asylum status from the parent. For those asylum applications filed on or after 8/6/02, these children will be able

15-7

Unit 15



to derive asylee status and adjust status to that of a lawful permanent resident so long as the asylum application was filed before the child turned 21, and the I-730 is filed within two years of the asylum grant. 

C.

Unmarried Child Outside the U.S: If an unmarried child is not living in the U.S., and a parent files an asylum application on or after 8/6/02, the child will be able to derive asylee status and adjust her status to that of a lawful permanent resident so long as the asylum application was filed before the child turned 21 and the parent filed or files the I730 within two years of obtaining asylum status. Right to Travel

An asylee (a person granted asylum) has the right to travel outside the United States. INA § 208(c)(1)(C). To do so, he or she must obtain a refugee travel document. The asylee submits an application to the CIS to obtain the refugee travel document. However, an asylee should not return to her own home country until she becomes a U.S. citizen. If she does travel back to the country of feared persecution, the CBP will probably refuse her reentry to the U.S. since her visit to her home country implies that she is no longer in danger there.8 In these cases, the person’s earlier asylum case can be revisited. Someone with withholding of removal has no right to travel outside the United States.

§ 15.4 Bars to Both Asylum and Withholding of Removal It may seem confusing that asylum has a more generous legal standard and greater benefits. This is because the bars to eligibility are more strict for asylum. The U.S. government does not have to grant asylum to all those in danger in their home country, but under international law, the U.S. does have to grant protection through withholding for those that are more likely than not to have their life or freedom threatened. The greater protection of asylum is thus only for those that are not barred as discussed below, and who merit a favorable exercise of the judge’s discretion. This section will discuss the bars that apply to both forms of relief. The next section will discuss the bars that only apply to asylum, and the following section will discuss discretion. The following are statutory bars to both asylum and withholding. Please see Appendix 15-D for a chart summarizing these bars. They are:

Unit 15

1. 2. 3. 4. 5. 6.

8

Persecution of others. Conviction of a particularly serious crime. Committed a serious non-political crime before coming to the U.S. Danger to U.S. security. Terrorist activities Safe Third Country

See INA § 208(c)(2)(D).

15-8

Tab Position 1

Immigrant Legal Resource Center April 2014

These mandatory bars (termed “exceptions” in the statute) apply to applications filed on or after April 1, 1997, and are discussed in the subsequent sections.9

Tab Position 1

A Guide for Immigration Advocates April 2014

For applications filed before April 1, 1997, see 8 CFR § 208.13(c)(2) as well as the prior statutory provisions. A.

Persecution of Others

Asylum: INA § 208(b)(2)(A)(i); Withholding of Removal: INA § 241(b)(3)(B)(i). A person who persecutes others on account of one of the enumerated grounds (race, religion, nationality, membership in a particular social group, or political opinion) is ineligible for asylum and withholding. This could apply to someone who was in the army or rebel forces if the person “persecuted” others. A person has not “persecuted others” if he or she simply participated as a regular soldier and fought against other combatants in a war.

PRACTICE TIP: If an applicant may have hurt or killed someone and you want to know if they are a persecutor, it is useful to ask: would the victim qualify for asylum? In other words, was the harm on account of a protected ground? Was it on account of race, religion, political opinion, etc.? If not, there is an argument that the applicant should not be barred from asylum.

The government initially bears the burden of proof with respect to the “persecution of others” bar to asylum.10 However, if “the evidence indicates that the applicant engaged in such conduct,” the burden shifts to the applicant to prove by a preponderance of the evidence that he did not.11 It is difficult to determine if someone is a persecutor when they are forced to be a part of a group or forced to assist in an activity under threat of harm. When determining whether an asylum applicant “assisted” in persecution, courts formerly looked to the U.S. Supreme Court’s language in Fedorenko v. United States.12 In Fedorenko, the Court distinguished between “an individual who did no more than cut the hair of female inmates before they were executed” and a “guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp,” finding that the latter fit within the statutory language regarding assistance in the persecution of civilians, while the former did not.13 9

See also 8 CFR § 208.13(c)(1): INA § 208(a)(2), § 208(b)(2)(A). 8 CFR § 208.13(c). 11 8 CFR § 208.13(c). 12 Fedorenko v. United States, 449 U.S. 490 (1981). 13 Fedorenko, 449 U.S. at 538, n. 34. See, e.g., Parlak v. Holder, 578 F.3d 457, 470 (6th Cir. 2009) cert. denied, 130 S. Ct. 3445, 177 L. Ed. 2d 323 (U.S. 2010) (smuggling weapons to aid the Kurdistan Workers Party in committing violence against Turks constitutes “assistance in persecution”); Miranda Alvarado v. 10

Unit 15

15-9

However, Fedorenko also explained that the participation or assistance in persecution need not be an individual’s voluntary act, which is no longer good law.14 Under Fedorenko, the bar could apply even where the individual was forced to engage in acts of persecution, such as where young men are conscripted or forcibly recruited into the armed forces. The BIA determined that “assisting” could include non-voluntary or compelled activities, and it was necessary to look at the objective effect of the persecution instead of at the persecutor’s state of mind.15 Under this old decision, therefore, a person could be barred from asylum and withholding even where he or she was in turn being persecuted by being forced to execute the persecutory act.16 Fedorenko is no longer settled law for the holding that even involuntary assistance in persecution will still trigger the persecutor bar. In 2009 the U.S. Supreme Court held in Negusie v. Holder,17 that there may be an exception to the persecutor of others bar where an individual was forced or coerced to persecute another.18 In other words, there may be an exception when persecution of others was committed under duress. But Fedorenko remains a relevant case in this area of law, as the Ninth Circuit pointed out in Nguyen v. Holder, “Negusie does not affect our reliance on Fedorenko to understand what kind of conduct constitutes persecution or assistance in persecution.”19

Unit 15

Judicial guidance in regards to the persecutor bar is not consistent across all circuit courts and practitioners are advised to look for precedential cases in their jurisdiction if they have a complicated case involving “persecution of others.” Factors such as the level of association with a persecuting group, or prior knowledge on the part of the applicant, also affect the application of the persecutor bar. In the Ninth Circuit, an immigrant has “assisted” in persecution only if she had “an active personal involvement in persecutory acts” (emphasis added).20 In Vukmirovic v. Ashcroft, the Ninth Circuit Court held that the immigration judge should not have held that participation in an armed opposition group, solely for self-defense purposes, constituted

Gonzales, 449 F.3d 915, 933 (9th Cir. 2006) (translating prisoners’ responses during torture interrogations qualified as “assistance in persecution” under Fedorenko); Xie v. INS, 434 F.3d 136, 144 (2d Cir. 2006) (transporting captive women to undergo forced abortions constituted “assistance in persecution” under Fedorenko). 14 Fedorenko, 449 U.S. at 490. 15 Matter of Rodriguez-Majano, 19 I&N Dec. 811 (BIA 1988). 16 Matter of McMullen, 19 I&N Dec. at 96-97. 17 Negusie v. Holder, 555 U.S. 511 (2009). 18 In Negusie v. Holder, 555 U.S. 511 (2009), the asylum petitioner was forced to assist in the mistreatment of prisoners in Eritrea under threat of execution. 19 Nguyen v. Holder, 336 Fed. Appx. 680, 682 n.1 (9th Cir. 2009). 20 Laipenieks v. INS, 750 F.2d 1427, 1431 (9th Cir. 1985) (reversing BIA’s denial of asylum). Laipenieks is the controlling law in the Ninth Circuit. Under Laipenieks “mere membership in an organization” will not bar an applicant from relief. Whether an applicant assisted in the persecution of others “requires a particularized evaluation of both personal involvement and purposeful assistance in order to ascertain culpability.” Miranda Alvarado v. Gonzales, 449 F.3d 915, 927 (9th Cir. 2006). See also Kumar v. Holder, No. 08-72119, 2013 U.S. App. LEXIS 18057 (9th Cir. 2013). The Second Circuit generally agreed in Gao v. United States Attorney General, 500 F.3d 93, 99 (2d Cir. 2007).

15-10

Tab Position 1

Immigrant Legal Resource Center April 2014

persecution of others.21 Acts taken in self-defense do not constitute persecution and therefore do not disqualify an individual for asylum. The First Circuit has prohibited the application of the persecutor bar in the absence of a finding that the individual involved had actual knowledge that he was engaged in the persecution of others.22 The Seventh Circuit has recognized that a line may be drawn between those who have attacked military targets and those who have harmed innocent civilians suggesting that the term “persecution” may be construed to exclude military operations.23 The Sixth Circuit agreed that both a nexus between the applicant’s behavior and the persecution, as well as “some level of prior or contemporaneous knowledge” is required.24

Tab Position 1

A Guide for Immigration Advocates April 2014

But in many circuits, the “assisted” in persecution language has been interpreted broadly.25 In those circuits, attorneys should argue that the legislative history of the “persecution of others” clause implies that it should be interpreted more narrowly than the similar clause in the Nazi war criminal provisions. Ironically, the courts that construe persecution and the enumerated grounds most narrowly, will apply the bar of persecution of others less severely. Practitioners should be careful in advancing defenses against the persecution of others bar because it may create bad precedent for future persecution claims. Example 15.4-b: Guillermo voluntarily joined the guerrillas in Guatemala. He participated in combat actions against the Guatemalan army. After two years with the guerrillas, he returned to his village. The army knew that he had been with the guerrillas and tried to kill him. Guillermo escaped, and is now applying for asylum. Did Guillermo engage in the persecution of others? Does it matter whether Guillermo voluntarily joined or was forcibly recruited into the guerrillas? What if he had killed civilian supporters of the government? Answer: It is arguably not considered persecution of others because he was in combat against soldiers. But in this case Guillermo volunteered to join the guerrilla. Legal workers should argue that it doesn’t make a difference whether the petitioner joined voluntarily or was forcibly recruited into the guerillas because the key is whether there was persecution of civilians.

21

Vukmirovic v. Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004). Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007), appeal after remand, 638 F.3d 354 (1st Cir. 2011), opinion after remand, 676 F.3d 1 (1st Cir. 2012). See also Diaz-Zanatta v. Holder, 558 F.3d 450, 460 (6th Cir. 2009) (finding that the persecutor bar may only apply if the person “had some level of prior or contemporaneous knowledge” that their action would be used for persecution). 23 Mousa v. INS, 223 F.3d 425, 429 (7th Cir. 2000). 24 Diaz-Zanatta v. Holder, 558 F.3d 450, 455 (6th Cir. 2009). 25 See, e.g., Hammer v. INS, 195 F.3d 836, 843 (6th Cir. 1999) (holding that being an armed guard at a Nazi camp was enough to show persecution, even with no evidence of a specific act or incident) (arguably overruled or at least limited by Diaz-Zanatta); Maikovskis v. INS, 773 F.2d 435 (2d Cir. 1985), cert. denied, 106 S.Ct. 2915 (1986); Kulle v. INS, 825 F.2d 1188 (7th Cir. 1987). See also Stephen J. Massey, Individual Responsibility for Assisting Nazis in Persecution, 71 Minn. L.R. 97 (1986). 22

Unit 15

15-11

In another case, the BIA held that military activities, which included indiscriminate bombings, do not constitute persecution on account of political opinion. However, wartime attacks against civilians will fall within the scope of the bar if committed on account of one of the enumerated grounds.26 B.

Conviction of a Particularly Serious Crime

Asylum: INA § 208(b)(2)(A)(ii); Withholding on Removal: INA § 241(b)(3)(B)(ii). The statute bars a person who has been convicted of a particularly serious crime in the U.S. from obtaining asylum or withholding of removal. While this is a bar to both asylum and withholding, the standard is different for each. As we will see in § 15.6, an aggravated felony is automatically considered a particularly serious crime in the context of asylum, but this is not true for withholding. The statute bars a person from attaining asylum who, “having been convicted of a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.”27 Note that U.S. courts have held that an individual convicted of a particularly serious crime is automatically considered to constitute a danger to the community of the United States. In other words, this bar is triggered by a conviction of a particularly serious crime, and the government is not required to separately prove that the individual poses a danger to the community.28 While the automatic bar for an aggravated felony is unique to asylum, the factors considered in determining whether a crime is particularly serious apply in both cases. In determining whether a crime is particularly serious, the BIA held that factors taken into account include: (a) the nature of the conviction; (b) the sentence; (c) whether it was a crime against a person or property; (d) whether the person is a danger to society.29 The Ninth Circuit, however, took a slightly different approach in Delgado v. Holder. The Ninth Circuit wrote that a “crime is particularly serious if the nature of the conviction, the underlying facts and circumstances and the

26

Matter of McMullen, 19 I&N Dec. 90, 96 (BIA 1984). See also the regulations at 8 CFR § 208.13(c). 28 See Matter of L-S-, 22 I&N Dec. 645, 650 (BIA 1999), citing Matter of K-, 20 I&N Dec. 418 (BIA 1991), aff’d Kofa v. INS, 60 F.3d 1084 (4th Cir. 1995). The Ninth Circuit has upheld the Board’s interpretation as “reasonable” and agreed with the Eleventh Circuit’s view that the “statute sets forth a cause and effect relationship: the fact that the alien has committed a particularly serious crime makes the alien dangerous within the meaning of the statute.” Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987) (quoting Crespo-Gomez v. Richard, 780 F.2d 932, 934 (11th Cir. 1986)). 29 Matter of N-A-M-, 24 I&N Dec. 336, 343 (BIA 2007). In Matter of N-A-M-, the BIA clarified what information may be used to make the particularly serious crime determination. While recognizing that it had previously held that certain crimes may be classified as per se particularly serious crimes without proceeding to an individualized examination, the Board stated that it has “generally examined a variety of factors” and considered individualized circumstances. It explained that once the elements of an offense are found to potentially bring it into the category of a particularly serious crime, the court should consider “all reliable information and [is] not limited to reviewing the record of conviction and sentencing information.”

Unit 15

27

15-12

Tab Position 1

Immigrant Legal Resource Center April 2014

sentence imposed justify the presumption that the convicted immigrant is a danger to the community.”30

Tab Position 1

A Guide for Immigration Advocates April 2014

Example 15.4-c: Ben is an asylum applicant. He has been convicted of burglary. He entered a dwelling that was unoccupied. Ben was unarmed. He received a suspended sentence after serving three months in jail. The court held that this was not a “particularly serious crime” because: (1) it was a crime against property and not persons; (2) the applicant was unarmed, showing a lack of intent to injure persons; and (3) the light sentence established that he was not a danger to society.31 Would the decision in the example be different if the applicant entered a dwelling that was occupied, and the sentence served was for two years? If he was armed? DHS would have a stronger argument that the crime is particularly serious if the residence was occupied, creating a danger of violence to people. The government’s argument would be even stronger if the person were armed. For withholding of removal, not all aggravated felonies are defined as particularly serious crimes. See the discussion of aggravated felonies in the next section (§ 15.5). C.

Committed a Serious Non-Political Crime before Coming to the U.S.

An individual is ineligible for both asylum and withholding of removal if there are “serious reasons” to believe that the individual committed a serious nonpolitical crime before coming to the U.S. Asylum: INA § 208(b)(2)(A)(iii); Withholding on Removal: INA § 241(b)(3)(B)(iii). This bar does not apply to asylum applications filed before April 1, 1997, though it can be considered in discretion. This category includes crimes that are less serious than a “particularly serious crime,” and it is important to note that the person can be disqualified from asylum and withholding of removal even if there is no conviction. The statute only requires the existence of “serious reasons for believing” that the individual committed such an offense, and thus the BIA has stated that it need not determine that an individual actually committed the crime, only that this condition is met.32 When assisting applicants with asylum and withholding claims based on their prior affiliation with gangs, it is particularly important to be aware of this bar.33

30

15-13

Unit 15

Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir. 2011). Delgado also found that the limit on judicial review in § 1252(a)(2)(B)(ii), does not bar review of whether an offense constitutes a particularly serious crime, because it only “bars court review of discretionary decisions only when Congress itself set out the Attorney General's discretionary authority in the statute” (quoting Kucana v. Holder, 558, U.S. 233 (2010). In Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012), the Ninth Circuit ruled that whether a crime is particularly serious is a matter of discretion and would be reviewed on an abuse of discretion standard. 31 Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982). 32 Matter of Ballester-Garcia, 17 I&N Dec. 592 (BIA 1980). The Second and Ninth Circuits have interpreted this to mean that the government must simply establish “probable cause” to believe the alien has committed such a crime. Khouzam v. Ashcroft, 361 F.3d 161, 165-66 (2d Cir. 2004); McMullen v. INS, 788

The standard for “serious nonpolitical crimes” differs from the one for “particularly serious crimes.” Whether the crime is serious and whether it is nonpolitical are evaluated separately.34 The BIA considered the following factors when determining if an offense was a “serious crime”: (1) the immigrant’s description of the crime; (2) the turpitudinous nature of the crime according to BIA precedents; (3) the value of any property involved; (4) the length of sentence imposed and served; and (5) the usual punishments imposed for comparable offenses in the United States.35 The government must establish “probable cause” to believe that the individual committed a serious non-political crime.36 In McMullen v. INS,37 the Ninth Circuit held that to determine whether a serious crime was nonpolitical, there is certain criteria to take into account which includes the following: 1) assess whether the individual possessed a political motive; 2) determine if the act was focused on altering the state’s political organization; 3) decide if there is a causal link between the crime committed and the political purpose; and 4) weigh the offense’s proportionality with its objective and the degree of atrocity.38

Unit 15

In INS v. Aguirre-Aguirre, the Supreme Court held that a Guatemalan man was ineligible for withholding of removal for having committed serious nonpolitical crimes in his home country.39 The applicant was a Guatemalan student leader who committed the crimes at issue during demonstrations and protests against the Guatemalan government. The crimes included throwing store merchandise on the floor, burning ten buses, and minor assaults and batteries in that he acted to move hesitant passengers off the buses before the vehicles were destroyed. The Supreme Court held that whether an immigrant faces persecution in his home country has no bearing on whether or not he committed a serious nonpolitical crime outside the United States.40 The Court based its decision on the principle of judicial deference to the executive branch articulated in Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

F.2d 591, 598 n.2 (9th Cir. 1986) overruled on other grounds, Barapind v. Enomoto, 400 F.3d 744, 752 (9th Cir. 2005). 33 See Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009). 34 Matter of Ballester-Garcia, 17 I&N Dec. 592, 595 (BIA 1980); Matter of McMullen, 788 F.2d 591 (9th Cir. 1986). 35 Matter of Ballester-Garcia, 17 I&N Dec. 592, 595 (BIA 1980). 36 The Ninth Circuit Court defined the “probable cause” standard as equivalent to the “serious reasons to believe” standard. See Barapind v. Enomoto, 400 F.3d 744, 752 (9th Cir. 2005). To meet this standard, the government must put forth “competent” or sufficient evidence to establish that the accused individual is guilty of committing the applicable crime. 37 McMullen v. INS, 788 F.2d 591, 595 (9th Cir. 1986). 38 See Matter of McMullen, 788 F.2d 591 (9th Cir. 1986). 39 INS v. Aguirre-Aguirre, 526 US 415 (1999). 40 INS v. Aguirre-Aguirre, 526 US 415 (1999).

15-14

Tab Position 1

Immigrant Legal Resource Center April 2014

D.

Danger to U.S. Security

Under § 208(b)(2)(A)(iv), an immigrant is denied asylum if there are reasonable grounds for regarding her as a danger to the security of the United States. In Cheema v. INS, the Ninth Circuit analyzed whether an immigrant is a danger to security due to terrorist activities, dividing this question into a two-part analysis: (1) whether the immigrant engaged in terrorist activity and (2) whether there are reasonable grounds to believe that the immigrant is a danger to the security of the United States.41 The Ninth Circuit limited the Cheema ruling to cases in which the application for asylum was filed prior to April 1, 1997 because the decision was based on a version of the asylum statute that preceded the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). IIRIRA eliminated the application of the Cheema two-part analysis on all asylum applications filed after April 1, 1997.42

Tab Position 1

A Guide for Immigration Advocates April 2014

An immigrant is also barred from withholding if he or she constitutes a danger to security. Section 237(a)(4)(A) lists the following as dangers to security: if the immigrant has engaged in or is engaging in any activity to violate any law of the United States relating to espionage or sabotage, or to violate or evade any law prohibiting the export from the United States of goods, technology or sensitive information; if the immigrant has engaged in or is engaging in any other criminal activity which endangers public safety or national security; or if the immigrant has engaged in or is engaging in any activity a purpose of which is the opposition to, or the control or overthrow of, the government by force, violence, or other unlawful means. An immigrant is also barred from withholding for security purposes if the immigrant’s presence in the United States would have potentially serious adverse foreign policy consequences for the United States or if the immigrant participated in Nazi persecution, genocide or the commission of any act of torture or extrajudicial killing, participated in the commission of severe violations of religious freedom, engaged in the recruitment or use of child soldiers, or, as explained more fully below, is involved in terrorist activities.43 E.

Terrorist Activities

A person is barred from asylum for engaging in terrorist activities.44 The REAL ID Act of 2005 amended the Immigration and Nationality Act, broadening the definitions related to terrorism and “engaging in terrorist activity,” and generally expanding the grounds for ineligibility based simply on “support” of terrorist activity.45 This bar has prevented many legitimate asylum applications from being approved and has provoked strong advocacy efforts to limit the reach of the “material support” provision discussed below. These efforts continue and the state of this bar may change as further developments arise. Advocates who 41

See Cheema v. INS, 350 F.3d 1035 (9th Cir. 1999). See McAllister v. Attorney General, 444 F.3d 178, 189 (3d Cir. 2006). 43 See INA § 237(a)(4)(B)–(F). 44 INA § 208(b)(2)(A)(v). 45 For an overview of the terrorism-related changes instituted by the REAL ID Act, see Michael John Garcia, et al., “Immigration: Analysis of the Major Provisions of the REAL ID Act of 2005 CRS Report for Congress,” 41 (May 25, 2005). 42

Unit 15

15-15

believe their client has a potential ground to raise this bar should review the law carefully and consult with an expert if possible. There are three classifications of terrorist organizations. “Tier I” terrorist organizations are those designated Foreign Terrorist Organizations by the Secretary of State under INA § 219.46 “Tier II” terrorist organizations are otherwise designated by the Secretary of State in consultation with the Secretary of Homeland Security. The current list of “Tier I” and “Tier II” organizations can be accessed by visiting the Department of State’s website.47 “Tier III” terrorist organizations are any group of two or more individuals which engages in terrorist activities. An immigrant is inadmissible and barred from asylum and withholding of removal for engaging in terrorist activity if she:      

has engaged in a terrorist activity; is engaged in or is likely to engage after entry in any terrorist activity; has incited terrorist activity; is a representative or a member of a terrorist organization; 48 endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization; or has received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization.49

In regards to a person who is a member of a terrorist organization, the statute states that a person will be barred from asylum if they are a member of a “Tier III” organization. Such an organization is defined as “two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, activities” such as the following:   

gather information on potential targets for terrorist activity; solicit funds either for terrorist activity; solicit an individual to engage in terrorism; to become a member of a “Tier I or Tier II” organization; or to become a member of a “Tier III” organization;

Unit 15

46

For a current list of Foreign Terrorist Organizations, see Department of State “Terrorist Exclusion List,” available at www.state.gov/j/ct/rls/other/des/123085.htm. 47 See www.state.gov/s/ct/list/. “Tier I” organizations are listed in the “Foreign Terrorist Organizations” list; and “Tier II” organizations are listed in the “Terrorist Exclusion” list. 48 There is a discretionary exception to this bar in the case of an immigrant who is a representative (i.e., an officer, official or spokesperson) of a terrorist organization or of a political, social or other group that endorses or espouses terrorist activity, if the Attorney General determines “that there are not reasonable grounds for regarding the alien as a danger to the security of the United States.” INA § 208(b)(2)(A)(v). 49 INA § 212(a)(3)(B).The spouse or child of an alien who is removable due to terrorist activity is deportable except where the spouse or child did not know or reasonably should not have known of the activity and whom the Attorney General has reasonable grounds to believe has renounced the activity. INA § 212(a)(3)(B)(ii).

15-16

Tab Position 1

Immigrant Legal Resource Center April 2014



provide “material support” for the commission of terrorism; to an individual who the person knows or should know has committed or will commit terrorism; to a “Tier I or II” organization; or to a “Tier III” organization

Tab Position 1

A Guide for Immigration Advocates April 2014

The bars for membership in a terrorist organization, solicitation of funds or goods for a terrorist organization, or provision of material support to a terrorist organization do not apply if the organization was a “Tier III,” or undesignated terrorist organization and the immigrant can prove by clear and convincing evidence that she did not know and should not reasonably have known that the organization engaged in terrorist activities.50 The “material support” language has been the most problematic provision of the terrorism-related inadmissibility grounds because of its overreaching definition of support to terrorism. It includes “safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training.” Despite the statute’s language that the bar will not apply where the applicant can prove by clear and convincing evidence that he did not know and should not reasonably have known that the organization to which it provided material support engaged in terrorist activities, in application, this provision of the terrorism-related bars has been problematic. This language has prevented many legitimate asylum applicants from having their applications approved. For others, it has meant that their applications for permanent residence or family reunification have been halted, in some cases, indefinitely. For a detailed explanation of the problem created by the terrorist-activity bar to asylum see Human Rights First report “Denial and Delay: The Impact of the Immigration Law’s “Terrorism Bars” on Asylum Seekers and Refugees in the United States.” November 2009. The report may be found at www.humanrightsfirst.org. Moreover, there is no duress exception for providing material support. Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1314 (11th Cir. 2013). (“In light of these specific features of the INA, every circuit that has addressed the issue has concluded that there is no implied exception to the material support bar for support given involuntarily or under duress, and that an alien’s sole recourse in cases of coercion is to seek a waiver from the Secretaries of State or Homeland Security.”) There is a discretionary exception to the bar for terrorist activities, which permits the Secretary of State or the Secretary of Homeland Security to determine, in an exercise of unreviewable discretion, that some terrorist activities bars shall not apply in certain situations.51 In December 2007, Congress amended the INA, expanding this discretionary authority to exempt some individuals and groups from the application terrorism-related bars.52 The Secretary of the Department of Homeland Security has authorized CIS, in consultation with ICE, to exercise

50

INA § 212(a)(3)(B). INA § 212(d)(3)(B). 52 See USCIS Interoffice Memorandum, “Processing the Discretionary Exemption to the Inadmissibility Ground for Providing Material Support to Certain Terrorist Organizations,” May 24, 2007, Jonathan Scharfen. 51

Unit 15

15-17

authority related to exemptions for terrorist-related inadmissibility grounds, and CIS has issued several memoranda clarifying the implementation of this exemption.53 Over the past few years, CIS has announced exemptions for various groups that would have previously been barred under the material support provisions. Exemptions now include those that gave funds to organizations under duress and those that provided medical care, as well as to persons who received “military-type training” under duress.54 Additionally, the Secretary of Homeland Security has exercised this discretion for certain organizations that had been classified as terrorists as well. The CIS website posts all new memoranda on this issue; please refer to the CIS Memoranda listed in the footnotes for further information.55 Thus the exemption may now apply to more people including members and representatives of Tier III groups; individuals who have provided material support to Tier I or Tier II organizations; and persons acting under duress, such as child soldiers. Finally, note that while the Attorney General must restrict removal to a country where an immigrant’s life or freedom would be threatened because of the immigrant’s race, religion, nationality, membership in a particular social group, or political opinion, unless there are reasonable grounds to believe that the immigrant is a danger to the security of the United States, any immigrant who falls under the terrorist activities bars shall be deemed an immigrant with respect to whom there are reasonable grounds for regarding as a danger to security of the United States.56 Please refer to the chart entitled Bars to Asylum and Withholding of Removal (Appendix 15-D). This chart makes it easier for advocates to determine whether a bar to asylum or withholding of removal may apply to a particular case. The chart summarizes the material found in §§ 15.4–15.5 in this unit.

Unit 15

53

See USCIS Memorandum, “Revised Guidance on the Adjudication of Cases involving Terrorist-Related Inadmissibility Grounds and Amendment to the Hold Policy for such Cases,” Feb. 13, 2009, Michael Aytes [HQ 70/2.10]. 54 See USCIS Policy Memorandum, “Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the Receipt of Military-Type Training Under Duress,” Feb. 23, 2011; USCIS Policy Memorandum, “Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the Solicitation of Funds or Members under Duress,” Feb., 23, 2011. 55 USCIS Memorandum, “Implementation of New Discretionary Exemption under INA Section 212(d)(3)(B)(i) for Activities Related to the INC, KDP and PUK,” Jan. 23, 2010, Lauren Kielsmeier; USCIS Memorandum, “Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For Material Support to All India Sikh Students Federation-Bittu Faction (AISSF-Bittu),” Dec. 29, 2010; USCIS Memorandum, “Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For Activities and Associations Relating to the All Burma Students’ Democratic Front (ABSDF),” Dec. 29, 2010. 56 INA § 241(b)(3)(B).

15-18

Tab Position 1

Immigrant Legal Resource Center April 2014

F.

Safe Third Country

A person cannot apply for asylum if the Attorney General determines that the person may be removed, pursuant to a bilateral or multilateral agreement, to a country in which the person has access to a fair procedure for applying for asylum or equivalent protection. The country must also be one in which the person’s life or freedom would not be threatened on account of one of the enumerated grounds.57 The United States has an agreement with Canada providing that a person may apply for asylum in either the U.S. or Canada, but not both. The U.S. entered this agreement with Canada effective Dec. 29, 2004. As written, the agreement applies to withholding and CAT as well, but only the asylum provisions appear in the statute as a bar to applying for relief.58 The purported goals of the agreement are to limit forum shopping (that is, limiting the applicant’s ability to choose where apply for asylum based on the applicant’s perception of where he or she has the best chance of winning) and to enhance the efficiency of managing asylum claims.59

Tab Position 1

A Guide for Immigration Advocates April 2014

The agreement provides for a pre-screening interview that does not determine the merits of the person’s credible fear, but instead resolves what country should be adjudicating the asylum claim. Under the recently enacted Trafficking Victims Protection and Reauthorization Act (TVPRA) of 2008, this bar does not apply to unaccompanied minors. Unaccompanied minors are defined in the Homeland Security Act as children who have no lawful immigration status in the United States; who are under eighteen years of age; and who have no parent or legal guardian in the United States who is available to provide care and physical custody.60

57

INA § 208(a)(2)(A). INA § 208(a)(2)(A). 59 On November 29, 2004 the DHS and EOIR published the final rules pertaining to the implementation of the U.S.-Canada “Safe Third Country Agreement regarding asylum claims made in transit and at land border ports of entry.” Among other things, these rules highlight the exceptions. An alien who arrives at a U.S. land border POE is exempt from return if he or she: (1) is a citizen of Canada or, not having a country of nationality, is a habitual resident of Canada; (2) has in the U.S. a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew who has been granted asylum, refugee, or other lawful status in the U.S., except visitor status; (3) has in the U.S. a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew who is at least 18 years of age and has an asylum application pending in the U.S.; (4) is unmarried, under 18 years of age, and does not have a parent or legal guardian in either Canada or the U.S.; (5) is applying for admission at a U.S. land border POE with a validly issued visa or other valid admission document, other than for transit, issued by the U.S., or, being required to hold a visa to enter Canada, was not required to obtain a visa to enter the U.S.; or (6) has been permitted, as an unreviewable exercise of discretion by the DHS, to pursue a protection claim in the U.S. because it was determined to be in the public interest. 81 Interpreter Releases 305, 305 -306 (March 8, 2004). 60 6 USC § 279. 58

Unit 15

15-19

§ 15.5 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal As we have discussed, while asylum is the more generous form of relief, there are circumstances in which an applicant who is barred from eligibility for asylum may be eligible for withholding. Of particular note, the one year filing rule discussed below does not apply to withholding, nor does the rule of firm resettlement. If the asylum application was denied for any of the below reasons, the person could still be eligible for withholding of removal:     

one-year rule, some criminal convictions (aggravated felony bar) firm resettlement, and prior denial of asylum or removal order discretion.

In short, you need not be concerned with withholding at all in your case if your client is applying within one year of entry into the U.S., has no criminal convictions, has not been granted the equivalent of citizenship or permanent residence in a third (i.e., not his own) country, and has no strong negative discretionary factors (such as arrests, even in the absence of convictions) weighing against the asylum claim. If none of these bars apply, your client will seek asylum and not need the secondary, mandatory relief of withholding. Nonetheless, for many fearing harm in their home country, withholding might be the only option because one of the more restrictive bars to asylum apply. A.

One Year Bar

A person must apply for asylum within one year after arriving in the U.S.61 This bar is a creation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (also known as the Immigration Act revisions or “IIRIRA”). For applications filed after April 1, 1998, an asylum applicant must demonstrate by “clear and convincing” evidence that the asylum application was filed within one year of her last arrival in the U.S.62 There are two exceptions to the One Year Rule, where there are “changed circumstances” or “extraordinary circumstances” that led to the delay in filing for asylum. The regulations provide a non-exhaustive list of what “changed circumstances” and “extraordinary circumstances” may be.63

61

INA § 208(a)(2)(B). INA § 208(a)(2)(B), 8 U.S.C § 1158(a)(2)(B). The implementing regulation, 8 CFR § 208.4(a)(2)(B)(ii) states “The 1-year period shall be calculated from the date of the alien's last arrival in the United States or April 1, 1997, whichever is later.” See also Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008). 63 8 CFR §§ 208.4(a)(4) and 208.4(a)(5).

Unit 15

62

15-20

Tab Position 1

Immigrant Legal Resource Center April 2014

“Changed Circumstances” Exception. The first exception is made for “changed circumstances” that affect the person’s eligibility for asylum since he left his homeland. This exception is designed to cover applicants who became eligible for asylum only after arriving in the U.S., due to a change in conditions in their home country, or “(c)hanges in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk.”64 The applicant is required to apply for asylum “within a reasonable period” of having become aware of the changed circumstances.65

Tab Position 1

A Guide for Immigration Advocates April 2014

“Extraordinary Circumstances” Exception. Again, the regulations at 8 CFR 208.4(a)(5) explains this exception. Essentially, it refers to events beyond the applicant’s control that clearly prevented a filing within one year’s time. Three examples of these circumstances are spelled out in the regulation. One is a “serious illness or mental or physical disability, including any effects of persecution or violent harm” that occurred during the first year after arrival. Another is a legal disability, such as being an unaccompanied minor or being mentally impaired. The third exceptional circumstance is ineffective assistance of counsel.66 Also, critically, the one year rule does not apply to unaccompanied minors under the law enacted by the TVPRA. Unaccompanied minors are exempted from this requirement. The “one-year rule” applies only to asylum and does not apply to withholding of removal. B.

Conviction of an Aggravated Felony

Conviction of an aggravated felony is an absolute bar to asylum, but this is not necessarily true for withholding.67 Aggravated felons are defined in INA § 101(a)(43). Some examples are conviction of drug trafficking, document fraud with a sentence of at least one year imposed, alien smuggling, a crime of violence or theft or burglary with a sentence of at least one year imposed, child molestation, money laundering (over $10,000) and murder. Several of the crimes carry the requirement that the sentence imposed be at least one year. See discussion in Unit 3, § 3.28. For applications filed on or after April 1, 1997, an aggravated felony conviction is considered to be a particularly serious crime that bars withholding eligibility if the applicant has been sentenced to an aggregate term of imprisonment of at least five years.68 This is distinct from asylum, for which any aggravated felony conviction will bar an applicant from eligibility. For 64

8 CFR § 208.4(a)(4). 8 CFR § 208.4(a)(4). 66 8 CFR § 208.4(a)(5). 67 INA § 208 (B)(i). 68 See INA § 241(b)(3)(B). The language about the five-year sentence was added to the statute with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Prior to 1996, the BIA applied a rebuttable presumption that a conviction for an aggravated felony with a sentence of less than five years was for a “particularly serious crime”; there is no longer such a presumption. See In re S-S, 22 I&N Dec. 458 (BIA 1999). 65

Unit 15

15-21

purposes of this provision, the imposition of concurrent sentences in criminal proceedings, the defendant’s “aggregate sentence” is equal to the length of the longest sentence.69 However, a crime with less than a five-year sentence might still be held to be a particularly serious crime.70 The adjudicator should weigh several factors, discussed in Matter of Frentescu, as modified by Matter of N-A-M-, to reach a determination as to whether the crime is particularly serious. See discussion in § 15.4.71 In Matter of N-A-M-, the Board found that a conviction for felony menacing, which is not an aggravated felony, is a particularly serious crime.72 Using the Frentescu criteria, the Board has held that a conviction for alien smuggling with a three-month sentence (an aggravated felony) is not a particularly serious crime for withholding purposes,73 while residential burglary with aggravating factors,74 robbery and assault with a deadly weapon,75 murder, a nonconsensual sexual act combined with threatening knives,76 and drug trafficking77 have all been found to be particularly serious crimes. In Delgado v. Holder, the Ninth Circuit wrote that a “crime is particularly serious if the nature of the conviction, the underlying facts and circumstances and the sentence imposed justify the presumption that the convicted immigrant is a danger to the community.”78 Example 15.5-a: In the example at the beginning of this unit, Felix had been tortured in Honduras and then convicted in the U.S. of burglarizing an unoccupied dwelling. He was sentenced to one year in prison. Burglary is an aggravated felony if a sentence of at least one year is imposed. Despite the fact that Felix is almost certain to be persecuted if he is deported to Honduras, he is not eligible for asylum because he has been convicted of an aggravated felony. 69

In re Aldabesheh, 22 I&N Dec. 983 (BIA 1999). Advocates should know that the Third Circuit has set a less stringent threshold, requiring offenses to be aggravated felonies before they can be considered “serious crimes.” Alaka v. Att'y Gen., 456 F.3d 88, 104105 (3d Cir. 2006). 71 The BIA abolished the presumption that an aggravated felony conviction, for which the noncitizen received a sentence of less than five years imprisonment, constituted a disqualification for withholding of removal. Matter of S-S-, 22 I&N Dec. 458 (BIA 1999), modifying Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996). However, the Attorney General (AG) has voiced an exception for aggravated felonies involving unlawful trafficking in controlled substances, which does presumptively constitute a particularly serious crime within the meaning of INA § 241(b)(3)(B)(ii). See Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). 72 Matter of N-A-M-, 24 I&N Dec. 336, 343 (BIA 2007). 73 Matter of L-S-, 22 I&N Dec. 645, 651 (BIA 1999). 74 Matter of Garcia Garrocho, 19 I&N Dec. 423 (BIA 1986) (burglary with aggravating circumstances under New York Penal Law 140.30 (1981)). 75 Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985) (robbery); Matter of L-S-J-, 21 I&N Dec. 973 (BIA 1997) (robbery with deadly weapon, with sentence imposed of two and a half years is an aggravated felony and a particularly serious crime, based on nature of conviction, underlying circumstances, sentence, etc.); Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000) (robbery where person pulled a chain from victim’s neck and the victim fell). 76 Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007) (menacing under Colo. Rev. Stat. § 18-3-206(1)). 77 Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). 78 Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir. 2011).

Unit 15

70

15-22

Tab Position 1

Immigrant Legal Resource Center April 2014

Example 15.5-b: Felix was convicted in the U.S. of burglarizing an unoccupied dwelling. He was sentenced to one year in jail. A burglary conviction with a one-year sentence imposed is an aggravated felony, under INA § 101(a)(43). However, the conviction is not necessarily a “particularly serious crime” for withholding eligibility because he was sentenced to less than an aggregate term of five years. The judge may decide whether or not the offense was a “particularly serious crime.”

Tab Position 1

A Guide for Immigration Advocates April 2014

The immigration judge could decide it is not a particularly serious crime because there was no violence and the dwelling was unoccupied when Felix committed the burglary. Therefore, Felix would be permitted to apply for withholding of removal even though he is barred from filing for asylum. C.

Firm Resettlement

A person who was “firmly resettled in another country prior to arriving in the United States” is barred from asylum.79 Firm resettlement is defined in 8 CFR § 208.15. This bar does not apply to withholding of removal. Under the regulation, a person is considered to be firmly resettled if “he entered into another nation with, or while in that nation received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.”80 Example 15.5-c: Miguel and Angelina Pedro (see Unit 14) fled their home in Guatemala when the army invaded their town, killing their parents. They walked on small paths into Mexico. For six months, they lived in a Mexican refugee camp for Guatemalans. The Mexican government did not grant them permission to live, travel, or work outside the camp. They had no legal status. They left the camp when they heard that the Guatemalan army had been attacking some of the camps. They went to northern Mexico, where they lived and worked illegally for a little more than three years. Their children did not have a right to go to school in Mexico.

Question for Discussion: Were Miguel and Angelina “firmly resettled” in Mexico? Why not?

There are two exceptions in the regulations that allow an individual who received an offer of permanent status in another country to avoid being considered firmly resettled: 1. An individual will not be considered firmly resettled if “the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled.”81 Factors to be 79

INA § 208(b)(2)(A)(vi). 8 CFR § 208.15. 81 8 CFR § 208.15(b).

Unit 15

80

15-23

considered include the applicant’s rights to employment, to own property, to obtain housing or enjoy “other rights and privileges,” such as travel, public relief or education, etc.; and 2. An individual will not be considered firmly resettled if her entry into that country was a necessary consequence of fleeing persecution, she stayed in the country only as long as needed to arrange onward travel, and she did not establish significant ties in the country.82 In the 2011 case of Matter of A-G-G-,83 the BIA addressed a circuit split and issued a new framework for determining whether an asylum applicant has been firmly resettled. Some circuits, including the Third, Seventh and Ninth, had used a “direct offer” test to determine whether an individual had been firmly resettled, focusing their inquiry on whether the government of a third country had directly offered the immigrant some type of permanent residence that would allow her to stay in that country indefinitely in some kind of official status.84 Other circuits, including the Second and Fourth, had used a “totality of the circumstances” test that looked at a government offer of permanent residence as only one factor among many to determine whether an immigrant had been firmly resettled.85 The BIA’s new standard begins the firm resettlement analysis with evidence of an offer of permanent status in the third country, but permits the existence of an offer to be proven by either direct or indirect evidence. This new framework involves a four-step analysis: First, DHS bears the burden of presenting prima facie evidence of an offer of firm resettlement. In order to do so, DHS should first attempt to produce direct evidence of an offer, such as government documents specific to the asylum applicant that indicate the her ability to stay in a country indefinitely. This may include a passport, travel document or proof of refugee status in the immigrant’s name. If direct evidence of an offer is unavailable, the government may meet its burden by producing indirect evidence that an offer of firm resettlement has been made “if it has a sufficient level of clarity and force to establish that an alien is able to permanently reside in the country.”86 Indirect evidence may include:

82

8 CFR § 208.15(a). 25 I&N Dec. 486 (BIA 2011). 84 See Diallo v. Ashcroft, 381 F.3d 687, 693 (7th Cir. 2004); Abdille v. Ashcroft, 242 F.3d 477, 486 (3d Cir. 2001); Maharaj v. Gonzales, 450 F.3d 961, 972 (9th Cir. 2006) (en banc). 85 See Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006); Mussie v. U.S. INS, 172 F.3d 329, 331 (4th Cir. 1999). 86 Matter of A-G-G-, 25 I&N Dec. 486, 502 (BIA 2011). In an unpublished decision, the Ninth Circuit remanded a case because the Board had not applied the “offer test” consistent with Maharaj and A-G-G-, to show an offer of firm resettlement was made, implying that the offer test of the Ninth is consistent with AG-G- and still the correct standard. In so doing, the IJ specifically rejected circumstantial factors such as length of time and schooling as “totality of the circumstances” factors. It is unclear whether the Ninth Circuit will accept circumstantial evidence to show an offer of firm resettlement was made. See Haghighatpour v. Holder, 446 Fed.Appx. 27 (9th Cir. 2011).

Unit 15

83

15-24

Tab Position 1

Immigrant Legal Resource Center April 2014

       

Immigration laws or refugee processes of the country of proposed resettlement; Length of stay in a third country; The asylum seeker’s intent to settle in the third country; Family ties in the third country; Business and property connections in the third country; Other social and economic ties developed by the asylum seeker in the third country; Receipt of government benefits or assistance, such as assistance for rent, foot and transportation; or Whether the asylum seeker had legal rights normally given to people who have some official status, such as the right to work and the right to enter and exit the country.87

Tab Position 1

A Guide for Immigration Advocates April 2014

The second step of the firm resettlement framework allows the asylum seeker to rebut DHS’s prima facie evidence by showing that an offer has not, in fact, been made or that she would not actually qualify for permanent status. The immigrant may not, however, rebut evidence of an offer of firm resettlement by showing that she refused to accept an offer, or failed to renew permanent residence.88 Under the third step, the immigration judge will consider the totality of the evidence presented to determine whether the immigrant has rebutted DHS’s evidence of an offer of firm resettlement. Finally, if the immigration judge finds that the immigrant has been firmly resettled, the burden shifts to the immigrant to establish that she meets one of the two regulatory exceptions to firm resettlement discussed above.89 In Matter of A-G-G-, the BIA noted that under this new standard, it would have reached a different conclusion in its prior published decision in Matter of Soleimani.90 There, a Jewish woman who fled Iran and lived in Israel for ten months was found not to have been firmly settled in Israel, despite evidence in the record that someone like Ms. Soleimani was entitled to permanent residency and to enjoy the rights of Israeli citizenship under Israel’s Law of Return. The BIA had found the mere existence of the Law of Return insufficient to establish that Ms. Soleimani had actually been offered status in Israel; an “actual and specific” offer of permanent status was required in order to find her firmly resettled. In Matter of A-G-G-, the BIA indicated that under the new standard, the Law of Return would be considered indirect evidence of an offer of firm resettlement, and Ms. Soleimani “would have been found firmly resettled in Israel unless she presented rebuttal evidence to show that she would not have been eligible for or granted an

87

15-25

Unit 15

See Matter of A-G-G-, 25 I&N Dec. at 502 (citing Maharaj v. Gonzales, 450 F.3d at 974; Sall v. Gonzales, 437 F.3d at 235; Diallo v. Ashcroft, 381 F.3d at 694; Abdille v. Ashcroft, 242 F.3d at 487; Mussie v. U.S. INS, 172 F.3d at 331-32). 88 Matter of A-G-G-, 25 I&N Dec. at 503 (citing 8 CFR § 1208.15). See also Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir.) (expiration of alien’s residence permit after entry into the U.S. does not preclude finding of firm resettlement in the United Arab Emirates). 89 Matter of A-G-G-, 25 I&N Dec. at 503. 90 20 I&N Dec. 99 (BIA 1989).

offer of permanent resettlement or that one of the regulatory exceptions to firm resettlement applied.”91 D.

Previous Asylum Denial

A person whose prior application for asylum has been denied may not apply for asylum.92 There are exceptions for “changed country conditions” since the person left his homeland and for “extraordinary circumstances.”93 E.

Reinstatement of Removal

A person may not apply for asylum if he is subject to Reinstatement of Removal.94 DHS reinstates a prior order of removal for persons who have reentered the U.S. illegally “after having been removed or having departed voluntarily, under an order of removal.”95 Please see Unit 10. As with the previous four bars to asylum (a-d) immediately above, such persons are eligible to apply for withholding of removal.

§ 15.6 Discretion in Asylum Cases You may be asking, “Why is the standard for withholding of removal higher than the standard for asylum?” One reason is that withholding of removal must be granted to someone who meets the standard. The idea is that if the person can show that he or she faces exceptional danger, the judge must not deport him or her. On the other hand, the CIS or the immigration court may deny asylum in its discretion, even if the person meets the refugee definition. Because the person faces somewhat less danger, the judge has more choice whether to grant permission to stay. In legal terms, we say that withholding of removal is mandatory, and asylum is discretionary. Example 15.6-a: Now let’s return to the example of John and Jim, identical twins from El Salvador. They fled the country when soldiers killed their parents, burned their home, and searched for them, accusing them of subversion. Their fears of returning to El Salvador are identical. They have been in the U.S. since 1987. John has had no problems. Jim has been convicted twice for drunk driving. At their hearing, the immigration judge (IJ) finds they meet the well-founded fear standard for asylum. The IJ grants asylum to John because there are no negative factors to consider in the exercise of his discretion. The judge denies Jim’s asylum application in the exercise of 91

Matter of A-G-G-, 25 I&N Dec. at 502-03. INA § 208(a)(2)(C). 93 INA § 208(a)(2)(D). 94 INA § 241(a)(5). 95 INA § 241(a)(5).

Unit 15

92

15-26

Tab Position 1

Immigrant Legal Resource Center April 2014

his discretion. The judge states that the negative factors (the convictions) outweigh the positive considerations.

Tab Position 1

A Guide for Immigration Advocates April 2014

However, the judge also decides that Jim’s persecution case is strong enough to meet the “clear probability” test for withholding of removal. Since there is no discretionary denial for withholding, he grants Jim’s application for withholding. Withholding of Removal is mandatory, not discretionary, so Jim’s drunk driving convictions, which are not a bar to withholding, do not affect the decision. An immigration judge might deny asylum on discretion for a number of reasons. But the exercise of his discretion must be reasonable and for clearly stated reasons. One court suggested that asylum should be denied in the exercise of discretion “only on the basis of genuine compelling factors” because so much is at stake for the applicant.96 Do you think that the existence of Jim’s drunk driving convictions is such a “genuine compelling factor” to warrant denying him asylum? We will now discuss some specific factors that are considered in the exercise of discretion in asylum cases. A.

Criminal Grounds

An immigration judge may deny asylum on the basis of an applicant’s criminal activity. As we discussed above, a person who is convicted of certain crimes (aggravated felony, particularly serious crime) is barred from applying for asylum. See § 15.5. If the person is involved with less serious activities, the person is not barred, but the judge may use that criminal record to deny asylum as a matter of discretion. In this case it may help to show positive things about the person to outweigh the bad fact. Example 15.6-b: Henri is a community organizer from Haiti. One night the police came to his house and, when they couldn’t find him, they killed his wife. Henri fled to the United States. After arriving here he became depressed and began to drink heavily. He became homeless. He was convicted of several petty theft crimes. Henri’s legal workers knew that, along with proving that Henri had a well-founded fear of persecution, they had to convince the judge not to deny asylum as a matter of discretion. At his asylum hearing, Henri presented evidence showing that he had been sober for the last eight months; a report from a psychologist was introduced stating that his criminal activity was the result of his trauma about his wife’s murder; and a letter from Henri’s new employer stating that he was a good worker was submitted. The judge granted asylum. B.

Immigration Violations

In the past the BIA had upheld discretionary asylum denials where the applicant used fraudulent documents to enter the U.S. However, later, the BIA concluded that the manner of entry (including the use of fraudulent documents) was only one factor to be considered. Other Hernandez-Ortiz v. INS, 777 F.2d 509, 519 (9th Cir. 1985).

15-27

Unit 15

96

factors to be considered included the applicant’s safety, the danger of repatriation from a third country, and the applicant’s ties to this country.97 Thus, usually one would need more than just that one negative factor to outweigh a genuine well-founded fear of persecution.

§ 15.7 Relief under the Torture Convention There is an additional form of relief aside from asylum and withholding of removal for those fearing return to their home country. Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“Convention Against Torture,” “CAT” or “Torture Convention”) prohibits contracting countries from expelling, returning, or extraditing a person to a country where he or she would be tortured.98 The United Nations adopted the Convention Against Torture in 1984 and the United States signed the Convention Against Torture into law in 1988, and ratified the Convention on October 21, 1994. When the U.S. ratified CAT in 1994, it became a full party to the Convention. The treaty became effectively binding on the United States on November 20, 1994.99 The Convention Against Torture (CAT) provides protection from removal for individuals fearing torture in their home country who do not qualify for asylum or for withholding of removal. To qualify for relief under CAT, the applicant must establish that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.”100 The applicant is not required to show a nexus: unlike with asylum or withholding of removal, the torture that the applicant fears does not need to be inflicted on account of race, religion, nationality, political opinion, or membership in a particular social group. Instead, as discussed in further detail below, protection under CAT focuses on the nature, purpose, and agent of the feared torture. A claim under CAT “focuses solely on the likelihood that the alien will be tortured if returned to his or her home country, regardless of the alien’s subjective fears of persecution or his or her past experiences.”101 Thus, applicants facing torture that cannot prove a nexus to a protected ground will still qualify for relief under CAT. However, because it only protects those in fear of torture, and not the broader harm of persecution, it affords a more limited protection than asylum or withholding. Protection under CAT has fewer bars than withholding of removal, but the applicant carries a heavy burden of proof because she must show that it is more likely than not that she will be tortured upon deportation to her home country. There are no criminal bars to relief under CAT, meaning that an individual with a criminal history who would be statutorily barred from receiving asylum or withholding remains eligible for relief under the Convention Against Torture.

97

Matter of Pula, Int. Dec. 3033 (BIA 1987). Opened for signature February 4, 1985, G. A. res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in L.L.M. 535 (1985). 99 See In re J-E, 23 I&N Dec. 291 (BIA 2002). 100 8 CFR § 208.16(c)(2). 101 See Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004).

Unit 15

98

15-28

Tab Position 1

Immigrant Legal Resource Center April 2014

PART TWO: HOW TO PREPARE A DECLARATION IN AN ASYLUM CASE § 15.8 Overview of Declarations

Tab Position 1

A Guide for Immigration Advocates April 2014

The declaration is one of the most important parts of an asylum application. It provides the client with an opportunity to tell her entire story of what happened in her home country without being interrupted. During her CIS asylum interview, she will be interrupted by the asylum officer and during her removal hearing (if she has one) she will be interrupted by the judge. A good declaration will:    

be specific and full of details that make the reader “see a picture;” as much as possible, it will be in the applicant’s own words; be well organized and easy to understand; describe a story that contains the elements of an asylum or withholding (restriction on removal) case; contain facts that the applicant understands and can remember, so that the person will not contradict facts in the declaration at a hearing or interview.

§ 15.9 Organization of an Asylum Declaration Declarations should be well-organized with an introduction, body and conclusion. The introduction contains the preliminary statements and a summary of the reasons why your client fears returning to her home country. The body is filled with all the specific points explaining why the client has this fear. The conclusion provides a summary of the declaration. It should end with a statement that if your client is returned to her home country she will be persecuted, tortured and killed (or whatever the circumstances would be). After the conclusion, there must be a statement saying that the declarant states everything under penalty of perjury. (The person who makes a declaration—in this case, the asylum applicant—is the declarant.) The declaration need not be notarized. Only affidavits need to be notarized. However, language is a very important concern in the asylum context. Because the application and declaration must be in English, the applicant will need to have her words translated. The interpreter or translator should also sign a statement indicating that they are fluent in both English and the native language of the applicant, that everything written was read back to the applicant in her native language, and that everything written in English is a true and correct translation to the best of the interpreter’s ability. Often, applicants without representation submit declarations prepared by a friend that may not have the language skills needed for such an important and detailed document. If someone is swearing the accuracy of the interpretation, they must truly have the language skills to do so.

Unit 15

15-29

§ 15.10 Use of Details in Declarations When writing a declaration you and the client (clients should write a first draft) should be detailed, specific, and if necessary, gruesome. Use descriptive words. A declaration is really just a detailed story, stating certain events that occurred during the life of the declarer. It should read like a story. Since the declaration is used to convince the reader that the client fears returning to her home country, the words must paint a picture for the reader. She must be able to see the torture, violence, and fear that the client suffered. Explain this to your client as you work together. If your client was a victim of torture, do not be afraid to describe it. The client should not just write, “I was held and beaten for three days.” You should ask the person questions: How was he beaten or tortured? How many times? Where? When? For how long? What did the persecutor say? What were the client’s feelings? Then together you can write something more specific, such as the following example: “I was beaten and tortured for three long days. They hit me several times each hour in the head, the face and the stomach. They kept asking me questions about where the guns were. When I fainted from the pain they threw cold water on my naked body. They said, ‘We know you’re a Communist. We’re going to kill all of you and your Communist priests.’” Describe all events with this type of vividness—even those that are not as dramatic as torture. Include details about events that clients think of as “normal” life: constant fear, sleeping in other places to avoid arrest, conversations about whether or not to leave the country, and feelings upon learning of the death or disappearance of friends or family. The statement and the I-589 application should minimize the use of specific dates unless they are certain. Either the judge or the asylum officer will test the credibility of the applicant by searching for discrepancies between other CIS documents, the I-589, the affidavit and sworn testimony. Cultural differences, passage of time, fear, and other factors may impede a client’s ability to remember figures and dates with specificity. Thus, estimates of dates may be preferable. The attorney should take great care to assure that any facts which are contained in the declaration are consistent with other answers in the I-589.

§ 15.11 Working Together with Your Client to Write the Declaration

Unit 15

A good declaration will be co-written with the client. As in all aspects of immigration practice, the strongest cases are those with the most client participation. It is the client’s case, the client’s life and the client’s facts that are at issue. Furthermore, credibility is extremely important in asylum cases, particularly with the enactment of REAL ID, as discussed in § 14.15. Declarations must be accurate and consistent with the client’s testimony and entire asylum claim.

15-30

Tab Position 1

Immigrant Legal Resource Center April 2014

Many paralegals develop much stronger skills than attorneys do in interviewing asylum applicants and co-writing declarations. Below are some ideas of ways to work with a client to produce an effective co-written declaration. See Unit 2 for other ideas.

Tab Position 1

A Guide for Immigration Advocates April 2014

1. Explain to the Client That Your Conversation Is Confidential. Many applicants are fearful that someone in their home country will find out that they have applied for asylum, or what they have said. They are fearful to share their story with a stranger. As a representative, it is part of your job to make them comfortable. Explaining that the process is confidential is often essential to hearing the full story. If you are working with a translator, the applicant must believe that they can trust the translator as well. It is very common to find out after the fact that an applicant who went to their interview on their own felt fearful during the interview and did not disclose essential elements of their story. 2. Describe Your Office’s Style of Working with the Client. Emphasize that you must work together as a team to convince the judge or the asylum officer that the client fears going back to his home country. Tell the client he is expected to share the work with the legal worker. The client must share his knowledge of the facts about his case and the situation in his country. You have knowledge about how the law and procedure in this country work. See Unit 2 for other ideas about client participation and responsibility. 3. Explain the Law to the Client in Terms She Understands. Our clients must understand what it is that we are trying to prove in their cases. By the end of the interview process, the client should be able to explain to another person what she is trying to prove in her case and why. Example 15.11-a: When she gives talks to groups, Mercedes explains asylum like this: “To qualify for asylum you must think it’s dangerous for you to go back because there is some group—whether it is the government ,or the guerrillas, or someone else—that is against you for some reason, or has hurt you for something you believe. They think people like you do not support them. Because of that, they may want to hurt you. They have already hurt other people like you.” 4. Listen to the Client and Try to Build Rapport. Sometimes we are so busy we may miss what the client is saying. Good listening shows the client that you’re interested. As mentioned above, trust is very important when you are asking someone to reveal past trauma. Example 15.11-b: Roberto works with clients who are in detention. Often he can only spend half an hour each time he speaks with the client. Still, he tries to appear relaxed and unhurried, as if the only thing he has on his mind is listening to the person. Sometimes he lets a short period of silence follow what the client has said, in case the client might say something more.

Unit 15

15-31

5. Explain the Importance of Painting a Picture to the Judge or Asylum Officer of the Horror the Person Has Suffered and How Things Really Are in the Country. Explain that details are very important. Example 15.11-c: Mercedes tells her clients that the judge and other people from here do not know what things are really like in her client’s home country. She emphasizes to her clients how they need to start from scratch with every detail. Usually her clients have already realized that Americans do not understand what’s going on and they like hearing someone confirm that. 6. Avoid Asking the Client Questions from a List. (“Have you ever been detained?”) You might miss the real story. At least at first, try to get the client to tell his or her own story without prompting. The circle picture, described in § 15.12, is one way to do this. After this, you can follow-up with more specific questions from a list to make sure you do not forget to ask any questions. Additionally, remember that some words might not be understood in the context of the applicant’s culture. One example is the word arrest. Applicants might not understand if you mean held in jail, or whether you mean legitimately charged with a crime, or whether you really meant any arrest in an American legal context. You might need to ask several questions- such as have you ever had problems with law enforcement? Did they ever stop you for any reason? Did they ever ask you questions? What kind of questions? Were you ever held overnight in a police station? 7. Ask the Client to Write Notes of What Happened in Her Home Country That Made Her Fear Returning. This will help you write a declaration in their words, not yours. Some clients will write nearly complete drafts of a declaration, others will write good notes to start a declaration, and some will be able to dictate notes to a relative or friend who is literate. If the client does not come up with much at all, be patient. The process of remembering and telling is probably causing the client great stress. Additionally, if they come in with what looks like a full declaration, it is still important to ask questions. You might find that the applicant was guessing about dates or left out really important details.

Unit 15

8. Translate the Declaration into the Client’s Native Language. If it is in her own language, she will be able to review it by herself to determine its accuracy. She can also use it in preparation for her asylum interview and hearing. However, if you do translate it in writing into their native language, often officers or the ICE attorney in court will ask to see it, to verify what the applicant actually attested to. 9. Carefully Review the Declaration with the Client before Submitting It. The government tries to attack applicants by getting them to make a statement that is inconsistent with the declaration. The client must know everything that is in the declaration and be able to talk about it. If possible, review the declaration several times with the client before submitting it. If there are details the applicant is likely to forget— for instance, the dates that certain things happened—leave them vague in the declaration.

15-32

Tab Position 1

Immigrant Legal Resource Center April 2014

If the client cannot remember the precise date, it is all right to say “several months later,” “in 1982 or 1983,” or “I do not know the exact date” instead of being more specific.

Tab Position 1

A Guide for Immigration Advocates April 2014

Avoiding Re-Traumatization. In working with a client on his or her asylum claim, it is critical to recognize that this may be the first time your client is sharing his or her fear or past traumatic experience with you. In some cases, the experience may be so traumatic that advocates need to partner with a mental healthcare advocate. Legal advocates are generally not equipped to deal with the psychological issues that may go along with recounting trauma, although the psychological piece may be a critical part of the client’s asylum claim. Be aware of the pain and mental health effects of recounting trauma for your client and even the secondary trauma to yourself. Seek help when necessary. See Unit 2 for more on this topic.

§ 15.12 Interviewing the Applicant (The Circle Method) The practitioner should not expect to develop the entire detailed claim in one session. One should recognize both the need for the growth of personal trust between the attorney and the client, and the need for the practitioner to expand his or her knowledge and understanding of conditions underlying the applicant’s claim. Often it is difficult for asylum applicants to describe the details of what happened to them in their home country. They may be too scared to explain the details, or may think that details are unnecessary. They may not want to remember terrible events. Or, they may feel ashamed or embarrassed. So, applicants often describe the general conditions of the civil conflict or problems in their home country and do not mention directly what they personally experienced. They say they fear persecution due to the “situation” or “problems” in their country. Also, clients may need a lot of help putting their experiences in chronological order and identifying the details that are relevant to their case. One way to get them to talk about details and events instead of general conditions is to show them the circles as demonstrated below. This method helps clients visualize the importance of talking about details and events that happened specifically to them, their families, friends, and institutions to which they are close. Begin by showing your client a drawing of three circles inside of each other. Explain that information in the smallest circle, in the middle, covers events that happened directly to the client. Explain that it is best for the case to have information in this circle because it relates to the client directly. Information in the second circle covers events that happened to people close to the client, such as the client’s family, friends, neighbors, co-workers, and others close to her. It includes groups of which the client is a member, such as churches, cooperatives, political groups, a neighborhood or a small town. This is the next most important information after the first circle. Most of the information in the declaration will focus on events that come within the first two circles.

Unit 15

15-33

Information in the third circle covers the general conditions of the country, state or town where the client is from. It may relate to the general hardships of a civil war, but it may also cover events that had an impact on the applicant. The information in this circle is important because it puts the client’s story in context. It helps explain the events that happened to those in the first two circles. Often you will be able to obtain documentation about the events from the third circle, such as newspaper articles or reports from agencies involved in human rights.

§ 15.13 Drafting a Declaration As practice, write a sample declaration for Miguel Pedro of the Pedro family. Below you will find the facts of the Pedro family. Please use these in preparing the declaration. In Appendix 15-B you will find a copy of a document discussing how to write a declaration. In Appendix 15-C you will find a sample asylum declaration. If you feel that there are not enough facts in the hypothetical below to write a detailed and specific enough declaration, feel free to make up details that seem possible but are not contained in the hypothetical. Note: The facts of the hypothetical are such that Miguel and Angelina entered the U.S. in the 1980’s. In this exercise please ignore the fact that they would not be normally eligible to apply for asylum because they have been present in the U.S. for more than one year. A.

Hypothetical: Case of Miguel and Angelina Pedro

Miguel and Angelina Pedro are applying for asylum in the United States. They fled their hometown of San Miguel Acatan, Huehuetenango, Guatemala for Mexico in about August 1981, after the Guatemalan army attacked their town. On the morning of the attack, Miguel and Angelina and their three-year-old son were working in a small plot of land near the home where they lived with Miguel’s parents. They saw uniformed Guatemalan soldiers come down their street. A number of soldiers went to the home, and dragged Miguel’s parents out of the house, yelling at them in Spanish. (Miguel’s parents spoke mainly Kanjobal, a Mayan dialect.) While making his father watch, the soldiers repeatedly hit Miguel’s mother in the face with the butts of their rifles. Then, while she was unconscious, they pushed Miguel’s mother against a wall and shot her three times in the head, killing her instantly. They then turned to his father. They pushed him against the same bloodstained wall and shot him twice in the head. The soldiers left the two bodies lying in a pool of blood.

Unit 15

Miguel, Angelina and their son, Regino, witnessed the killings while they hid behind some plants. They stayed hidden all day, seeing and hearing the army continue its attack against the town’s residents. At dark, they left the town on foot, without even going back to their home. Slowed down by their small child, it took them about one day and a half to travel the 40 miles to the Mexican border.

15-34

Tab Position 1

Immigrant Legal Resource Center April 2014

B.

Stay in Mexico

Mexicans living in the border area in Chiapas directed the Pedros to a refugee camp. They lived in the refugee camp, populated exclusively by other Guatemalan Indian refugees, for six months. During their stay, the Pedros were aware of incursions by the Guatemalan army into nearby refugee camps. The Mexican government told all the refugees that they were going to move them to camps further away from the border (in Quintana Roo and Campeche). The Pedros decided to leave the camp, and traveled to northern Mexico, where they worked in agriculture for about two and a half years.

Tab Position 1

A Guide for Immigration Advocates April 2014

The Pedros, like other refugees in the camps, did not have legal permission to travel, work, or live in Mexico outside the camps. The Mexican government afforded them no type of permanent legal status while they lived in the camp. Once they left the camp, they essentially lived as undocumented persons. The Mexican government has deported large numbers of Central Americans, including Guatemalans. In late 1983, the Pedros entered the United States. C.

Stay in the United States

The Pedros entered the United States without inspection (they never obtained a passport or visa) at the Arizona border in December 1983. They moved to the area around Fresno, California the next year. While picking onions in early 1985, Miguel and Angelina were arrested by the INS. With the help of church groups, they were able to post their bond so they could get out of INS custody. They applied for asylum and withholding of removal. Miguel worked for over a year for a landscaping firm in the Santa Rosa area, beginning June 1985. He is now an experienced carpenter and gardener. Angelina has done various odd jobs including housekeeping, childcare and sewing. Miguel and Angelina have never been legally married. Although they have no other relatives who are in the U.S., Miguel and Angelina now have five children: Regino, born in Guatemala, Guadalupe, born in Mexico, and three children born in the United States. All five of their children reside with Miguel and Angelina. D.

Additional Information about the Asylum Claim

Miguel’s parents had never been involved politically. His father had been a lay catechist with the Catholic Church years before. They had never been accused of any criminal activity. Miguel, who was born on June 8, 1960, went to school for four years from 1966-1970. Miguel explains why he believes the army killed his parents: “The army believes that all the campesinos (peasants) are with the guerrillas. But we were not. For what some do, they blame all of us.”

15-35

Unit 15

The attack on San Miguel Acatan was one of hundreds which the Guatemalan army conducted against towns and villages in the highland areas from 1981 to 1983. The government believed that a high percentage of the Indian population (which is the poorest and most discriminated against sector of Guatemalan society) supported the guerrillas. The government,

the army (and the U.S. Embassy) believed that the area around San Miguel Acatan was one in which the guerrillas had a strong presence and a great deal of civilian support. Miguel and Angelina are practicing Catholics. Miguel objected to participating in the Guatemalan army (or the Civil Patrol) because it goes against his religious and moral convictions to be part of the military institutions that killed his parents and have caused suffering to so many of his fellow citizens.

FOR MORE INFORMATION ON THIS SUBJECT, see:

Unit 15

Essentials of Asylum Law, an ILRC Publication (www.ilrc.org/publications)

15-36

Tab Position 1

Immigrant Legal Resource Center April 2014

APPENDIX 15-A COMPARISON OF ASYLUM, RESTRICTION OF REMOVAL AND CONVENTION AGAINST TORTURE (CAT) RELIEF

Relief Sought

Definitions

Standards

Asylum

Reasonable Persecution or well-founded fear Possibility: 1 in 10 of persecution based on 5 grounds

Benefits

-Derivative beneficiaries -Path to LPR -travel

Withholding Threat to life or Clear probability -work permit of Removal freedom based on More than 50% -No derivatives (Restriction -No path to LPR 5 grounds on Removal) -Country-specific protection -Doesn’t have to More likely than Substantial CAT be based on 5 not to be tortured Grounds grounds. (mental or More than 50% -No derivatives physical) by -No path to LPR government or -Country-specific with government protection acquiescence -Revocation of status is easier

Tab Position 1

A Guide for Immigration Advocates April 2014

Bars

-One-year deadline -Firm Resettlement -Safe-Third Country - Persecutor of others - Particularly serious crimes - serious nonpolitical crime( -Danger to national security - Terrorist Activity Less than asylum: NOT BARRED for: one year deadline, agg felony, firm resettlement Only protection available for individuals with serious crimes. -no bars for deferral of removal

Unit 15

Appendix 15-A-1

APPENDIX 15-B DECLARATION OF ERIC COHEN IN SUPPORT OF HOW TO WRITE A DECLARATION

I, Eric Cohen, declare the following: 1. I am a citizen of the United States residing in East Palo Alto, California. 2. I have personal knowledge of the facts herein, and if called to testify as a witness I could competently do so. 3. The most important part of an application for political asylum is the declaration. The declaration provides the client and the paralegal with the opportunity to tell the client's story and explain why she is afraid to return to her native country. There are many different ways to write a declaration. I am giving some suggestions on how to write a good declaration. 4. During the introduction of the declaration, you must state the declarant's name (the declarant is the one telling the story) and some other preliminary information. Then you should state that the declarant fears returning to her home country and quickly summarize why in one paragraph. 5. After this introduction, you should get into the body of the declaration. This is the point where you should explain in detail why your client fears returning to her home country. A good declaration is really just a good story of what made your client flee to the U.S. Like any story, it should include an introduction, body and conclusion. 6. Usually, it is best for the body of the declaration to be organized chronologically. Start with the first event in your client's life, which caused him to leave his home country and go on from there. Prior to writing the declaration, it is usually best to outline it by listing the events in order of when they occurred.

Unit 15

7. The declaration should state facts, not legal conclusions. A declaration should not say, "I qualify for political asylum." This is a legal question for the judge to decide. Instead, a good declaration should lay out the facts to help the judge make her decision. A good declaration should state, "After torturing my father, they shot him 7 times in the head, decapitated him and hung his body from a tree. The army did this because my father was active in the Catholic Church. He often worked as a catechist." 8. Just like all other legal writing, you must add many details and use vivid descriptions of what happened during your client's life in her home country. Avoid generalities and vagueness. Instead, use images that will help a judge or CIS adjudicator examiner picture what your client's life was like before coming to the U.S. Use so many details that if you closed your eyes and someone read the declaration to you, you could picture it all in your mind. Make it sound as realistic as possible.

Appendix 15-B-1

Tab Position 1

Immigrant Legal Resource Center April 2014

9. Do not be afraid to make the declaration sound gruesome. If your client was beaten and tortured, do not just say, "I was beaten and tortured". Use many specific examples. How was he beaten? How many times? Where? When? How was he tortured? For how long? How many times? You could write: "I was tortured and beaten for 3 long and grueling days. They hit me several times each hour in the head, the face and the stomach. They would ask me questions about where the arms where and when I told them I didn't know, they threw cold water on my naked body."

Tab Position 1

A Guide for Immigration Advocates April 2014

10. To write a successful declaration, it is best to write it together with your client. Your legal experience is important, but so is your client's knowledge of her story and her way of telling that story. I usually tell the client what the law is and what the judge or CIS will be looking for in her story. I explain this in lots of detail so the client really knows what to expect. Then, I tell the client to go home and write down all the reasons why he fears going back to his home country. When he returns, I either write the declaration with the client or we write notes together and I write the declaration after he leaves. 11. To verify the information, you should slowly read the declaration back to the client, making sure every detail is correct. If the client is unsure of details, either leave them blank or make them very general. For instance, if the client is unsure of a date, it is best not to mention a date or just say it was sometime between 1991 and 1992. If the client says one thing on this declaration and something else during the interview or in court, it could hurt his credibility and thus his case. 12. The words of the declaration should be simple. All sentences should be short and uncomplicated. Each idea you present should be a new paragraph. Each new paragraph should be numbered. A declaration always should be easy to read. It should look like this declaration. 13. In either the last or next to last paragraph before the two paragraphs which follow this, you should write that the client feels she will be killed or tortured if forced to return to her home country. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed in the City of East Palo Alto, County of San Mateo, California, on this the First day of March 2014. __________________________ Eric Cohen (Declarant)

I, Pedro the Paralegal, declare that I am bilingual in English and Spanish, and that I read the above declaration to the Declarant in Spanish and that he understood its contents. Date: March 1, 2014

____________________ Pedro the Paralegal

Unit 15

Appendix 15-B-2

APPENDIX 15-C Sample Asylum Declaration SUPPLEMENTAL DECLARATION OF_____________________________ 1. At the end of 1987 the army incarcerated me for refusing to follow an order. We were on patrol near the coast, near a place called Cerro Colorado in Esquintla. We were looking for guerrillas who had killed some soldiers. My superior officers ordered me to interrogate some peasants who were working in the fields. I asked the men if they knew where the guerrillas had gone. They told me they did not know. I believed them. My superior officers told me to “get truth out of them by force,” that is, to beat them with my rifle if they would not tell me about the guerrillas. I refused to beat the men. I refused to comply because it was a bad order. It was not correct to beat up on those poor people. I had already questioned them, and I believed that they answered me honestly. I believed that they did not know where the guerrillas had gone. I refused to comply with the order to beat them for reasons of conscience. 2. After I refused to comply, the officers punished me then and there. They punished me by beating me with their rifles and their fists. When other soldiers saw the punishment I received, they complied when they were ordered to beat the peasants in the field. They were afraid after they saw the punishment I received. I felt very bad when I saw those people being beaten. The soldiers treated them like animals. The peasants were just poor people who have feelings like anyone else. To see them mistreated made me feel bad. 3. When we returned from the patrol to our base at Santa Lucia, I was punished further. My superior officers called me in after we got back to the base. We had been on patrol for about a month. The officer told me that I would be punished for not following the order. They put me in a “calabozo,” which is a small cell. The calabozo is normally used for holding guerrillas who are captured in battle. I was alone in the calabozo. Water dripped from the walls and ceiling day and night. I was treated very badly. The officials took me out of the cell every day and beat me. They wet me, fully clothed, with water and left me to sleep on the floor like that—-cold and wet. I was only fed when it occurred to the officials to feed me. They sent officials to speak to me, they asked me when I would learn to obey orders. I responded that when they gave me good orders I would follow them, but that I could not obey orders to hurt innocent people. This happened in December of 1987 I remember because my family came to visit me at this time and they were told that I was not there. I spent my Christmas locked in the calabozo.

Unit 15

4. After a month I was released from the calabozo. I was very sick when I got out, and spent about one month in the infirmary. After I was released from the infirmary I rejoined my platoon. 5. One year later I refused to comply with another order. My superior officers ordered me to dress in civilian clothing and to go to a house at night. I was ordered, along with other

Appendix 15-C-1

Tab Position 1

Immigrant Legal Resource Center April 2014

soldiers, to take two men out of the house and to kill them. They told me to kill these men because it was said that they belonged to the guerrilla. I did not comply with the order because it was wrong. They wanted to kill these men without an investigation or any kind of hearing. That was not correct. I refused to comply with the order for reasons of conscience.

Tab Position 1

A Guide for Immigration Advocates April 2014

6. This happened in Chimaltenango. We were in the hills. After I refused, the officials beat me with their rifles in front of the rest of the soldiers. For one day they did not leave me in peace. After this incident I decided to leave the army, and I requested my discharge in January 1989. 7. I referred to these incidents in the original declaration I submitted to the court. (see declaration dated 6/9/90, ¶ 5 and 6) But I did not speak of all the details, nor of my punishment, because I had little time to spend with the attorney who wrote my original declaration. Because the guerrilla actually tried to kill me, I am most afraid of them. I spent most of my time with the lawyer describing my problems with the EGP. Therefore my original declaration contains more facts which deal with my fear of the guerrilla than of my problems in the army. The problems I describe in this declaration are the problems referred to in the answer to questions 35, 37, and 38 of the form 1—589.

Unit 15

Appendix 15-C-2

Tab Position 1

Immigrant Legal Resource Center April 2014

APPENDIX 15-D STATUTORY BARS TO ASYLUM AND WITHHOLDING OF REMOVAL WITHHOLDING OF REMOVAL

PERSECUTION OF OTHERS

BAR INA § 208(b)(2)(A)(i)

BAR INA § 241(b)(3)(B)(i)

PARTICULARLY SERIOUS CRIME (inside U.S.)

BAR INA § 208(b)(2)(A)(ii)

BAR INA § 241(b)(3)(B)(ii)

SERIOUS NON-POLITICAL CRIME (outside U.S.)

BAR INA § 208(b)(2)(A)(iii)

BAR INA § 241(b)(3)(B)(iii)

NATIONAL SECURITY THREAT

BAR INA § 208(b)(2)(A)(iv)

BAR INA § 241(b)(3)(B)(iv)

TERRORIST ACTIVITY

BAR INA § 208(b)(2)(A)(v)

Is included as a national security threat. Above.

FIRM RESETTLEMENT

BAR INA § 208(b)(2)(A)(vi)

Does not apply

AGGRAVATED FELONY

BAR INA § 208(b)(2)(B)(i)

Some Aggravated Felonies are not Particularly Serious Crimes

SAFE 3RD COUNTRY

BAR INA § 208(a)(2)(A)

Not in statute, but might apply pursuant to agreement with Canada, see Unit § 15.4.F

1 YR FILING DEADLINE

BAR INA § 208(a)(2)(B)

Does not apply

PREVIOUS DENIAL

INA § 208(a)(2)(C)

Does not apply

Unit 15

ASYLUM

Appendix 15-D-1

APPENDIX 15-E STUDENT FORM FOR FEEDBACK ON ASYLUM DECLARATIONS

Tab Position 1

A Guide for Immigration Advocates April 2014

Please list the things you liked best about this declaration:

Please share some thoughts about how the declaration could be improved:

Unit 15

Appendix 15-E-1

Unit 15

Tab Position 1

=

UNIT SIXTEEN U AND T VISAS, REGISTRY, LEGALIZATION, FAMILY UNITY AND DISCRETIONARY RELIEF

This Unit Covers:          

Law and procedure for U visas; Law and procedure for T visas; Law and procedure for registry; Law and procedure for Nicaraguan and Cuban Adjustment under NACARA Law and procedure for legalization programs under 1986 Act; Family Unity; Voluntary Departure; Stays of Removal; Prosecutorial Discretion and Deferred Action, including DACA; and Private Bills in Congress

This Unit Includes: § 16.1 § 16.2 § 16.3 § 16.4 § 16.5 § 16.6 § 16.7 § 16.8 § 16.9 § 16.10 § 16.11 § 16.12 § 16.13 § 16.14 § 16.15 § 16.16 § 16.17 § 16.18 § 16.19 § 16.20 § 16.21 § 16.22

Introduction ...................................................................................................... 16-3 Who Is Eligible for U Nonimmigrant Status? .................................................. 16-4 Applying for the U Visa ................................................................................... 16-9 Adjustment of Status ...................................................................................... 16-13 Derivative Family Members ........................................................................... 16-14 The T Visa for Victims of Trafficking ........................................................... 16-16 Requirements for T Nonimmigrant Visas ...................................................... 16-16 Establishing That the Applicant Is a Victim of a Severe Form of Trafficking in Persons ................................................................................ 16-18 Application and Adjustment to Lawful Permanent Residence ....................... 16-19 Overview of the Law of Registry ................................................................... 16-20 Entry before 1972 ........................................................................................... 16-21 Continuous Residence in the U.S. .................................................................. 16-21 Good Moral Character and Not Ineligible to Citizenship .............................. 16-22 Grounds of Inadmissibility and Deportation .................................................. 16-23 Discretionary Denials ..................................................................................... 16-23 Registry Application Procedure: Persons Not in Proceedings ....................... 16-24 Applications in Removal Proceedings ........................................................... 16-24 Documenting Residence for Registry Applications ....................................... 16-24 Documentation: Use of Affidavits ................................................................. 16-25 Overview of the Immigration Reform & Control Act of 1986....................... 16-26 Legalization Program for Persons in U.S. since before 1/1/82 ...................... 16-26 Legalization Program for Agricultural Workers ............................................ 16-27

16-1

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

§ 16.23 § 16.24 § 16.25 § 16.26 § 16.27 § 16.28 § 16.29 § 16.30 § 16.31 § 16.32 § 16.33 § 16.34 § 16.35 § 16.36 § 16.37 § 16.38 § 16.39 § 16.40 § 16.41 § 16.42 § 16.43 § 16.44 § 16.45 § 16.46 § 16.47 § 16.48 § 16.49 § 16.50 § 16.51 § 16.52 § 16.53 § 16.54 § 16.55

Legalization Denials: Appeals and Reopening............................................... 16-27 Late Legalization or Late Amnesty ................................................................ 16-28 Nicaraguan and Cuban Adjustment under the Nicaraguan Adjustment and Central American Relief Act of 1997 .................................. 16-29 The Haitian Refugee Immigration Fairness Act of 1998 ............................... 16-31 Introduction: Family Unity ............................................................................. 16-33 Basic Eligibility Requirements for Family Unity ........................................... 16-34 Who Is a Legalized Alien? ............................................................................. 16-34 Children under 21 as of the Applicable Date in 1988 .................................... 16-35 Spouse ............................................................................................................ 16-35 Residence in the U.S. since before the Applicable Date in 1988 ................... 16-36 Effect of Absences from U.S. ......................................................................... 16-37 Applicants Do Not Have to Remain Eligible for a Second Preference Visa .............................................................................................. 16-37 Children Born Abroad to Mothers with Family Unity ................................... 16-38 Criminal Disqualifying Grounds .................................................................... 16-38 Other Grounds of Disqualification from Family Unity .................................. 16-39 Benefits of Family Unity ................................................................................ 16-40 Limitations of Family Unity Status ................................................................ 16-41 Overview of Types of Voluntary Departure ................................................... 16-42 Voluntary Departure as a Removal Defense .................................................. 16-43 Eligibility and Grounds of Disqualification ................................................... 16-44 Effective Date of Law with Warnings ............................................................ 16-47 Clients Who Wish to Apply for Relief in Removal Proceedings May Apply Only for the Third Type of Voluntary Departure ........................ 16-47 Stays of Deportation/Removal ....................................................................... 16-48 Prosecutorial Discretion ................................................................................. 16-50 Deferred Action .............................................................................................. 16-52 Deferred Action for Childhood Arrivals ........................................................ 16-52 Criminal Bars to DACA ................................................................................. 16-53 Continuous Residence and Travel Requirements for DACA ......................... 16-59 Educational Requirements for DACA ............................................................ 16-61 What Does an Approval of DACA Provide? ................................................. 16-63 Renewal Process ............................................................................................. 16-64 Deferred Action in Sympathetic Cases .......................................................... 16-64 Private Bills Passed by Congress ................................................................... 16-66

This unit covers other possible relief available to your client that has not been covered in other units. These forms of relief are options that might be missed in a first analysis, or, like legalization, a part of your client’s immigration history that you want to understand better. The last section discusses final efforts you can take for those with few immigration options—namely different forms of asking the government to exercise discretion in some way. Part One discusses U and T visas, which are special non-immigrant categories to assist those that have been victims of crime or trafficking. U visas have become a very important option for those that might not

16-2

have many options available. Part Two discusses registry, a type of adjustment to lawful permanent residence that is only available to those that have lived here since 1972. Part Three discusses various legalization programs and amnesty, while Part Four discusses what relief was available to the family members of those that legalized. Part Five discusses other forms of discretionary relief that is within the power of ICE and CIS to grant immigrants in certain circumstances. Deferred Action for Childhood Arrivals (DACA) is covered in Part Five.

PRACTICE POINTER: Where to Find the Law. The Immigration and Nationality Act (Title 8 USC) and Title 8 of the Code of Federal Regulations (dealing with immigration and nationality) may be viewed and downloaded from the CIS website, at www.uscis.gov. You may also obtain them on www.findlaw.com, a free legal information website.

PART ONE: U VISAS -- IMMIGRANTS WHO ARE VICTIMS OF CRIMES § 16.1 Introduction The U visa is a nonimmigrant (temporary) status that allows non-citizen victims of crime to stay in the United States and obtain employment authorization.1 U visa status is intended to protect victims of certain crimes who have gathered the courage to come forward, report the crime, and assist in its investigation and prosecution. It is available to non-citizens who suffer substantial physical or mental abuse resulting from a wide range of criminal activity, including domestic abuse.2 A person in U visa status for three years may also apply for lawful permanent residence. This section will provide a basic overview of the eligibility requirements and procedure for U nonimmigrant status. For a more detailed discussion, please see the ILRC’s publication, The U Visa: Obtaining Status for Immigrant Victims of Crime, available at www.ilrc.org/publications. The U visa is an important immigration option to be aware of because it provides undocumented clients with nonimmigrant status and work authorization, the possibility of lawful permanent residency, and the ability to help derivative family members obtain immigration status. Importantly, it has one of the most generous waivers in all of the Immigration and Nationality Act. It provides waivers for many inadmissibility grounds, even those that do not have a general waiver available, such as false claims to U.S. citizenship. In addition, other immigration issues that bar eligibility for most other types of relief, such as prior expedited removal orders, do not bar eligibility for a U visa.

1 2

In this unit, the terms “U visa” and “U nonimmigrant status” are used interchangeably. INA §§ 101(a)(15)(U), 214(p), 245(m).

16-3

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

U visa status is generally capped at four years,3 and there is an annual limit of 10,000 U visas per year.4 After three years in U visa status, the non-citizen may be able to adjust status to obtain lawful permanent residency (a green card).5 There are also provisions to grant derivative U visas and permanent resident status to certain family members of U visa holders.6

§ 16.2 Who Is Eligible for U Nonimmigrant Status? The U nonimmigrant status, or U visa, is an option available to non-citizens who have been victims of serious crimes that resulted in physical or mental abuse and can procure certification from a law enforcement official that they are, have been, or are likely to be helpful in the criminal investigation or prosecution of the crime. Unlike eligibility for the Violence Against Women Act (VAWA), there is no requirement that the victim be related to the perpetrator of the crime or that the perpetrator have any specific immigration status. Example 16.2-a: Sonya is an undocumented woman. A doctor in her rural area sexually abused her and many undocumented women patients. Sonya is participating in a criminal investigation and prosecution of the doctor for sexual assault. Sonya may be eligible for a U visa, even though she is not related to the doctor. A.

U Visa Eligibility Requirements

There are five basic eligibility requirements for U nonimmigrant status:     

The immigrant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity; The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) possesses information concerning that criminal activity; The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; The immigrant has certification from a federal, state or local law enforcement authority certifying his or her helpfulness in the investigation or prosecution of the criminal activity; and The criminal activity violated the laws of the United States.7

Each of these requirements will be discussed in greater detail below.

3

INA § 214(p)(6). INA § 214(p)(2)(A). 5 INA § 245(m). 6 INA § 101(a)(15)(U)(ii). 7 INA § 101(a)(15)(U). 4

16-4

B.

Meeting the U Visa Eligibility Requirements 1. The petitioner must have been a victim of a criminal activity listed in the statute

In order to qualify for a U visa, the immigrant must have been the victim of one of the crimes listed in the statute. This list of crime includes: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, stalking, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, fraud in foreign labor contracting, or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law.8 For the most part, the designated crime for U visa status need NOT be a felony. It should generally be sufficient that the case is a misdemeanor (with the exception of the statutorily listed “felonious assault”). Victims of crimes in the past may still be eligible for a U visa, assuming that the petitioner meets the U visa requirements.9 If the law enforcement agency will sign a certification that they were helpful in the investigation and they otherwise meet the requirements, there is no time limit to filing. Some of the statutorily listed crimes—namely, witness tampering, obstruction of justice, and perjury—carry a set of additional requirements under the regulations. For one of those three crimes, a victim can qualify for the U visa if the perpetrator committed the offense: 1) to avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring him or her to justice for other criminal activity; or 2) to further his or her abuse or exploitation or undue control through manipulation of the legal system.10 These crimes, however, need not be connected with any other statutorily listed criminal activity. 2. The petitioner must have been a victim The regulations outline two kinds of victims who may qualify for the U visa—direct victims and indirect victims.11 A direct victim is defined as a person who has suffered direct harm or who is directly or proximately harmed as a result of the criminal activity.12 Included in the definition of direct victims are bystanders who suffer unusually direct injury as a result of a qualifying crime. 8

INA § 101(a)(15)(U)(iii). Yates, Associate Director of Operations, Centralization of Interim Relief for U Nonimmigrant Status Applicants Memorandum for Director, Vermont Service Center 4 (Oct. 23, 2003) (hereinafter “October 2003 memo”), available at www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/A rchives%201998-2008/2003/ucntrl100803.pdf. 10 8 CFR § 214.14(a)(14)(ii). 11 8 CFR § 214.14(a). 12 8 CFR § 214.14(a)(14). 9

16-5

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

The definition of an indirect victim includes certain family members in certain situations. If the victim of the crime was a victim of murder or manslaughter or is incompetent or incapacitated as a result of the crime, then the following family members may qualify as an indirect victim:    

Spouses; Unmarried children under 21 years of age; Parents, if the victim was under 21 years of age; or Siblings under the age of 18, if the victim was under 21 years of age.13

For the purposes of qualifying as an indirect victim as a family member, the victim’s age will be determined as of the date of the qualifying criminal activity. In these situations, the family member may apply for U nonimmigrant status as the principal petitioner. 3. The applicant must have suffered substantial physical or mental abuse The petitioner must have suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity.14 It is important to note that the abuse is not confined to physical abuse, but also includes mental abuse which is defined as impairment of emotional or psychological soundness.15 Example 16.2-b: Gino was an innocent bystander when he was shot in the spine on the street. As a result of this felonious assault, he is paralyzed from the chest down and has become clinically depressed. He has helped the police identify his assailant and is willing to help in the investigation and the prosecution of the crime. He can show that he suffered substantial physical and mental abuse with medical reports, psychological evaluations, and his own declaration. In determining whether or not the abuse suffered was “substantial,” CIS will consider the severity of the injury suffered and the abuse inflicted. Substantial factors include:     

Nature of the injury; Severity of the perpetrator’s conduct; Severity of the harm suffered; Duration of infliction of harm; and Permanent or serious harm to appearance, health, physical or mental soundness.16

No single factor is determinative or a prerequisite. Furthermore, DHS can take into consideration aggravation of a victim’s pre-existing conditions.

13

8 CFR § 214.14(a)(14)(i). INA § 101(a)(15)(I)(i)(I). 15 8 CFR § 214.14(a)(8). 16 8 CFR § 214.14(b)(1). 14

16-6

4. The petitioner must possess information concerning the criminal activity and must currently be helpful, have been helpful, or be likely to be helpful in the investigation or prosecution of the criminal activity17 In order to qualify for the U visa, the nonimmigrant crime victim MUST provide proof, in the form of a certification, from a law enforcement agency that he or she has provided some form of help to the criminal investigation or prosecution. The statute does not require that the criminal investigation have led to charges being filed against the perpetrator, a prosecution of the case, or an ultimate conviction.18 Being helpful with the criminal investigation alone may be sufficient. The statute does not specify any particular role, such as being a witness at trial, that the victim has to fulfill in terms of her assistance to the criminal investigation. However, if the victim has never contacted the police or other law enforcement agency about the crime, he or she is likely NOT eligible for a U visa yet. Example 16.2-c: Donna tells you that her husband had been physically abusing her for years, so she left him six months ago. She would like to apply for the U visa as the victim of domestic violence. However, she never contacted police to report the crime because she had always been afraid that if she contacted a law enforcement agency she could be deported. Donna is currently not eligible for the U visa because she hasn’t been helpful in a criminal investigation or prosecution yet. If she contacts the police now, she can still report the crime. It is unclear whether the police will investigate the crime at this point in time. If the police do pursue the matter, she may qualify for a U visa. Example 16.2-d: Kenji was the victim of kidnapping ten years ago, many years before Congress created the U visa. Kenji helped police in the investigation and prosecution of the crime and his kidnapper went to prison. Kenji only found out about the U visa recently. He wants to know if he can apply for a U visa now. If Kenji can get a law enforcement official to certify his helpfulness in the case years ago, he may qualify for a U visa. The CIS is accepting and approving old cases, even if the crimes occurred years ago, as long as the petitioner is otherwise eligible. Every request for U visa nonimmigrant status must include certification from a government official that the victim is being helpful, has been helpful, or is likely to be helpful in the criminal investigation or prosecution.19 This certification can come from a federal, state or local prosecutor; a federal or state judge; a police investigator; a victim witness advocate within the District Attorney’s office; a law enforcement agency such as the Equal Employment 17

INA § 101(a)(15)(U)(i)(II). October 2003 memo, page 4. 19 INA § 101(a)(15)(U)(i)(III). 18

16-7

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Opportunity Commission or Department of Labor; or other local authority charged with investigating or prosecuting criminal activity. This certification must be submitted on Form I918, Supplement B. This is discussed in further detail below at § 16.3. There is an exception to the helpfulness requirement for victims who are under 16 years of age, incapacitated, or incompetent. These victims can satisfy the helpfulness requirements if their parent, guardian, or next friend20 provides the required assistance.21 For the purposes of the exception for victims under 16 years of age, the victim’s age is established as the age of the victim on the day that the qualifying criminal activity first occurred.22 5. The petitioner must have been the victim of a criminal activity that violated the laws of the United States or occurred in the United States To be considered a qualifying criminal activity for the U visa, the crime must have violated the laws of the United States or occurred in the United States.23 This includes Indian country,24 military installations,25 territories and possessions.26 Advocates are advised to refer to ILRC’s U Visa Manual for statutorily listed crimes that can have occurred outside of the United States. 6. The petitioner must be admissible to the United States Finally, in order to qualify for U nonimmigrant status, U visa petitioners must be admissible.27 Those who are inadmissible or become inadmissible must have the ground of inadmissibility waived.28 Luckily, there is a U visa-specific waiver. Under this waiver, any ground of inadmissibility may be waived in the public or national interest for U nonimmigrant status petitioners, except for the grounds applicable to perpetrators and participants of Nazi persecutions, genocide, acts of torture or extrajudicial killings.29

20

The regulations define “next friend” as “a person who appears in a lawsuit to act for the benefit of an alien under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. The next friend is not a party to the legal proceeding and is not appointed as legal guardian.” 8 CFR § 214.14(a)(7). 21 INA § 101(a)(15)(U)(i)(III); 8 CFR § 214.14(b)(3). 22 8 CFR § 214.14(b)(3). 23 INA § 101(a)(15)(U)(i)(IV); 8 § CFR 214.14.(b)(4). 24 8 CFR § 214.14(a)(4). 25 8 CFR § 214.14(a)(6). 26 8 CFR § 214.14(a)(11). 27 INA § 214(a)(1); 8 CFR § 214.1(a)(3)(i). 28 INA § 212(a); INA § 212(d)(3)(B). 29 INA § 212(d)(14).

16-8

§ 16.3 Applying for the U Visa A.

The Application: Form I-918

Petitioners for U nonimmigrant status must submit a completed Form I-918, “Petition for U Nonimmigrant Status,” with initial evidence and correct fees (or a fee waiver).30 All applicants for U nonimmigrant status—including those living abroad, those with final orders of removal, and those who are currently in removal proceedings—must send their application by mail to the USCIS Vermont Service Center (VSC). The VSC adjudicates ALL U visa applications, no matter where the petitioner resides. The mailing address is: U.S. Citizenship and Immigration Services Vermont Service Center VAWA Unit, Box 1000 75 Lower Welden Street St. Albans, VT 05479-0001 Form I-918 includes a box asking whether the applicant also seeks work authorization so the applicant does not need to submit a separate work authorization application (although derivative applicants do, see § 16.5). Form I-918 must be accompanied with “initial evidence” in order for CIS to consider the application complete.31 “Initial evidence” includes:  

 

B.

Form I-918, Supplement B, “U Nonimmigrant Status Certification;” Evidence to establish o The petitioner is a victim of a qualifying criminal activity; o The petitioner has suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity; o The petitioner possesses information concerning the qualifying criminal activity of which he or she was a victim; o The petitioner has been, or being, or is likely to be helpful to a certifying agency; o The criminal activity is qualifying and occurred in the United States or violated a U.S. federal law. A statement by the petitioner describing the facts of the victimization; and If the petitioner is inadmissible, Form I-192, “Application for Advance Permission to Enter as Non-Immigrant.”32 The Law Enforcement Certification: Form I-918, Supplement B

The law enforcement certification is essential to the U visa application.33 The certification must come from a federal, state, or local law enforcement official, prosecutor, or 30

8 CFR § 214.14(c)(1). Id. 32 8 CFR § 214.14(c)(2). 33 INA § 214(p)(1). 31

16-9

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

judge who is investigating or prosecuting the criminal activity.34 Child Protective Services, the Equal Employment Opportunity Commission, the Department of Labor and others may also qualify as a certifying agency if they have criminal investigative jurisdiction in their respective area of expertise.35 The certification must be submitted on Form I-918, Supplement B and must be signed by the law enforcement official within six months of filing the application.36 This does not mean the crime must have happened during that time, but the officer or agency must have signed the form within that period of time. Also, the certifying official must be the head of the certifying agency or a designated supervisor.37 C.

Additional Documentation Regarding Eligibility

Petitioners may also submit additional evidence to help demonstrate eligibility for the U visa.38 Additional evidence may not be submitted in lieu of the filing of a Form I-918, Supplement B. A Form I-918 Supplement B is required but not conclusive to show eligibility. Even with a signed Form I-918 Supplement B, the CIS can still deny based on its own assessment of eligibility. Thus, additional evidence should be submitted to strengthen the petitioner’s request. Such evidence may include court documents, news articles, police reports, orders of protection, trial transcripts, affidavits of other witnesses (such as medical or social services personnel), photographs, and medical records. It may also be helpful to include a copy of the criminal statute from the relevant penal code describing the crime that the perpetrator was charged with (or convicted of) and that the victim suffered. D.

Victim’s Statement

Petitioners for U nonimmigrant status are required to submit a statement with their Form I-918 that describes the facts of their victimization.39 This statement should be written in the client’s own words and include the following information:     

The nature of the criminal activity; When the criminal activity occurred; Who was responsible for the criminal activity; The events surrounding the criminal activity; How the criminal activity came to be investigated or prosecuted;

34

INA § 101(a)(15)(U)(i)(III); 8 CFR § 214.14(a)(2). 8 CFR § 214.14(a)(2). 36 Petitioners who were previously granted U interim relief were allowed to submit their old law enforcement certifications if they filed the I-918 before April 14, 2008. 8 CFR § 214.14(c)(1). 37 8 CFR § 214.14(a)(3). 38 8 CFR § 214.14(c)(2)(ii) and (iii). 39 8 CFR § 214.14(c)(2)(iii). 35

16-10

 

What substantial physical and/or mental abuse was suffered as a result of the criminal activity; and Any other information supporting any of the other eligibility requirements.

Petitioners who are under the age of 16, incapacitated, or incompetent do not have to submit a victim’s statement. In such cases, a parent, guardian, or next friend must submit one with as much of the requested information as possible. E.

Documentation of Substantial Physical and/or Mental Abuse

The most important evidence of the substantial physical or mental abuse suffered by your client is his or her own detailed declaration. Other helpful documentation include declarations of witnesses to the abuse; police reports; health care workers; medical reports documenting the effects of physical or mental abuse to petitioner; reports or evidence of appointments with counselors, shelters, etc.; or photographs of the injuries. Any statements from counselors and therapists should explain why, based on their experience, the applicant’s account of the physical or mental abuse is credible. F.

Identification Documentation

Petitioners for U nonimmigrant status will also need to have a valid, unexpired passport.40 A waiver of the passport requirement is available for U nonimmigrant petitioners.41 This waiver must be made on Form I-193, “Application for Waiver of Passport and/or Visa.”42 It will be adjudicated by the Vermont Service Center.43 The current fee for the passport waiver application is $585 and no fee waiver is available. Therefore, many advocates have found it may be cheaper to apply for a passport or to renew an existing passport for a client rather than file for the waiver of the passport requirement. For information about obtaining or renewing a passport for a client, contact the embassy or consulate of the client’s home country. G.

Waivers of Inadmissibility

Petitioners for U nonimmigrant status who fall under a ground of inadmissibility under INA § 212(a) will have to file a waiver request for that ground. According to the statute, the CIS may waive all inadmissibility grounds, other than INA § 212(a)(3)(E) [genocide and Nazi persecutions] for U visa petitioners, if the waiver is in the public or national interest.44 Example 16.3: Lupe is being abused by her lawful permanent husband and would like to self-petition under VAWA. However, she has been told that she will not be able to get a green card later because she lied and said she was a U.S. citizen to enter the country. 40

INA § 212(a)(7)(B); 8 § CFR 212.1. 8 CFR § 212.1(g). 42 Id. 43 8 CFR § 212.1(p). 44 INA § 212(d)(14). 41

16-11

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Section 212(a)(6)(C)(ii) of the INA [false claim to U.S. citizenship] is a ground of inadmissibility for which there is no waiver if committed by a VAWA self-petitioner after September 30, 1996. Therefore, even if Lupe were to have a VAWA self-petition granted, she would not be able to adjust status later. However, if she otherwise meets the requirements for a U visa, she could apply for the visa and later apply to adjust status if she receives the U visa. This is because she may be eligible for the special U visa waiver. The waiver request must be filed on Form I-192, “Application for Advanced Permission to Enter as a Nonimmigrant” along with its current filing fee or a fee waiver.45 The CIS instructions require that certain documents be submitted depending on the grounds of inadmissibility that the applicant is seeking to waive. For example, if the applicant is asking to waive grounds of inadmissibility relating to criminal convictions, the applicant needs to submit certain information, including the name of the crime, the country of conviction, the date and place of the crime, the date and place of conviction, the sentence imposed, the official record of conviction, and the court disposition.46 The applicant should also specify which ground(s) of inadmissibility she seeks waived and the reasons why a waiver should be granted.47 As it is a discretionary waiver, it will be adjudicated on a case-by-case basis. If Form I-192 is not filed concurrently with Form I-918 (for a principal applicant) or Form I-918 Supplement A (for a derivative applicant), and a ground of inadmissibility exists, then CIS will issue a Request For Evidence (RFE). If the inadmissibility waiver application is denied, the underlying U visa application (I918) will also be denied because the person will not be admissible. The regulations do not provide for a way to appeal a denial of a waiver.48 However, the person can appeal the I-918 and re-file a request for the waiver.49 CIS is required to state the reasons for the denial in writing. When re-filing the waiver, the person should submit additional evidence to address the concerns CIS expressed when denying the initial waiver application.

WARNING ABOUT TRAVEL: Although U visa holders are allowed to travel outside the United States upon approval of the I-918, the best practice is to advise your clients not to travel because travel can be very risky. To travel, they must apply for a reentry visa unless they are visa exempt, meaning they fit a category of entrants that are allowed to enter the United States without a visa.50 If the client was here unlawfully for more than 180 days, she will trigger unlawful presence bars upon leaving the United States and will be barred from readmission to the United States when she attempts to return. For more information on these bars, please see Unit 3. However, she may be eligible for a waiver under INA § 212(d)(14). If she wants to leave the 45

8 CFR § 212.17(a); 8 CFR § 214.14(c)(2)(iv); 8 CFR § 103.7(b)(1)(i)(P). See CIS, I-192 Instructions, available at www.uscis.gov/sites/default/files/files/form/i-192instr.pdf. 47 See CIS, I-192 Instructions, available at www.uscis.gov/sites/default/files/files/form/i-192instr.pdf. 48 8 CFR § 212.17(b)(2); see also 8 CFR § 212.4(a)(1). 49 8 CFR § 212.17(b)(2). 50 8 CFR § 212.1. 46

16-12

United States, she should consult an experienced immigration attorney to discuss the possible immigration consequences.

§ 16.4 Adjustment of Status A.

Requirements to Adjust Status from U nonimmigrant Status

The following are statutory requirements to adjust status from U nonimmigrant to LPR: 

  

The applicant must have been physically present in the United States for a continuous period of at least three years since the date of admission as a U non-immigrant. A single absence of 90 days or aggregate absences of 180 days breaks the continuous physical presence, unless the absence is in order to assist in the investigation or prosecution or unless the official involved in the investigation or prosecution certifies that the absence was otherwise justified; The applicant must not have unreasonably refused to provide assistance in a criminal investigation or prosecution; The applicant’s continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest; and The applicant must not have engaged in genocide or Nazi persecutions.51

The adjustment application will be denied if it is determined that the U visa holder unreasonably refused to assist with a criminal investigation or prosecution. The 2008 rule also clarifies that the statutory provisions for U adjustment procedures under INA § 245(m)) stand alone and separate from the general adjustment requirements contained in INA § 245(a). The regulations require that applications contain the following:    

51 52

Form I-485 “Application to Register Permanent Residence or Adjust Status,” submitted with supporting evidence to establish continuous physical presence for 3 years since the granting of the U visa.52 Payment for the filing fee for Form I-485 ($985 as of time of this writing) and biometric processing fees, although applicants can request a fee waiver for both of these. A copy of Form I-797 Notice of Action granting the U nonimmigrant status. A photocopy of the applicant’s passport or travel documents and documentation of departures from and returns to the United States while in U nonimmigrant status, and certifications from law enforcement agencies explaining why absences in excess of 90 consecutive days, or 180 days in the aggregate, were necessary to the investigation of the criminal activity at issue.

INA § 245(m). 8 CFR § 245.24(d).

16-13

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

    B.

A copy of Form I-94 “Arrival-Departure Record.” Evidence that the applicant was lawfully admitted in U nonimmigrant status and continues to hold that status. Evidence of any requests made by officials or law enforcement agencies for assistance in the investigation or prosecution of the criminal activity. Any other evidence establishing that approval is warranted. Inadmissibility Issues

The only ground of inadmissibility that applies to U visa petitioners adjusting their status is INA § 212(a)(3)(e), participants in Nazi persecution, genocide, torture, and extrajudicial killings. These grounds are not waivable. Otherwise, U adjustment applicants do not have to establish that they are admissible based on other grounds in INA § 212(a).53 However, bearing in mind the discretionary nature of the adjustment process, applicants are advised to respond to any adverse factors with mitigating evidence in their favor.

§ 16.5 Derivative Family Members A client who is eligible to receive U nonimmigrant status may also be able to obtain relief for some of his or her family members.54 If the U status holder is under the age of 21, he or she can include a spouse, child, parent, or unmarried sibling under the age of 18 as a derivative family member. If the U status holder is 21 years or older, he or she can include a spouse or child as a derivative family member. The principal petitioner’s age and the family member’s age are determined by the date of the I-918 filing.55 For qualifying family members who were granted U interim relief, the family member’s age on the date of the U interim relief filing shall control for the age eligibility requirement.56 Note that if the family member was the perpetrator of the underlying crime in a family violence or trafficking context, that family member cannot get derivative status.57 The qualifying family relationship between the family member and the principal petitioner must exist at the time of the I-918 filing and adjudication. If the family member completed the process at a consulate, the qualifying family relationship must also exist at the time of the qualifying member’s admission to the United States.58 There is an exception to this rule in the case of derivative children who are born to principal petitioners after the filing of the I-918.59 53

73 FR 75540 IV. B. 3. INA § 101(a)(15)(U)(ii). 55 8 CFR § 214.14(f)(4)(ii). 56 Aytes, Associate Director, Domestic Operations, New Classification for Victims of Criminal Activity -Eligibility for “U” Nonimmigrant Status, Revisions to Adjudicator’s Field Manual (AFM) Chapter 39, Interoffice Memorandum to Field Leadership, (Mar. 27, 2008) attached as Appendix 16-B). 57 8 CFR § 214.14(f)(1). 58 8 CFR § 214.14(f)(4). 59 8 CFR § 214.14(f)(4)(i). 54

16-14

Example 16.5: Helena recently learned that her U visa petition was approved. Approximately one month after she filed her U nonimmigrant status petition, she married Marco. Their son Branko was born about a year later. They would now all like to come to the United States. However, Helena will only be able to qualify her son as a derivative. Her husband will not be able to qualify as a derivative family member, as Helena married him after she filed her Form I-918 petition. Later, upon approval of adjustment for the principal U visa petitioner, the CIS may also adjust the status of the principal’s spouse, child, or parent who did not receive a nonimmigrant U visa, if the adjustment is necessary to avoid extreme hardship.60 The annual limit of 10,000 U visas applies only to U principal petitioners, and does not apply to derivative family members.61 To obtain U nonimmigrant status for a derivative family member, the principal petitioner must file on behalf of the qualifying family member by submitting a Form I-918, Supplement A (often referred to by advocates as “Form I-918A”). This form may be submitted concurrently with the principal petitioner’s I-918 or at a later date.62 Each qualifying family member needs his or her own form.63 There is no filing fee associated with the I-918 Supplement A.64 Each derivative qualifying family member should include the following in his application:     

Form I-918 Supplement A; Evidence of the family member’s qualifying relationship with the principal petitioner (birth certificate, marriage certificate, etc.); Form I-192 and appropriate fee (or fee waiver) if the family member falls under any inadmissibility grounds;65 Form I-765 Application for Employment Authorization (with 2 passport photographs and appropriate fee or fee waiver); and Form G-28 Notice of Entry of Appearance as Attorney or Accredited Representative.

If not filed concurrently with the principal petitioner’s Form I-918, the family member’s application should also include a copy of the principal petitioner’s Form I-918 if still pending, or a copy of the principal petitioner’s Form I-94, if the principal petitioner’s Form I-918 has already been approved.66

60

INA § 245(m)(3). INA § 214.14(p)(2)(B). 62 8 CFR § 214.14(f)(2). 63 Id. 64 Id. 65 8 CFR § 214.14(f)(3). 66 8 § CFR 214.14(f)(2). 61

16-15

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

§ 16.6 The T Visa for Victims of Trafficking The Victims of Trafficking and Violence Prevention Act,67 enacted in October 2000, introduced the T visa for victims of severe forms of trafficking in persons.68 The T visa reflects Congress’ concern with the growing impact of trafficking and Congress’ intention to pursue the prosecution of traffickers and the protection of victims. Beneficiaries of the T nonimmigrant visa receive authorized stay in the United States, employment authorization, and the same public benefits available to refugees. Moreover, after a certain period in T nonimmigrant status, the nonimmigrant may be able to adjust status from nonimmigrant to permanent resident. There are also provisions to grant T nonimmigrant and permanent residence status to certain spouses, children, and parents of T nonimmigrants. This section is meant to introduce this form of relief. For a comprehensive guide to T visas, please see the ILRC’s publication, Representing Survivors of Human Trafficking, available at www.ilrc.org/publications. The INS issued interim regulations for the T visas in January of 2002.69 CIS issued the adjustment regulations for T and U visa holders to become lawful permanent residents in December 2008, effective January 12, 2009.

A PRELIMINARY NOTE: Victims of human trafficking in many cases will have needs in addition to immigration relief, and may be suffering from serious physical or emotional injuries. Advocates representing trafficking victims may wish to consult the Guide for Advocates Providing Services to Victims of Human Trafficking, by CLINIC, the U.S. Catholic Conference’s Migration and Refugee Services (MRS), and the Los Angeles Legal Aid Foundation (LAFLA). The manual is available for download free of charge at www.cliniclegal.org/Publications/Freepub lications/HumanTrafficking.pdf.

§ 16.7 Requirements for T Nonimmigrant Visas To be eligible for a T nonimmigrant visa, the applicant must be or have been a victim of a “severe form of trafficking in persons.”70 That term is defined as: a. sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform the act is under 18 years of age, or

67

Pub. L. 106-386, 114 Stat. 1464 (Oct. 28, 2000) [VTVPA], as amended by the Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. 108-193 (Dec. 19, 2003). 68 INA §§ 101(a)(15)(T), 214(n), 245(l). 69 67 Fed. Reg. 4784 (Jan. 31, 2002). 70 INA § 101(a)(15)(T)(i)(I) (added by § 107, Division A, TVPA. (Trafficking Victims Protection Act of 2000), TVPA).

16-16

b. the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.71 Some of the terms used in the definition of severe forms of trafficking in persons are defined in regulations. “Sex trafficking” means the recruitment, harboring, transportation, provision, or obtaining of a person for the purposes of a commercial sex act.72 “Coercion” means threats of serious harm to or physical restraint against any person, any scheme intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person, or the abuse or threatened abuse of the legal process.73 “Debt bondage” means the status of a debtor arising from the debtor’s pledge of his or her personal services or the services of a person under the debtor’s control as a security for debt, if the value of those services is not applied to satisfy the debt or if the length and nature of the services are not appropriately limited and defined.74 “Involuntary servitude” means a condition of servitude induced by causing a person to believe that the person or another person would be seriously harmed, physically restrained, or subjected to abuse or threatened abuse of legal process if the person did not enter into or remain in the servitude.75 In addition to showing that the applicant is or was a victim of a severe form of trafficking in persons, the applicant must demonstrate that he or she:     

Is physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, on account of the trafficking;76 Has complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking, unless he or she is under 18 years of age, in which case compliance is not a requirement;77 Would suffer extreme hardship involving unusual and severe harm if he or she were removed from the United States;78 Has not committed a severe form of trafficking in persons;79 and Is not inadmissible under INA § 212. There are special waivers of certain inadmissibility grounds for T nonimmigrants, however.

71

22 USC § 7102, (added by § 103(8), Division A (Trafficking Victims Protection Act), TVPA). 8 CFR § 214.11(a). 73 Id. 74 Id. 75 Id. 76 INA § 101(a)(T)(i)(II). 77 INA § 101(a)(T)(i)(III), amended by § 4(b)(1)(A), Trafficking Victims Protection Act of 2003, Pub. L. 108-193 (Dec. 19, 2003). 78 INA § 101(a)(T)(i)(IV). 79 INA § 214(n)(1). 72

16-17

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

IMPORTANT: The requirements for obtaining a T visa for applicants under the age of 18 vary in two important respects from applications for adults. First, applicants under the age of 18 who are victims of trafficking for sex need not show that the commercial sex act was induced by force, fraud, or coercion. Second, applicants under age 18 need not show compliance with reasonable law enforcement requests for assistance.

CIS must decide the application under the “all credible and relevant evidence” standard. This is the same standard used in adjudicating self-petitions and applications for cancellation of removal by abused spouses and children of LPRs and USCs.80 This means that CIS must consider all credible evidence submitted with the petition before reaching a conclusion. Thus, if primary evidence is not available, credible secondary evidence, such as declarations or affidavits, is acceptable to make out the elements of the claim. Advocates using secondary evidence, however, should document their attempts to obtain primary source evidence and explain why they were unable to do so.

§ 16.8 Establishing That the Applicant Is a Victim of a Severe Form of Trafficking in Persons The applicant can show that he or she is a victim of a severe form of trafficking in persons by submitting ONE of the following types of documentation:   

An endorsement from a law enforcement agency (LEA) on Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victims of Trafficking in Persons (discussed below); Evidence that the former INS or the DHS or one of its immigration agencies has arranged for the alien’s continued presence in the United States as a victim of trafficking; or Sufficient credible secondary evidence, describing the nature and scope of any force, fraud or coercion used against the victim. The showing of force, fraud, or coercion is not necessary if the applicant was induced to perform a commercial sex act while under age 18.81

Under these provisions, T applicants are not required to submit an endorsement from a law enforcement agency. Nevertheless, CIS “strongly encourages” applicants to provide such an endorsement.82 If the applicant submits secondary evidence, defined as anything other than an LEA endorsement or government evidence of status as a trafficking victim, that evidence must include: 80

Id. 8 CFR § 214.11(f). 82 67 Fed. Reg. 4784, 4788 (Jan. 31, 2002). 81

16-18

     

the applicant’s statement indicating that he or she is a victim of a severe form of trafficking in persons; evidence that an LEA that has responsibility and authority for detection, investigation, or prosecution of human trafficking has information about the trafficking case;83 credible evidence of victimization and cooperation; a description of what the person has done to report the crime to an LEA; a statement indicating whether similar records for the time and place of the crime are available; and evidence that the applicant made good faith attempts to obtain the LEA endorsement and a description of those efforts.

The documents above must be included if the applicant does not have an LEA endorsement or government evidence of status as a trafficking victim. Additional secondary evidence may also include affidavits of other witnesses, transcripts, court documents, police reports, news articles, and copies of reimbursement forms for travel to and from court.84

PRACTICE POINTER: The Vermont Service Center cautions that an applicant, in explaining the applicant’s efforts to obtain an LEA endorsement, must include the details of what LEA the applicant contacted, the dates of communications, and the result. Relevant copies of letters, email, or any other documentation of communication with law enforcement agency, as well as responses from the law enforcement agency, should be attached.

§ 16.9 Application and Adjustment to Lawful Permanent Residence The T nonimmigrant visa is valid for four years and a visa holder may be eligible to apply for permanent residence (green card) after three years in a T nonimmigrant status. An applicant applies for a T visa using Form I-914, Application for T Nonimmigrant Status. There is no fee to file a Form I-914. Additionally, the applicant may submit a fee waiver, Form I-912 for all other forms associated with T visa, such as waivers for inadmissibility. An applicant under 21 may also apply for her spouse, children, parents and unmarried siblings under age 18. An applicant over 21 may apply for her spouse and children. A family member’s application can be filed at the same time as the principal applicant, or at a later time, using Form I-914 Supplement A, Application for Immediate Family Member of T-1 Recipient. After three years, a T visa holder may apply for permanent residence by submitting Form I-485.

83

The requirement of showing that an LEA has information about the case was stated by the VSC in a CISAILA (American Immigration Lawyers Association) liaison meeting in August, 2007. 84 Id.

16-19

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

To qualify for permanent residence, the applicant must: 

 



Be physically present in the United States for a continuous period of at least three years in T nonimmigrant status, or a continuous period during the investigation or prosecution of the acts of trafficking, provided that the Attorney General has certified that the investigation or prosecution is complete, whichever time is less. Maintain good moral character during her stay in the United States. Have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking demonstrate extreme hardship involving unusual and severe harm upon removal from the United States or have been under 18 years of age at the time of the trafficking victimization. Be admissible to the United States, or obtain a waiver of admissibility.

An applicant can only apply for a green card after having held T nonimmigrant status for three years. If the application is filed before meeting the three-year status requirement, the application will be denied, unless there is certification from the Attorney General that the investigation or prosecution is complete. For further information on T visas, please consult other resources listed in § 16.6 of this unit, or go to www.uscis.gov.

PART TWO: REGISTRY -- A REMEDY FOR LONG-TERM RESIDENTS (WITHOUT STATUS) Simon is a 50-year-old man with severe developmental disabilities. He had come to the United States from England in 1969 when he was a boy to be with his parents who had immigrated a year earlier. They had tried to get Simon a permanent resident visa when they immigrated, but Simon was denied because of his disability. In desperation, Simon’s parents got Simon a visitor’s visa and he overstayed. His parents never naturalized to become U.S. citizens, nor did they ever succeed in getting Simon permanent residence. Simon’s lack of legal status was noticed recently when his parents, with whom he had been living, died and the state of New York needed to put him in a state-run institution. Is there any way to get Simon legal status?

§ 16.10 Overview of the Law of Registry The idea of registry is to permit people to gain lawful status who have lived in the United States for a long time and have formed substantial ties to this country. Unlike the legalization programs of 1986, there is no deadline by which to apply. Registry is a type of adjustment of status, but with different rules.

16-20

Requirements (INA § 249) -- Applicants must: 1. 2. 3. 4. 5. 6.

have entered the U.S. before January 1, 1972, have lived in the U.S. continuously since entering the U.S., be persons of good moral character, not be “ineligible for citizenship,” not be inadmissible under certain grounds of inadmissibility, and not be deportable for “Terrorist Activities” under INA § 237 (a)(4)(B).

If registry is granted, the applicant becomes a permanent resident immediately. There is an additional registry provision for persons who entered the United States before July 1, 1924. See INA § 249 for more information. The following sections discuss the various legal requirements for eligibility for registry, followed by a section on application procedure.

§ 16.11 Entry before 1972 Applicants must prove that they entered the U.S. before 1972. The registry statute does not require that the person have entered “illegally.” Persons who entered on a visa could qualify. Proof of the date of entry will be easier for persons who entered using a visa or other document because they can use the entry document as proof. Persons who entered “without inspection” will need to resort to other documentation to show that they entered before 1972.

§ 16.12 Continuous Residence in the U.S. The statute requires that the applicant have resided continuously in the U.S. since before 1972. INA § 249. It does not matter if the person traveled out of the U.S. during that time. However, neither the statute nor the cases establish a specific number of absences from the U.S. or a specific length of absence that would break an applicant’s continuous residence. Do not confuse this requirement with the continuous physical presence requirement for cancellation of removal. (See § 11.3.) Continuous residence is a more generous concept. The requirement of continuous residence for registry also differs from that requirement for the legalization program of INA § 245A, where there was a regulation specifying a maximum allowable length of absence. CIS interprets the continuous residence requirement more liberally in registry than it did during legalization, generally relying on the definition of residence in INA § 101(a)(33), where it is defined as a person’s “principal, actual dwelling place in fact, without regard to intent.” An applicant can show continuous residence even if she made quite a few departures from the U.S.,

16-21

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

as long as her principal dwelling place remained in the U.S. during the absences. As long as there was no intention to abandon her residence, a person usually is deemed to have continuous residence. Many practitioners compare this to the standard of “abandonment of residence” for green card holders. See Unit 17 for more information on abandonment of residence. To determine whether the person has continuous residence, CIS looks at the length and purpose of the trips, and the ties the applicant kept here as compared to abroad, as well as other factors. A departure resulting from a grant of voluntary departure by the immigration court (see §§ 16.27–16.30) does not necessarily break residence, but a departure as a result of a deportation or removal order will break the applicant’s residence. Example 16.12-a: Simon has never left the U.S., except for one trip to Canada with his family in 1979 for three weeks. Simon’s house was left empty and his parents both took vacation time from their jobs. Does this break his continuous residence? No, because it was a short trip and Simon clearly intended to return, as demonstrated by the fact that he had not moved out of his house and his parents did not quit their jobs. Example 16.12-b: Would Simon have broken his residence if he had gone instead to England for six months? What if Simon’s parents had said they were leaving to care for their sick aunt? What if, instead, they had closed all their bank accounts, cleared out all their belongings from their apartment in New York, quit their jobs and told their bosses that they were returning to England permanently? If Simon left temporarily, he may not have broken his residence. But if Simon had severed many of his ties to this country by closing bank accounts, etc., he might be found to have broken his residence. The main consideration is not how long or how often the applicant was absent, but rather the ties that the applicant kept with the U.S. during each absence and the ties to the country of origin. The more ties in the U.S. and the fewer ties in the country of origin, the better for registry purposes.

§ 16.13 Good Moral Character and Not Ineligible to Citizenship Applicants are required to have “good moral character” to qualify for registry. INA § 249. The definition is the same as that which applies to cancellation of removal, voluntary departure, and naturalization. INA § 101(f). For a complete discussion of good moral character, see Unit 11. The statute does not specify for how long a period of time prior to the registry application a person must show good moral character. As such, the statute should be construed as needing good moral character only at the time of application. Nonetheless, an applicant should be able to show that he or she has good moral character at the time of the application as well as for a

16-22

reasonable time preceding it. CIS should consider a total picture of the applicant’s life and forgive occasional lapses. The grounds that make a person “ineligible to citizenship” are found in INA §§ 314 and 315. This is a legal term of art, and only applies to those described in INA §§ 314 and 315. The ineligible group is very small. It includes only people who requested an exemption from service in the U.S. armed forces on the ground of being an alien, or who deserted the U.S. armed forces during the period from 1971-1973.

§ 16.14 Grounds of Inadmissibility and Deportation Many of the grounds of inadmissibility found in INA § 212(a) do not apply to registry applicants. The only ones that do apply are those that relate to, “criminals, procurers and other immoral persons, subversives, violators of the narcotics laws or smugglers of aliens.” INA § 249. Some of the grounds of inadmissibility that do not apply to registry applicants include: medical grounds, public charge, stowaways, and fraud grounds. In addition, due to penalties passed by Congress in the 1990 Immigration Act, persons who have failed to appear for a removal hearing, an asylum hearing, or failed to depart under either an order of voluntary departure or removal, may be barred from applying for registry for a period of five years from the act. (For more details, see Unit 10.) A person also is ineligible if she is deportable for “Terrorist Activities” under INA § 237(a)(4)(B).

§ 16.15 Discretionary Denials Even if applicants can satisfy all of the requirements, their applications might still be denied if CIS or the Immigration Judge is troubled about some aspect of the applicant’s life. Types of behavior that might cause CIS to deny a case in its discretion may include: evidence of neglect of family responsibilities (such as failure to pay child support), a history of immigrationrelated abuses, or arrests or convictions of crimes.85 See § 11.14 for a discussion of such discretion.

85

See, e.g., Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991); Gutierrez v. Holder, 662 F.3d 1083 (9th Cir. 2011).

16-23

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

§ 16.16 Registry Application Procedure: Persons Not in Proceedings To apply affirmatively for registry, submit the forms and documents listed on the checklist to the Chicago Lockbox, just like other adjustment applicants.86 An interview is required. The system is the same as for an adjustment of status. See § 7.6. As always, your client must be completely prepared for the interview. The examiner will ask about the information on the application and the documentation, especially about any time periods where documentation to prove residence is weak, and any departures from the U.S. Applicants also need to be prepared to discuss any potential “bad facts” in their case. For these reasons it is crucial that your client understand every part of her registry case. If the applicant needs work authorization, she should submit the application for employment authorization (form I-765-code (c)(16)) to the Chicago Lockbox.

§ 16.17 Applications in Removal Proceedings Applicants who are eligible for registry, but who are in removal proceedings (when a Notice to Appear has been issued), must apply to the Immigration Judge with the proper application form and documentation to prove continuous U.S. residence. See § 16.18. In this case, registry is a defense to removal. See 8 CFR §§ 249.2(a), 1249.2(a). When an applicant submits an application to CIS and CIS denies it, the applicant can be put into removal proceedings. The applicant cannot appeal the denial, but may re-file the application before an Immigration Judge in removal proceedings. See 8 CFR §§ 249.2(b), 1249.2(b). When a final order of removal is entered due to the person’s failure to appear at the removal proceeding (i.e., a final order of removal is ordered in absentia), other than because of exceptional circumstances as defined in INA § 240(e)(1), the person shall not be eligible for registry (§ 249)—or many other types of discretionary relief including cancellation of removal (§ 240A), voluntary departure (§ 240B), adjustment of status (§ 245), change of non-immigrant status (§ 248), and). See INA § 240(b)(7) and Unit 10 for more details.

§ 16.18 Documenting Residence for Registry Applications You can find a complete discussion of how to document residence in Unit 11. Documenting registry cases may be harder than documenting § 240A(b) cancellation of removal cases because there is a longer time period to cover.

86

Check the CIS website: www.uscis.gov for the appropriate address.

16-24

In order to establish continuous residence in the U.S. since prior to January 1, 1972, one must submit documentary evidence with the application. The regulations state that documentary evidence “may include any records of official or personal transactions or recordings of events occurring during the period of claimed residence.” 8 CFR § 249.2(a). Affidavits of credible witnesses may also be accepted. See 8 CFR §§ 249.2(a), 1249.2(a). Keeping in mind that the applicant needs to document her residence in the U.S. since before 1972, you should arrange the applicant’s documentation by year and ensure that residence for all time periods is documented. Finding documentation for young people or persons who never worked outside the home can be especially difficult. The CIS has a rule for these cases that states: Persons unemployed and unable to furnish evidence in their own names may furnish evidence in the names of parents or other persons with whom they have been living, if affidavits of the parents or other persons are submitted attesting to the residence. 8 CFR § 249.2(a).

§ 16.19 Documentation: Use of Affidavits In almost all registry cases, some affidavits (written statements of witnesses) are used to prove residence where no other documentation exists, to show good moral character, or to explain absences. These affidavits may be critical to the case, especially when the person has no other proof of residence for a given time period. 8 CFR § 249.2(a). For this reason, affidavits must be legally complete and credible. A sample affidavit that you can use as a model is found in Appendix 16-A. Tips for Writing Strong Affidavits 1. The affidavit should include language such as: “I swear, under penalty of perjury, that the above statements are true and correct to the best of my knowledge,” followed by a signature and the date. 2. The affidavit should contain the telephone number, address, etc. of the person giving the information, and state that the person is willing to testify in person, if necessary. 3. The affidavit should state that the person making the statement has a legal immigration status (U.S. citizen, permanent resident, on a valid student visa, etc.), if possible. 4. The affidavit should contain concrete details that make it vivid and believable.

16-25

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

5. Each statement in the affidavit should go toward proving an element necessary to the case, or to establish the credibility of the person making the affidavit. 6. The affidavit should state clearly the basis of the person’s knowledge of the facts, whether it is personal knowledge, and how he or she gained that knowledge. (For example: “I know that Mrs. Low has never left the U.S. in the past four years because I have seen her at church twice a week every week during that time. I always comment on her regular attendance.”)

PART THREE: THE LEGALIZATION PROGRAMS OF THE 1986 ACT AND RELIEF FOR NICARAGUANS AND CUBANS UNDER NACARA

§ 16.20 Overview of the Immigration Reform & Control Act of 1986 Congress created the legalization programs when it passed the Immigration Reform and Control Act in 1986 (IRCA). IRCA included legalization programs for several groups: the general legalization provision for persons who had resided in the U.S. since before January 1, 1982; the Special Agricultural Worker (SAW) program, for agricultural workers; and a program that gave Cubans and Haitians who had resided in the U.S. since before 1982 immediate permanent residence. (Congress passed a similar legalization program in 1987 for persons from Afghanistan, Ethiopia, and Poland who had resided in the U.S. since July 21, 1984. See § 902 of the Foreign Relations Authorization Act for 1988-89.) The normal application period for these programs expired long ago. However advocates are still seeing these cases today, mostly in one of two ways: (1) Applicants who applied for and were denied legalization who may still be able to appeal, and (2) Some people who tried to file applications for legalization but were turned away for certain unlawful reasons by the INS (“latefilers”). See §§ 16.23 and 16.24. Additionally, you might see clients where these programs form important parts of their immigration history. The following is a general background to help you assess these issues.

§ 16.21 Legalization Program for Persons in U.S. since before 1/1/82 The application period for persons in the pre-’82 program to apply for temporary residence was May 5, 1987 to May 4, 1988. To qualify, applicants had to prove that they had continuously resided in the U.S. in an unlawful status known to the government since before January 1, 1982, that they had committed no felonies and not more than two misdemeanors, and that they were admissible under INA § 212(a). INA § 245A(a). Those who were approved became temporary residents and could not apply for permanent residence until 18 months after the date that they first applied for temporary residence. Temporary residents were required to file for permanent residence within 12 months of becoming

16-26

eligible to file, or they would lose their legal status. INA § 245A(b)(1)(A), (f)(2). That deadline was extended by 12 months for each applicant by the Immigration Act of 1990. To gain permanent residence applicants were required to show that they had resided continuously in the U.S. since applying for temporary residence, that they were not disqualified under the three misdemeanor/one felony rule, that they were not inadmissible under § 212(a), and finally, that they had demonstrated an understanding of English and U.S. history and civics. INA § 245A(b)(1).

§ 16.22 Legalization Program for Agricultural Workers Agricultural workers (or SAWs) also faced a two-stage process. Their period for filing for temporary residence ran longer than that for the pre-’82s—from June 1, 1987 until November 30, 1988. INA § 210(a)(1)(A). The requirements for temporary residence were that the applicant had to have performed seasonal agricultural services for at least 90 “man-days” between May 1, 1985 and May 1, 1986, and that the applicant be admissible under § 212(a). The three misdemeanor/one felony ground did not originally apply to SAWs, but was added later. SAWs who worked in agriculture for a minimum of 90 “man days” in each of three years were given priority in becoming permanent residents. These “Group I” SAWs became permanent residents on December 1, 1989. The others adjusted to permanent residence on December 1, 1990. SAW temporary residents adjusted automatically on that date and had to complete only a simple form to get their permanent resident cards.

§ 16.23 Legalization Denials: Appeals and Reopening Despite the fact that the amnesty programs were to have ended years ago, some people still have not heard from the INS or CIS and did not understand that they should file an appeal for a denial, or have been denied without their knowledge. The following are some suggestions in trying to investigate or resurrect these cases.

NOTE: These options are only available to legalization applicants who did file during the application deadline, not to individuals who were late amnesty applicants. In addition, the likelihood of successfully reopening a case is low; therefore if the person has any other immigration relief available, he or she should pursue that relief.

Many legalization applicants have been wrongfully denied or have cases that could be “cured” by additional documentation. Although all applicants have the right to appeal a denial

16-27

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

within 30 days of service of the notice of denial, few applicants have taken advantage of this right. People who have missed their 30-day deadline can still try to appeal their decisions. They can file a Notice of Appeal, which should include information on why they failed to appeal within the deadline. CIS has allowed persons to file late appeals often where a good reason was given. The regulations do not provide for a “motion to reopen” in legalization cases. In the past, however, some practitioners requested that CIS (then INS) reopen the case on its own motion. This is called a “Request for Sua Sponte Reopening.” As with regular motions to reopen, the applicant must have a good reason for having missed the deadline and must have a case with some merit. There is no time limit to request that a case be reopened by CIS sua sponte. Applicants were informed of approvals and denials by mail from the INS/CIS. Many applicants never received these notices because they moved and did not report the change of address to the former INS. Since INS did not inform applicants of the need to file change of address cards, this can be an adequate reason to argue that CIS should allow for late filing of an appeal or to request a sua sponte reopening of the case. (See also §§ 9.7–9.11.) Review in Removal and Deportation Proceedings. Legal workers should keep in mind that mistakes made in deciding a person’s legalization application can only get reviewed by a court if it is brought as an issue to a U.S. Court of Appeal at the same time one seeks review in deportation or removal proceedings. This means that the Administrative Appeals Unit is the highest level of appeal unless ICE starts deportation proceedings (based on non-legalization information since the legalization application information is confidential). If ICE puts a person into removal proceedings and she files an appeal of the removal order to a U.S. Court of Appeal, she could also appeal the denial of legalization at the same time—no matter how long ago it was.

§ 16.24 Late Legalization or Late Amnesty The Immigration Reform and Control Act of 1986 (IRCA) created two types of legalization or amnesty programs—one for agricultural workers and the other for those living in the United States since before January 1, 1982. The application periods for both of these legalization programs passed long ago. See §§ 16.21 and 16.22 above. There have been a number of federal class action lawsuits filed on behalf of people who did not apply for legalization initially. Section 1104 of the Legal Immigration Family Equity (LIFE) Act of 2000, granted registered class members in three of these lawsuits the opportunity to reapply for legalization. The lawsuits are Catholic Social Services v. Meese, LULAC v. INS, and Zambrano v. INS. In each case, the immigrant class members had to apply for adjustment of status under the modified legalization provisions within 12 months of the date that CIS promulgated the regulations implementing the new law. Class members with pending applications had to prove that they resided continuously in the U.S. unlawfully from January 1,

16-28

1982 through May 4, 1988. The application deadline for late legalization or “amnesty” under the LIFE Act has also passed. The spouses and unmarried minor children of applicants who met the eligibility requirements for this provision were allowed to remain in the U.S. and were eligible for work authorization if they entered the country before December 1, 1988, and resided in the U.S. on that date. See § 1504 of LIFE. There was also an application process for spouses and children who were then out of the U.S. but had been in the country prior to December 1, 1988. Many members of the Late Amnesty class had an additional opportunity to apply for legalization under the 1986 law because of a final settlement reached in two of the class action cases in 2004, which extended the application for members to 2005. Litigation was then reopened challenging CIS for not abiding by the settlement terms with respect to foreign filers and applications rejected for abandonment. A 2010 court order required CIS to reopen several cases it had ruled abandoned and to give foreign filers another chance at resubmitting their legalization applications. Under the settlement terms of another class action, Northwest Immigrant Rights Project v. USCIS, members who were either discouraged or otherwise turned away from INS when they first tried to apply for legalization also had a chance to reapply by Jan 31, 2010.

§ 16.25 Nicaraguan and Cuban Adjustment under the Nicaraguan Adjustment and Central American Relief Act of 1997 The Nicaraguan Adjustment and Central American Relief Act (NACARA), passed by Congress in 1997, allowed certain eligible non-citizens who were physically present in the U.S. to adjust to LPR status, regardless of whether they had been inspected and admitted or paroled. See INA § 202(a). The adjustment provisions are distinct from the NACARA Special Rule Suspension and Cancellation provisions, which are discussed in Unit 11. This relief must have been applied for before April 1, 2000. Nonetheless, occasionally you will find people who applied and were denied. These people can still renew their applications before the immigration judge in removal proceedings. A.

Eligibility

In order to be eligible the applicant must:    

Be a national of Nicaragua or Cuba; Have been physically present in the U.S. for a continuous period beginning not later than December 1, 1995 through the date the application is filed; Be otherwise admissible to the U.S. (certain grounds do not apply, see below); and Have filed the application for adjustment before April 1, 2000; see INA § 202(b)(1)

16-29

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Under NACARA, “continuous physical presence” means physical presence in the U.S. with total absences not exceeding 180 days. See INA § 202(b)(1). Proof of physical presence was required. Applicants who had been in proceedings had a lesser need to submit additional documentation. Applicants who had not been in proceedings since prior to December 1995 were required to submit reliable documentation demonstrating their presence in the U.S. (e.g., school records, tax records, credit card receipts, etc.) Absences that took place between November 19, 1997 and June 22, 1998 are not counted for continuous presence purposes. The Department of Justice issued various final regulations on March 17, 2000 that provide for a more flexible standard for establishing both initial presence and continuous residence in the United States.87 B.

Eligibility of Spouses and Children

The spouse or child and the unmarried son or daughter of an alien granted adjustment under NACARA also is eligible for NACARA. For relatives to be eligible under this program, they must also be a national or citizen of either Nicaragua or Cuba. For this program, “child” and “son or daughter” are defined according to the definitions provided in § 101(b) of the Immigration and Nationality Act. (See Unit 4 for the definition.) Thus, for example, a 25 yearold unmarried son or daughter of a Cuban or Nicaraguan applicant would also be eligible for adjustment. However, the unmarried son or daughter must himself or herself meet the continuous physical presence requirement in order to be eligible. See INA § 202(d). The spouse or child had to be in the United States in order to apply. If he or she was not present in the U.S., a parole application could have been filed to request that the child or spouse be permitted to enter the U.S. in order to apply for NACARA adjustment. C.

Certain Grounds of Inadmissibility Did Not Apply

NACARA adjustment applicants were not subject to certain inadmissibility requirements including public charge, labor certification, documentary requirements, and unlawful presence. See INA § 202(b)(2); INA §§ 212(a)(4), (5), (6)(a), (7)(a) and (9)(b); and Unit 3 on the grounds of inadmissibility. If an applicant was inadmissible for a ground not listed above but eligible for an individual waiver, he or she could file for the waiver with his or her application. (See Unit 3 on waivers of inadmissibility.) D.

Removal and Deportation Are Stayed for Applicants

If an alien applied for adjustment of status under NACARA he or she could not be removed from the U.S. except where there was a final administrative determination to deny the application. See INA § 202(c)(2).

87

See 65 Fed. Reg. 15846-15925, reprinted in Interpreter Releases, March 24, 2000, Appendix II. CIS no longer refers to these regulations in the 8 CFR because it has no more applications pending.

16-30

E.

Application Procedures

The application period for NACARA began June 22, 1998 and ended on March 31, 2000. The period to file is now closed. Appeals under NACARA are governed by the same rules as those for applicants for adjustment of status under INA § 245 or for aliens subject to removal proceedings under § 240. (See Unit 9.) Some applicants were denied, but not referred to immigration court. Those applicants, if now in removal proceedings may renew their previously filed applications for NACARA adjustment before the immigration judge. It is not possible to file a new application after the March 31, 2000 deadline, but applicants who filed timely can renew their previously denied cases before an immigration judge.

§ 16.26 The Haitian Refugee Immigration Fairness Act of 1998 On October 21, 1998 President Clinton signed into law the FY99 Omnibus Appropriations Bill. Included in this Bill was a provision referred to as the Haitian Refugee Immigration Fairness Act of 1998, granting relief to certain Haitian immigrants. This law allowed adjustment of status to permanent resident for Haitian nationals present in the United States who met certain eligibility requirements. The application period for this program for most people ended on March 31, 2000. A.

Final Rule for Haitian Refugee Act

On May 12, 1999, the INS published an interim rule implementing the Haitian Refugee Immigration Fairness Act (HRIFA). The interim rule contained some significant hurdles for Haitian refugees seeking adjustment. To show that they have resided in the U.S. continuously since December 31, 1995, refugees had to show some documentation of residence for each 90day period since then. A birth certificate was also required with the application. The application filing deadline was March 31, 2000. The INS published the final rule for HRIFA on March 24, 2000 in 65 Fed. Reg. 15835-846. It is reprinted in Appendix II of the March 24, 2000 version of Interpreter Releases. In June of 2001, INS published a new rule to implement a LIFE Act provision extending eligibility under HRIFA to persons who were formerly barred from applying because of removal and illegal re-entry issues. Applicants were given until June 19, 2001 to file motions to reopen their previously denied cases.

16-31

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

B.

Eligibility

In order to be eligible the applicant had to have:       

Been a national of Haiti; Been physically present in the U.S. for a continuous period beginning not later than December 31, 1995 through the date the application was filed; Been otherwise admissible to the U.S. (certain grounds excepted, see below); Filed the application for adjustment before April 1, 2000; and The applicant must have filed for asylum before December 31, 1995 or The applicant had to have been paroled into the U.S. before December 31, 1995 or The applicant had to have been a “child” (unmarried and under 21 years of age) at the time of arrival in the U.S. and on December 31, 1995, and 1. arrived in the U.S. without parents and remained without parents in the U.S. since such arrival, or 2. became orphaned subsequent to arrival in the U.S., or 3. was abandoned prior to April 1, 1998 and remained abandoned.

Continuous physical presence under this law is defined in the same way it is under NACARA. Any absences from the U.S. for any periods amounting to an aggregate of more than 180 days destroy continuous physical presence. See INA § 202(b)(1). C.

Certain Grounds of Inadmissibility Do Not Apply

In order to have been eligible for adjustment of status under this Act the applicant had to be admissible to the U.S. for permanent residence, except that in determining such admissibility, the grounds under INA § 212(a)(4) (public charge), INA § 212(a)(5) (labor certification), INA § 212(a)(6)(A) (presence in the U.S. without admission or parole), INA § 212(a)(7)(A) (documentary requirements), and INA § 212(a)(9)(B) (unlawful presence) did not apply. D.

Eligibility for Spouses and Children

An applicant’s spouse, child, or unmarried son or daughter was also eligible for adjustment of status under this Act if the spouse, child, or unmarried son or daughter:   

Was a national of Haiti; Applied for such adjustment and was physically present in the U.S. on the date the application was filed (exception for unmarried sons and daughters, see below), and Was otherwise admissible

16-32

1. Spouse and “child” Note that there is no requirement that a spouse or child of a beneficiary enter the U.S. before December 31, 1995 or establish continuous physical presence. A spouse and child are defined in their usual immigration meaning, see Unit 4. 2. Unmarried sons and daughters “Unmarried sons and daughters,” that is, those who are over 21 years of age, could also qualify for adjustment. However, they had to meet all the above requirements for a spouse or child as well as demonstrating the required continuous physical presence in the U.S.—from December 31, 1995 and ending not earlier than the date they filed the application for adjustment. E.

Stay of Removal, Work Authorization and Administrative and Judicial Review

This Act provides that an applicant for adjustment of status shall not be removed from the U.S. unless his or her application for adjustment has been denied and there is a final order of removal. The removals of all others eligible for Haitian Act adjustment were stayed (that is delayed) pending adjudication of the application. Applicants were eligible for work authorization while their applications were pending. Note that the Act states that the CIS “may” grant work authorization. However, the Act required CIS to grant work authorization “if such application [was] pending for a period exceeding 180 days, and ha[d] not been denied.” Under this Act, applicants for adjustment of status had the right to an administrative review by the BIA. However, the Act provides that any federal court cannot review Haitian adjustment decisions.

PART FOUR: THE FAMILY UNITY LAW -- RELIEF FOR FAMILIES OF LEGALIZED PERSONS § 16.27 Introduction: Family Unity The Immigration Act of 1990 granted a stay of removal and employment authorization for spouses and unmarried children of persons who obtained temporary or permanent resident status through legalization.88 The implementing regulations are found at 8 CFR § 236.10–236.18. Family Unity stands uniquely apart from the previous sections because of its current relevance. Whereas the application deadlines have long since passed for the preceding programs,

88

See Immigration Act of 1990 § 301, as amended by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Public Law 102-232.

16-33

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

relief in the form of Family Unity may still be available to some because of ongoing adjudication of the Late Amnesty classes discussed in § 16.24.

§ 16.28 Basic Eligibility Requirements for Family Unity To be eligible for relief under Family Unity, applicants must have been a spouse or an unmarried child of a legalized alien during one of two applicable dates in 1988, at which time the applicant must have also entered and since resided in the U.S. How to Determine the Applicable Date. The date depends on the legalization program through which the parent or spouse legalized. 1. Entered before May 5, 1988 and Resided in the U.S. since May 5, 1988  People who legalized because they resided here since before 1/1/82, INA § 245A (referred to in this unit as the “pre-1982 legalization program”);  Cuban-Haitian entrants under § 202 of IRCA. 2. Entered the U.S. and Resided in the U.S. as of December 1, 1988  Special Agricultural Workers, INA § 210 (referred to in this unit as the “SAW program”). These dates correspond to the application deadlines for the respective legalization programs. In this unit we will use the term applicable date for the date that applies to each situation. The legalized alien parent or spouse must also have applied for legalization by the applicable date. In the case of a spouse, the marriage must have taken place as of the applicable date. In the case of a child, the child had to be unmarried and under 21 years of age as of the applicable date. Once you and your client determine that he meets the basic eligibility requirements, you should determine whether he is subject to any of the disqualifying grounds discussed below. If the applicant meets the basic eligibility requirements and is not subject to any of the disqualifying grounds, he or she will qualify for Family Unity. The CIS does not have discretion in this area—if the applicant meets the eligibility requirements the CIS must grant Family Unity.

§ 16.29 Who Is a Legalized Alien? The applicant must be the spouse or unmarried son or daughter of a legalized alien. See § 301(b)(1). The term legalized alien is restricted to people who obtained their legal status through certain provisions of the Immigration Reform and Control Act of 1986 (IRCA). See § 301(b)(2). These are:

16-34

  

people who resided here since before 1/1/82 (see INA § 245A); Special Agricultural Workers; (see INA § 210); AND Cuban-Haitian entrants under § 202 of IRCA. Example 16.29: Two friends from Canada, Amy Amnesty and Deborah Daughter, both entered the U.S. illegally in 1981. Both were unmarried, and had sons born in Canada in 1979. After establishing themselves in the U.S., they each brought their sons into the U.S. in 1983. Amy obtained lawful permanent resident status through the legalization program as a person who resided in the U.S. since before 1/1/82. Deborah became a lawful permanent resident through a visa petition filed by her mother. Amy’s son qualifies for Family Unity because his mother, Amy, obtained her LPR status through legalization and therefore is a legalized alien. Deborah, on the other hand, is not a legalized alien because she obtained lawful permanent resident status through a visa petition rather than legalization. Her son does not qualify for Family Unity. Yet, her son would have qualified as a derivative beneficiary if Deborah immigrated before her son turned 21.

§ 16.30 Children under 21 as of the Applicable Date in 1988 To meet the definition of “child” of a legalized alien, the child must have been unmarried and under 21 years of age as of the applicable date (either May 5, 1988, or December 1, 1988). 8 CFR § 236.12(a)(2). Only one of the child’s parents needs to be a legalized alien to satisfy this requirement. Stepchildren and children born out of wedlock are eligible but must meet the standards established for filing an I-130 visa petition. (See Unit 4.)

§ 16.31 Spouse A person is an eligible immigrant if he or she “is the spouse … of a legalized alien.” See § 301(b)(1). The couple must have been married by the applicable date (May 5, 1988 or November 30, 1988). Example 16.31-a: John and Susan married on March 8, l990. John is a lawful permanent resident through the pre-1982 legalization program. Susan entered the U.S. in 1985. Susan does not qualify for Family Unity because she married John after May 5, 1988.

16-35

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Example 16.31-b: Jack and Sarah married on November 1, l988. Jack is a lawful permanent resident through the SAW program. Sarah entered the U.S. in 1985. Sarah does qualify for Family Unity because she married Jack on or before December 1, 1988. If Jack had qualified through the pre-1982 program, Sarah would not have qualified for Family Unity because the marriage was after May 5, 1988 per the previous example. Common Law Marriages. If the laws of the state in which your client resides recognize common law marriage, and if the marriage could be recognized for the purpose of an immigrant relative visa petition, then the marriage will be recognized for the purpose of the Family Unity program. The visa petition condition is included because CIS’ approval of a second preference visa petition based on a common law marriage also validates the marriage for obtaining benefits under Family Unity, since the principles underlying both classifications are the same. See the introductory comments to the Family Unity regulations.

§ 16.32 Residence in the U.S. since before the Applicable Date in 1988 Family Unity requires that the spouse or unmarried child must have entered the U.S. as of the applicable date and resided in the United States since that date. See § 301(a); 8 CFR § 236.12(a)(1). Determining the Applicable Date. The date depends on the legalization program through which the parent or spouse legalized. 1. Entered before May 5, 1988 and Resided in U.S. since May 5, 1988  people who legalized because they resided here since before 1/1/82 (see INA § 245A);  Cuban-Haitian entrants under § 202 of IRCA. 2. Entered U.S. and Resided in U.S. as of December 1, 1988  Special Agricultural Workers (see INA § 210) 3. Does Residence Have to Be Continuous? Under a court settlement involving the INS and some immigrants’ rights organizations (Maca-Alvarez v. INS), the INS agreed that applicants for Family Unity need only show continuous residence since May 5, 1988, instead of the stricter continuous physical presence standard that INS wanted to make applicants demonstrate.89 The INS also agreed to apply new, more flexible standards for determining continuous residence in the United States since May 5, 1988. Consistent with the Maca settlement, the requirement that the person “has been continuously residing in the United States” does not require “continuous physical presence.” 8 CFR § 236.12(a)(1) and introductory comments at 60 Fed. Reg. 66062.

89

Maca-Alvarez v. INS, No. CIV-S-93-1824 EJG/PAN (E.D. Cal. 1995).

16-36

§ 16.33 Effect of Absences from U.S. An eligible immigrant must have resided in the United States since the applicable date. The settlement in the class action case discussed above in § 16.24 establishes clear and generous standards for determining that brief absences do not make an applicant ineligible for Family Unity.

§ 16.34 Applicants Do Not Have to Remain Eligible for a Second Preference Visa As written, the regulations required that the child (or spouse) remain continuously eligible for a second preference visa petition filed by the legalized alien. 8 CFR § 236.12(a)(2). In other words, an unmarried child had to stay unmarried and a spouse had to remain married to the legalized alien, even after the applicable dates, to qualify for Family Unity benefits. However, the Fifth Circuit Court of Appeals struck down this requirement in 1996 in a case called Hernandez v. Reno.90 The Court ruled that the regulation exceeded Congress’ intent, and that the only relevant inquiry is whether the required relationship to the legalized alien was satisfied on the applicable date. While an interim rule went into effect in 2000 to address changes to the application process that were also affected by the Fifth Circuit ruling,91 it wasn’t until 2009 that CIS issued guidance and revised its Adjudicator’s Field Manual to reflect that a child had to be unmarried only on the applicable date, and a spouse had to be married to the legalized alien only on the applicable date to qualify for Family Unity benefits.92 CIS issued the guidance for the sake of consistent adjudication nationwide. Example 16.34: Pedro is a lawful permanent resident (LPR) through the pre-1982 legalization program. His wife Maria, and twin sons, Roberto and Rafael, entered the U.S. without inspection (EWI) on May 4, 1988 and have resided here since that date. Maria, Roberto, and Rafael picked that date in order to celebrate the twins’ birthday as a family. Roberto and Rafael were born on May 6, 1967. Roberto is single. Raul got married last year. Who in Pedro’s Family is eligible for Family Unity? Maria is eligible for Family Unity because she was married to Pedro as of May 5, 1988. Roberto is eligible because he was 20 years of age on May 5, 1988 even though he turned 21 the next day. Under 8 CFR § 236.12(a)(2), Rafael’s subsequent marriage would have disqualified him for a second preference petition. However, this requirement has been discontinued per Hernandez and the 2009 CIS guidance, which now only require Rafael

90

Hernandez v. Reno, 91 F.3d 776 (5th Cir. 1996). 65 Fed. Reg. 43677 (Jul. 14, 2000). 92 USCIS Interoffice Memorandum, Field Guidance for Adjudicating Form I-817 (Application for Family Unity Benefits) under Hernandez v. Reno, 91 F.3d 776 (5th Cir. 1996), (Aug. 25, 2009), available at www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/field-guidance-I-817-hernandezv-reno-8-26-09.pdf. (Last visited March 2014.) 91

16-37

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

to have been unmarried on May 5, 1988. Therefore, Rafael also qualifies for Family Unity benefits. What happens if Maria and Pedro get a divorce? Based on a strict reading of the regulations, Maria would no longer be eligible for Family Unity because her divorce disqualifies her from a second preference visa petition filed by Pedro. However, the regulations have been superseded by Hernandez so that her eligibility only depends on her married status to Pedro on May 5, 1988. Because she was married to Pedro on that date, she remains eligible for Family Unity benefits.

§ 16.35 Children Born Abroad to Mothers with Family Unity A child of a legalized alien residing in the U.S. who was born abroad during her mother’s authorized absence from the U.S. may be granted voluntary departure pursuant to 8 CFR § 236.15(b) for two years if the mother is currently living in the U.S. under the Family Unity Program. 8 CFR § 236.15(b). This situation will occur infrequently. Example 16.35: Carla Campos is the wife of a lawful permanent resident (LPR) through amnesty. She obtained Family Unity in 1992. On January 1, 1994, she visited her sick mother in Mexico pursuant to advance parole. While there, she gave birth to her baby. They both returned to the U.S. after she had been absent for three weeks. Her son, Carlos, may be granted voluntary departure pursuant to the regulation.

§ 16.36 Criminal Disqualifying Grounds There are five categories of criminal bars to Family Unity, described below. Unit 3 explains the grounds of deportability and inadmissibility and provides references for how to deal with criminal convictions.

NOTE: The Family Unity statute was written before the AEDPA, IIRIRA, and other Acts. Thus it refers to grounds of deportation and exclusion that existed before 1990. In this section, we provide the original INA citations in case some future litigation raises the issue of whether the old definitions should apply.

Criminal Problems That Disqualify Applicants from Family Unity 1. Three Misdemeanors or One Felony Conviction(s) 2. Narcotics Convictions and Trafficking (see § 3.12) a. Drug offenses or narcotics addiction (former INA § 241(a)(11)); and

16-38

b. Inadmissible at entry for conviction of almost any crime relating to unlawful drugs (former INA § 212(a)(23)). 3. Crimes Involving Moral Turpitude (see § 3.13–3.15) a. Conviction for a crime involving turpitude within five years after admission and served a sentence of at least one year, or convicted of two crimes of moral turpitude (former INA § 241(a)(4)); and b. Conviction or admission of a single crime of moral turpitude (former INA § 212(a)(9)); and c. Conviction of two or more crimes where the sentence totaled more than five years (former INA § 212(a)(10)). 4. Particularly Serious Crimes (in the U.S.) and Serious Non-Political Crimes (outside the U.S.), Persecution of Others, and Being a “Danger to the Security of the United States” These are some of the bars to the former withholding of deportation, and to its successor restriction on removal, discussed in Unit 15. These bars also apply to Family Unity. A person is ineligible if he or she has been convicted of a “particularly serious crime” in the U.S. or has committed a “serious non-political crime” outside the U.S. 5. Certain Juvenile Offenses (Involving Violence or Risk of Physical Force) Section 383 of the IIRIRA created a new bar to Family Unity benefits. People are ineligible if they commit an act of juvenile delinquency that if committed by an adult would be a felony involving violence or the threat of physical force. See IIRIRA § 383, amending the Immigration Act of 1990 § 301(e)(3). Although the statute does not state that a juvenile court must have found that the person committed such an act, advocates should argue that this should be required. The statute applies this bar to Family Unity benefits “granted or extended” after September 30, 1996. Arguably this should apply only to acts of juvenile delinquency committed on or after September 30, 1996, by rules of statutory construction and because the statute uses the present tense “commit.”

§ 16.37 Other Grounds of Disqualification from Family Unity In addition to the criminal grounds discussed above, the statute also specifies certain grounds of deportability that make a person ineligible for Family Unity. Below we list only the most common grounds. You should read the statute for a complete list of these grounds of deportability. For a more thorough discussion of all of the grounds of deportability, see Unit 3.

16-39

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

1. Inadmissible at Entry for Specified Grounds of Inadmissibility: A person is ineligible if, at the time of his entry into the U.S., he was inadmissible on the following grounds:  Former INA 212(a)(9) and (10) [1 crime of moral turpitude or 2 criminal convictions]  Former INA 212(a)(23) [narcotics]  Former INA 212(a)(27-29) and (33) [political and Nazi grounds]. 2. Immigration Law Violations: Former § 241(a)(13). The Smuggling of Family Members Is Not Necessarily a Bar to Eligibility for Family Unity. See INA § 237(a)(1)(E)(ii) and INA § 212(a)(6)(E)(ii). The Technical Amendments to Immigration Act of 1990 exempt Family Unity applicants from the normal ground of deportability or inadmissibility for alien smuggling if the applicant smuggled only her spouse, parent, son, or daughter (and no other individual) to enter the U.S. illegally. 3. Medical and Mental Grounds: Former § 241(a)(3) 4. Public Charge: Former § 241(a)(8)

ARE THESE GROUNDS WAIVABLE? The statute with the grounds of deportation that make one ineligible for Family Unity does not specifically list any waivers. Nevertheless, one could argue that existing waivers in the INA for these grounds of deportation should apply.

§ 16.38 Benefits of Family Unity A.

Employment Authorization and Permission to Remain in the United States

People who qualify for Family Unity can receive employment authorization. Applicants are able to apply for work authorization at the same time they submit their Family Unity applications. See 8 CFR § 236.15(d). The same regulation also provides that a person “granted benefits under the Family Unity Program is authorized to be employed in the United States and may apply for an employment authorization document on Form I-765.” It is interesting to note that the regulations state that a person “is authorized to be employed” as soon as she is granted Family Unity, instead of stating that an applicant is authorized to work when he or she receives his or her employment authorization document. See 8 CFR § 236.15(d). Family Unity allows a person to stay in the United States. The statute does not limit the period of time for which Family Unity is granted.93 93

Generally Family Unity benefits are granted for two years at a time, but can be renewed indefinitely.

16-40

To keep Family Unity status, the person will need to remain an “eligible immigrant.” A child who obtains Family Unity and then turns 21 remains protected by the statute. B.

The Effect of the Legalized Alien’s Naturalization

The CIS has now adopted a policy that the spouse or child remains eligible for Family Unity when the legalized alien parent or spouse naturalizes.94 C.

Exemptions from and Waivers of Inadmissibility Available to Family Unity Recipients

Family Unity provides an important new benefit in avoiding the “three and ten year bars” ground of inadmissibility. Section 212(a)(9)(B)(iii) protects aliens with Family Unity from the three and ten year bars imposed by INA § 212(a)(9)(B)(i). See § 3.11. No period of time in which an alien has Family Unity protection can be counted towards the six months or one year period of “unlawful presence” which will trigger the bars. There is an automatic waiver of the alien smuggling ground for most persons who are eligible for Family Unity who smuggled only their spouse, parent, son or daughter. See § 16.37.

§ 16.39 Limitations of Family Unity Status People who are granted Family Unity do not have the right to travel outside the United States. People must obtain advance parole from the CIS based on an emergency need to travel. Persons who travel without such permission will lose Family Unity. A grant of Family Unity will not result in lawful permanent resident status. The legalized immigrant spouse or parent should file a visa petition for his or her spouse or child. See Unit 5 on family visa petitions. Unlike the amnesty application, a Family Unity application is not confidential. If CIS denies a Family Unity application, CIS can institute removal proceedings. Yet, as of the publication of this manual, CIS has not commonly been placing denied Family Unity applicants in removal proceedings. However, we have heard of a few cases around the U.S. where the immigration authorities have instituted deportation/removal proceedings against denied Family Unity applicants.

94

65 Fed. Reg. 43677 (Jul. 14, 2000).

16-41

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

PART FIVE: DISCRETIONARY RELIEF -- VOLUNTARY DEPARTURE, STAYS OF DEPORTATION, DEFERRED ACTION AND PRIVATE BILLS § 16.40 Overview of Types of Voluntary Departure Voluntary departure allows a person a period of time in which to leave the U.S. without an order of removal. IIRIRA provides three forms of voluntary departure, each with its own rules. First, voluntary departure may be granted by the Attorney General prior to the beginning of removal proceedings. The person must waive the right to a removal hearing and agree to leave at his or her own expense. The total amount of time that may be granted is 120 days, including all extensions. Only certain DHS officials are authorized to grant this kind of voluntary departure and the decision will be communicated in writing on Form I-210 Notice of Action—Voluntary Departure. See INA § 240B(a) and 8 CFR § 240.25. Second, the Immigration Judge may grant voluntary departure if the person requests it prior to or at the master calendar hearing or at a continued master calendar hearing. The person must ask only for voluntary departure and no other relief and must also concede removability, waive appeal of all issues, and withdraw any additional requests for relief if they had been made. People with aggravated felonies and people who are deportable under certain security provisions, including espionage, terrorist activity, and Nazi persecution, are not eligible for this form of voluntary departure. No showing of good moral character or the financial means to depart is required. The total amount of time that may be granted is 120 days. Conditions may be imposed by the judge to ensure that the person timely departs from the U.S. These conditions may include the posting of a voluntary departure bond. See INA § 240B(a) and 8 CFR § 1240.26(b)(1)(i)(A). The third kind of voluntary departure may be granted by an Immigration Judge at the conclusion of removal proceedings. To be eligible for this third form of voluntary departure, the person must have been physically present in the United States for at least one year prior to service of the NTA, must show good moral character for at least five years preceding the application, must show by clear and convincing evidence that he or she has the financial means to depart and that he or she intends to do so. To prove by clear and convincing evidence that one has the means to depart, the voluntary departure applicant must show travel documentation sufficient to allow his or her entry into the destination country. The person is also required to post a voluntary departure bond. A person with aggravated felony convictions or security provision violations is not eligible for this form of voluntary departure, nor is someone who was previously granted voluntary departure after having been found inadmissible under INA § 212(a)(6)(A) in removal proceedings. The total amount of time that may be granted is only 60 days, including all extensions (if a judge grants only 30 days, ICE can grant a 30 day extension, but no more than that). See INA § 240B(b) and 8 CFR § 1240.26(c). In summary, when voluntary departure is granted prior to the completion of removal proceedings, the Immigration Judge may grant a time period of up to 120 days. When voluntary

16-42

departure is granted at the conclusion of proceedings, the maximum time granted is 60 days. If someone is granted voluntary departure but fails to voluntarily depart during the specified time period, that individual will be ineligible for voluntary departure for ten years, and may be subject to a fine of between $1000 and $5000. (If an individual is unaware of the voluntary departure order or physically unable to depart within the time granted, the individual is not deemed to have failed to voluntarily depart.) If an individual fails to depart prior to the expiration of the voluntary departure period, but then the individual leaves the U.S. after the time period granted, the individual’s subsequent departure may be deemed a “removal.”95 Example 16.40: Umberto is a 22-year-old man from El Salvador, who entered without inspection 18 months ago in order to work in the fields. He has no other job skills. Umberto has no family in the U.S. He does not fear returning to El Salvador and has never applied for asylum. ICE stopped and questioned Umberto. Umberto admitted that he was from El Salvador and had no legal status. He was placed in removal proceedings. Voluntary departure appears to be the only form of relief for which he may qualify.

§ 16.41 Voluntary Departure as a Removal Defense Voluntary departure is a form of relief in deportation and removal proceedings. It is authorized by INA § 240B. People who leave the U.S. under an order of voluntary departure do not have a removal order on their records. This is significant because people who have been removed are inadmissible for five or ten years under § 212(a)(9)(A) and can be prosecuted for a felony if they return to the U.S. without permission. Nonetheless, ICE may impose any condition necessary to ensure that an individual leaves the U.S. upon a grant of voluntary departure. Such conditions can include the posting of a bond, continued detention pending removal, and removal under safeguards. People who apply for other relief such as asylum may also want to apply for voluntary departure. When someone requests voluntary departure in addition to other relief, it is a request for post-hearing voluntary departure, and the judge will only consider it as an alternative to the preferred relief, should the preferred relief be denied. That way, if the Immigration Judge denies the preferred relief, the person may be able to leave voluntarily and not be removed. However, there are reasons why some applicants might not want to ask for voluntary departure. The penalties associated with failure to comply might not be worth the possible benefit of having voluntary departure. As you will see in the next sections, a person will lose his voluntary departure if he appeals or files a motion to reopen, which might impact his decision to seek voluntary departure. Generally speaking, those that benefit the most are those that qualify for a legal means to re-enter the U.S. In these cases, because a voluntary departure order is not a removal order, it is easier to consular process later and return to the U.S. Those that have a high 95

U.S. v. Carrasco-Abreu, 2008 WL 216923 (EDNY Jan. 25, 2008).

16-43

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

risk of re-entering illegally also benefit in that illegal re-entry after a removal order can trigger criminal prosecution. See Unit 10. The judge cannot give extensions of the period of voluntary departure; those requests must go to ICE. 8 CFR § 1240.26(f). “In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in § 240B of the Act.” 8 CFR 1240.26(f), [italics added]. Furthermore, no court has the jurisdiction to hear an appeal regarding the denial of voluntary departure requested at the conclusion of removal proceedings. See INA § 240B(f). Additionally, once a person has been granted voluntary departure, she must present a passport or other valid travel documentation to ICE within 60 days unless exempted. See 8 CFR §§ 240.25(b), 1240.25, 1240.26.

§ 16.42 Eligibility and Grounds of Disqualification A.

Before Removal Proceedings or Prior to the Completion of Removal Proceedings

If the person requests voluntary departure before the initiation or the completion of removal proceedings, he or she may be granted a period of up to 120 days of voluntary departure. The person must depart at her own expense. See INA § 240B(a)(1). ICE has authority to grant voluntary departure instead of commencing removal proceedings against the alien. See 8 CFR § 240.25(a). ICE may attach to the granting of voluntary departure “any conditions it deems necessary to ensure the [person’s] timely departure, including the posting of a bond, continued detention pending departure, and removal under safeguards.” See 8 CFR § 240.25(b). The regulations allow ICE to revoke a grant of voluntary departure if it determines that the application should not have been granted. ICE does not have to notify the applicant before revocation but must notify the applicant in writing of the revocation. There is no appeal of a revocation. See 8 CFR § 240.25(f). However, if ICE does revoke voluntary departure, which it granted prior to the commencement of proceedings, the immigrant should be able to request voluntary departure in removal proceedings. Once ICE has initiated removal proceedings, the Immigration Judge has the authority to grant voluntary departure. See 8 CFR § 1240.26. The BIA confirmed that persons applying for voluntary departure either before proceedings commence or prior to the conclusion of the removal hearing need not establish good moral character or the financial ability to depart.96

96

Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999).

16-44

B.

Disqualifications for Voluntary Departure Prior to the Completion of the Hearing

A person will be disqualified from this form of voluntary departure for the following reasons:  

He or she is deportable for an aggravated felony under INA § 237(a)(2)(A)(iii) or for “terrorist activities” under INA § 237(a)(4)(B); or He or she was previously granted voluntary departure after having been found inadmissible under INA § 212(a)(6)(A).

The regulations state that the Immigration Judge may only grant this more generous form of voluntary departure pursuant to INA § 240B(a) if the alien makes the request prior to or at the master calendar hearing at which the case is initially scheduled for a merits hearing. See 8 CFR § 1240.26(b)(1)(i)(A). The alien also must make no additional requests for relief and withdraw any pending requests, concede removability, and waive appeal on all issues. See 8 CFR § 1240.26(b)(1)(i)(B-D). C.

Requirements for Voluntary Departure at the Conclusion of Removal Proceedings

To be granted voluntary departure at the conclusion of removal proceedings, the applicant must demonstrate pursuant to INA § 240(B)(1) that he:    

has the financial means to depart and intends to do so; has been a person of “good moral character” for the five years prior to the date of the application for voluntary departure; has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served; and is not removable under INA §§ 237 (a)(2)(iii) [aggravated felony] or 237(a)(4) [security & related grounds]

PRACTITIONER’S TIPS ON GOOD MORAL CHARACTER  

Persons described in INA § 101(f) are statutorily barred from establishing good moral character. The Immigration Judge may decide that persons who are not statutorily barred still have not demonstrated good moral character. There is a thorough discussion of good moral character in Unit 11.

The Immigration Judge is limited to granting voluntary departure for only up to 60 days, if granted at the conclusion of a case. See INA § 240B(b)(2). The Immigration Judge must set a bond of at least $500. See INA § 240B(b)(3); 8 CFR § 1240.26(c)(3). The bond must be posted within five business days of the Immigration Judge’s order. If the bond is not posted within this time period, the voluntary departure order vacates automatically and becomes a removal order. See 8 CFR § 1240.26(c)(3). The Immigration Judge may impose other conditions that “he or she

16-45

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

deems necessary to ensure the alien’s timely departure” from the U.S. See 8 CFR § 1240.26(c)(3). D.

Disqualifications for Voluntary Departure at the Conclusion of the Hearing

A person will be disqualified from this form of voluntary departure if she:    

cannot demonstrate good moral character for the 5 years preceding the application; is deportable for an aggravated felony under INA § 237(a)(2)(A)(iii) or for “security and related grounds” under INA § 237(a)(4); was previously granted voluntary departure after having been found inadmissible under INA § 212(a)(6)(A); was granted voluntary departure and failed to depart in the specified time frame (and is thus consequently ineligible for voluntary departure for 10 years under INA § 240B(d)).

As discussed in Subsection 2, above, an aggravated felony conviction (except murder) that occurred before November 29, 1990 does not make a person deportable under the aggravated felony deportation ground. Arguably a person convicted of an aggravated felony before November 29, 1990 would be eligible for post-hearing voluntary departure, if he or she had maintained good moral character for the last five years. E.

Penalties for Failure to Depart Under Voluntary Departure

There are penalties for failing to depart under voluntary departure. A noncitizen that fails to depart on time is ineligible for many forms of immigration relief for ten years, including cancellation of removal, adjustment of status, change of status, and applying for benefits under the registry program. Moreover, noncitizens who do not leave under a grant of voluntary departure are subject to civil fines ranging from $1,000 to $5,000. See INA § 240B(d). Under 8 CFR § 1240.26(j), the civil penalty for failing to depart within the allotted time is presumptively set at $3,000, although the presumption is rebuttable. The INA also requires that notice of these penalties be provided upon a grant of voluntary departure. § 240B(d)(3). A sample advisal form, provided to recipient of voluntary departure in court, is provided at Appendix 16-F. What Happens to Voluntary Departure if Applicant Fails to Post Bond? In 2006, the BIA addressed in Matter of Diaz-Ruacho whether failure to post a bond under voluntary departure triggered the penalties listed in the previous section. The BIA ruled that the posting of a bond was “a condition precedent to permission to depart voluntarily.”97 The BIA reasoned that failure to post a bond vacates a granting of voluntary departure, preventing attachment of the civil penalties. The regulations were revised in 2009 to indicate that an alien’s obligation to depart within the allowed time holds regardless of a failure to timely post the bond subjecting him to the civil penalties. See 8 CFR § 1240.26(c)(4). In 2011, the Seventh Circuit ruled that the 2009 regulations reversed the BIA’s Diaz-Raucho decision.98 Thus, under current law, even if the 97 98

Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006). Bachynskyy v. Holder, 668 F.3d 412 (7th Cir. 2011).

16-46

applicant fails to post the bond, the penalties for failing to comply with voluntary departure attach. F.

Conversion to a Removal Order if Applicant Appeals to the Court of Appeals or Files a Motion to Reopen:

The revised regulations also make clear that a grant of voluntary departure is automatically withdrawn upon the filing of a motion to reopen or reconsider with the immigration judge or the BIA, or upon filing a petition for review in a federal court of appeals. A narrow exception applies if the applicant departs within 30 days of filing the petition for review and submits proof of having departed.

§ 16.43 Effective Date of Law with Warnings The law on voluntary departure described in this unit is effective in general for removal proceedings that began on or after April 1, 1997.

WARNING: Avoid Self-Removal! The grant of voluntary departure from the immigration judge will state a date by which the person must depart the U.S. If the person overstays that date and then leaves the U.S., even if voluntarily and even if she leaves one day beyond the date, she will have “self-removed,” not “departed voluntarily,” and a removal order will result on that person’s record. Example 16.43: Bhawani Singh entered the U.S. from India as a student three years ago. He dropped out of school last year and opened a restaurant. In a raid on the restaurant, ICE arrested him. Bhawani had an immigration hearing on February 20, 2014 and the judge gave him 30 days voluntary departure. He qualified for no other relief. Bhawani planned to leave on March 17th, but his flight was canceled and not rescheduled until March 25th. He left on March 25th, three days after the date on which he was ordered to voluntarily depart the U.S. by the judge. Bhawani now has a removal order on his record. He was “self-removed” when he left the country more than 30 days after the date the judge ordered him to leave. He is also subject to civil penalties and a bar to admission for failure to leave under voluntary departure.

§ 16.44 Clients Who Wish to Apply for Relief in Removal Proceedings May Apply Only for the Third Type of Voluntary Departure Persons who wish to apply for asylum or any other relief may apply only for the third type of voluntary departure, which is granted at the conclusion of the removal proceedings. In 16-47

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

this situation the person (or his counsel) will inform the Immigration Judge that he is seeking asylum (or other relief) and in the alternative, voluntary departure pursuant to § 240B(b). Example 16.44: Changing the facts in Example 16.30. Umberto is a 22-year-old man from El Salvador, who entered without inspection 18 months ago in order to flee the conditions in his country. He is afraid to return to El Salvador. In El Salvador he was imprisoned several times due to his political beliefs and fears future persecution. Umberto does not want to accept the first type of voluntary departure and wants to pursue an asylum claim. His attorney suggests that he apply for asylum and in the alternative voluntary departure. However, the attorney cautions him that if the court denies his asylum application, he might not qualify for the tougher third type of voluntary departure. Based on his time in the U.S., he meets the physical presence requirement for voluntary departure at the conclusion of proceedings. Umberto agrees with his legal practitioner’s advice. At his master calendar hearing, the attorney informs the judge on the record that “Umberto Gomez wishes to apply for asylum, and in the alternative, voluntary departure pursuant to § 240B(b).” If Umberto were not requesting any other form of relief (i.e., asylum), it would be in his interest to obtain voluntary departure prior to the conclusion of the removal proceedings because: 1) there is no mandatory bond; and 2) he can be granted voluntary departure for a longer period of time. A person, such as Umberto in the previous example, should make this decision with the advice of his legal practitioner at the time of the master calendar hearing. The regulations require the person to request this form of voluntary departure prior to or at the master calendar hearing “at which the case is initially scheduled for a merits hearing.” See 8 CFR § 1240.26(b)(A). The regulations further provide that the “judge may not grant voluntary departure under § 240B(a) of the Act beyond 30 days after the master calendar hearing at which the case is initially scheduled for a merits hearing except pursuant to a stipulation with the ICE trial attorney.” See 8 CFR § 1240.26(b)(1)(ii).

§ 16.45 Stays of Deportation/Removal A person under a final order of deportation or removal—even those who are not planning to appeal their deportation or removal order—can request a “stay” (hold off) of the deportation from the ICE Enforcement and Removal Operations unit. ICE has complete discretion to grant or deny a stay. One can request a stay in any case, but most ICE officials rarely grant those requests. Use Form I-246 to request a stay of deportation or removal.

16-48

Stays and Appeals. Appeals to the federal courts of appeal do not automatically stay the removal of the person (appeals to the BIA result in automatic stays). Therefore, you must request a stay of removal of the courts of appeal when filing an appeal. See Unit 8 in this guide. You may also request a stay in a case where you plan to file a motion to reopen or reconsider with the Immigration Judge or the BIA. These are filed with: (1) the Immigration Judge, if you are seeking a motion to reopen from the immigration court and the case was never appealed to the BIA; (2) the BIA, if you are seeking a motion to reopen or reconsider a BIA decision; or (3) with the federal court, if you are seeking review of the BIA decision in a federal court of appeal. Requests for stays to the immigration courts or BIA are difficult to obtain, but they are granted more frequently than stays from ICE. If the person is not in custody at the time the final order of removal is issued, ICE may require the individual to report for surrender in order to grant the stay of removal. This creates a dilemma for many individuals facing a final order of removal. If they do not apply for a stay and ICE arrests them, they will likely be removed from the U.S. before a stay request can been filed. If they request a stay and ICE requires surrender, then there is a possibility that they may have to remain in ICE custody while an appeal is pending. ICE can agree to release a person without a bond while the application for a stay is being considered or if the stay is granted, or can set a bond to allow the person to be released from custody. However ICE can also choose not to set a bond or set a bond that is so high that the individual is unable to pay it, so that the person will remain in custody. In circumstances where a stay is denied or ICE will not allow the individual to be released pending proceedings, and the BIA either has not acted on the stay request or has denied it, you can file a petition for a Writ of Habeas Corpus with the federal district court. However, only attorneys admitted to practice in federal district court can submit such petitions. The federal courts have traditionally had the authority to grant a stay of removal.99 However, the Real ID Act of 2005100 eliminated habeas corpus review in the district courts in cases connected with removal proceedings, while preserving petitions for review under the courts of appeals.101 Congress set these jurisdictional limits based on concern that collateral attacks in district court allowed for an end run around the statutorily prescribed process for removal-related claims.102 Since then, appeals courts have upheld Real ID’s statutory bar on habeas where alternative remedies were likely and where the claims were closely tied to the removal issues that formed the context for the proceedings.103 On the other hand, some jurisdictions have been reluctant to apply the limits, even in removal cases, where the claims were sufficiently disconnected from the issue of removal itself. These include cases where 1) the petition for writ of habeas is raised solely on the 99

Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc). Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub.L No. 109-13. 101 INA § 242(a)(5); 8 USC §§ 1252(a)(5), 1252(b)(9). 102 U.S. DOJ Immigration Litigation Bulletin “The Real ID Act’s Effect on Habeas Review of Immigration Claims,” Vol. 13 No. 2, Feb. 2009, available at www.justice.gov/civil/docs_forms/ImmigrationBulletin/Feb ruary_2009.pdf. (Last visited May 2014). 103 Id. 100

16-49

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

constitutionality of detention rather than in connection with the removal,104 2) the grounds for habeas are based on ineffective assistance of counsel in filing timely appeals to removal orders,105 and 3) the claim challenges the existence of a removal order, rather than its application.106 If filing a request for a stay of removal, the person (or his legal representative) should always attach the decision of the BIA. Where the BIA has denied the appeal without an opinion, the Immigration Judge’s decision should be attached as well.107

§ 16.46 Prosecutorial Discretion “Prosecutorial discretion” is the authority of a law enforcement agency or officer charged with enforcing a law to decide whether—and to what degree—to enforce the law in a particular case. See Appendix 16-D, Morton Memo. A law enforcement officer who decides not to enforce the law against a person has favorably exercised prosecutorial discretion. Both ICE and CIS officers have the authority to exercise prosecutorial discretion. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a stay of removal; a decision not to detain someone; or a decision not to issue a Notice to Appear (NTA) in the first place. Although ICE officials have always had this power and exercised it in different ways throughout the years, in June 2011, ICE announced a more specific policy regarding this power. Over the years the government has issued several memoranda discussing when agencies will exercise prosecutorial discretion in immigration proceedings. The 2011 announcement, however, indicated that ICE will exercise prosecutorial discretion—i.e., decide not to pursue deportation—in cases it considers “low priority” (see below). It is important to remember, and to fully explain to your client, that a favorable grant of prosecutorial discretion does not confer lawful immigration status on the client. Example 16.46: Juana attends her adjustment interview at CIS, and they determine that she is not eligible to adjust because her visa petition, filed by her father, is not yet current. The CIS officer denies her case, but decides not to issue an NTA in her case, and explains that she must wait for her visa to become current. The office favorably exercised prosecutorial discretion by not placing Juana in removal proceedings. On August 18, 2011, DHS unveiled a new interagency process to ensure that resources are focused on the Administration’s highest enforcement priorities. As part of this process, an interagency team of DHS and Department of Justice (DOJ) officers and attorneys, including 104

Hernandez v. Gonzales, 424 F. 3d 42, (1st Cir. 2005); Moallin v. Cangemi, 427 F. Supp. 2d 908 (D. Minn. 2006); Aguilar v. U.S., 210 F. 3d 1, (1st Cir. 2007). 105 Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007). 106 Madu v. Att’y Gen., 470 F.3d 1362 (11th Cir. 2006); Kumarasamy v. Att’y Gen., 453 F.3d 169 (3d Cir. 2006). 107 Lim v. Ashcroft, 375 F.3d 1011 (10th Cir. 2004) (citing Yuk v. Ashcroft, 335 F. 3d 1222, 1230 (10th Cir. 2004).

16-50

representatives from throughout DHS and from the Executive Office for Immigration Review (EOIR) and the Office of Immigration Litigation at DOJ, began to identify low-priority removal cases that should be considered for an exercise of discretion. Under this policy, DHS has taken a more active role in identifying cases in removal proceedings that could be closed in an exercise of discretion. However, some of the individuals offered prosecutorial discretion might have stronger relief available, and should seek advice before agreeing to close their case instead of adjudicating the merits of their claim. Additionally, if no application is on file that provides for work authorization, administratively closing a case before the immigration court for prosecutorial discretion will not provide for work authorization. Many people that might benefit from prosecutorial discretion are not identified by DHS officials because there is no information in their file. It is for this reason that representatives must help clients prepare compelling requests for prosecutorial discretion that outline their equities and favorable factors for consideration.

PRACTICE TIP: Get to know the officers and counsel at your local DHS offices. It is important to know who has the authority to make decisions exercising discretion. Additionally, some personnel may not have the ultimate authority, but are nevertheless influential. Having officers that you can pitch your case to is helpful.

The factors that will influence a decision on prosecutorial discretion will vary according to the nature of the case. However, there are some general guidelines about important factors that the agency will consider in most, if not all cases. This list of factors, taken from the June 17, 2011 memorandum, Morton, “Exercising Prosecutorial Discretion,” includes:                

The agency’s civil immigration enforcement priorities; The person’s length of presence in the U.S., with particular consideration to presence in lawful status; The circumstances of the individual’s arrival, particularly if arrival was as a young child; Graduation from a U.S. high school and the pursuit of higher education in the U.S.; U.S. military service of the individual or immediate relative, particularly combat service; Criminal history; Immigration history; Whether the person is a national security or public safety concern; Ties and contributions to the community, including family ties; Ties to and conditions in the home country; Whether the person is elderly or a minor; Whether a spouse, parent or child is a U.S. citizen or permanent resident; Whether the person is the primary caretaker of any person with a disability or illness or a minor relative; Whether the person or a spouse is pregnant or nursing, or suffers from a severe mental or physical illness; Likelihood of removal; Likelihood of permanent or temporary immigration relief; and 16-51

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014



Cooperation with federal, state or local law enforcement (including the Department of Labor and the National Labor Relations Board).

DHS’s determination of whether to exercise prosecutorial discretion should be based upon the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities. The 2011 Morton memos also identify certain classes or individuals warranting “particular care.” These include veterans and members of the U.S. armed forces; long-time permanent residents; minors and the elderly; those present in the U.S. since childhood; pregnant and nursing women; victims of domestic violence, trafficking, or other serious crimes; and those with serious health conditions or disabilities. Likewise, certain negative factors will warrant “particular care and consideration,” including: risks to national security; serious felons, repeat offenders, or those with a lengthy criminal record; known gang members; and individuals with an egregious record of immigration violations, including illegal reentry and immigration fraud. See Morton, “Exercising Prosecutorial Discretion,” at Appendix 16-D. A sample prosecutorial discretion request is contained at Appendix 16-C.

§ 16.47 Deferred Action Deferred action is one form of prosecutorial discretion. Deferred action is a more formal decision of a DHS immigration official to not take action to remove someone, even though that person may be clearly removable. See 8 CFR 274a.12(c)(14). This power has been available to ICE officers for many years, and in practice is only granted in very sympathetic cases. To persuade DHS to grant deferred action, the case must be very sympathetic, that is, have “strong equities.” Additionally, CIS may grant work permits in limited situations for those they deem worthy of deferred action. For instance, those granted visas under VAWA are granted deferred action while waiting for the priority date to use the visa to become current. On June 15, 2012, Secretary Napolitano announced a special “Deferred Action” process for young people who are low enforcement priorities. See § 16.48. Prior to this announcement, deferred action already existed as a last option in sympathetic situations for immigrants with no other relief. In the next several sections we will discuss the new Deferred Action for Childhood Arrivals, as well as traditional deferred action available in sympathetic situations. See ILRC’s DACA: The Essential Legal Guide for a detailed practitioner’s manual for filing these types of cases. § 16.48 Deferred Action for Childhood Arrivals The new deferred action policy for young people is distinct in that it involves a formal application process, which results in granted deferred action for two years, subject to renewal. Now commonly known as “DACA,” Deferred Action for Childhood Arrivals has its own specific eligibility criteria. The general eligibility requirements are as follows:

16-52

The deferred action applicant must demonstrate that she: 1. Is at least 15 years old at the time of filing for DACA;  Exception: an individual currently in removal proceedings, who has a final order of removal, or has a voluntary departure order can request DACA even though she is under the age of 15. 2. Was under the age of 31 as of June 15, 2012 (i.e., was born after June 15, 1981); 3. Came to the United States under the age of 16;  However, if the individual entered and left the United States before age 16, she will have to show she established residency in the U.S. before age 16. 4. Has continuously resided in the United States since June 15, 2007, up to the present time  However, “brief, casual, and innocent” absences from the United States will not break continual residence; 5. Was physically present in the United States on June 15, 2012, and at the time of making the request for DACA; 6. Entered the United States without inspection before June 15, 2012, or had lawful immigration status that expired as of June 15, 2012 (i.e., person was undocumented as of June 15, 2012); 7. Is currently in school, has graduated from high school, has obtained a certificate of completion from high school, has obtained a General Education Development (GED) certificate, or is an honorably discharged veteran of the U.S. Coast Guard or U.S. Armed Forces; and 8. Has not been convicted (as an adult) of a felony offense, a significant misdemeanor offense, three or more non-significant misdemeanor offenses, or does not otherwise pose a threat to national security or public safety. Only those individuals who can prove that they meet these criteria will be eligible for deferred action. CIS created a website with DACA requirements and information: www.uscis.gov/childhoodarrivals. This is a great resource for updates and information, including the necessary forms to apply. Deferred action is not federal law. It can be terminated at any time, including by a new presidential administration. CIS has stated that the information provided in the DACA request will generally be protected from disclosure to ICE or Customs and Border Patrol (CBP) for the purposes of immigration enforcement proceedings. Certain cases that are denied and involve a criminal offense, fraud, threat to national security or public safety, or exceptional circumstances may nevertheless be placed in removal proceedings.

§ 16.49 Criminal Bars to DACA A.

Overview

A conviction for certain types of crimes will make a person automatically ineligible for DACA. A conviction for a felony, a “significant misdemeanor,” or three or more convictions for

16-53

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

non-significant misdemeanors will disqualify the applicant from DACA benefits. However, if an applicant can show “exceptional circumstances,” DHS may exercise its discretion to grant DACA even though the conviction falls within one of the criminal bars. DHS has provided some clarification regarding the offenses that will be deemed a felony, significant misdemeanor, or non-significant misdemeanor.108 See Appendix 16-G. Conviction of one felony is an automatic bar to DACA. A felony for purposes of DACA is defined as any federal, state, or local offense that is punishable by a sentence of more than one year. The state or local law’s felony or misdemeanor labels do not matter. Thus, some state misdemeanors may be considered felonies for purposes of DACA if they carry the possibility of more than a year in jail, regardless of the sentence actually imposed. Example: Abe was convicted of residential burglary under California Penal Code § 459/460(a). The California Penal Code provides that as a felony, the offense is punishable by two, four, or six years imprisonment. Abe was sentenced to nine months in jail with additional probation time. This would be deemed a felony for purposes of DACA because the potential sentence is more than one year. Example: Ana was convicted of misdemeanor grand theft under California Penal Code § 484 which carries a maximum sentence of one year. Because a felony for DACA purposes requires a possible sentence of more than one year, this grand theft offense is not a felony. Like the definition of felony, a misdemeanor is defined by the potential jail sentence of the federal, state, or local offense and not by the local or state misdemeanor label. For DACA purposes only, a misdemeanor is defined as an offense that carries a potential jail sentence of one year or less, but greater than five days (i.e., at least six days to a maximum of one year). In some states, an infraction, other non-misdemeanors, or even some misdemeanor offenses are punishable by a fine, but no jail time. Such an offense should not be regarded as a misdemeanor under DACA. There are two ways misdemeanors can result in automatic disqualification from DACA: (a) one conviction for a significant misdemeanor; or (b) three or more convictions for nonsignificant misdemeanors. 1. Conviction of one significant misdemeanor A conviction can constitute a significant misdemeanor in one of two ways: (1) it falls within one of several listed offenses (see below), or (2) the sentence is for more than 90 days in custody. 108

See CIS, DACA FAQs, National Security and Public Safety, Questions 1-9, available at www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-askedquestions#national security.

16-54

A significant misdemeanor that triggers an automatic criminal bar for DACA absent exceptional circumstances is a misdemeanor offense of:      

Burglary, Domestic violence, Drug distribution or trafficking, Driving under the influence (DUI), Sexual abuse or exploitation, or Unlawful possession or use of a firearm.

As long as the potential sentence is at least six days to one year for one of these offenses, the actual sentence imposed does not matter. In the deportation context, burglary, domestic violence, drug trafficking, sexual abuse (of a minor), and firearm offenses have specific federal definitions that apply when determining whether someone is inadmissible or deportable. For instance, burglary is defined as an unlawful entry into a building or structure with the intent to commit a crime.109 Many states, however, have burglary statutes that are much broader than the federal definition and may penalize any entry, lawful or unlawful, into any number of locations. It is unclear if the state definition of burglary or the federal definition of the offense will apply in the DACA context. Until further clarification, assume that any offense labeled as burglary is problematic. Example: Samuel is charged with a domestic violence offense against his wife, but pleads guilty to the lesser offense of simple battery, which does not include the victim as an element of the crime. The record of conviction indicates that the offense only involved a mere offensive touching against his wife. Under federal immigration laws, a domestic violence offense must be (1) a crime of violence as defined at 18 USC § 16 and (2) committed against an enumerated person in the statute and protected by state laws. See INA § 237(a)(2)(E)(1). Although a conviction of simple battery involving a mere offensive touching does not meet the federal definition of a crime of violence and is not labeled domestic violence by the state, there is a risk that CIS may still deny Samuel’s DACA application because the record and underlying facts of the conviction indicate that Samuel committed a battery on his wife. 2. Conviction of three or more non-significant misdemeanors A person convicted of three or more non-significant misdemeanors is automatically barred from DACA. A non-significant misdemeanor is defined as a misdemeanor offense that does not fall into one of the enumerated significant misdemeanor crime categories and has a jail sentence imposed of six to 90 days. Any sentence to time in custody of less than 91 days would

109

Taylor v. United States, 494 U.S. 575 (1990) (analyzing the federal definition of “burglary”).

16-55

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

make an offense a non-significant misdemeanor. This is regardless of the actual sentence imposed and even if the sentence is suspended.110 Importantly, a non-significant misdemeanor must also meet the definition of a misdemeanor, meaning that it must carry a potential jail sentence of at least six days and maximum one year. Look carefully at the offense to make sure that a minimum jail sentence of six days could be imposed for the offense. For many state infractions and minor misdemeanors this might not be the case. If so, then this is a potential defense against triggering the nonsignificant misdemeanor bar. B.

Exceptions to the DACA Criminal Bars

DHS announced that certain kinds of offenses will not fall into the automatic bars to DACA. The DACA-specific rules may differ from the current rules on what meets the definition of a conviction for other purposes in the INA. Here are the exceptions to the automatic criminal bars, some of which are described in greater detail below: 



  

A conviction for a minor traffic offense, such as driving without a license. For example, a misdemeanor conviction for a minor traffic offense will not be considered a misdemeanor for purposes of DACA even if the jurisdiction labels it a misdemeanor. But remember that a conviction for driving under the influence of drugs or alcohol meeting the definition of a misdemeanor will be considered a significant misdemeanor. A conviction of a state immigration-related offense, such as the immigration-related criminal penalties (felony or misdemeanor) in states that have passed anti-immigration legislation including Arizona, Alabama, and Georgia. Conviction of offenses in states that have not created specific crimes designed to target immigrants, but nonetheless are used to penalize such persons, arguably also should be exempted. Expunged convictions. This arguably includes any state conviction treated under rehabilitative relief. See discussion below. Juvenile delinquency adjudications. These adjudications are for youth who are treated in the juvenile justice system and not as adults. Exceptional circumstances. Anyone who can show exceptional circumstances for a crime falling into an automatic bar can qualify for DACA. Such grants are likely to be rare.

110

This is an important distinction from the significant misdemeanor requirements. In its Frequently Asked Questions, DHS does not explicitly exclude suspended sentences under non-significant misdemeanors. But it did exclude suspended sentences for calculating the more than 90 days in custody for significant misdemeanors. This omission seems to indicate that the suspended sentence exception does not apply for non-significant misdemeanors. See DHS and USCIS FAQs, available at www.dhs.gov/deferred-actionchildhood-arrivals, http://1.usa.gov/TJysu6.

16-56

1. Expunged convictions An expunged conviction is not an automatic disqualifier for DACA. The DACA Standard Operating Procedures states that “expunged convictions will not be treated as disqualifying felonies or misdemeanors,” but that the case will be assessed to determine whether the person poses a threat to public safety and whether he warrants a favorable exercise of discretion.111 This is a significant departure from conventional immigration law precedent that treats expunged convictions the same as convictions under the Immigration Nationality Act.112 (Note that although an expunged conviction does not disqualify the person from DACA, it could still trigger grounds of inadmissibility in the future if the DACA applicant has an opportunity to gain legal status.) Although DHS’ DACA guidelines refer only to “expunged” convictions, this exception should also apply to other state and federal rehabilitative relief. Like expungements, rehabilitative relief programs erase the conviction under applicable state law, but under different procedures. Many states permit such programs so the defendant can withdraw a guilty plea or otherwise erase a conviction based on successful completion of probation or other requirements, rather than on legal error. One example of such relief is deferred entry of judgment. In deferred entry of judgment, the state requires a defendant to enter a guilty plea, but upon successful completion of the probation terms, the conviction is dismissed, and the state considers the conviction eliminated. In contrast, with an expungement, a person enters a plea of guilty to a crime and has a final judgment. Upon successful completion of the sentence and passage of time, the person applies to the sentencing court to erase the conviction through an expungement. In some states, expungement may be granted only as a matter of discretion. While a felony or significant misdemeanor offense that is expunged or otherwise erased under state rehabilitative relief would not automatically make a DACA applicant ineligible, applicants with any criminal history should be cautious. Expunged convictions may still be considered under the public safety or totality of the circumstances tests (see below). The criminal history and the seriousness of the offense must be weighed against the applicant’s positive equities in evaluating whether the person should apply for DACA. 2. Juvenile delinquency adjudications Cases adjudicated in juvenile delinquency proceedings will not trigger the automatic crimes bar for DACA. However, this exception does not apply to minors who are tried as adults. This is consistent with the BIA’s rule that a juvenile adjudication does not meet the definition of conviction,113 but if convicted in adult court, the offense would be a conviction. On the FBI or court record, look for phrases such as “juvenile court” or “juvenile” to be safe.

111

CIS’s National Standard Operating Procedures on DACA and other documents include very helpful information and provide insight on how CIS is training their officers and adjudicating DACA requests and can be found at: http://legalactioncenter.org/sites/default/files/2013-HQFO-00305_Document.pdf. 112 Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). 113 Matter of Devison, 22 I&N Dec. 1632 (BIA 2000).

16-57

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Although not automatic disqualifiers, juvenile adjudications likely will be considered in DHS’ discretionary determination to grant or deny DACA. Therefore it is necessary to evaluate the circumstances underlying the juvenile adjudication and determine whether they are offset by positive factors. Advocates and applicants may want to cautiously assume that a juvenile offense that would otherwise fall within the felony or significant misdemeanor categories (e.g., is in an offense category that would trigger a bar regardless of sentence imposed) might be subject to heightened scrutiny by DHS. 3. Exceptional circumstances Even if the applicant falls under the crime bars, DHS maintains the discretion to grant DACA if exceptional circumstances are demonstrated. It is stated in the Standard Operating Procedures for DACA that it would “take a truly exceptional circumstance to overcome the underlying criminal, national security, and public safety grounds … which would be rare.”114 Thus, persons who fall within the crimes bars should generally avoid applying affirmatively for DACA. On the other hand, persons already in deportation proceedings have nothing to lose by applying for DACA and asserting that exceptional circumstances exist. While CIS has not provided further guidance on what will be deemed “exceptional circumstances,” advocates should build a case based on the unique factors of each individual case, including hardship factors or any specific circumstances impacting the applicant’s family. See Unit 11 on cancellation of removal to brainstorm possible factors to explore with the client. C.

All Criminal History Will Be Considered as Part of the Totality of the Circumstances and as a Potential Public Safety and National Security Threat

DHS states that the totality of the circumstances will be considered, including the applicant’s entire criminal history and her equities in making the determination. This means that all criminal history, including arrests that do not result in any conviction, dismissed criminal charges, traffic offenses, juvenile adjudications, and expunged convictions, can be considered in deciding whether to grant or deny DACA. For example, DHS notes that even if the sentence to time in custody was less than 90 days for a significant misdemeanor, CIS has discretion to deny DACA based on a single offense. Any criminal history, even an arrest or conduct that does not result in a conviction, will also be considered by DHS in determining if the applicant poses a threat to public safety or national security. If DHS finds the applicant to be a threat to public safety or national security, DHS will deny DACA.115 In its FAQs, CIS states that indicators of a public safety and national security threat “include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.”

114

DHS, National Standard Operating Procedures, available as part of a FOIA request at http://legalactioncenter.org/sites/default/files/2013-HQFO-00305_Document.pdf. 115 For a discussion on which denials DHS will issue an NTA, see www.uscis.gov/NTA.

16-58

WARNING: CIS has policies governing the issuance of a NTA (Notice to Appear) and also the referral of cases to ICE for possible placement in removal proceedings in immigration court. If a person submits a DACA request and CIS decides to deny it, CIS will not refer the case to ICE for removal proceedings, unless the case involves a criminal offense, fraud, or a threat to national security or public safety. For more detailed information on the applicable NTA guidelines, visit www.uscis.gov/NTA. Always explain the risks to clients, and discuss the advantages and disadvantages of applying for DACA, so that the client can decide whether to apply.

§ 16.50 Continuous Residence and Travel Requirements for DACA An applicant must show in her DACA request that she has continuously resided in the United States from June 15, 2007 up to the time she submits her request. When DACA was first announced, an applicant only had to prove five years of continuous residence. But as more time passes by, an applicant will have to show documentation for more years. Example: Mary plans to submit her DACA request in August 2014. To be granted DACA, she will have to show that she continuously resided in the United States for just over 7 years (June 15, 2007 to August 2014). To meet the continuous residence requirement, the applicant is not required to show that she has never left the United States. The requirement is for continuous residence, not continuous physical presence. A trip outside the United States after June 15, 2007 does not automatically mean an applicant is ineligible for DACA (unless it was after August 15, 2012). But to maintain DACA eligibility, any absence from the United States since June 15, 2007 and before August 15, 2012 must have been “brief, casual, and innocent.” So a brief, casual, and innocent absence from the United States will not interrupt one’s continuous residence. But any travel after August 15, 2012 (and before receiving DACA) will make a person ineligible for DACA. What is a “brief, casual and innocent” absence? According to the National Standard Operating Procedures for DACA, CIS states that “the definition of a brief, casual, and innocent absence has its basis in case law and was codified into the regulations [at 8 CFR 244.1] for the [TPS] program. Elements of this definition … will be used for individuals requesting DACA.”116 The concept of a “brief, casual, innocent” departure from the United States is not new in immigration law. In fact, the concept of classifying an absence as “brief, casual, and innocent” has come up in many contexts—starting in 1963 with the famous United States Supreme Court case Rosenberg v. Fleuti.117 “Brief, casual, and innocent” absences have arisen in the context of the legalization program of the 1980s, suspension of deportation, registry under INA § 249, and 116

DHS, National Standard Operating Procedures, 6, available as part of a FOIA request at http://legalactioncenter.org/sites/default/files/2013-HQFO-00305_Document.pdf. 117 374 U.S. 449 (1963).

16-59

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

defining “entry” into the United States following a short trip abroad. Thus, the definition of a “brief, casual, and innocent” absence can be complicated and is often defined on a case-by-case basis. An absence after June 15, 2007 and before August 15, 2012 will be considered brief, casual, and innocent if: 1. The absence was short and reasonably calculated to accomplish the purpose for the absence; 2. The absence was not because of an order of exclusion, deportation, or removal; 3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before the applicant was placed in exclusion, deportation, or removal proceedings; and 4. The absence’s purpose and/or the applicant’s actions while outside the United States were not contrary to law. Example: Juana left the United States for 30 days in 2010 to attend her grandmother’s funeral. She was gone for just enough time to witness the funeral and help her mother clean out her grandmother’s belongings. Then she returned to the United States. Juana’s absence should be considered brief, casual, and innocent and should not interfere with her DACA eligibility.

PRACTICE TIP: Advocates have been successful obtaining DACA grants for individuals that had absences up to six months. Make sure to discuss the trip in detail with your client so that you are able to document it in the best manner possible.

Example: Wei was deported from the United States in 2011 and then returned unlawfully to the United States within 10 days. Wei would not be eligible for DACA because her absence, although short, would not be considered brief, casual, and innocent because the absence was caused by a removal order. Wei also would not be eligible for DACA if she had been ordered deported in 2011 and then left the United States “voluntarily.” A departure made where the individual leaves the United States by her own will but while under an order of deportation, exclusion, or removal is not a brief, casual, and innocent absence.118 Example: Mario was deported in 2006 at the age of 17. He made it back to the United States by April 2007. Mario is still eligible for DACA because his absence was before the required continuous residence period.

118

DHS, National Standard Operating Procedures, 70, available as part of a FOIA request at http://legalactioncenter.org/sites/default/files/2013-HQFO-00305_Document.pdf.

16-60

Example: Maria left the United States after a short visit abroad and returned after June 15, 2007. Upon returning, Maria was detained at the border and received an expedited removal order. The next day she was able to make it back into the United States. In this case, Maria will most likely not be eligible for DACA. Although her initial departure could clearly be labeled as brief, casual, and innocent, during her attempted reentry, she was ordered removed, thus making her second or overall departure not brief, casual, and innocent.

WARNING! Departures and reentries into the United States may trigger the unlawful presence or permanent bars under § 212 of the Immigration and Nationality Act. Although this will not be a problem for DACA, it may affect an applicant in the future. Advocates should discuss the disadvantages of applying for DACA if a client has triggered the 3 or 10 year bars, or the permanent bar. See Unit 3 for more information on these grounds of inadmissibility.

In addition to the continuous residence requirement, DACA also has strict travel guidelines. Anyone who travels outside the United States after August 15, 2012 and has not applied for or received deferred action will not be eligible for DACA. Example: Mary has not yet applied for DACA. She left the United States for one week to return home to Canada from September 1, 2012 to September 8, 2012. Regardless of the reason for or length of her departure, Mary is not eligible for DACA because her absence was after August 15, 2012.

§ 16.51 Educational Requirements for DACA To qualify for DACA, a person must meet a significant education requirement. There are four different ways someone can meet the educational requirement: 1. Someone who has graduated from high school automatically meets the educational requirement. When applying for DACA, the applicant can submit her high school diploma, certificate of completion, or a recognized equivalent of a high school diploma under state law. 2. Someone can meet the educational requirement by passing the General Educational Development (GED) exam and submitting a copy of the GED certificate. 3. Someone can qualify for DACA if she is currently enrolled in school or a qualifying educational program at the time of submitting her request. 4. Someone who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States may also qualify even if she is not a high school graduate or currently enrolled in school.

16-61

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

For some, the education requirement will be easy to meet because they graduated from high school and are in college, or are still in high school. For hundreds of thousands of others— especially many living in rural areas of the United States—the education requirement will be harder to meet because they did not attend or finish high school in the United States and now must attend school or obtain their GED certificate to qualify for DACA. A.

What Counts as “Current Enrollment?

To be considered “currently in school” under the guidelines, the applicant must be enrolled in school on the date she applies for DACA. In addition, the guidelines specify that to meet the “currently in school” requirement the applicant must be enrolled in one of the following programs:   

B.

A public or private elementary school, junior high or middle school, high school, or secondary school; An education, literacy, or career training program (including vocational training) that is designed to lead to placement in postsecondary education, job training, or employment and where the applicant is working toward such placement; or An education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a General Educational Development (GED) exam or other equivalent state-authorized exam. Which Schools/Programs Qualify?

Not all programs or schools offering GED courses, ESL classes, and career training programs will qualify the person for DACA. CIS wants to make sure applicants are enrolling in a reliable and effective course and not just taking private ESL classes from a neighbor. To qualify for DACA an applicant can enroll in only certain types of schools or programs. For instance, a personal enrichment class (such as arts and crafts) or a recreational class (such as canoeing) is not a qualified program for the purposes of DACA.119 Also, not every education, literacy, or career training program will qualify for purposes of DACA. It must be a program that is designed to lead to placement in postsecondary education, job training, or employment and the applicant must be working towards such placement. Most programs are designed this way and program administrators are willing to confirm this in their verification letter of enrollment. CIS in its Frequently Asked Questions (FAQs), under “Education” explains which schools qualify. Schools or programs will have to show either 1) they receive public funds, or 2) are of demonstrated effectiveness. If “such education, literacy, or career training program” is funded, in whole or in part, by public funds (federal, state, county, municipal), then it is a

119

DHS, National Standard Operating Procedures, 54, available at http://legalactioncenter.org/sites/default /files/2013-HQFO-00305_Document.pdf.

16-62

qualifying program for purposes of DACA.120 These include adult education programs and migrant education programs. Programs funded by other sources may qualify even if they are not funded by public funds if the program is of demonstrated effectiveness.121 There are many different factors that CIS will take into account to determine if a privately funded program is of demonstrated effectives, including:   

The duration of the program’s existence; The program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other state-authorized exam, or in placing students in postsecondary education, job training, or employment; and Other indicators of the program’s overall quality.

For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.122

§ 16.52 What Does an Approval of DACA Provide? Currently, deferred action under DACA is granted to eligible undocumented individuals for two years, with the possibility of renewal. While a person has deferred action, DHS will not pursue enforcement and will defer any action against the individual, thus protecting the individual against removal. DACA also provides the opportunity to apply for and obtain work authorization. Once work authorization is granted, an individual can work lawfully in the United States, obtain a Social Security number, open a bank account, and in most states apply for a state ID card and driver’s license. DACA recipients also may be able to travel outside of the United States for limited purposes, but will need CIS’ permission before doing so.123 However, DACA will not make individuals eligible for federal financial aid, benefits, or certain jobs that are reserved for U.S. citizens. DACA recipients are also not eligible to enlist in the military, because they are technically still undocumented immigrants.124

120

See CIS, DACA FAQs, Education, Questions 2, available at www.uscis.gov/humanitarian/considerationdeferred-action-childhood-arrivals-process/frequently-asked-questions#national security; DHS, National Standard Operating Procedures at 54, 59. 121 DHS, National Standard Operating Procedures, at 59. 122 DHS, National Standard Operating Procedures, at 59. 123 A DACA recipient’s ability to travel outside of the United States is limited, and requires the DACA recipient to request and receive permission from CIS through a process known as “advance parole,” before traveling. If a DACA recipient travels outside of the United States without advance parole, her deferred action will be terminated automatically. 124 However, H.R. 435 (Military Enlistment Opportunity Act of 2013) has been introduced in Congress and if that bill becomes law, DACA recipients will be able to join the military and as a result become lawful permanent residents and/or U.S. citizens. H.R. 435, available at http://thomas.loc.gov/cgibin/query/z?c113:H.R.435.

16-63

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

If a DACA request is filed before the applicant reaches age 18, the applicant will not accrue unlawful presence for purposes of INA §§ 212(a)(9)(B) and (C)(i)(I) (relating to the 3-and 10-year bars to reentry) while the DACA request is pending and once DACA is granted. Individuals that submit their DACA request when they are 18 years of age or older will only stop accruing unlawful presence once they are granted DACA, and not during the time that their request is pending.

§ 16.53 Renewal Process Beginning in September 2014, the initial two-year grants of deferred action for early recipients of DACA from CIS are due to expire. At the time of publication, CIS is preparing for the DACA renewal process. CIS anticipates publishing a new dual-use Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to allow for both initial and renewal requests. CIS will update the Frequently Asked Questions with additional information regarding DACA renewals.125

§ 16.54 Deferred Action in Sympathetic Cases Deferred action was an option available in compelling circumstances prior to the June 15, 2012 announcement of DACA, and continues to be an option for clients with compelling circumstances. DHS may place someone in the deferred action category either before or after a removal hearing. A person in deferred action may remain in the U.S. indefinitely (until taken out of this category). In some instances, she may be eligible for certain public benefits and for work authorization. DHS has taken the position that only ICE can adjudicate a request for deferred action, and ICE has indicated that it will only consider such a request when there is a law enforcement reason for keeping the person in the United States. This policy therefore severely restricts deferred action as a remedy, and advocates have been attempting to broaden this policy. With the implementation of DACA, it is unclear how ICE will react to requests for deferred action for other types of cases. Because deferred action is an extraordinary remedy, it should be pursued only when the client is not eligible for any other relief. Because deferred action is wholly discretionary, ICE can consider any positive or negative factor in the case. Therefore, you need to argue all positive facts in your case. As with any discretionary decision, ICE can deny the request. The consequence of a denial depends in large part on whether the client is in removal proceedings when he requests deferred action. If ICE does not yet know the person and the person applies for, and is denied deferred action, ICE might start removal proceedings. If ICE already knows the person because he or she is in

125

See CIS, Frequently Asked Questions, available at www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/frequently-asked-questions.

16-64

proceedings and then denies deferred action, there are fewer risks involved in applying for deferred action because DHS has already placed the applicant in proceedings. Example 16.54-a: Marcello, from Italy, is a gay man who entered as an LPR. He is deportable for having been convicted for possession for sale of a small amount of marijuana, after a jury trial. Marcello has been in the country for five years and has no relatives here. He is now ill with AIDS and his doctors say he is too sick to travel. He has health insurance and friends who have been caring for him. Is there a way for Marcello to stay here? Marcello is not eligible for any other relief. He has not lived in the U.S. long enough to be eligible for cancellation of removal, nor is there any other relief for which he could apply. Should Marcello request deferred action? Whether Marcello should apply for deferred action depends on whether he is already in removal proceedings or believes that ICE will become aware of his criminal offense. If Marcello has already come to ICE’s attention, he has little to lose in making a request for deferred action, although he is likely to be denied unless he can be useful to law enforcement. If Marcello has not yet come to ICE’s attention, it is important ask why he wishes to have deferred action—is it to get some sort of needed public benefit? Does he have anything to offer law enforcement? If not, the request would increase the risk of his removal without benefiting Marcello. In addition, Marcello still has his LPR status until it is taken away from him, so he should not apply for deferred action now. There is no specific form for a request for deferred action for cases such as Marcello’s. Include a history of the case and a full discussion of all positive factors of the case. Your client can help you assemble this argument. Make sure to attach relevant documents, such as medical information. After you have made the written request, follow it up with a personal visit to the ICE office to which you have directed the request to discuss the case. Make sure you speak to someone with authority who can make the decision or lead you to someone who can make it. Any evidence of community support or concern on a case may be of great assistance in persuading ICE. In a case that will receive publicity, you might want to wait until the publicity has reached ICE before making the application. See Unit 20 on Organizing Community Support and Negotiation with the DHS. Though ICE has stated it will not grant deferred action status unless there is a law enforcement reason to do so, since there are no statutory standards for deferred action, a case that might generate negative publicity for the government if it is denied could tip the balance your way.

16-65

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

§ 16.55 Private Bills Passed by Congress Congress has the power to pass legislation to benefit an individual person. Such legislation is known as a “private bill.” The bill might grant permanent residence, citizenship, a waiver, or some other remedy. This sounds great, but in reality it is difficult to get Congress to pass one of these bills. Less than 1% of these bills have succeeded in the past. However, the AEDPA and IIRIRA have made immigration law so harsh and created so much hardship for U.S. citizens and others who will lose family members that private bills have become much more important. There are two advantages to lobbying a representative for a private bill, if the case is sympathetic and you bring strong support: 1. It is conceivable that you might win (or, even if you do not win a private bill, the legislator might lean on the local ICE to get some kind of discretionary assistance), and 2. You can educate the representative about the realities of how the laws affect immigrants, for everyone’s future benefit. The second reason is very relevant for purposes of advocacy. Suspension of deportation, which became § 240A(b) cancellation of removal, was created by Congress because Congress was overrun by requests for private bills. Rather than deal with requests on a case by case basis, Congress enacted cancellation of removal to provide way of relief for people whose departures would result in hardships for remaining family members. Advocates can highlight the need for immigration reform by once again bringing a multitude of cases to the attention of lawmakers. A private bill can be introduced in either the U.S. Senate or the House of Representatives. To start the process, you and the client should approach your local Congressperson or Senator with the facts of the case. If the member of Congress is interested, she will introduce the legislation. A subcommittee reviews the bill. Both the House and the Senate must pass the bill, and then the President decides whether or not to sign it and make it law. You are likely to be more successful if your case is sympathetic and if you have strong community support. A Congressperson will be more swayed if there is pressure on that person from representatives of churches, the local human rights commission, a community center, a mayor or city councilperson, or other local centers of power. See Unit 20 on community organizing and negotiation. During this process, there is not an automatic stay of removal unless, at some point, a Committee of the House or Senate requests a report from ICE on the case.

16-66

APPENDIX 16-A SAMPLE AFFIDAVIT IN SUPPORT OF REGISTRY CASE

Affidavit of Reverend Joseph Rector I, Joseph Rector, do hereby declare that 1. My name is Reverend Joseph Rector. I reside at 2144 Beatty Drive, Seattle, Washington. My telephone number is (206) 821-9999. I am a native born U.S. citizen. 2. I am writing this statement on behalf of Mrs. Li Chen Low who is applying to adjust to a lawful permanent resident. I am willing to testify by telephone or in person, if requested to do so. 3. I am Pastor of the All-Saints Chinese Episcopal Church in Seattle, and I have held that position since July 3, 1986. When I first arrived in Seattle in July of 1986, one of the first parishioners that I met was Mrs. Low, who is active in a variety of church committees and in our charitable work. In fact, Mrs. Low is one of our most devoted parishioners. She has engaged in projects including our annual holiday food drive, fund-raising for our summer camps for youths, and visits to nursing homes. She is a woman of exceptional integrity. 4. I know that Mrs. Low has not left the U.S. in the past four years, because I have seen her at church twice a week every week during that time. I always remark to her about her regular attendance. I declare and affirm under penalty of perjury that the information in this affidavit is true and correct to the best of my knowledge and belief Dated October 17, 1990

_____________________ Rev. Joseph Rector 2144 Beatty Drive Seattle, Washington

Appendix 16-A-1

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-1

Appendix 16-B-2

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-3

Appendix 16-B-4

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-5

Appendix 16-B-6

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-7

Appendix 16-B-8

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-9

Appendix 16-B-10

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-11

Appendix 16-B-12

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-13

Appendix 16-B-14

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-15

Appendix 16-B-16

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-B-17

Appendix 16-B-18

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

June 21, 2013 Ms. Leslie Ungerman, Chief Counsel Office of the Chief Counsel 120 Montgomery Street, Suite 200 San Francisco, CA 94104 Via Hand Delivery RE: Request for Prosecutorial Discretion [Name XXX A#XXXX] Dear Ms. Ungerman: I am writing to request that the Department of Homeland Security (“DHS”) exercise discretion and move to administratively close proceedings in the case of my client, XXXX, due to the hardship and harm his removal would cause his family, in particular his United States citizen daughter, his partner and United States citizen sister and extended family members, and due to the strong equities that exist in Mr. XXXX's case. As shown by the many letters of support from family, friends, clergy, and employers, Mr. XXXX is a well-respected and vital member of his community. We ask that given all of the factors in this case, Mr. XXXX be considered a low priority for removal pursuant to the most recently issued policy from the White House. I.

Mr. XXXX’s Case Merits Prosecutorial Discretion

Mr. XXXX's case merits the exercise of prosecutorial discretion. As stated by ICE Director John Morton in the June 17, 2011 Memorandum on “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” ICE personnel should regularly exercise prosecutorial discretion to further agency objectives. Such discretion includes exercising prosecutorial discretion and involves the consideration of a number of relevant factors. Many of these factors apply to Mr. XXXX’s case: 

The agency’s civil immigration enforcement priorities

ICE civil immigration enforcement priorities are outlined in the March 2, 2011 Memorandum titled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (see –2011 memo--). This memo emphasizes the importance of “promot[ing] the agency’s highest enforcement priorities, namely national security, public safety, and border security” through the removals it conducts. Pursuing removal proceedings against Mr. XXXX is wholly inconsistent with these priorities. This memo specifically discusses the heightened need “for ICE employees to exercise sound judgment and discretion consistent with these priorities when… litigating cases.”

Appendix 16-C-1

 

Whether the person has a U.S. citizen or permanent resident spouse, child, or parent Whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative

Mr. XXXX is the primary provider for his United States citizen daughter, Emily XXXX, who will turn four in July. See Tabs A, B, E and I. As detailed in Mr. XXXX’s statement and those of his family and friends, Mr. XXXX is a very devoted father to his daughter. See Tabs A, E. Moreover, he is the sole economic provider for his daughter and partner. Id. His partner states “Because of this I describe him as a responsible father, humble, very dedicated to his work. He, to my daughter and to me, is our whole life and without him I do not know what we would do.” See Tab E. His sisters details how they were abandoned by their parents as young children, how Mr. XXXX has overcome many obstacles to escape the violence of their home country and how much the family now here in the United Stets will suffer without him. Id. Mr. XXXX’s friend since childhood writes “that he is a person who is very religious, he helps at the church with his wife and daughter.” Id. Additionally, Emily’s mother and Mr. XXXX’s partner, XXXX, underwent eye surgery and continues to require follow up case. See Tab A, D and E. If Ms. XXX requires additional care, Mr. XXXX will once again be the one who provides all child care for their daughter. 

The person’s ties and contributions to the community

Mr. XXXX has strong community ties. See Tabs A, E-I. His pastor writes that Mr. XXXX “is a faithful person with good morals; he is honest and responsible. He attends regularly to Sunday Mass.” See Tab F. A recent employer notes that “not only is he excellent at his job, but he also he is courteous and respectful to fellow employees. It has been a pleasure to work with him as everyone on site can count on him to work hard and always come to work with a positive attitude.” See Tab G. Another writes “I’ve gotten to know Mr. XXXX I have been extremely impressed with his work ethic, determination and pride he takes in his job…I’m please to write this letter in determination of residency and wish that more people would be like him.” Id. 

Entrance at young age

Mr. XXXX entered the United States in 2006 at the age of 18 and has resided in the United States since that time. 

The person’s ties to the home country and conditions in the country

Mr. XXXX came to the United States at the age of 18 and his family and entire support network, is here in the United States. He fled Guatemala to escape the violence hunger, poverty and threats that he received while living there. He has no remaining connections to the Philippines, as he has not lived there since the age of 18. The United States State Department 2012 Human Right Report notes that “Principal human rights abuses included widespread institutional corruption, particularly in the police and judicial sectors; police and military involvement in

Appendix 16-C-2

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

serious crimes, including unlawful killings, kidnapping, drug trafficking, and extortion; and societal violence, including violence against women and numerous killings.” See Tab K. In addition, the report notes that conditions for women and children remain dangerous and concerning. As Mr. XXXX is the primary provider for his daughter, she would likely have to relocate to Guatemala if he is not allowed to remain in the United States and will be vulnerable to the violence and harm detailed in the State Department report.  

The person’s criminal history The person’s immigration history, including an prior removal, outstanding order of removal, prior denial of status, or evidence of fraud

Mr. XXXX has no criminal convictions whatsoever. His sole arrest from February of 2012 for resisting arrest was dismissed in the interest of justice, as it appears that he was mistaken for another individual. See Tabs A and J. As for his immigration history, he entered the United States without inspection in 2006 at the age of 18 and has not left since that time. He apologizes for having entered the country without permission but did so to escape the violence he faced at home and create a better life. Mr. XXXX has remained in the United States to remain safe and so that his United States citizen daughter is safe, has all that she need and as many opportunities to succeed as possible. II.

White House’s Policy Regarding Prosecutorial Discretion

On August 18, 2011, the White House publicized a new policy directing immigration authorities to review all of its cases in removal proceedings and exercise prosecutorial discretion in cases that were low priority for removal. The White House recognized that there are more than 10 million people in the U.S. without documentation and that it does not have the resources to deport such a large number of people. In its policy, the White House announced the individuals who were low priority for removal would include those who were brought to this country as small children, those with strong ties and contributions to the community, those with family relationships in the U.S., and those who served in the military. The White House stated that it would make a case-by-case determination to focus its enforcement resources on including individuals who have been convicted of serious crimes. Mr. XXXX has no criminal convictions at all. He has dedicated himself to providing for his family and community. Mr. XXXX has strong community ties and is providing evidence that if he were deported his family and community would suffer greatly. We ask that Mr. XXXX be considered under the current initiative and that the government exercise its discretion favorably in this case. III.

Conclusion

These factors, taken together, demonstrate that Mr. XXXX is a strong candidate for the exercise of prosecutorial discretion. Given the totality of the circumstances in this case, pursuing removal is not in the public interest or in accordance with ICE priorities for removal and we ask that you exercise prosecutorial discretion and move to administratively close these proceedings. Mr.

Appendix 16-C-3

XXXX should be considered a prime candidate for the White House’s recent policy initiative regarding low priority cases. Thank you for your attention to this matter and please contact me with any questions or concerns at (415) 392-6161 ex. 303 or by email at [email protected]. Sincerely,

Law Offices of Stanton and Kaufman 400 Montgomery Street, Suite 810 San Francisco, CA 94104 Phone: 415-392-6161 ex. 303 Fax: 415-392-2044 Email: [email protected] Enclosures/ 1. Index and Supporting Documents in Support of Prosecutorial Discretion Request

Appendix 16-C-4

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-D-1

Appendix 16-D-2

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-D-3

Appendix 16-D-4

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-D-5

Appendix 16-D-6

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

APPENDIX 16-E Sec. 249 INA & Sec. 101-A-19 INA Excerpted from the IMMIGRATION AND NATIONALITY ACT INA: ACT 249 RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN THE CASE OF CERTAIN ALIENS WHO ENTERED THE UNITED STATES PRIOR TO JULY 1, 1924 OR JANUARY 1, 1972 Sec. 249. [8 U.S.C. 1259] A record of lawful admission for permanent residence may, in the discretion of Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of as the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under section 212(a)(3)(E) or under section 212(a) insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he(a) entered the United States prior to January 1, 1972; (b) has had his residence in the United States continuously since such entry; (c) is a person of good moral character; and (d) is not ineligible to citizenship and is not deportable under section 237(a)(4)(B).1/ FOOTNOTES FOR SECTION 249 INA: ACT 249 FN 1 FN 1 Amended by § 308(g)(10)(B) of IIRIRA. INA: ACT 101 — DEFINITIONS Sec. 101. [8 U.S.C. 1101] (a) As used in this Act(19) The term “ineligible to citizenship,” when used in reference to any individual, means, notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States under section 3 (a) of the Selective Training and Service Act of 1940, as amended (54 Stat. 885; 55 Stat. 844), or under section 4(a) of the Selective Service Act of 1948, as amended (62 Stat. 605; 65 Stat. 76) 50 U.S.C. App. 454, or under any section of this Act, or any other Act, or under any law amendatory of, supplementary to, or in substitution for, any of such sections or Acts.

Appendix 16-E-1

Appendix 16-F-1

Unit 16

A Guide for Immigration Advocates April 2014

Unit 16

Immigrant Legal Resource Center April 2014

Appendix 16-G-1

UNIT SEVENTEEN NATURALIZATION AND ACQUISITION AND DERIVATION OF CITIZENSHIP FOR CHILDREN

Tab Position 1

A Guide for Immigration Advocates April 2014

This Unit Covers: Requirements for naturalization; Procedure for applying for naturalization; Acquisition of citizenship; Derivative citizenship; Loss of citizenship.

Unit 17

    

This Unit Includes: § 17.1 § 17.2 § 17.3 § 17.4 § 17.5 § 17.6 § 17.6(a) § 17.6(b) § 17.6(c) § 17.7 § 17.8 § 17.9 § 17.10 § 17.11 § 17.12 § 17.13 § 17.14 § 17.15 § 17.16 § 17.17 § 17.18 § 17.19 § 17.20 § 17.21 § 17.22 § 17.23 § 17.24

What Is Naturalization? .................................................................................... 17-2 Advantages and Disadvantages of the Naturalization Process ......................... 17-2 The Nine Requirements .................................................................................... 17-4 Lawful Permanent Resident Status: INA § 318 ............................................... 17-4 Age: INA § 334(b) ........................................................................................... 17-5 Residence: INA § 316 ...................................................................................... 17-5 Abandonment of Residence: Losing One’s Status as an LPR ........................ 17-12 Special Exception: Nationals of the United States ......................................... 17-15 Special Exception: People Serving in the U.S. Armed Services .................... 17-15 Good Moral Character: INA § 316(a)(3)........................................................ 17-18 Temporary Bars to Naturalization .................................................................. 17-23 Permanent Ineligibility for Naturalization...................................................... 17-24 English Language: INA § 312(a)(1) ............................................................... 17-25 U.S. History and Government: INA § 312(a)(2) ............................................ 17-28 Belief in the Principles of the U.S. and the Oath of Allegiance: INA § 316(a)(3) ...................................................................... 17-29 Step One: The Application ............................................................................. 17-31 Step Two: The Interview and Naturalization Application.............................. 17-32 Step Three: The Final Hearing and the Oath of Allegiance ........................... 17-33 Contested Naturalization Proceedings............................................................ 17-33 Overview of Acquisition and Derivation of Citizenship ................................ 17-34 Introduction to Acquisition of Citizenship ..................................................... 17-34 Who Can Acquire Citizenship at Birth outside of the U.S.? .......................... 17-35 How to Use the Charts.................................................................................... 17-36 Documenting a Claim of Acquisition of Citizenship ..................................... 17-39 Acquisition of Citizenship Exercises ............................................................. 17-40 Derivation of Citizenship ............................................................................... 17-41 Who Can Derive Citizenship .......................................................................... 17-41

17-1

Unit 17

§ 17.25 § 17.26 § 17.27 § 17.28 § 17.29 § 17.30 § 17.31 § 17.32 § 17.33 § 17.34

Using the Chart to Determine Derivative Status ............................................ 17-41 Child Citizenship Act of 2000 ........................................................................ 17-43 Submitting an Application for and Documenting a Claim of Derivative Citizenship................................................................................ 17-44 How to Appeal a Denial of a § 320 Citizenship Application ......................... 17-45 Section 322: Citizenship for Children ............................................................ 17-45 Introduction to Loss of Citizenship ................................................................ 17-48 Expatriation .................................................................................................... 17-48 Denaturalization: INA § 340 .......................................................................... 17-50 Denaturalization Proceedings: INA § 340 -- 8 CFR § 340.2.......................... 17-51 Practice Questions .......................................................................................... 17-51

PART ONE: INTRODUCTION TO NATURALIZATION Lucy has been a lawful permanent resident since 1985. She is a citizen of Australia. She is very concerned about local politics and wants to vote in elections. She also wants to help her mother immigrate.

§ 17.1 What Is Naturalization? Lucy can achieve both of her goals if she becomes a U.S. citizen. The process by which a lawful permanent resident becomes a citizen is called naturalization. In order to naturalize, a lawful permanent resident has to meet certain requirements which are set forth in the Immigration and Nationality Act (INA).

§ 17.2 Advantages and Disadvantages of the Naturalization Process The idea of becoming a U.S. citizen means different things to different people. Some people want to become U.S. citizens out of a sense of pride in the U.S., a desire to ensure that they never will be deported, or because they want jobs that lawful permanent residents cannot hold. Others want to be U.S. citizens for political reasons and to participate in civic institutions. Other people may oppose the idea of naturalizing for social, political, or cultural reasons. For almost everyone the subject is an emotional one. You must recognize this when counseling clients about naturalization. Talk with your client about the advantages and disadvantages of naturalization and listen carefully to her views on the subject. Ultimately, it is her decision whether or not to apply. To help you focus a discussion on naturalization, here are some of the major advantages and disadvantages of naturalization:

17-2

Tab Position 1

Immigrant Legal Resource Center April 2014

A.

Advantages

B.

Disadvantages 1. A client who decides to become a citizen of the United States might or might not lose her citizenship in her native country. Some countries allow dual citizenship. 2. Some countries restrict foreign ownership of property. For example, a client who owns land in her home country may lose it if she becomes a U.S. citizen. Many clients are aware of such laws. Together with your client you should see if this could be a problem in her situation. 3. The naturalization process can be scary for clients. The Citizenship and Immigration Service (CIS) interview and examination, for example, might make some people very nervous. In addition, practicing for the English requirement may be time-consuming and cause tension for some people. 4. Some naturalization applicants could actually lose their green cards (lawful permanent residence) and be placed in removal proceedings. This could be the case if someone applied for naturalization but fell within the grounds of deportability, or because the person committed fraud to obtain her green card. The grounds of deportability or fraudulent receipt of the green card might only come to the attention of the CIS or ICE if the client applies for naturalization. For some clients, it may be best not to apply for naturalization.

PRACTICE TIP: If your client is unsure about whether or not to apply for naturalization, encourage her to make a list of the advantages and disadvantages in her own case. On a sheet of

17-3

Unit 17

1. A U.S. citizen has the right to vote in elections. Elections help shape policy of the U.S. government. The more immigrants vote, the more influence immigrants will have over elected officials and over policies such as immigration, the rights of minority groups, and foreign affairs. 2. Only a U.S. citizen has the right to hold public office and the right to apply for federal employment and certain state government jobs. 3. A U.S. citizen can petition for more family members through the immigration system than a lawful permanent resident. In most cases the waiting lists are shorter for U.S. citizen petitioners. See Unit 4. 4. U.S. citizens cannot be placed in removal proceedings nor removed from the U.S. Although a U.S. citizen can lose her citizenship under certain conditions, it is very difficult to do so. In contrast, lawful permanent residents can be placed in removal proceedings and removed. 5. U.S. citizens can leave the United States and live in another country for as long as they want. In contrast, lawful permanent residents who move and live outside of the U.S. can lose their legal status if they “abandon” their residence in the U.S. 6. Traveling in some foreign countries may be easier for U.S. citizens. 7. Often a U.S. citizen is eligible for more kinds of public benefits than a permanent resident.

Tab Position 1

A Guide for Immigration Advocates April 2014

paper make two columns, one labeled advantages (or “pros”) and the other labeled disadvantages (or “cons”). Writing the factors down helps people visualize which side weighs more heavily.

Appendix 17-C contains a fact scenario, which you will use at your next training session to analyze the advantages and disadvantages of applying for naturalization.

Unit 17

PART TWO: NATURALIZATION REQUIREMENTS § 17.3 The Nine Requirements An applicant must meet nine requirements, found in INA §§ 312 through 336, to become a U.S. citizen. The person must:         

Be a lawful permanent resident; Be at least 18 years old; Have good moral character for the last five years (see below for exceptions for those married to U.S. citizens and those serving in the military), keeping in mind certain specific “bars” to naturalization; Be able to read, write, and speak basic English; Be able to pass a test on U.S. history and government; Have been residing in the U.S. as a permanent resident for at least the last five years (see below for exceptions for those married to U.S. citizens and those serving in the military); Have been physically present in the U.S. for at least half of the five year period (see below for exceptions for those married to U.S. citizens and those serving in the military); Not have disrupted her continuous residence in the United States for any of the last five years (see below for exceptions for those married to U.S. citizens and those serving in the military); and Believe in the principles of the U.S. Constitution and take an oath of loyalty to the United States, administered by the CIS or a court in a naturalization ceremony.

Each of the requirements is discussed below.

§ 17.4 Lawful Permanent Resident Status: INA § 318 To apply for naturalization, an applicant must have a “green card”—either an I-551 or I151. (Please note that as of March 20, 1996, the I-151 expired.) There is an important exception for noncitizens who served honorably in active duty with the U.S. armed forces during certain times of war. Such people can be naturalized without first becoming permanent residents. The law requires that they must have enlisted in the U.S. or a qualifying territory when they joined the military. A list of the military conflicts that qualify is

17-4

Tab Position 1

Immigrant Legal Resource Center April 2014

found in INA § 329. This list includes the “War on Terror,” which covers people serving from September 11, 2001 and thereafter until the President declares the conflict over. (Please see the ILRC’s manual, Naturalization and U.S. Citizenship: The Essential Legal Guide for more information on this topic.)

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 17.5 Age: INA § 334(b)

§ 17.6 Residence: INA § 316 A naturalization applicant must have resided in the United States as a lawful permanent resident for a certain period of time before she can apply for naturalization. While the general rule is five years of residence, there are several exceptions. Overly long trips outside the United States can “break” or “disrupt” the required period of residence. This section will discuss the periods of residence required in different cases, how to deal with a client’s long visit outside the United States, and application times. A.

Length of Required Residence

In general, a naturalization applicant must have resided in the United States for at least five years as a lawful permanent resident. Residence is defined in INA § 101(a)(33) as “general abode and principal dwelling place.” In addition, she must have lived in the CIS district or state where she files the application for at least three months. Also, the applicant must maintain a residence in the U.S. from the time she petitions until she is admitted to citizenship, though she is not required actually to be physically present during this time. Thus, she is allowed to leave the U.S. for a visit to another country while waiting for her naturalization interview. This requirement of living in the U.S. prevents a commuter alien from naturalizing, because although he may have had a green card for five years, unless he makes his home in the U.S., he has not met the residence requirement. There are exceptions to the five-year residency requirement. The spouse of an U.S. citizen only needs to have lived in the United States for three years as a lawful permanent resident. She must have been married to and living with the U.S. citizen for the entire three years, and her spouse has to have been a citizen for the entire three years. The marriage must of course be a valid marriage. Refugees and asylees are also covered by a special rule. Refugees are not eligible for lawful permanent resident status until they have been in the U.S. for a year, and asylees cannot

17-5

Unit 17

An applicant must be at least 18 years old to file an application for naturalization. INA § 322 created a special rule allowing some children of U.S. citizens who are unmarried and living outside the U.S. to obtain a certificate of citizenship. Please see below for more information on the § 322 process allowing a child to become a U.S. citizen.

apply for lawful permanent resident status until one year after their asylum applications are approved. Under rollback, a refugee can start counting her five years from the date that she arrived in the United States, and an asylee can start counting from one year before her application for lawful permanent residence was approved.

Unit 17

Example 17-6-b: Joseph, from Sudan, was admitted as a refugee to the U.S. in November of 2011. He became a permanent resident in 2013. Joseph will be eligible to naturalize five years from his entry date into the U.S. because the date he adjusted status to that of a permanent resident is “rolled back” to the date he entered the U.S. Thus, Joseph is eligible to naturalize in 2016. Ana, from Guatemala, entered the U.S. without inspection and was granted political asylum in 2008. Her application for adjustment of status was approved in 2011. Ana will be able to qualify for naturalization in 2015, four years after she adjusted status to that of a permanent resident. In addition, special rules apply to U.S. nationals (see § 17.6(b), below) and to some persons who are or were in the U.S. military (see § 17.6(c), below). B.

Disrupting or “Breaking” Residence by Long Absences from the United States 1. The rules on when residence is “disrupted” for naturalization

Whether the residence requirement is five years, three years, or some other period, the law requires that the applicant must not have “disrupted the continuity of her residence” in the U.S. This means showing that she has maintained her home in the United States. Various legal terms refer to this disruption of residence. While the CIS has referred to this concept since 1993 as “disruption of continuity of residence,” in the INA it is called by its previous name, “abandonment of residence.” In addition, for simplicity’s sake many advocates talk to clients about a “break” in the residence. It is best to be familiar with all terms, and to know that they mean exactly the same thing. It is also important to distinguish between “abandonment of residence” for naturalization purposes and the “abandonment of residence” that may lead to the loss of lawful permanent resident status. This second meaning of abandonment of residence is discussed in detail in § 17.6(a), following this section. Disrupting continuous residence means that the applicant has failed to reside continuously in the U.S. because he has taken a trip abroad for a certain period of time. The CIS looks at three different time frames to determine if an applicant has disrupted the continuity of residence: 1. Trips abroad for six months or less. If a person has left the U.S. for a trip lasting less than six months, disrupting continuous residence is not an issue.

17-6

Tab Position 1

Immigrant Legal Resource Center April 2014

2. Trips abroad for more than six months but less than one year. For trips of this length, the CIS will presume that the applicant has disrupted the continuity of her residence UNLESS she can prove that she did not disrupt her residence. To prove that she did not disrupt the continuity of her residence, the applicant should provide evidence of as many of the following facts as possible: the applicant did not terminate her employment in the U.S; the applicant’s immediate family remained in the U.S. while she was abroad; the applicant retained full access to her home in the U.S; and the applicant did not find new employment while she was abroad.

The types of documents that an applicant might use to show she did not disrupt her residence include: bank statements, tax returns, proof of insurance, car registration, rent receipts, house payments, membership in organizations, and school records. Note: Despite the rule above, in practice some CIS offices do not require that an applicant submit evidence that the applicant has not disrupted her continuous residence based on an absence of more than six months but less than twelve months. These offices often presume that there was not a disruption or they believe the applicant’s statements about the absences that the applicant makes during the interview. Other CIS offices, however, might presume the applicant did disrupt his or her residence and will demand evidence from the applicant about the issue. Example: Sam Wong, a citizen of Hong Kong, was granted lawful permanent residence under the amnesty law in 1989. Sam is eligible to apply for naturalization. While Sam and Alex the Advocate, who is helping Sam apply for naturalization, were discussing the requirements for naturalization, Sam told Alex that on April 15, 2013, he left the U.S. to return to Hong Kong and did not return to the U.S. until December 20, 2013 (a total of eight months). Alex carefully re-explained the concept of disruption of continuity of residence and the types of proof the CIS will look for to determine whether or not Sam disrupted his residence. After discussing the topic together for some time, Sam came up with the following ideas for proof: a letter from Sam’s employer showing that Sam was given a leave of absence and did not quit his job; school records showing his children continued going to school in the U.S. while Sam was away; pay stubs showing his wife worked in the U.S. while he was away; a letter from the landlord and rent receipts showing that his family continued paying the rent for the apartment while Sam was away; and affidavits from people explaining that Sam’s visit to Hong Kong was to see his parents whom he had not seen for many years; and that the visit was indeed temporary in nature.

PRACTICE TIP: If the CIS claims an applicant disrupted her continuous residence because of an absence of more than six months but less than twelve months long, an advocate must be able to work with her client to get the best evidence possible. The advocate must take the time to 17-7

Unit 17

   

Tab Position 1

A Guide for Immigration Advocates April 2014

discuss thoroughly with the client the concept of disruption of the continuity of residence, as well as what kinds of proof will be most helpful. Below is a sample explanation that an advocate might use.

Unit 17

In order to qualify for naturalization, you must show you lived in the U.S. for five years as a permanent resident. The five years has to be continuous, that is without any big breaks, or long absences. If you did have a long absence then the CIS might call this “disrupting your residence.” We often call it “breaking your residence.” If the CIS believes that you have broken or disrupted your residence, then you will lose your case. If you lose your case, you might be able to re-apply later. But the CIS may also find that you have broken your residence in such a way that you have lost your permanent residence status (i.e., your green card). The rule is that if you never left the U.S. for more than six months at a time, then you never broke your residence. If you left for more than one year, then you automatically broke your residence for naturalization unless you fall into an exception to the rule that is described below. If you were gone for more than six months, but less than one year, we will have to show the CIS that you didn’t really break your residence.1 This is a requirement because the CIS wants people to become U.S. citizens only if they have been living in the U.S. during the past five years. The CIS thinks this will give people more time to learn English and U.S. history and government, as well as show they can follow the laws in the U.S. Additionally, the CIS thinks this requirement will make it so people who naturalize will be more likely to become part of the culture in the U.S. You and I may not necessarily agree that it’s good to have this requirement, but it is here and we have to work with it. We will have to work together to show that you did not break your residence. We must try to show the CIS that your absence was only temporary and that you kept ties with the U.S. For example, we could show that you didn’t permanently stop the job you had in the U.S. while you were away. Instead, maybe you had an agreement with your boss that she would keep it open for you. Also, we could try to show that while you were gone, your family stayed in the U.S., and that you did not work while you were gone. It would be helpful if we could show the CIS that kept your same apartment or house while you were away. We do not need to show all these things, but the more we can show the better. The major concerns are: your job, your family, your house or apartment, and anything else showing you kept roots here and were abroad temporarily. Do you have                                                              1

At this point in time, the advocate should draw a chart of the possibilities for the client. The chart could be something like this: 1. Gone for six months or less, you don’t need to worry about anything. 2. Gone for more than six months but less than one year, you’ll have to prove you didn’t disrupt your residence or else you will have to wait five years to apply for naturalization. 3. Gone for one year or more, you can’t qualify for naturalization for four years and a day from when you returned to the U.S.

17-8

Tab Position 1

Immigrant Legal Resource Center April 2014

any questions or anything to add? Now let’s go over these things one by one and together we can come up with ideas of how to prove them.

Example: Thorsten became a lawful permanent resident in 1985. He filed his naturalization application on September 15, 2013. Therefore, he must show five years of continuous residence from September 15, 2008 to September 15, 2013. Thorsten was absent from the U.S. for more than one year when he returned to Germany to take care of his sick mother. Although he only intended to be gone for a few months until his mother recovered, the illness lasted longer and was more serious than he expected. He was absent from the U.S. from July 10, 2007 to December 3, 2009. Although Thorsten was absent for well over one year, he did not disrupt his continuous residence because for disruption of residence the CIS only looks at his absence from September 15, 2008 and later. Starting from September 15, 2008, he was absent for less than three months. Thus, he was eligible for filing on September 15, 2013. (Hopefully, the CIS will find that there was no abandonment of residence for lawful permanent residence purposes either, since Thorsten’s intent was to be gone only for a few months, but his mother’s illness forced him to prolong his stay).

NOTE: A person who has disrupted continuous residence by an absence of more than one year will not have to establish another full five years of continuous residence in order to qualify for naturalization, but will only have to wait for four years and one day. This is because CIS permits a person to be absent for up to 364 days at a time without automatically breaking the continuity of residence. Therefore, a person who has been a lawful permanent resident for at least five years, but who disrupted her continuous residence during the five-year period because she was absent for one year or longer during that period, only has to wait four years and one day after the date she returns to the U.S. in order to apply for naturalization.

Example: Marta was lawfully admitted for permanent residence in May 1996. Marta wants to apply for naturalization on April 1, 2014. In talking about the requirements for naturalization with her advocate, Marta states that she took a trip to Chile, leaving on February 15, 2012 and returning to the U.S. on May 3, 2013. If she files her application with the CIS on April 1, 2014, Marta must show a five-year period of continuous

17-9

Unit 17

3. Trips abroad for one year or more. Trips of this length will always disrupt the continuity of residence, unless the applicant qualifies for a very narrow exception, described below. Unlike with trips lasting more than six months and less than one year, the CIS will not consider where the applicant worked, where her family remained, or whether she had full access to her home for absences of one year or longer. Remember that for this requirement, the CIS is only concerned about the portion of the absence that falls within the five-year period immediately before the applicant applies for naturalization.

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

residence from April 1, 2009 to April 1, 2014. Marta was absent for more than one year during this five-year period. From February 15, 2012 to May 3, 2013 (her return to the U.S.), she was in Chile, and this time period is a total of more than 14 months. Because Marta has disrupted her continuous residence, she must start counting her continuous residence from the date she returned to the U.S., which was May 3, 2013. However, Marta only needs to wait four years plus one extra day before filing. Therefore, the earliest date Marta could be eligible to apply for naturalization is May 4, 2017. This special rule also applies to applicants who are married to a U.S. citizen and can apply for naturalization under the three-year residence requirement. If the applicant has been a permanent resident for at least three years, but has disrupted her continuous residence because she was absent for one year or longer, she may file her naturalization application two years plus one day after she returns to the U.S. from a trip that disrupted continuous residence. Example: Laura Huang has been a permanent resident since September 17, 2009. She has been married to a U.S. citizen since that time. Laura took a trip to visit her ill grandfather in China from December 12, 2011 through January 3, 2013. Laura and her lawyer determine that although she did not abandon her permanent residence during her stay in China, she did disrupt her continuous residence because she was absent from the U.S. for nearly 13 months. Under the rules, Laura must start counting her continuous residence from the date she returned to the U.S., which was January 3, 2013. However, because she is married to a U.S. citizen, Laura only needs to wait two years plus one extra day before filing. Therefore, the earliest date Laura can file her naturalization application is January 4, 2015, two years and a day after she returned to the U.S. 2. Exceptions to the rules on disruption of residence Certain narrow exceptions to the continuity of residence requirement can help even persons who have remained outside the U.S. for a year or more. Employees of the U.S. government, certain American research institutions, certain U.S. companies, certain public international organizations, or certain people performing religious duties are not subject to this rule. To qualify they must have lived in the U.S. as lawful permanent residents for at least one year, and they must go through a process of preserving their residency while abroad. Under this process, an applicant must file form N-470 (Application to Preserve Residency for Naturalization). In some very limited circumstances, some involuntary absences may be regarded as not having caused an applicant to have disrupted her residence for naturalization purposes. Also, someone who is absent from the U.S. while on active duty with the armed forces will not be found to have disrupted her residence even if the absence was for more than one year. There is a separate naturalization provision for lawful permanent residents whose spouses are 1) U.S. citizens; 2) employed by the U.S. government, certain American research institutions, certain American firms or corporations engaged in international trade, or certain public international organizations, or who are performing certain religious or missionary duties; and 3)

17-10

Tab Position 1

Immigrant Legal Resource Center April 2014

regularly stationed abroad in employment. People who fall under this provision may be naturalized without any prior residence in the U.S. or specified period of physical presence in the U.S. or within a state or CIS district. It is also required that at the time of naturalization the applicant intends to reside abroad with the citizen spouse within thirty to forty-five days after the date of naturalization. For more information on this provision for spouses of U.S. citizens, please see INA § 319(b) and 8 CFR § 319.2.

WARNING: A Reentry Permit alone may not prove that a person did not disrupt her residence for naturalization purposes, but it can prove one did not abandon her residence.

In addition to the residence requirement, there is a physical presence requirement for naturalization applicants. To qualify for naturalization, an applicant must have been physically present in the United States for at least half (30 months) of the five-year residence period discussed above. The spouse of a U.S. citizen only needs to have been here for half of the threeyear residence period (18 months). Example 17.6-c: Mary was denied naturalization because during the last five years (60 months) she only has lived in the U.S. for 24 months. Mary must wait and reapply when she has lived in the U.S. for at least 30 of the 60 months prior to the time she reapplies.

PRACTICE TIP: The issues of residence and physical presence will come up in the Naturalization Application (N-400), which asks the applicant to list all absences from the U.S. Before reviewing this question with your client, discuss the residence and physical presence requirements with him in some detail. Often it is difficult for someone to remember how long he was out of the country. Discussing events in the client’s life often helps jog the memory and allow a more accurate time sequence to be established. Referring to the applicant’s passport or any reentry permits she used is also helpful for recalling dates of absences from the U.S. This also helps establish consistency because the CIS might ask to look at the passport. CIS officials will probably have all of her old reentry permits and may compare the information on the reentry permits with the absence information on the naturalization application. In cases where the dates are critical, the legal worker should file a

17-11

Unit 17

For spouses and children of U.S. Armed Forces members who are authorized to accompany their military spouse or parent abroad, all periods of residency and physical presence abroad while accompanying the spouse or parent will be treated as periods of residency and physical presence in the United States for naturalization purposes. Such spouses and children may also take the oath of citizenship and become naturalized abroad. However, these applicants do not have to be abroad at the time the adjudicator makes the determination. For special naturalization rules that apply to persons who are in the military, see § 17.6(c), below.

Tab Position 1

A Guide for Immigration Advocates April 2014

Freedom of Information Request (FOIA) to obtain a copy of the client’s CIS file, which should include any old reentry permits.

Unit 17

Example 17.6-d: Antonia could not remember how long she was out of the country nor could she remember the date she left. Her attorney explained the physical presence requirements to Antonia to help her understand why the information was important and then asked her questions about what time of year she traveled and why. Antonia did remember she left before Christmas and was back in the U.S. for the three-day weekend of Presidents’ Day, so she and her attorney were able to figure out the dates. By being better informed, clients can work more effectively with their attorneys and also perform better during their CIS naturalization interview. C.

An Applicant May File a Naturalization Application up to Three Months before Completing the Required Period of Residence

A person may file an application for naturalization up to three months prior to fulfilling the residency requirements. This means that a person can file her application three months before reaching five years of lawful permanent residency (three years in the case of spouses of U.S. citizens). Thus, if an applicant would complete her five years of residence on March 12, 2016, she could apply on December 12, 2015, three months before March 12, 2016. There are no residence requirements for children applying for naturalization under INA § 322. For more information on naturalization of children see § 17.5. Example 17-6-e: Antonia, a citizen of Guatemala, became a permanent resident in January 2012. She and her U.S. citizen husband, Carlos, have been living together since they got married in January 2013. If Antonia and Carlos remain married and living together Antonia will be able to naturalize in January 2016, three years after she became a permanent resident. She will be able to submit her application in October 2015, three months before she is eligible to qualify for naturalization. If, however, Antonia and Carlos get a divorce, Antonia will have to wait until January 2017 to qualify for naturalization. She will be able to submit her application in October 2016, three months before she can qualify for naturalization.

§ 17.6(a) Abandonment of Residence: Losing One’s Status as an LPR A naturalization applicant must be careful if she has prolonged absences. Not only might she be denied naturalization due to disruption of her continuous residence or failure to meet the physical presence requirements, but she also could lose her lawful permanent resident status because she abandoned her residence. A permanent resident who abandons her residence can be placed in removal proceedings, lose her status as a permanent resident, and be removed from the U.S. For that reason, applicants and legal workers must carefully analyze all the facts about absences from the U.S. before applying for naturalization.

17-12

Tab Position 1

Immigrant Legal Resource Center April 2014

To show that the absence was temporary and that the applicant did not abandon her residence, one must consider several factors, the most important of which is usually the applicant’s intent. These factors include:

An applicant who has been accused of abandoning her residence and threatened with the loss of lawful permanent residence status will need to gather all the documentation that she can to show she did not abandon her residence. You and your client should work together to think of documents that can show that she hasn’t abandoned her residence, and how to get them.

NOTE: A reentry permit from the CIS can be extremely helpful in showing someone did not abandon her residence. But even with a reentry permit, a person could lose lawful permanent status if his or her true intent was to permanently reside in another country and he or she committed fraud in applying for a reentry permit.

Example 17.6(a): Maria has been a lawful permanent resident for eight years. She is married and has one daughter. Maria went alone to visit her parents once with the intent to visit for a month six years ago. Her mother became very ill and Maria needed to stay with her for a total of 14 months, all at once. After her mother recovered, Maria returned to an apartment that she and her husband rented, and returned to her job as a secretary in a law office. How would you explain to Maria what she needs in order to prove that she did not abandon her residence? How would Maria prove to the CIS that she did not abandon her residence in the U.S. while she was gone? Answer: You could start by explaining that a green card allows someone to live and work in the U.S. But, a green card does not allow someone to live in another country and actually move there while still keeping her green card. The CIS says that if someone were in another country for an extended period of time, as Maria was, then she may have to show she did not intend to leave her home in the U.S. permanently; that is, she may have to show she did not intend to abandon her residence. Thus Maria will have to show she did not intend to leave the U.S. permanently.

17-13

Unit 17

1. The purpose of the trip abroad—there should be a definite reason for going abroad temporarily; 2. The intended length of time of the visit—the shorter the better. Generally, the visit should be expected to end within a relatively short period, fixed by some event; 3. The place of employment of the applicant; 4. The applicant’s ties to the U.S.; 5. The intent of the applicant when she left the U.S. and during her stay abroad—whether she always intended to return to live in the U.S.; and 6. The actual home of the applicant—the applicant must intend to make her home in the U.S. See Matter of Kane, 15 I&N Dec. 258 (Reg. Comm’r 1975).

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

To demonstrate that Maria did not intend to leave the U.S. permanently, she could try to collect some of the following documents: 1. Rent receipts for her apartment in the U.S. This will show she returned to the same apartment that she left while she was away. 2. Federal Income Tax records. These will show that Maria continued to file her taxes, indicating her intent to remain a resident of the U.S. 3. A letter from her mother’s doctor. This would show that the illness lasted longer than expected and was more serious than Maria expected, suggesting that initially she only intended to be away from the U.S. for a short period. It should also state that her mother needed assistance and there was no one but Maria to provide it. 4. Her daughter’s school records. This would show that her daughter remained in the United States, and the CIS should presume that a mother would intend to return to be with her daughter. 5. Letters to and from her husband and daughter, saying that Maria planned to come back to the United States. 6. Declaration of her husband, saying he knew that Maria planned to return to the U.S. as soon as her mother recovered. 7. Letter(s) to her employer telling her when Maria expected to be back, and asking that she be able to come back to her same job. If she belonged to a union, proof that she was paying her union dues could be helpful. 8. Letter(s) from her employer discussing temporary job coverage. This is not an exhaustive list. You and your client should think of as many documents as you can.

WARNING: There Are Four Separate Ways in Which Key Absences Can Affect a Naturalization Applicant. First, based on the information in one’s naturalization application, the CIS can discover that the applicant has disrupted her required five- or three-year residence. If the CIS determines that someone has disrupted her residence, then her naturalization application could be denied and she would have to wait to gain the required amount of residence before she could apply again. (See § 17.6.) Second, the CIS or ICE could determine that a naturalization applicant has also abandoned her residence. If abandonment is found, then not only will the applicant be denied naturalization, but ICE could also try to take away her green card and put her in removal proceedings. The abandonment of residence test is different from, and has significantly harsher consequences than, the disruption of residence test. (See § 17.6-a.) Third, absences can cause one to fail to meet the physical presence requirement for naturalization, which can cause the CIS to deny the naturalization application. (See § 17.6.) Finally, under certain circumstances (such as someone who leaves the U.S. for more than 180 days), a lawful permanent resident is considered to be making a new admission upon returning. She will be subject to the grounds of inadmissibility. (The same is true if the permanent resident meets certain other circumstances set out at INA § 101(a)(13)(C), for example if the person traveled while inadmissible for a crime. See Unit 3 for information on the grounds of inadmissibility.)

17-14

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 17.6(b) Special Exception: Nationals of the United States Non-citizen nationals who owe permanent allegiance to the U.S. may also naturalize. They can meet the residence and physical presence requirements in the U.S., or in any of the outlying possessions of the U.S. Generally, only people from American Samoa and the Swains Islands are considered non-citizen nationals.

Tab Position 1

A Guide for Immigration Advocates April 2014

A U.S. national must fulfill the requirement of living in the state or CIS district where she files her application for three months prior to filing the application.

A.

Regular Rules for Current or Former U.S. Armed Services Personnel

Under INA § 328, veterans and current U.S. Armed forces members who have served in the Armed Forces of the United States for a total of at least one year can qualify for naturalization. The person does not have to comply with the five-year continuous residence requirement, the physical presence requirements, or with the three-month requirement of living in the state or CIS district in which she applies for naturalization. Service in the U.S. Armed Forces is recognized as active or reserve service in the U.S. Army, U.S. Navy, U.S. Marines, U.S. Air Force or U.S. Coast Guard. National Guard service in units during periods when the unit was federally recognized as a reserve component also qualifies under this section. Service in the Philippine Scouts is also recognized as U.S. military service if the service occurred before the independence of the Philippines. There is no fee for filing the application under § 328 naturalization. The one-year period of military service does not have to be continuous. Different periods of service can be added together to total the required one year. One can also fulfill the one year of military service requirement by combining periods of inactive duty in the reserves with active duty periods. In all cases the applicant must have served honorably and must apply for naturalization while still in military service, or within six months after finishing her military service. If she does not apply within six months after finishing her service, she must comply with the five-year (or three-year) residence requirement and the physical presence requirement. Any military service within five years of applying for naturalization will be counted as residence and physical presence whether or not she was a lawful permanent resident during the period. However, an applicant must be admitted as a lawful permanent resident by the time her naturalization application is filed. During all the periods in which she served honorably in the armed services, an applicant under this section also is presumed to fulfill the requirements automatically of having to show good moral character and being attached to the principles of the U.S. Constitution. The applicant will have to prove that she had good moral character and was attached to the principles of the

17-15

Unit 17

§ 17.6(c) Special Exception: People Serving in the U.S. Armed Services

Constitution for any periods while she was not serving in the military, and for the period from the time she was discharged from service until admitted for citizenship.

Unit 17

The bar to naturalization for someone under a final order of deportation or removal or who is presently in removal proceedings does not apply to people applying for naturalization under this section who are currently serving in the armed forces. Someone who is absent from the U.S. while on active duty with the armed forces will not be found to have disrupted the continuity of her residence, even if the absence was for more than one year. As previously mentioned, spouses and children of U.S. Armed Forces members who are authorized to accompany their military spouse or parent abroad will have all periods of residency and physical presence abroad while accompanying their military spouse or parent treated as periods of residency and physical presence in the United States. Such spouses and children may also take the oath of citizenship and become naturalized abroad. These applicants do not have to be abroad at the time the adjudicator makes the determination. A spouse of a military service member who currently resides in the U.S. but previously had lived abroad during the statutory residency or physical presence period may count the time abroad as continuous residence and physical presence as long as the requirements of INA § 319(e) are met. Current or former military personnel who apply under INA § 328 must file forms N-400 (Application for Naturalization) and N-426 (Certificate of Military or Naval Service). The naturalization forms for someone applying for naturalization as a current or former member of the military must submit their application at the Nebraska Service Center. Veteran applicants cannot obtain locally certified Form N-426, and therefore must either send a completed Form N-426 to the military personnel records center for certification or submit an uncertified Form N-426 to the Nebraska Service Center, which should forward it to the military personnel records center for certification. The applicant must furnish the Secretary of Homeland Security, prior to any final hearing upon her application, a certified statement from the pertinent executive department indicating that the service relied upon for benefits under INA § 328 was honorable and that no discharges from service were other than honorable. Finally, naturalization granted pursuant to INA § 328 may be revoked if the person is discharged from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years. If an applicant is serving in the Armed Forces of the U.S. but does not qualify for naturalization under INA § 328 as explained above, the applicant’s residence for naturalization purposes shall be: 1. The state or service district where the applicant is physically present for at least three months immediately before the filing of a naturalization application or immediately before the naturalization examination if the application was filed early pursuant to INA

17-16

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 334(a) and the three month period falls within the required period of residence under INA § 316(a) or 319(a); or

Tab Position 1

A Guide for Immigration Advocates April 2014

2. The residence of the applicant’s spouse and/or minor children; or 3. The applicant’s home of record as declared to the Armed Forces at the time the applicant enlisted in the Armed Forces and as is currently reflected in the applicant’s military personnel file.

B.

Rule Permitting Non-Lawful Permanent Residents to Apply for Naturalization, Based on Service During Hostilities

People who are not even lawful permanent residents but who served in the U.S. Armed Forces during certain periods of military hostilities may be eligible for naturalization under § 329. The periods of hostilities include:     

the period between April 6, 1917 and November 11, 1918 (World War I); the period between September 1, 1939 and December 31, 1946 (World War II); the period between June 21, 1950 and July 1, 1955 (Korean War); the period between February 28, 1961 and October 15, 1978 (Vietnam War); or any other period that the President can designate. Three periods that presidents have designated as “hostilities” for purposes of naturalization include: 1. the period between October 25, 1983 and November 2, 1983 (the Grenada Invasion); 2. the period between August 2, 1990 and April 11, 1991 (the Persian Gulf War); and 3. the period beginning September 11, 2001 with an end date that “will be deemed to be terminated by future Executive Order.”

Anyone serving in the Armed Forces during these periods can apply for naturalization, whether or not he has been lawfully admitted for permanent residence. The applicant must have enlisted (or reenlisted) in the U.S. or a qualifying U.S. territory to be eligible for this benefit. If the person was not enlisted or inducted within the U.S. or a qualifying territory, he is eligible to naturalize under this section only if he became a lawful permanent resident at any time after enlistment or induction. Honorable service as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the U.S. Army, U.S. Navy, U.S. Air Force, U.S. Marines or U.S. Coast

17-17

Unit 17

CIS has a toll-free help line for U.S. military personnel and families for immigration and naturalization related assistance. The number is 1-877-CIS-4MIL (1-877-247-4645). Overseas or U.S. service members and families may access the help line through the toll free number, through a base telephone operator or through using the Defense Switched Network (DSN). In addition, a special CIS webpage has been developed specifically to assist U.S. military service members and their families. It is www.uscis.gov/military. Every military installation has a designated point of contact, generally in the military legal office or personnel division, to help service members prepare the naturalization application packet.

Unit 17

Guard is required to qualify for benefits under this section. National Guard units federally recognized as reserve components of the U.S. Armed Forces that were called for active duty also qualify. Service in the Philippine Scouts, Philippine army or certain recognized guerrilla units of the Philippines during World War II is also recognized as active duty in the U.S. Armed Forces under this section. Separation from the Armed Forces also must have been honorable. Under § 329, the standard requirements of being 18 years old, not having an outstanding order of deportation or removal entered against the applicant, residing and being physically present in the U.S. are not applicable to applicants who have served in the U.S. Armed Forces during these periods. However, the person must be able to establish good moral character and attachment to the principles of the U.S. Constitution for one-year preceding the application for naturalization. Someone applying under § 329 must file forms N-400 (Application for Naturalization) and N-426 (Certificate of Military or Naval Service). If one is applying for naturalization under INA § 329, he or she must file the application with the Nebraska Service Center.

§ 17.7 Good Moral Character: INA § 316(a)(3) A.

Overview of the Good Moral Character Requirement in General

All applicants for naturalization must have good moral character for five years (or three years if applying as the spouse of a U.S. citizen, or less for some members of U.S. Armed Forces) immediately before applying for naturalization, as well as during the entire period from when the application is submitted to the CIS until the applicant takes the oath of allegiance and becomes a U.S. citizen. This time period is dictated by the INA statute, and is therefore often referred to as the “statutory period” for showing good moral character. To understand the good moral character requirement that naturalization applicants must meet, please look in the following three sections of the Advocates’ Guide:   

Please thoroughly review the complete discussion of how to establish good moral character set out in Units 3 and 11. This discusses the good moral character requirement in general. Please thoroughly review the rest of this Subpart. This discusses additional good moral character guidelines that apply to naturalization applications. There are exceptions to the good moral character requirement for some children and some members of the armed forces applying for naturalization. Please see § 17.5 and § 17.6-c for more information on these exceptions.

WARNING: Beware of Applying for Naturalization for Clients Who Fall within the Grounds of Deportability, Even if They Can Show Good Moral Character. In the course of investigating the naturalization application the CIS is likely to discover those things. In that case

17-18

Tab Position 1

Immigrant Legal Resource Center April 2014

your client’s naturalization application could be denied, and the CIS or ICE could place her in removal proceedings where a judge might take away her green card and order her removed from the U.S. Remember that the grounds of deportation are defined differently than the bars to establishing good moral character, so a person might have good moral character but still be deportable.

For answers see Appendix 17-A.

B.

Good Moral Character Guidelines That Are Specific to Naturalization Applicants

In addition to the explanation of good moral character in Units 3 and 11 of this manual, there are a few other rules that specifically relate to good moral character in naturalization applications. These rules involve probation and parole, receipt of public benefits, willful failure to pay child support, failure to file income tax returns if legally obligated to do so, giving false testimony, and failure to register for the Selective Service. Probation or Parole. A person cannot naturalize while on probation or parole for having been convicted of a crime. One may apply for naturalization while still on probation or parole, but the probation or parole has to have ended prior to the naturalization interview. Please note, however, that the CIS may use the fact that the applicant was on probation or parole during the statutory period as a negative factor. Example 17.7-a: Elizabeth from England was convicted of drunk driving on October 29, 2011. She received three years of probation that is due to end on October 29, 2014. Although Elizabeth cannot be naturalized until October 29, 2014 at the earliest because she is on probation, it may be OK if she applies before she finishes probation. Because there is a waiting list for a naturalization interview in her CIS office, she can apply before completing probation so long as by the time she has her interview she will have successfully completed probation. Elizabeth must understand that while conviction of a drunk driving offense is not a statutory (automatic) bar to establishing good moral character, the CIS may use it as a negative factor in their discretionary good moral character decision. The CIS can use the fact that she was on probation during the five-year period as a negative factor. It also

17-19

Unit 17

Exercise 17.7: Yosh became a lawful permanent resident in 1993. In 2005, he was convicted for possession of cocaine, a conviction that makes him deportable and inadmissible. It seems that immigration authorities have not yet discovered this conviction, or they probably would have put him in removal proceedings. Should Yosh apply for naturalization in 2014, since he can establish good moral character for the previous five years? (Should he apply to renew his 10-year green card?)

Tab Position 1

A Guide for Immigration Advocates April 2014

may use the fact that she was convicted of any crime during the period as a negative factor. It must consider these factors as a part of a balancing test. See the information in Units 3 and 11 on good moral character for a more complete explanation.

Unit 17

Fraudulent Receipt of Public Benefits. In most CIS offices throughout the country, receipt of welfare or any other public benefit will not affect a naturalization application. The exception is that if a naturalization applicant committed fraud in order to receive or continue to receive benefits, the CIS may deny the application because of a lack of good moral character. Willful Non-Payment of Child Support. The CIS views the “willful” (that is, deliberate) non-payment of child support as an indication of a lack of good moral character. However, the CIS is required to look at the reasons why someone has not supported his or her children. If an applicant has not been paying child support because of unemployment or financially inability, or if his family is self-supporting and the family does not accept the payment, then the failure to pay child support should not be considered willful and thus the CIS should not find that the applicant lacks good moral character. Additionally, you should argue that if the client made a reasonable effort to provide child support but has not been able to for some reason (such as, he cannot find his family or the family refuses his assistance), the failure to pay child support should not be considered willful and the CIS should not deny the case for lacking good moral character. Therefore, always ask your client why he has not been paying child support and see if the explanation is one that the CIS should or will accept. Example 17.7-b: Although Joe has not been paying child support for the last two years, he still should be able to qualify for naturalization because he had a bad accident two years ago and has not been able to work since then, and does not have the resources to pay the child support. Additionally, he has bought his children meals and clothes to the extent that the small amounts of disability payments allow him. Failure to File Income Tax Returns during the Period. The CIS will deny a naturalization application for good moral character reasons where the applicant failed to file federal income tax returns within the five-year (or three-year) statutory period that an applicant is required to show good moral character. Some CIS offices require people to submit the last three years of tax returns. You must check the practice in the CIS office in your district. If an applicant was not legally obligated to file a tax return because she did not make enough money or for some other reason, the CIS cannot use the failure of filing the tax return as a negative factor when determining good moral character. If an applicant has not filed tax returns, he can go to the Internal Revenue Service (IRS) and file his tax returns late. He can set up a payment plan if he owes money. If he files his taxes late, he can still claim he filed his taxes and he may be able to avoid being denied naturalization for lack of good moral character. Example 17.7-c: Yen has not filed income taxes in three years because she has been paid cash at her job. Prior to filing for naturalization, Yen went to the IRS to figure out how to file her back tax returns and set up a payment schedule to pay the taxes she owes.

17-20

Tab Position 1

Immigrant Legal Resource Center April 2014

False Testimony. As mentioned in Unit 11 of this manual, the CIS considers an applicant who gave false testimony to obtain a benefit under the INA (such as a work authorization, naturalization, a green card, employment, etc.) to be lacking in good moral character. In order to count as “false testimony,” the testimony must be made orally and under oath (such as during a CIS interview).

Failure to Register for Selective Service. Since 1980, all men between the ages of 18 and 26 who are living in the United States have been required to register with the Selective Service (the “draft”). Men who entered the U.S. after the age of 26 are not required to have registered. 1. Men between the ages of 18 and 26 Men between 18 and 26 who have not registered usually are given the opportunity to register before naturalization is denied. If they do not register, they will be denied. 2. Men between the ages of 26 and 31 Men between the ages of 26 and 31 who should have registered but did not, may be denied naturalization if the failure to register was with knowledge and willful. Yet, many applicants who failed to register with the Selective Service just did not know that they were required to do so. Each CIS office may have different policies for dealing with this. Many CIS offices will believe an applicant’s statement that his failure to register was not knowing and willful if he is willing to so state this under oath, and can provide details about why he did not learn about the obligation to register with the Selective Service (e.g., no draft in home country, no friends or relatives registered here). The adjudicator will record the applicant’s declaration and have the applicant sign it under oath. The CIS also may make the applicant declare that had he known he was supposed to register he would have done so. Some CIS offices have a stricter policy regarding registering for the Selective Service. In some offices, the CIS will either generally not believe an applicant when he says he didn’t know he was supposed to register for the draft, or completely ignore the fact that he says he didn’t know about the requirement. Thus, failure to register for the draft in some CIS offices is almost automatically grounds for denying the naturalization application. You must check with your local CIS office or local advocates to determine how they handle Selective Service registration issues. The ILRC believes the stricter policies regarding failure to register for the Selective Service are wrong. If your local CIS office has a strict policy regarding failure to register for the

17-21

Unit 17

Example 17.7-d: During her naturalization interview Rose claimed she had never left the United States since immigrating here. The naturalization adjudicator checked her passport and discovered she had a nine-month absence last year. The adjudicator denied Rose’s naturalization application because Rose gave false testimony under oath while trying to obtain naturalization, a benefit under the INA. Rose will have to wait five years to be able to demonstrate good moral character and reapply for naturalization.

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Selective Service, you should organize with others in your community to convince the CIS to change its position. (Please see discussions of organizing, and negotiating with CIS in Unit 20.) The Military Selective Service Act forbids the federal government (which includes the CIS) from denying anyone a benefit (such as naturalization) if he unknowingly and unwillingly failed to register for the draft. Thus, it is against the law for the CIS to deny naturalization to someone who unknowingly and unwillingly failed to register for the draft if the failure to register is the sole reason to deny the application. Yet, because an applicant must show good moral character, failure to register could be a negative factor in the good moral character balance (see Unit 11 for more information on good moral character and the balance test.) It is important to note that failure to register for the Selective Service can also affect one’s naturalization application because the CIS might take the failure as an indication that the applicant is not attached to the principles of the Constitution of the United States. It is probably best for applicants over 26 years old who did not register for the Selective Service, even though they should have, to try to register now. Although the Selective Service will deny the application to register, the attempt to register will show the CIS that the applicant made an effort to register, which might be helpful. 3. Men over the age of 31 Willful failure to register for Selective Service is a temporary bar to naturalization. Thus, after five years have passed since the act of failing to register (or three years if applying as the spouse of a U.S. citizen), the failure to register should no longer be an issue because the five(or three-) year period for proving good moral character is over. Thus, applicants who are 31 years old (or 29 if married to a U.S. citizen) at the time they submit the N-400 should not be found to lack good moral character solely based on a failure to register for selective service nor should they be automatically considered not to be attached to the principles of the Constitution of the United States. The reasoning behind this is that the “bad act” of failing to register for the Selective Service happened outside of the statutory period during which the applicant must show good moral character and attachment to the principles of the Constitution of the United States (five years for most naturalization applicants and three for those applying for naturalization as the spouse of a U.S. citizen). Thus, the failure to register after the age of 31 should not be sufficient alone to deny naturalization. The CIS must show other factors contributing to a lack of good moral character or lack of attachment to the principles of the Constitution of the United States. If you have any questions regarding the requirements for registering with the Selective Service, or if you want to ask a question about the registration status of a specific person, you can write the Selective Service Systems at: PO Box 94638, Palatine, Illinois, 60094-4638 or call 1847-688-6888 or to the Selective Service web site at www.sss.gov. Example 17.7-e: Carlos is an immigrant interested in applying for naturalization. He just heard a talk on naturalization given by Araceli, the legal worker. During the talk Carlos asks a question about the Selective Service. Carlos tells Araceli that he is 30 years old and has been a lawful permanent resident for five years. In the course of explaining the requirements for naturalization and answering his questions, Araceli informs Carlos

17-22

Tab Position 1

Immigrant Legal Resource Center April 2014

of the Selective Service requirements. She tells Carlos that one of the questions on the naturalization application asks is whether he has ever failed to comply with the Selective Service laws.

Araceli also tells Carlos that if he waits until he is 31 years old to submit his naturalization application, his failure to register for the Selective Service should not be a problem in proving good moral character because five years will have passed since he had to register for it. Remember, that one only has to have good moral character for five years (three if married to a U.S. citizen) to qualify for naturalization. Note that if Carlos were currently between the ages of 18 and 26 and had not registered, Araceli should tell him he could immediately register at the nearest post office if he wanted to.

PRACTICE TIP: In Appendix 17-I we have included copies in English, Spanish, and Chinese of the List of Naturalization Red Flags. Give these flyers to your clients so together you and your clients can determine if they fall within any the “red flag” categories. If any of the red flags for citizenship do apply to an applicant, please make sure to analyze whether or not your client is eligible for naturalization, and whether or not he may even be removable from the U.S. If you do not have enough experience to determine if your client is removable, please refer him to an experienced attorney or BIA accredited representative. If an applicant falls within one of the categories listed in the red flag list and he applies for naturalization there is a possibility that he could be denied naturalization, placed in removal proceedings, and, in some instances, even removed from the U.S.

§ 17.8 Temporary Bars to Naturalization As we discussed above, people who want to naturalize must show that they have had good moral character for the five years preceding their application. There are other bars to naturalization in addition to not having good moral character. 17-23

Unit 17

Araceli tells Carlos that if he knew about having to register with the Selective Service and didn’t register, then he may be denied naturalization, most likely on the basis that he lacks good moral character. Araceli also tells Carlos that if he didn’t register because he didn’t know he was required to register, the CIS shouldn’t automatically deny his application for naturalization, but that he should be prepared to explain to the CIS why he didn’t register, and why he does have good moral character. Carlos then explains to Araceli that he came to the U.S. when he was 24 years old, but that he didn’t register because he never knew that he had to. He tells Araceli that had he known, he would have registered. Araceli tells Carlos that, assuming the CIS adjudicator believes Carlos, Carlos should not have any problems with his naturalization application. If the adjudicator does not believe Carlos’ story, however, Carlos may be denied naturalization.

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

A person with a removal order against her or who is in removal proceedings at the time she applies for naturalization cannot become a citizen. However, if removal proceedings are ended she can apply for naturalization. People who have been involved in certain political activities in the ten years before applying for naturalization are also barred from citizenship. For example, people who have advocated anarchism or totalitarianism cannot be naturalized. People are also barred who are or have been members of, or affiliated with, the Communist Party during the ten-year period before their application. Read INA § 313 carefully to learn all the groups and activities that are included in this ten-year ban. The CIS also will deny naturalization to an applicant who is a member of, or affiliated with, the Communist Party at any time during the period from when he or she submits his or her naturalization until she is sworn in as a citizen. There is an important exception to the ten-year bar for certain political activities. If the person can show that she participated in the prohibited activity involuntarily, or had to participate so she could get food, a job, or other necessities, naturalization is not barred.

§ 17.9 Permanent Ineligibility for Naturalization Conviction of an aggravated felony on or after November 29, 1990 is a permanent bar to establishing good moral character and therefore a permanent bar to qualifying for naturalization. A conviction for alien smuggling is an aggravated felony unless the person smuggled a parent, spouse, son or daughter. Note that to be an aggravated felony there must be a conviction. In contrast, just the act of alien smuggling, without a conviction, can bring the person within the grounds of deportability or inadmissibility. Please see Unit 3 for additional information on aggravated felonies. Certain acts, mostly connected with military service (but not mere failure to register for Selective Service), can make a person permanently ineligible for U.S. citizenship. Ineligibility for citizenship is defined in INA § 101(a)(19). Deserters from the armed forces and draft evaders are permanently ineligible to become U.S. citizens. In order to be barred from citizenship under this section, a court martial court or another court must have convicted the person. A person who has applied for and received certain exemptions from U.S. military service based on being a noncitizen is also permanently ineligible for citizenship. It is important to keep in mind that there are many different kinds of exemptions from military service, and only a few of them bar a person from citizenship. Ask your client carefully what kind of exemption he received, and talk to a draft counselor if you are not certain what immigration consequences are involved.

17-24

Tab Position 1

Immigrant Legal Resource Center April 2014

In addition, there are some exceptions to the rule for people who received an exemption from military service. A person might still be eligible for citizenship if: (1) at the time of the exemption the person was not by law bound to serve; or (2) the person did not knowingly request the waiver nor understand the results of the exemption.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 17.10 English Language: INA § 312(a)(1)

There Are Exceptions to the English Requirement. If on the date of submitting the application, the applicant is over 50 years old, and has lived in the U.S. for at least 20 years since becoming a lawful permanent resident, or is over 55 years old, and has lived here for at least 15 years since becoming a lawful permanent resident, she is not required to speak, write, or read in English. She will, however, be tested on U.S. history and government in her own language. There Is an Exception to the English Requirement for Some Applicants with Physical, Developmental and Mental Impairments. A person who is unable to comply with the English requirement for naturalization because of physical or developmental disability or mental impairment may apply for an exception from the English requirement so long as the disability will last at least twelve months and was not the result of illegal drug use. Although the law requires the CIS to grant an exception to anyone who qualifies for it rather than giving the CIS discretion to grant it or not as a waiver, this exception involves another application, so it is often referred to as a disability “waiver.” To apply for the waiver, an applicant must submit a form N-648 showing the exact connection (or “nexus”) between the disability and the inability to learn English. A licensed medical doctor, licensed clinical psychologist, or doctor of osteopathy who has experience diagnosing disabilities and knows about the applicant’s physical or mental condition must complete the waiver form. To qualify for the disability waiver, an applicant must show that she is unable to fulfill the English language requirements even with reasonable modifications in the testing process because: 1. she has a medically determinable physical or mental impairment, or combination of impairments; 2. the impairment(s) have lasted or are expected to last at least 12 months; and

17-25

Unit 17

A naturalization applicant must be able to read, write, and speak basic English to become a U.S. citizen. This is tested at the naturalization interview in three ways. First, the interview is conducted in English, so a CIS adjudicator will ask the applicant questions in English about her N-400, and about U.S. history and government. Second, the adjudicator usually will dictate sentences in English, and the applicant must write them. Third, the adjudicator will ask the applicant to read sentences in English. The CIS provides a list of the kinds of sentences used by adjudicators at its website. Go to www.uscis.gov/portal/site/uscis/citizenship and look at “Resources for Learners” to see sample questions from the English and the citizenship tests, as well as other naturalization resources. The English used in the interview is supposed to be fairly simple.

3. the loss of cognitive skills is not based on the direct effects of illegal drug use.

Unit 17

Although the same waiver is available for the U.S. history and government requirement, an applicant should not submit a general application to waive both the English and U.S. history and government requirements. She must show specifically how her disability prevents her from meeting each or both requirements, depending upon which requirements she needs to waive. For example, some persons with disabilities may be able to learn the civics material but cannot master a new complex skill such as learning English. Others may have spoken English for years but not be able to master the 100 questions about U.S. history and government, because of particular memory or concentration problems. Others may be unable to pass either test. In every case, the applicant must show specifically how the disability makes it impossible for her to pass the test or tests that she needs to have waived. The CIS will only grant disability waivers for applicants whose disabilities prevent them from learning English and/or U.S. history and government, or from passing the English or U.S. history and government tests. Thus, the applicant and her doctor must show the “nexus” or connection between the disability and the inability to learn or demonstrate knowledge of English and/or U.S. history and government. Example 17.10-a: Kwaku has a mild form of mental retardation and is partially paralyzed. He has spoken English well since he was a child, and is able to master the 100 history and government questions provided for study by the CIS. If the CIS makes certain modifications to make the interview site physically accessible for him, none of his disabilities would make him unable to take the tests. The CIS will not grant him a waiver of the test requirements based on his disabilities, because his disabilities do not prevent him from meeting the requirements. It is important to note that CIS adjudicators should not make medical determinations. They are required instead to make determinations about granting or denying a disability waiver request based solely on the information provided in the N-648 disability waiver application, unless they suspect that the information is fraudulent. Section 504 of the Rehabilitation Act of 1973 requires that the CIS make reasonable accommodations/modifications to the naturalization process to make it possible for applicants who have disabilities to get through the naturalization process. The CIS must make these accommodations whether or not the applicant is applying for a disability wavier. However, the CIS does not need to make reasonable accommodations and/or modifications if they substantially interfere with the naturalization program. But note that if the necessary modifications would significantly interfere with the integrity of the test, then it would seem appropriate that an N-648 be granted to waive the examination altogether. Example 17.10-b: Mark is paralyzed from the waist down and he gets severe migraine headaches from the damage to his brain he suffered in a car accident. Although Mark can speak English and has learned U.S. history and government, his severe migraine

17-26

Tab Position 1

Immigrant Legal Resource Center April 2014

headaches prevent him from demonstrating his knowledge of English and government and history. The CIS must accommodate Mark’s wheelchair and also find out what environmental accommodations it can make to limit the possibility of his getting a headache at his interview. Alternatively, it might arrange for Mark to be interviewed away from the CIS in a setting which does not stimulate his headaches, with enough time flexibility to allow him to take the exam when he is feeling well. If it is not “reasonably” feasible to make such arrangements, Mark should be able to qualify for the disability waiver.

Although no formal medical certification is required, some CIS offices may prefer that a letter from the applicant’s treating physician accompany the request for special accommodations, stating why the requested accommodation is necessary. It is the ILRC’s position that reasonable modifications to the naturalization process for a naturalization applicant with certain disabilities may include:          



wheelchair-accessible test sites; sign language interpreters; loud and clear translators or written tests for people who have difficulties hearing; tests in Braille or large print, or oral questions for applicants who are blind; allowance of a family member, guardian, or maybe even a social worker to be present during the interview to act as an interpreter or help the applicant feel more calm and secure during the interview; allowance of a family member, guardian, social worker, or legal representative to repeat and/or reword the CIS adjudicator’s questions if the applicant is unresponsive to the adjudicator; allowance for an extension of time for the civics test for an applicant with a learning disability who does not request an exception to the testing requirements; phrasing questions so that they call for a “Yes” or “No” answer; use of the applicant’s own translator (such as a family member or friend) rather than a translator provided by the CIS (or a CIS approved service, like AT&T); allowance for applicants with behavioral issues, or those who tire easily, or have problems sitting for long periods of time, to be seen in a timely fashion (i.e., at the time indicated on the appointment notice) in order to maximize their interview performance level; allowance for home interviews for applicants with certified health needs or medical conditions that make traveling painful or impractical;

17-27

Unit 17

The N-400 Naturalization Application (see www.uscis.gov and click on “Forms” for a copy) has a section specifically devoted to requesting a reasonable accommodation/modification to the naturalization process due to a disability. We suggest that applicants complete the request on the N-400 as well as include a cover letter specifying the request, unless your local CIS office has instructed advocates to follow other procedures.

Tab Position 1

A Guide for Immigration Advocates April 2014



Unit 17

  

allowance for applicants to take the oath administered by the CIS immediately after the completion of the interview where fatigue, pain, or behavioral issues would make it difficult or impractical to travel to the oath ceremony; allowance for non-verbal communications such as tapping, blinking, or head nodding; repetition of questions in simpler language; and modification of CIS policy of interviewing applicants in order to verify the information on the N-400 and instead accept sworn testimony from other individuals or documentary evidence (such as passports, school records, doctor’s records, court records, etc.) to prove eligibility for naturalization. It may be difficult to convince the CIS to agree with this suggestion. The argument is that immigration law does not specify the manner of interview or examination, only that the adjudicator is authorized to take testimony “touching or in any way affecting the admissibility of any applicant for naturalization.” It would probably be best to try this argument on behalf of applicants who do not know or cannot remember their addresses, ages, and absences from the U.S. and other similar facts, but whose relatives and/or documentary evidence can prove these facts. Example 17.10-c: Mary has schizophrenia and never responds to strangers. She gets very stressed in meetings with governmental officials unless her social worker or a family member is with her to help. Mary’s advocate requests that her mother and social worker attend the interview to help rephrase the questions and so she will be responsive during the interview. The presence of Mary’s mother will make the interview far less stressful for Mary, thus allowing Mary to participate more fully in the interview.

§ 17.11 U.S. History and Government: INA § 312(a)(2) An applicant must understand the fundamentals of U.S. history and the principles and form of government of the United States. Most students take classes in their communities to learn English, history and government for the naturalization test. The CIS has published a list of 100 questions from which the history and government questions usually will be asked. This list and other resources can be found on the CIS website at www.uscis.gov/portal/site/uscis/citizenship under “Learners.” Just as There Is a Waiver of the English Test, There Is a Waiver of the History and Civics Requirement for Some Applicants with Physical and Mental Impairments. The requirements for the waiver of the history and civics test are the same as those for the English test. See § 17.10 for a complete description of this waiver. Additionally, the CIS must make reasonable accommodations to the naturalization process for people applying who have disabilities. Examples of accommodations include allowing a relative or social worker to attend the interview, providing sign language interpreters, giving an extension of time for the test for people with learning disabilities, and permitting applicants to give non-verbal answers to questions if their disabilities prevent them from speaking. Reasonable accommodations are discussed in more depth in § 17.10.

17-28

Tab Position 1

Immigrant Legal Resource Center April 2014

There Is an Easier Test for the History and Government Requirement for Applicants 65 or Older and Who Have Been Lawful Permanent Residents for at Least 20 Years. Instead of having to study 100 questions about U.S. history and government, these applicants only have to study a list of 20 questions developed by the CIS. At the naturalization interview, the CIS adjudicator will ask 10 of those 20 questions, and the applicant must get at least 6 right. The list of the 20 questions and their answers in English and Spanish appear at www.uscis.gov. Because they also will qualify for the age exemption from the English requirement, these applicants will be required to attend a naturalization interview and answer questions about their applications in their native language only.

The final step in the naturalization process requires taking an oath of allegiance to the United States. A naturalization applicant takes this oath at a naturalization ceremony, either in front of a judge or a CIS official. Once she has taken the oath, she is a citizen of the United States and receives a Certificate of Naturalization (CIS Form N-550) to document this fact. All naturalization applicants must demonstrate that they are “attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States.” Applicants satisfy this requirement by taking a loyalty oath when they are sworn in as United States citizens. The text of the oath of loyalty is found in 8 CFR § 337.1(a) and reads as follows: I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God. The CIS may waive the taking of the oath of allegiance for children who are unable to understand its meaning. Additionally, the CIS can waive the oath requirement for naturalization applicants who have disabilities that prevent them from taking a meaningful oath. The CIS decides to whom to grant this oath waiver. Practitioners should discuss what the oath means with clients, especially since the oath itself is filled with legal jargon. One way to discuss the oath with clients may be to raise some of the following points:

17-29

Unit 17

§ 17.12 Belief in the Principles of the U.S. and the Oath of Allegiance INA § 316(a)(3)

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Taking the oath does not mean that you give up all ties and connections to the country where you were born, but it does mean that you support the structure of government in the United States and you will obey its laws. You can take the oath of allegiance even if you think that changes could be made to make the government work better or more fairly, as long as you support lawful means of making changes (“peaceful change”). Some people hesitate to become citizens because naturalization feels like an act of disloyalty to the country where they were born. Practitioners should be prepared to discuss these thoughts with clients and encourage them to talk with others who have made the decision to become citizens. Example 17.12-a: Nicolasa is eligible to become a citizen, but feels hesitant because she does not want to be disloyal to her country of birth, Peru. Her legal worker encourages her to talk with other immigrants, especially people from Peru, who have become citizens to see how they feel. Her legal worker gives her the names of some former clients who have volunteered to speak with people who are considering naturalization. After discussing naturalization with these people, Nicolasa decides that she will still be able to strongly support Peru without giving up the chance to become a U.S. citizen. There are some exceptions to the loyalty oath. The two principle parts of the oath of loyalty that some applicants have historically wished to modify: “I will bear arms” and “so help me God.” Both of these issues have been addressed in the courts many times. A conscientious objector can still take an unqualified oath of allegiance. People who oppose bearing arms (carrying or using weapons, or providing direct support to those who do) or all military service because of religious training or beliefs may take the oath, leaving out the part where the oath says “I will bear arms” and “I will perform noncombatant services.” This means that they accept the oath in every way but they will not bear arms or perform noncombatant services. Generally, the interpretation of what kinds of religious training and beliefs can form the basis for the refusal to take that portion of the oath has been similar to interpretations in the Selective Service context. The applicant’s beliefs do not necessarily have to include a belief in a supreme being, but rather a higher power to which all else is subordinate. The CIS generally follows a three-part test to see if the applicant qualifies for exemption from the promise to bear arms in the oath. To qualify, applicants must show: (1) that they are opposed to any type of service; (2) that the objection is based on religious principles; and (3) that the beliefs are sincere and deeply held. Each of these tests must be satisfied. Those who cannot take the oath with the words “on oath” or “so help me God” shall substitute the words “and solemnly affirm” for “on oath” and “so help me God” shall be deleted. This group of applicants may include Quakers, Jehovah’s Witnesses, or other individuals opposed to taking oaths.

17-30

Tab Position 1

Immigrant Legal Resource Center April 2014

Example 17.12-b: Grace, from Ireland, has been a Jehovah’s Witness for many years. Her religious training prevents her from taking “oaths” under any circumstances. However, she can freely “affirm” that she will do something or that something is true. Therefore, she agrees to affirm to her loyalty to the United States, and during the ceremony she makes the required substitutions while taking the oath.

Tab Position 1

A Guide for Immigration Advocates April 2014

PART THREE: THE APPLICATION PROCESS

§ 17.13 Step One: The Application In applying for naturalization, here is the first set of tasks for you and your client: a. Complete an “Application for Naturalization,” Form N-400. It may be helpful to translate the application into your client’s native language and have her complete her own copy of the application. A client who has difficulty reading or writing can have a relative or a friend who can assist her. Afterwards, you and your client can review the draft together and fill out the form that goes to the CIS, which must be in English. b. Enclose with the application two photos of your client and the application fee. Your client should write her name and alien registration number lightly in pencil on the backside of the photographs. c. Applicants must also submit a photocopy of the front and back of their I-551 (Alien Registration Receipt Card) or other entry document. This is to prove their status as lawful permanent residents of the United States. d. If the applicant is applying as someone who served in the U.S. armed forces, she also must fill out Form N-426. The CIS requires applicants to file for naturalization through the USCIS Lockbox facility with jurisdiction over the applicant’s place of residence. To determine at which Lockbox you must file your clients’ applications, please check the CIS website. Please note that applications for people applying under the military provisions must be filed at the Nebraska Service Center. After the CIS receives the naturalization application, it will send the applicant an appointment notice to get her fingerprints taken at an Application Support Center (ASC) in or near her community.

PRACTICE TIP: Group Processing. If you often do more than a couple of naturalization applications in a week, you may want to work with the clients in groups. Group processing allows your agency to be more efficient when helping clients apply for naturalization. Clients do much of the work in this method, which saves you time and builds a stronger case. Your client

17-31

Unit 17

There are three steps in the naturalization process: 1) the application; 2) the interview; and 3) the oath of allegiance.

Unit 17

will know what information the CIS is looking for, and will be better prepared for her interview. Group processing allows clients to work together and learn from each other. Group processing helps develop valuable skills, such as how to fill out forms and keep records, which will help clients in other parts of their lives. It is important that clients feel comfortable to talk with one another and thus it is often best to tell them they can share confidential information with the advocate after the meeting. For more information please see Chapter 10 of the ILRC’s manual entitled, Naturalization and U.S. Citizenship: The Essential Legal Guide, which you can order by visiting our website at www.ilrc.org.

§ 17.14 Step Two: The Interview and Naturalization Application The CIS will ask your client to go to the CIS office and meet with an adjudicator for a naturalization interview. An accredited representative or lawyer is allowed to be present at the interview if she submitted a G-28, “Authorization of Representation” form. See the description in Unit 13 of how to become an accredited representative. During the interview, the adjudicator will “swear in” the applicant and do three things: 1. ask questions about any of the information on the Form N-400 application; 2. make sure the applicant can read, write, and speak some basic English (the “English Literacy examination”); and 3. ask the applicant some questions on the history and government of the United States.

PRACTICE TIP: Interview Role-Play. The naturalization interview, particularly the parts on English and history and government, is easy to practice. Invite your client to practice the interview with you so that she will be more comfortable for the real thing. She could play the part of an applicant, while you play the part of the adjudicator in a naturalization interview. If you meet with more than one applicant at a time, the group can discuss and practice ways to enter the interview room and introduce themselves, so that they show the adjudicator that they understand American mannerisms and customs. The applicants can also switch roles and play the interviewer as well. This approach may also help the applicant see that, as important as this procedure is to her, the interview is not a mysterious process. Additionally, if you meet with a group of people at one time you can have two clients role-play the interview in front of the entire group. If clients are interviewing each other you may want to make sure they don’t feel uncomfortable sharing confidential information. If they do feel uncomfortable, which many do, you should not have them practice interviews with each other. Additionally, it can be beneficial to have a client who has already experienced the CIS interview process come and speak to other clients about the experience.

A person who does not pass the English or U.S. history and government tests can have the opportunity to take the test again within 90 days.

17-32

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 17.15 Step Three: The Final Hearing and the Oath of Allegiance Prior to 1990, naturalization was a judicial process, and all naturalized citizens took the oath of allegiance in front of a judge. In 1991 Congress changed the process, creating a procedure that gives both the courts and the CIS the power to conduct naturalization ceremonies and administer the oath of allegiance. Now, under certain circumstances, Immigration Judges are also allowed to administer the oath of allegiance. Practitioners should make sure to check who does the oath ceremonies in the CIS jurisdictions in which they are working.

§ 17.16 Contested Naturalization Proceedings In some cases, the naturalization adjudicator believes that the applicant should not become a U.S. citizen. This belief can be based on the failure to satisfy one or more of the naturalization requirements. If the CIS denies the application for naturalization, they will send the applicant a notice stating the reason for the denial. The applicant can file a request for rehearing at the same office within 30 days of the denial. During the rehearing, the applicant can submit any new evidence or testimony that might support his application. If the CIS upholds its earlier denial, the applicant can file a petition for review with the local federal district court. The petition for review must be filed within 120 days of the CIS final determination. The court must make an entirely new decision on the person’s application, and must give the person a hearing if she wants one. Once the applicant shows that she is a citizen by a preponderance of the evidence, the burden switches to the government to prove by clear and convincing evidence that the person is removable. See Mondaca-Vega v. Holder, 718 F.3d 1075 (9th Cir. 2013).

17-33

Unit 17

The CIS has taken the position that to be naturalized a person must take a “meaningful” oath of allegiance, which could be beyond the capacity of some people who have severe disabilities. There is a law allowing the CIS to waive the oath for naturalization applicants who have disabilities that prevent them from taking a meaningful oath. The CIS decides to whom to grant this oath waiver. The waiver is only for people who cannot understand the oath due to a disability. See § 17.12 for more information on this topic.

Tab Position 1

A Guide for Immigration Advocates April 2014

PART FOUR: CITIZENSHIP FOR CHILDREN, INCLUDING ACQUISITION OF CITIZENSHIP AT BIRTH OUTSIDE OF THE UNITED STATES, DERIVATION OF CITIZENSHIP FOR LAWFUL PERMANENT RESIDENTS, AND § 322 CITIZENSHIP FOR CHILDREN OF U.S. CITIZENS LIVING ABROAD

Unit 17

§ 17.17 Overview of Acquisition and Derivation of Citizenship The Fourteenth Amendment to the United States Constitution provides that anyone born in the United States and subject to the jurisdiction of the United States2 is a U.S. citizen. People born in Puerto Rico, the Virgin Islands, or Guam are U.S. citizens at birth as well. Additionally, depending on when one was born, someone born in the Panama Canal Zone whose father or mother was a U.S. citizen is also a U.S. citizen and someone born in the Republic of Panama is a U.S. citizen if at least one parent was a U.S. citizen working for the Panama Railroad Company or the U.S. government. In addition to these birth possibilities and naturalization, people also can become citizens through acquisition and derivation of citizenship. A person who is or becomes a citizen through any of these means has all the rights of a U.S. citizen. Although many people confuse acquisition with derivation because they have some similarities, they are different ways of obtaining citizenship. The easiest way to differentiate between the two is that acquisition of citizenship occurs when a child born outside of the U.S. “acquires” citizenship at birth because of the citizenship status of one or both of her parents. Derivation of citizenship is when a child who is a lawful permanent resident “derives” or becomes a citizen because one or both of her parents is a citizen or becomes a citizen through the naturalization process. In either instance, someone could become a U.S. citizen without knowing it. In order to prove such citizenship, all that one needs to do is prove that the requirements for acquisition or derivation were satisfied.

§ 17.18 Introduction to Acquisition of Citizenship In some circumstances a U.S. citizen may transmit citizenship to her child, even though the child is born outside of the U.S. This is known as acquisition of U.S. citizenship. Children who qualify are U.S. citizens at birth. Acquisition of citizenship is an important possibility that should be explored for all clients, especially those facing deportation. Many legal advocates have clients who are actually U.S. citizens and do not realize it. If a client is a citizen, ICE cannot remove him and he has the                                                              2

INA § 301(a). The major exception to the rule that everyone born in the United States is a U.S. citizen applies to children born to high-ranking foreign diplomats while in the U.S. Because foreign diplomats are not subject to the jurisdiction of the United States, their children do not acquire citizenship when born here. Thus, unless someone born in the U.S. was the child of a foreign diplomat in the U.S., the child became a U.S. citizen at birth. However under 8 CFR §§ 101.3(a)(1) and 101.3(c), the children of foreign diplomats may become lawful permanent residents upon birth in the U.S.

17-34

Tab Position 1

Immigrant Legal Resource Center April 2014

right to stay in the United States. Every client must be asked whether his parents and/or grandparents are or were U.S. citizens. Whether the parents or grandparents became U.S. citizens at birth or through naturalization makes no difference for the purposes of determining whether a client acquired citizenship at birth.

§ 17.19 Who Can Acquire Citizenship at Birth outside of the U.S.? Five issues will affect whether a person born outside of the United States is a U.S. citizen. They are: 1. 2. 3. 4. 5.

whether the person’s parents were married when she was born; the person’s date of birth; whether one or both of the parents was a U.S. citizen when the person was born; how long the citizen parent resided in the U.S. prior to the person’s birth; and whether the person has satisfied requirements for residency in the U.S.

PLEASE NOTE: Although illegitimate children can acquire citizenship at birth outside of the U.S. under certain circumstances, adopted and stepchildren can never acquire citizenship at birth outside of the U.S.

Turn to Appendix 17-B in the back of this unit. The information on Chart A and Chart B can help you and a client determine whether she acquired U.S. citizenship at birth. Remember, even if the client’s parents were born outside of the United States, check to see if one of the client’s grandparents may have been born in the United States. Then you can use the charts to check if one or both of the client’s parents acquired U.S. citizenship at birth through their parents (the client’s grandparents). If one of the client’s parents did acquire U.S. citizenship, then U.S. citizenship may have been transmitted from the client’s parent to the client.

17-35

Unit 17

PLEASE NOTE: Acquisition or derivation of citizenship is not to be confused with obtaining a certificate of citizenship under INA § 322. Although one can become a U.S. citizen through acquisition or derivation, both include the automatic granting of citizenship. Under § 322, in order for the child to obtain a certificate of citizenship, the U.S. citizen parent must apply on the child’s behalf to the CIS on form N-600. The child must be under the age of 18, and be living abroad in the legal and physical custody of the U.S. citizen parent. Additionally, the child must be in the U.S., pursuant to a lawful admission (such as on a visitor’s visa), at the time of the interview. Essentially, § 322 is only for people who did not automatically obtain citizenship through acquisition or derivation and who live abroad with their U.S. citizen parent(s). This process is often called a “section 322 naturalization or citizenship application.”

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

§ 17.20 How to Use the Charts To use the charts, first determine whether the child’s parents were married when the child was born. Then confirm the child’s birthdate. The laws have changed many times, and the laws are not necessarily retroactive, so the birthdate of the child is critical to figuring out what laws apply to the child. If the child’s parents were married when he or she was born, refer to Chart A and the explanation of how to use it. These are sometimes called “legitimate” children. If his or her parents were not married when he or she was born (i.e., the child was born “out of wedlock”), refer to Chart B and the explanation of how to use it. These children are sometimes called “illegitimate.” A.

“Legitimate” Children Born outside of the U.S.

Remember, use this chart when you are working with a client whose parents were married when he or she was born. To use Chart A, follow these four steps and be sure to check the notes at the bottom of the chart for additional information: 

Step 1: Determine the date of birth of the child born outside of the U.S. and select the appropriate box in the column labeled “PERIOD” on the chart.



Step 2: Depending on whether one or both of the child’s parents were U.S. citizens when the child was born, select the appropriate box to the immediate right of the box you selected in STEP 1. This box is in the column labeled “PARENTS.”



Step 3: Go to the box to the immediate right of the box you selected in STEP 2. This box is in the column labeled “RESIDENCE REQUIRED OF USC PARENT.” This box tells you how long the U.S. citizen parent must have resided in the United States prior to the birth of the child. If, at the time of the child’s birth, the U.S. citizen parent met the applicable residence requirements, the child acquired U.S. citizenship at her birth.



Step 4: Go to the box to the immediate right of the box you selected in STEP 3. This box is in the column labeled “RESIDENCE REQUIRED OF CHILD.” It indicates the type and length of residence in the U.S. the child must have in order not to lose citizenship acquired at birth. This requirement is also called the retention requirement. This means that U.S. citizenship attaches at birth, but will only be retained if the person complies with the residence requirement. Example: Magdalena and Juan were both born and raised in Puerto Rico and therefore are U.S. citizens. In 1980, when both were age 20, they married. In 1983, they moved to Mexico where their child Eduardo was born on February 16, 1989. Since Eduardo’s parents were married before he was born, refer to Chart A. Because Eduardo was born in 1989, his claim would be governed by the rules that apply to births

17-36

Tab Position 1

Immigrant Legal Resource Center April 2014

on or after November 14, 1986. His claim would be through two U.S. citizen parents. When such a claim is made for this period, the rules require that at least one of the parents must have made his or her principal dwelling place in the U.S. or its outlying possessions prior to the birth of the child. In this case both parents meet the requirements because both lived in Puerto Rico, an outlying possession of the U.S. Thus, Eduardo acquires U.S. citizenship at birth.

PRACTICE TIP: Advocates should remember to ask naturalization applicants and other immigration clients whether they have parents or grandparents who are U.S. citizens.

B.

Children Born out of Wedlock and outside of the U.S.

This section applies to children whose parents were not married when the children were born. To use Chart B you must first determine which of the following apply:   

the child has not been legitimated; the child has been legitimated or acknowledged by a U.S. citizen father; or the child has been legitimated by a noncitizen father.

This information will direct you to which part of Chart B to use.

PRACTICE TIP: The definition of “legitimation” can be complicated and practitioners must research the law to see if a “legitimation” has occurred. The law governing whether or not a “legitimation” has occurred is the law of the child’s or the father’s residence or domicile.

If the child has not been legitimated or acknowledged by a U.S. citizen father, refer to Part 1. First, determine the date of birth of the child and select the appropriate box in the first column. The box to the immediate right of this box will tell you the requirements that must be

17-37

Unit 17

Example: Jorge was born in Peru in 1945. His mother, Raquel, is a U.S. citizen who lived in the U.S. until she was 23 years old. She married Jorge’s father, Miguel, a citizen of Peru, in 1943. Jorge moved to the U.S. in 1990. He investigated at that time whether he had acquired citizenship from his mother. He discovered that, although he acquired citizenship from his mother (because she lived in the U.S. for the required amount of time: ten years, five of which were after age 16), he lost that citizenship because he did not meet the requirement of living in the U.S. when he was younger (two years continuous presence between the ages of 14 and 28). However, Jorge can regain U.S. citizenship acquired from his mother by attending a ceremony where he takes an oath of allegiance to the U.S.

Tab Position 1

A Guide for Immigration Advocates April 2014

met for the child to acquire U.S. citizenship at birth. If a U.S. citizen father has legitimated or acknowledged the child please refer to Part 2.

Unit 17

Next, select the appropriate box in the column labeled “Date of Child’s Birth.” Go to the box to the immediate right of the box you have selected to read the requirements for the age and procedure of legitimation of the child. If the “legitimation” meets these requirements, refer to Chart A and use the law that applies to people whose parents were married at the time of their birth. In other words, at this point follow the four steps described above. Example: Maribel, a native of the Philippines, became a naturalized U.S. citizen in 1947, after living in the U.S. for ten years. In 1949 she returned to the Philippines where she gave birth to Jaime on May 5, 1951. Jamie’s father was a citizen of the Philippines. Jaime’s parents were not married when he was born, and he has never been “legitimated” by his father. Did Jaime acquire citizenship at birth? Since Jaime’s parents were not married when he was born, and he has not been “legitimated,” refer to Part 1 of Chart B. Because Jaime was born in 1951, his claim is governed by the rules that apply for births prior to December 24, 1952. His claim is through his U.S. citizen mother. When such a claim is made for this period, the rules require that the mother must have had a principal dwelling place in the U.S. or its outlying possessions prior to the child’s birth. Maribel, Jaime’s mother, meets this requirement since she lived in the U.S. from around 1937 to 1949. Therefore, Jaime acquired U.S. citizenship at birth. Example: Alfredo was born in New York on March 17, 1925. His parents were natives and citizens of Mexico. In 1928, the whole family moved to Mexico where Alfredo has lived ever since. In Mexico, Alfredo fathered a child, Mauricio, who was born on June 21, 1948. Mauricio’s mother, Nicolasa, is a native and citizen of Mexico. Alfredo and Nicolasa have never been married, but Alfredo legitimated Mauricio under Mexican law in 1949. Mauricio wants to know if he acquired U.S. citizenship at birth. Since Mauricio’s parents were not married when he was born, refer to Chart B. He cannot acquire U.S. citizenship through his mother because she is not a U.S. citizen. Because he was legitimated by a U.S. citizen father you refer to Part 2 of Chart B. Mauricio was born in 1948 and thus his claim is governed by the rules that apply for births between January 13, 1941 and December 24, 1952. For this time period, the law requires that the child must have been legitimated under the law of the place the father lived before the child reaches 21. Since Mauricio was legitimated under Mexican law when he was one year old, this requirement had been met. The next step is to refer to Chart A and apply the pertinent law. On Chart A Mauricio’s claim is governed by the rules for births between January 13, 1941 and December 24, 1952. Mauricio’s claim is based on having one citizen parent and one alien parent. When such a claim is made, the rules require that the citizen parent must have resided in the U.S. or its outlying possessions for ten years prior to the birth of

17-38

Tab Position 1

Immigrant Legal Resource Center April 2014

the child. Alfredo did not meet this requirement since he lived in the U.S. only from 1925 to 1928. Therefore, Mauricio did not acquire U.S. citizenship at birth. However, because Mauricio’s father is a U.S. citizen and assuming his father is still alive, his father can file a visa petition on Mauricio’s behalf so that Mauricio could immigrate to the U.S. and at least he can become a lawful permanent resident.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 17.21 Documenting a Claim of Acquisition of Citizenship

The three main facts that must be proven when applying for a U.S. Passport, Certificate of Citizenship, or Report of Birth Abroad of a Citizen of the United States of America are:   

the citizenship status of the client’s parent(s); the residence in the U.S., if necessary, of the United States citizen parent(s) and of the client (as stated above, these requirements change depending on the circumstances and the law in effect at the time of the client’s birth); and the parent-child relationship (birth certificate and if necessary, proof of legitimacy of child; i.e., marriage certificate, legitimation order, etc.)

Proving that a client’s parents were or are U.S. citizens can be tricky. For example, a client’s parents may not be alive any longer. If they were born in the U.S., finding the parents’ birth certificates is the place to begin. This may not be a simple task. You and the client may need to consult with the state office of vital statistics in the state where the client’s parents were born. See www.vitalcheck.com. Proof of residence may be even more difficult to obtain. After all, it may have been 50 years since the client’s parent last lived in the U.S. Be sure to ask your client to think of as many leads as he can for gathering this information. You and your client may be able to think of available documents such as school records, rent receipts, employer records, bank accounts, utilities records, military records, affidavits from others and even criminal records. The Social Security Administration, Internal Revenue Service, and schools are all useful places to look for such proof. Any experience you and your client may have had in documenting other types of immigration cases such as cancellation of removal or DACA cases will help you think of where to look for documents. Older relatives may also be helpful in these situations. To prove the parent-child relationship, you should use a birth certificate that states who the child’s parents are. If the birth certificate is unavailable, you could try to use medical records, religious records, school records, or witness affidavits. Additionally, if the parents are still alive, a blood test or DNA test can show the parent-child relationship.

17-39

Unit 17

If, according to the law and the charts, the client acquired citizenship, the next task is to prove that each requirement was met. Documentation of each fact is needed. Once the documentation is available, the client can seek a U.S. Passport, a Certificate of Citizenship (N600), or a Report of Birth Abroad of a Citizen of the United States of America (FS-240).

Unit 17

Example: Gordon was born in China on June 30, 1943, and is the son of Chang and Helen. Chang and Helen were married before Gordon was born. Helen is a native and citizen of China. Chang was born in the United States in 1913 and left to go to China with his parents in 1916. He returned to the U.S. in 1924. Chang resided in the United States until 1939, when he returned to China again to live. Although Gordon and Chang knew that Chang was a U.S. citizen, it was not until 1980, when Gordon came on a visit to the U.S. and spoke to an immigration attorney, that Gordon realized that he might have a claim to U.S. citizenship. Since Gordon’s parents were married before he was born, we refer to Chart A to determine if he has a claim to U.S. citizenship. Since Gordon was born in 1943, his claim to U.S. citizenship must meet the rules for the period January 13, 1941 to December 24, 1952. Since he is claiming through one citizen parent and one alien parent, the citizen parent, Chang, must have resided in the U.S. for ten years prior to Gordon’s birth, five of which must have been after Chang was age 16. Chang’s residence in the U.S. from 1924 to 1939 satisfies this requirement. However, for the period in which Gordon was born there is an additional retention requirement for those who claim U.S. citizenship by acquisition. It requires that Gordon must have resided in the U.S. for two years between the ages of 14 and 28. When Gordon came to the U.S. for the first time in 1980, he was already over the age of 28. He did not meet the retention requirement. However, if a person is unaware of a claim to citizenship, failure to meet the retention requirement will not bar the claim. (See note 5 on Chart A.) Since the facts indicate that Gordon was not aware of his claim until after entering the U.S. in 1980, he still acquires U.S. citizenship. You will need your client’s help in preparing the case. In the example above, the legal worker will need to work with Gordon to prove that Gordon’s father met the residence requirements necessary for Gordon to acquire citizenship. You can obtain leads by asking Gordon, relatives, or family friends what they know about Chang’s life in the U.S. Any ties to the past such as scrapbooks or old stories might reveal what Chang did while in the country. Additionally, the attorney or legal worker will need to prove that Chang was indeed a citizen and that Gordon was his son.

§ 17.22 Acquisition of Citizenship Exercises Exercise 17.22-a: Mary was born in the U.S., but moved to live in Ireland when she was six years old. She married Paul, a citizen of Ireland, in 1932. In 1935 their child Martha was born in Ireland. In 1936 the entire family moved to San Francisco, California. Is Martha a U.S. citizen? Exercise 17.22-b: Bill was born in Wisconsin in 1942. He lived in the United States until 1964 when he moved to Norway. In Norway he had a daughter, Rebecca, who was born on April 18, 1966. Rebecca’s mother is a native and citizen of Sweden. Bill was not married to Rebecca’s

17-40

Tab Position 1

Immigrant Legal Resource Center April 2014

mother. Bill legitimated Rebecca on December 12, 1968, under the law of Norway, which was his domicile at the time. Did Rebecca acquire U.S. citizenship through Bill?

Tab Position 1

A Guide for Immigration Advocates April 2014

For all answers to the exercises above, please see Appendix 17-A.

§ 17.23 Derivation of Citizenship

§ 17.24 Who Can Derive Citizenship As with the laws on acquisition of citizenship, the laws governing derivation of citizenship have changed several times. Therefore you and your clients may sometimes need to refer to the old laws. The law in effect at the time that the last requirement for derivation was met in your client’s case is the law that applies to your client. Each law requires different combinations of the six issues listed above. Chart C found in Appendix 17-B can help you and your clients determine whether or not they are U.S. citizens through derivation. Although illegitimate and adopted children born outside the U.S. can derive citizenship under certain circumstances (see Chart C on Derivation of Citizenship, Appendix 17-B), stepchildren born outside the U.S. can never derive citizenship.

§ 17.25 Using the Chart to Determine Derivative Status To use the chart follow these three steps: 

Step 1: Determine if your client was a lawful permanent resident before turning 18, and whether one or both of his or her parents naturalized before the client’s 18th birthday. If the client was born on or after 2/27/83, it would be sufficient if either parent was a citizen by birth in the U.S. or through naturalization. If the last act for determining eligibility for derivation of citizenship occurred before 1/13/41, then for the applicant to have derived citizenship he or she must have been a lawful permanent resident before his or her 21st birthday, and one or both of his or her parents must have naturalized before the

17-41

Unit 17

A child who is a lawful permanent resident can become a citizen automatically if, under certain circumstances, one or both of her parents naturalizes or, under different circumstances, at least one of her parents is a U.S. citizen through naturalization or by birth. This process is called derivation of citizenship. Derivation of citizenship is different from acquisition of citizenship and from applying for naturalization on your own. Every client must be asked whether or not she is or has ever been a lawful permanent resident and whether or not her parents are or were U.S. citizens. A client who derives citizenship through the citizenship of his or her parents has the same rights as any U.S. citizen except he or she cannot become the President of the United States because only people born as U.S. citizens can become President.

Unit 17

applicant’s 21st birthday. Regardless of when the client was born, if STEP 1 is fulfilled, then continue to STEP 2. If not, then your client does not qualify for derivative status. 

Step 2: Go to the boxes on the right side of the chart that are listed under the heading “Requirements.” Determine which, if any, of the requirements in any one of these boxes the client fulfills. The client cannot qualify by fulfilling a mere majority of the requirements listed in a box. He must fulfill all the requirements listed in at least one of the boxes or else he cannot qualify for derivative status.



Step 3: If you and your client have determined he fits squarely into one of the boxes on the right side, see if the date at which the last qualifying act was completed fits into the time period specified in the left column. If it does, then he derived U.S. citizenship and he is a U.S. citizen. If it does not, then he did not derive U.S. citizenship and he is not a U.S. citizen. Example: Gwen was born in Israel in 1950. When Gwen was born, her mother was a citizen of Israel and her father a citizen of the U.S. Her father had lived in the U.S for only two years before Gwen’s birth. In 1955, the entire family moved to the U.S. Gwen and her mother entered as lawful permanent residents. In 1963, Gwen’s mother became a naturalized citizen of the U.S. Gwen got married when she was 30 years old. Gwen derived citizenship automatically when her mother naturalized in 1963. Gwen is subject to the rules in effect during the period covering 12/24/52 to 10/5/78 on the chart in Appendix 17-B. The last qualifying act for Gwen’s derivation of status happened in 1963 when her mother naturalized. At this time she was under 18, unmarried, and a lawful permanent resident of the U.S. It is insignificant that she got married after she turned 18. Example: Sanjiv was born in India in 1929. Sanjiv and both his parents came to the U.S. as lawful permanent residents in 1940. In 1950 both of Sanjiv’s parents naturalized. Sanjiv did not derive citizenship through the naturalization of his parents. Sanjiv is subject to the rules in effect during the period covering 1/31/41 to 12/23/52. He falls into this period because the last qualifying act for his derivation happened in 1950 when both his parents naturalized. Under the rules in effect during 1950, Sanjiv would not qualify for derivative status. Although both his parents naturalized and he was a lawful permanent resident at the time, he was over 18 when they naturalized. Sanjiv can still apply for naturalization himself because he has been a lawful permanent resident for more than five years.

If all of the conditions have been met, the child derived citizenship regardless of the order in which the conditions occurred. Example: Jose was born in 1966, and both his parents became lawful permanent residents in 1968. Jose’s mother became a U.S. citizen in 1974. At this time Jose was

17-42

Tab Position 1

Immigrant Legal Resource Center April 2014

not a citizen because only one of his two parents naturalized. Jose’s father never naturalized and died in 1975. Did Jose derive citizenship when his father died in 1975 because before Jose’s 18th birthday his surviving parent had naturalized and Jose was a permanent resident? The ILRC suggests that advocates should argue that Jose did derive citizenship because the order of these events is insignificant as long as they all occurred prior to Jose’s 18th birthday. It also doesn’t matter that Jose is now over 18 years old. Jose became a citizen in 1975, at the age of 9.

Example: Mario was born on August 7, 1977. His parents became U.S. citizens on June 3, 1980. He entered the U.S. as a lawful permanent resident on August 1, 1994. Mario has been living with his U.S. citizen parents since 1994. Because the last qualifying act occurred in 1994, Mario must satisfy the requirements under the “10/5/78 to 2/26/01” row or the “2/26/83 to present” row found in Appendix 17-B. The ILRC would argue that even though Mario became a permanent resident after his parents naturalized, he would still satisfy the requirements found under both of these categories and thus he became a U.S. citizen automatically through derivation of citizenship.

§ 17.26 Child Citizenship Act of 2000 The “Child Citizenship Act of 2000” significantly changed the rules for citizenship for certain children born outside the United States. Under the new rules, anyone who on or after February 27, 2001, was or is under 18, unmarried, a lawful permanent resident, and who was or is in the legal and physical custody of at least one U.S citizen parent, is automatically a U.S. citizen.3 This is the case whether the lone U.S. citizen parent became a citizen by birth or through naturalization. Example: Chan was born on July 13, 1987 in Korea. Chan, his mother, and his father all became lawful permanent residents of the U.S. in 1990. His mother naturalized in 1998. Chan’s father has not yet naturalized. Chan lived with both his parents in the U.S.                                                              3

Courts have ruled that the Child Citizenship Act of 2000 is not retroactive. See, e.g., Guzman v. U.S. Dep’t Homeland Sec., 679 F.3d 425 (6th Cir. 2012). Thus, it only applies to children who on or after February 27, 2001, were or are under 18.

17-43

Unit 17

Example: Eda was born in 1963, and both her parents became lawful permanent residents in 1967. Eda’s mother became a U.S. citizen in 1973. At this time Eda’s father had not yet applied for citizenship, and therefore Eda was not a citizen. Eda’s mother and father divorced in 1978 and Eda’s mother had legal and physical custody of Eda. Although the CIS may disagree, it is the ILRC’s position and advocates should argue that Eda became a U.S. citizen through derivative citizenship when her mother and father divorced in 1978 because before Eda’s 18th birthday her parent who naturalized had legal custody of her. In most cases, the order of these events is insignificant as long as they all occurred prior to Eda’s 18th birthday. It also doesn’t matter that Eda is now over 18 years old. Eda became a citizen in 1978, at the age of 15.

Tab Position 1

A Guide for Immigration Advocates April 2014

Under the “Child Citizenship Act of 2000,” Chan became a U.S. citizen automatically on February 27, 2001 because at that time he was under 18, unmarried, a lawful permanent resident, and was living in the legal and physical custody of his U.S. citizen mother. It is no longer required that both parents are U.S. citizens for derivation if both parents have custody.

Unit 17

Please note that there are special rules concerning the definitions of both legal and physical custody. To learn more about these rules, please see Chart C of Appendix 17B and the ILRC’s manual entitled, Naturalization and U.S. Citizenship: The Essential Legal Guide.

§ 17.27 Submitting an Application for and Documenting a Claim of Derivative Citizenship Although people deriving citizenship are citizens automatically, they will still need to prove it in order get a U.S. passport or terminate removal proceedings. Thus, clients who have derived citizenship should apply for a Certificate of Citizenship on Form N-600 and/or a U.S. passport.

PRACTICE TIP: Note that even without a Certificate of Citizenship or a U.S. passport a client who qualifies for derivation of citizenship is a U.S. citizen and may have been one for a long time. Explain to such clients that they already are U.S. citizens, but that they need to obtain documents in order to prove that fact.

If the client’s parents are applying for naturalization and believe their child or children will derive citizenship status, the parents should complete Form N-600 for each qualifying child and submit these forms once the parents get sworn in as U.S. citizens. A completed N-600 application form should be accompanied by: 1. 2. 3. 4. 5.

Proof of the child’s status as a lawful permanent resident. Proof of the citizenship of the parent(s) of the child. A copy of the child’s birth certificate or other birth record. A copy of the marriage certificate of the child’s parents (if applicable). If the child’s parents were previously married, proof of dissolution of the prior marriage (e.g., a death certificate of the prior spouse or a divorce decree). 6. If the child was born out of wedlock, proof that the child was legitimated (if applicable). 7. In the case of a child whose parents are divorced or legally separated, proof that the child is in the legal and physical custody of the U.S. citizen parent. 8. If applicable, evidence of all legal name changes of the child, the child’s U.S. citizen parent, and the child’s U.S. citizen grandparent.

17-44

Tab Position 1

Immigrant Legal Resource Center April 2014

9. In the case of an adopted child, a copy of the full, final adoption decree and, if the adoption was outside of the U.S. and the child immigrated as an orphan coming to the U.S. to be adopted by U.S. citizen parent(s), evidence that the foreign adoption is recognized by the state where the child is permanently residing. 10. The CIS required fee (see www.uscis.gov). 11. According to the instructions on the application form, the applicant should submit:  Two photos of the child and  Proof of the U.S. citizen parent’s residence in the U.S.

§ 17.28 How to Appeal a Denial of a § 320 Citizenship Application If the CIS denies an application for a certificate of citizenship under INA § 320, the applicant can appeal the denial to the Administrative Appeals Unit (AAU). The applicant must file the appeal on CIS Form I-290B, Notice of Appeal to the Administrative Appeals Unit. The applicant must file the appeal within 30 days of service of the CIS’ decision denying the original application. If the CIS has denied an application for a certificate of citizenship under INA § 320 and the applicant failed to submit a timely appeal of the decision to the AAU, the CIS will reject any other applications for a certificate of citizenship under INA § 320 that the same applicant submits and instead instruct the applicant to submit a motion to reopen or reconsider to the CIS.

§ 17.29 Section 322: Citizenship for Children The § 322 process of becoming a citizen is often referred to as “Naturalization for Children,” but is really a method of obtaining a certificate of citizenship for a child. This rule extends to adopted children and in some limited circumstances to illegitimate children. But § 322 is not available to stepchildren. Please see INA § 101(c)(1) for definitions of adopted, step, and illegitimate children under this part of the law. (The definitions are not always the same as they are for people applying for permanent residence status.) The process to naturalize under § 322, including an interview by the CIS, must be completed before the child is 18 years old. There are five basic requirements to qualify for citizenship under INA § 322. A child, whether adopted or not, must fulfill all five of the requirements before qualifying for citizenship. In order for a child to become a U.S. citizen under § 322 a parent who is a U.S. citizen (or, if the citizen parent has died during the preceding five years, a citizen grandparent or citizen legal guardian) may apply for § 322 citizenship on behalf of the child so as long as the following requirements are met:

17-45

Unit 17

An applicant for a certificate of citizenship and his or her U.S. citizen parent(s) must appear for the CIS interview unless the CIS waives the interview.

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

1. At least one parent of the child is, or at the time of his or her death was, a U.S. citizen, either by birth or by naturalization. 2. The U.S. citizen parent of the child has (or at the time of her death, had) resided in the U.S. or its outlying possessions for a total of five years or more, at least two of which were after the parent turned 14 years old. Children of U.S. Armed Forces members who are authorized to accompany their military parent abroad will have all periods of residency and physical presence abroad while accompanying their military parent treated as periods of residency and physical presence in the United States. Such children may also take the oath of citizenship and become naturalized abroad. or A U.S. citizen parent of the child’s U.S. citizen parent (that is, the child’s grandparent) must have lived in the U.S. for five years, at least two of which were after the grandparent turned 14 years old. 3. At the time of being admitted into citizenship, the child is under 18 years old and unmarried. 4. The child is residing outside of the U.S. in the legal and physical custody of the applicant (or, if the citizen parent is dead, an individual who does not object to the application). 5. The child is temporarily present in the U.S. pursuant to a lawful admission (such as a visitor’s visa or student visa, but not parole status) and the child is maintaining such legal status. Thus, although a child can be abroad when the application is submitted, he or she must be in the U.S. to attend the CIS citizenship interview. Example: Olga was born in Russia in 1998. Her father, Dimitri, immigrated to the U.S. in 1999 and became a U.S. citizen in 2008. In 2009, Dimitri moved back to Russia to live with Olga. Dimitri wants Olga to become a U.S. citizen. If Olga were to come to the U.S. on a visitor’s visa she would qualify for § 322 citizenship because Dimitri had lived in the U.S. for more than five years, at least two of which were after the age of 14 and Olga would have made a lawful admission to the U.S. and would be living outside the U.S. while in the legal and physical custody of Dimitri, her U.S. citizen parent. Olga would have to remain in legal status in the U.S. until the adjudication of her § 322 application. Example: Jose was born in Mexico in 1960. Both of Jose’s parents were U.S. citizens and grew up in Texas. They left Texas together in 1958 after graduating from high school in the U.S. at the age of 18 and never returned to the U.S. Jose acquired U.S. citizenship at birth but has never lived in the U.S. Now, he lives with his fourteen-yearold daughter, Raquel, in Mexico. Raquel came to the U.S. on a visitors’ visa and remains in that status. Although she is visiting the U.S., she is only staying in the U.S. temporarily. Her permanent home is still in Mexico with her father.

17-46

Tab Position 1

Immigrant Legal Resource Center April 2014

Raquel qualifies for § 322 citizenship because she entered the U.S. in lawful status and has remained in that legal status. Raquel lives with her U.S. citizen parent in Mexico, and, although Jose, her father, does not have five years of residence in the U.S., Jose’s parents, i.e., her grandparents, are U.S. citizens that lived in the U.S. for more than five years, two of which were after they were 14 years old.

It is important to note that even if the citizen parent and citizen grandparent have died, a child will remain eligible for § 322 citizenship assuming he or she meets the other requirements for § 322 and so long as the citizen parent, or the citizen parent’s own citizen parent, met the physical presence requirement in § 322(a)(2)(B) at the time of his or her death. The parent(s), grandparent(s), or citizen legal guardian must complete form N-600K, Application for a Certificate of Citizenship and Issuance of Certificate Under Section 322, on behalf of the child. The § 322 process, including a completed interview and oath of allegiance, must be completed before the child turns 18 for the applicant to become a citizen. The § 322 process has fewer requirements for the child than the adult applicant does under the normal naturalization procedures. Under § 322, children do not have to:     

speak, read, or write English; have a knowledge and understanding of U.S. history and government; meet any residence or physical presence requirements; show that they have “good moral character;” take the oath of allegiance unless the CIS decides to waive it because the child is unable to understand the oath.

It is important to note that the definitions of both legal and physical custody can be complicated when working with § 322 and/or derivation of citizenship cases. To find more information on this topic, please refer to the ILRC’s manual entitled, Naturalization and U.S. Citizenship: The Essential Legal Guide.

NOTE: Compare Acquisition and Derivation. One should not confuse the § 322 citizenship process with acquisition or derivation of citizenship, which are discussed in more detail earlier in this unit and even more thoroughly in Chapter 12 of the ILRC’s manual, Naturalization and U.S. Citizenship: The Essential Legal Guide. Citizenship under INA § 322 is an application process whereby a U.S. citizen parent can apply for a child to become a U.S. citizen and obtain a certificate of citizenship. Acquisition and derivation of citizenship are methods of acquiring citizenship automatically, without applying for anything. Under acquisition and derivation, the child only has to apply for a certificate of citizenship to prove he or she already is a citizen.

17-47

Unit 17

If a child is adopted, the requirements of INA § 322 are the same so long as the child was adopted prior to reaching the age of 16, and the child either (a) has been in the legal custody of, and resided with, the adoptive parent for at least two years, or (b) qualifies as an orphan under INA § 101(b)(1)(F).

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Acquisition of citizenship allows certain people born outside the U.S. automatically to become U.S. citizens at birth. Derivation of citizenship allows certain lawful permanent residents born outside of the U.S. automatically to derive U.S. citizenship if one parent becomes a citizen through naturalization or was a citizen at birth, but the child did not acquire citizenship at birth. Some families may be unaware of automatic derivation when their parents naturalize. Thus, some minor children, or even adults, may already be citizens and not know it. Unlike the process for applying for citizenship for children under § 322, people who have derived or acquired citizenship are automatically citizens and do not have to submit their N-600 applications before they are 18 years old.

PART FIVE: LOSS OF CITIZENSHIP § 17.30 Introduction to Loss of Citizenship United States citizenship may be “lost” in either of two ways. Any citizen may choose to abandon it voluntarily. Or, if acquired through naturalization, citizenship may be revoked if the government can prove it was obtained illegally. The voluntary abandonment of citizenship is generally referred to as expatriation. Revocation of naturalization is called denaturalization. The rule that expatriation may occur only with the citizen’s voluntary choice to abandon it comes from Afroyim v. Rusk, 387 U.S. 253 (1967), in which the Supreme Court held that because citizenship is derived from the 14th Amendment to the Constitution, Congress has no power to take it away. Only the citizen may choose to give it up. Consequently, while current law points to certain voluntary acts as resulting in expatriation, such acts must be made “with the intention of relinquishing” citizenship. Denaturalization, on the other hand, applies only to those who became citizens through the naturalization process. The rationale for denaturalization is that the individual was not in fact qualified for naturalization. Thus, the certificate of naturalization may be revoked if they were “illegally procured or were procured by concealment of a material fact or by willful misrepresentation.”

§ 17.31 Expatriation INA § 349 begins by providing that: “(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality.” The specific acts are as follows: A.

Naturalization in a Foreign State: INA § 349(a)(1). Obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years.

17-48

Tab Position 1

Immigrant Legal Resource Center April 2014

Oath of Allegiance to Foreign State: § 349(a)(2). Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof after having attained the age of eighteen years.

C.

Service in Foreign Armed Forces: INA § 349(a)(3). Entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such person serves as a commissioned or non-commissioned officer.

D.

Foreign Governmental Employment: § 349(a)(4). (A) Accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or political subdivision thereof after attaining the age of 18 years, if he has or acquires the nationality of such foreign state; or (B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or political subdivision thereof after attaining the age of eighteen years, for which office, post, or employment an oath, affirmation, or declaration of allegiance is required.

E.

Renunciation of U.S. Citizenship: § 349(a)(5). Making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.

The formal renunciation must include a declaration that the citizen “absolutely and entirely renounces his U.S. nationality together with all rights and privileges and all duties of allegiance and fidelity” to the United States. With proof of a citizen’s signature on such a form, it should not be difficult for the government to prove a voluntary act performed with the intention of relinquishing U.S. citizenship. However, duress, in the form of severe economic distress, rather than an intent to give up citizenship, could have prompted the renunciation and may be relevant to whether the act was voluntary. The provision does not contain an exception for citizens under 18. However, one who asserts a claim to citizenship on a specified State Department form within six months of reaching 18 will not have expatriated. Even in the absence of such assertion, there should be an issue of whether the minor had the capacity to voluntarily renounce his citizenship, much less with the intent to abandon it.

NOTE: Persons who renounce their U.S. nationality to avoid U.S. taxes are inadmissible as immigrants thereafter; and such ground of inadmissibility is not waivable.

F.

Renunciation in U.S. During Wartime: § 349(a)(6). Making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United 17-49

Unit 17

B.

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

States shall be in a state of war and the Attorney General shall approved such renunciation as not contrary to the interest of national defense. G.

Treason and Subversive Activities: § 349(a)(7). Committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of § 2383 of Title 18, or willfully performing any act in violation of § 2385 of Title 18, or violating § 2384 of Title 18 by engaging in a conspiracy to overthrow, put down, or destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

H.

Expatriation Procedures INA § 358: 22 CFR § 50.50 and 51. Though 22 CFR § 50.50(b) refers only to renunciation cases, consular or diplomatic officers will issue a certificate of loss of nationality in all expatriation cases and send the certificate to the State Department for approval. Upon such approval, the certificate is forwarded to the Justice Department and to the former citizen and legal representative, if any. An appeal may be taken within one year to the State Department’s Board of Appellate Review.

§ 17.32 Denaturalization: INA § 340 The naturalization of an American citizen may be revoked if it was “illegally procured” (that is, illegally obtained) or was procured “by concealment of a material fact or by willful misrepresentation.” To a great extent, the illegal procurement and concealment provisions overlap for the simple reason that procuring naturalization by concealment or willful misrepresentation is also procuring it illegally. In a remnant of the Cold War, naturalization may also be revoked if, under specified circumstances, the citizen refuses to testify before a congressional committee with respect to alleged subversive activities. Additionally, naturalization on the basis of wartime military service may be revoked if such citizen is later discharged from the service under other than honorable conditions. A citizen may also be prosecuted in criminal proceedings under 18 USC § 1425 for knowingly and illegally procuring or attempting to procure naturalization, and denaturalized immediately thereafter. A.

Illegal Procurement of Naturalization

Naturalization is “illegally procured” when the citizen was not in fact eligible for naturalization; that is, when, as it turns out later, the applicant had not complied with at least one of the statutory requirements for naturalization described earlier in this unit. Because it is a distinct ground for denaturalization, illegal procurement does not imply a concealment or misrepresentation of any kind. Rather, the issue is one of fact—did the applicant satisfy all of the specific requirements for naturalization?

17-50

Tab Position 1

Immigrant Legal Resource Center April 2014

Of course, willful concealment of the pertinent fact would provide grounds for revocation under the concealment provision. Misrepresentation or concealment of a non-material fact can raise questions about a person’s character on the principle that one does not lie to the government even if the truth would not have disqualified the applicant from naturalization, such as an arrest without conviction or conviction for a petty offense or other misconduct that preceded the qualifying period of residence. B.

Tab Position 1

A Guide for Immigration Advocates April 2014

Concealment and Willful Misrepresentation

In rare cases, the fact that a naturalization applicant concealed a material fact will not be a sufficient basis for denaturalization. Proof that the applicant concealed a material fact raises a presumption that the material fact procured the naturalization, if the evidence raises a “fair inference” of ineligibility. Consequently, in unusual cases a citizen could overcome the presumption and thereby save his citizenship by showing that he was eligible for naturalization despite the materiality of a concealed fact or misrepresentation.

§ 17.33 Denaturalization Proceedings: INA § 340 -- 8 CFR § 340.2 The denaturalization process is initiated by the filing of a complaint in the U.S. district court alleging “upon affidavit showing good cause” that the defendant’s naturalization was either procured illegally or by concealment of a material fact or by willful misrepresentation. Jurisdiction is in the district court of the defendant’s current residence. The process begins with a recommendation to that effect by a district director of the CIS having jurisdiction over the citizen’s current residence, which is forwarded to the regional director and then on to the U.S. Attorney. Given the precious nature of American citizenship, the government must prove its case by clear, unequivocal and convincing evidence.

§ 17.34 Practice Questions Now refer to Appendices 17-D, 17-E and 17-F for exercises and questions to test your knowledge of naturalization.

17-51

Unit 17

Naturalization may be revoked if it was procured by “concealment of a material fact or by willful misrepresentation.” So when is a concealment (or willful misrepresentation) material? And if material, did the concealment or misrepresentation “procure” naturalization? In U.S. v. Kungys, 485 U.S. 759 (1988), the Supreme Court held that a concealment or misrepresentation is material if it had a “natural tendency” to affect the outcome.

FOR MORE INFORMATION ON THIS SUBJECT, see: Naturalization and U.S. Citizenship: The Essential Legal Guide. Please check ILRC’s website, www.ilrc.org, for information about this manual. “How To Prevent Loss of Citizenship: Parts I and II,” Immigration Briefings, 89-11 and 89-12 (November and December 1989, written by Gary Endelman).

Unit 17

Immigration Law and Procedure by Gordon, Mailman, and Yale-Loehr (Mathew Bender). U.S. Citizenship and Naturalization Handbook (West Publishing).

17-52

Tab Position 1

Immigrant Legal Resource Center April 2014

APPENDIX 17-A ANSWERS TO EXERCISES

Answer to exercise 17.21-a Since Martha's parents were married at the time of her birth, refer to CHART A. Because Martha was born in 1935, her claim is governed by the rules which apply to births between May 24, 1934 and January 13, 1941. She is claiming U.S. citizenship through her mother. When such a claim is made for this period, the rules require that her U.S. citizen parent resided in the United States prior to the birth of the claimant. Mary, her mother, met this requirement. Yet, for Martha to have acquired citizenship, she had to show that she lived in the U.S. for at least five years between the ages of 13 and 21. Since Martha lived in the U.S. since she was one year old, Martha did acquire U.S. citizenship. Answer to exercise 17.21-b Because Rebecca's parents were not married when she was born, refer to CHART B. Because she cannot acquire U.S. citizenship through her mother, and she was "legitimated" by a U.S. citizen father, and she was born prior to November 15, 1968, refer to PART 2 of CHART B. Because Rebecca was born in 1966, her claim is governed by the rules that apply for births between December 24, 1952 and November 15, 1968. For this time period, the law requires that the child have been legitimated before age 21 under the law of the father's domicile. Because Rebecca was legitimated at age two under the law of Bill's domicile, she meets this requirement. The next step is to refer to CHART A and use the law that applies to children born in a foreign country to married parents.

Appendix 17-A-1

Unit 17

Answer to Exercise 17.7 Probably not. Yosh falls under the grounds of deportability because of his conviction of a drug crime. Thus, he has been deportable/removable since his conviction in 1986. If he applies for naturalization even now the CIS or ICE could place Yosh in removal proceedings, try to take away his green card, and Yosh could be removed from the U.S. He should investigate the possibility of obtaining some form of post-conviction relief to erase his conviction. See Unit 3 for more information about his options. For instance, if he lived in a state under the jurisdiction of the Ninth Circuit and if he got the conviction expunged he would no longer be deportable. Depending on the circumstances, this might not work outside proceedings in the Ninth Circuit, however. If, however, Yosh had a strong cancellation of removal case (see Unit 12 for more information on this subject and to determine if he would even be eligible for cancellation of removal, or even for 212(c) under the St. Cyr case), he could apply for naturalization but it would still be risky. Yet, at least if the CIS or ICE placed him in removal proceedings, he could apply for cancellation in front of an immigration judge. Ultimately, it will be Yosh's decision whether or not to apply. Under no circumstances should he apply before discussing his options and the strength of his cancellation of removal case with an experienced immigration lawyer or BIA Level II accredited representative. See Unit 12 for more information on cancellation of removal. How would you explain this to Yosh?

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Because Rebecca was born in 1966, her claim is governed by the rules for births between December 24, 1952 and November 14, 1986. Rebecca's claim is based on having one citizen parent and one alien parent. When such a claim is made, the rules require that the citizen parent must have been physically present in the United States or its outlying possessions for ten years prior to the birth of the child; at least five of the ten years must have been after the age of 14. Bill met this requirement due to the fact that he lived in the United States from birth to age 22. Therefore, Rebecca did acquire U.S. citizenship at birth.

Appendix 17-A-2

Tab Position 1

Immigrant Legal Resource Center April 2014

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Appendix 17-B-1

Unit 17

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 17-B-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Appendix 17-B-3

Unit 17

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 17-B-4

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Appendix 17-B-5

Unit 17

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 17-B-6

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Appendix 17-B-7

Unit 17

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 17-B-8

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 17

Appendix 17-B-9

Unit 17

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 17-B-10

APPENDIX 17-C ADVANTAGES AND DISADVANTAGES OF NATURALIZATION EXAMPLE

Tab Position 1

A Guide for Immigration Advocates April 2014

Note: This example will be used for the class session on Naturalization

Appendix 17-C-1

Unit 17

Lupe is twenty-three years old and has lived in the United States since she was 14. She has been a lawful permanent resident of the U.S. for the last six years. She is originally from Mexico City and is a national of Mexico. Although she loves Mexico, she does not plan to live there in the future. She plans to stay in the United States permanently. Lupe does not speak English fluently. Lupe would like to bring her mother, who presently lives in Mexico, into the U.S. through the immigration system but the waiting list is too long. Four years ago and again two years ago, Lupe was convicted of shoplifting a very small amount of food. Lupe and others in her community have not been happy with way the police is treating the teenagers in town. They want to replace some of the members of the city council to improve the police force. Lupe works in a hotel but is looking for a different job. Lately, she has seen advertisements for federal government jobs listed in the newspaper which sound interesting. She is thinking of applying for one of these jobs.=

APPENDIX 17-D HOMEWORK ASSIGNMENT -- NATURALIZATION CASES

Unit 17

Instructions: Read and analyze the following cases in preparation for an exercise at the next training session. Please make a few notes about the answers as part of your homework for each case below to help you during the training session's exercise. Case 1 Ron has been a lawful permanent resident for five years and wants to apply for naturalization. He visited his family in Germany for three months about three years ago. Then last year his father, Eric, died and he had to go back again to sell the family farm and help his mother and brother resettle. None of his uncles, Henry, Muhey, or Dean, or his brother, Neal, could do it because they were too elderly. It took much longer than he expected -- 13 months. He returned to the U.S. on January 20, 2012. Before he left, Ron had an apartment on a month-to-month rental agreement. He had to give the apartment up. He left his furniture and some clothes with friends in the same city. He had worked as a cook in a restaurant, but his boss told him before he left that he could find temporary replacements for about two months, but that after that, he would probably have to replace him permanently. His boss asked him to stay in touch to let him know when he would be back, though, to see if he could find some job for him. -

How would you explain the legal issues to Ron so he and you could work together on the case?

-

What are the arguments for and against Ron having disrupted his continuous residence? Could he qualify for naturalization? Why? Why Not? When could he qualify?

-

What are the legal arguments for and against Ron having abandoned his residence? Would he be found to have abandoned his residence? What are some proofs that he did not abandon his residence? Case 2

Tran, from Vietnam, became a permanent resident in November 2012. In February 2013, he married Elizabeth, a U.S. citizen. Now their marriage is on the rocks, and he and Elizabeth are thinking of getting a divorce. Yet, they still live together. He wants to apply for naturalization to help his mother come to the U.S. Tran wants to know when he can apply for naturalization and whether or not divorcing Elizabeth would affect his application. When would Tran be eligible for naturalization

Appendix 17-D-1

Tab Position 1

Immigrant Legal Resource Center April 2014

if he remains married? Would it change if he were to get a divorce? If so, how? How would you explain to Tran the different options?

Tab Position 1

A Guide for Immigration Advocates April 2014

Case 3

What, if any, problems would Sanjiv have if he applied for naturalization? If Sanjiv asked for your advice what would you tell him? Case 4 Joseph, from Ireland, first came to the U.S. on a visitor's visa in 2001. After being in the U.S. for two months, he met Lorie, a U.S. citizen. Joseph and Lorie became very good friends. Joseph's visa expired and he wanted to remain in the U.S. for a few years and make some money. Although they were not in love and were not planning on living their lives together, Joseph and Lorie decided to get married. They knew this would help Joseph get his papers. Before getting married, Joseph went back to Ireland to collect his belongings. A couple of months later he came back to the U.S. so he could marry Lorie, get a job and live in the U.S. permanently. Once again, he came to the U.S. on a visitor's visa. Within one month of returning to the U.S. Joseph and Lorie got married. Although they never actually lived together, Lorie successfully petitioned for Joseph and he got his green card in 2004. In 2005, Lorie and Joseph divorced. Now Joseph wants to naturalize to bring his mother to the U.S. What, if any, problems would Joseph have when applying for naturalization? If he asked your opinion, would you tell him he should apply? Case 5 Moosh, from Sweden, has been a permanent resident of the U.S. since 1990, when at the age 12 he obtained his green card through the amnesty (legalization) program. Moosh had been living in the U.S since 1980. Recently, Moosh and his wife got a divorce. His wife obtained full custody of his child. Although Moosh was ordered to pay child support, he has not been working for the past nine months because he was hurt on the job and has been temporarily disabled for work purposes. Moosch has tried to give some money to his ex-wife but she refuses it and makes enough money to support herself and her family. He has been able to buy his child some clothes when they have been together and take her out for meals every couple of weeks. In addition, due

Appendix 17-D-2

Unit 17

Sanjiv, from India, has been a lawful permanent resident of the U.S. since 1990. He wants to apply for naturalization so he can vote in the next election and because he wants to be an American citizen. In 1999 Sanjiv was convicted of petty theft and had to pay a small fine and do some community service. In 2011 he was convicted of shoplifting again and had to pay another fine and perform some community service.

to his disability, he thought he did not have to file his tax return for last year. Moosh never registered for the draft.

Unit 17

What are the major good moral character issues you and Moosh need to discuss? Should he apply for naturalization? How would you convince a CIS naturalization examiner that Moosh is eligible to qualify for naturalization?

Appendix 17-D-3

Tab Position 1

Immigrant Legal Resource Center April 2014

NATURALIZATION CASE EXAMPLES FOR GROUP EXERCISES QUESTIONS AND ANSWERS

Tab Position 1

A Guide for Immigration Advocates April 2014

Instructions for Students: Read and analyze the following cases in preparation for an exercise at the next training session. Please make a few notes about the answers as part of your homework for each case below to help you during the training session's exercise.

Ron has been a lawful permanent resident for five years and wants to apply for naturalization. He visited his family in Germany for three months about three years ago. Then last year his father, Eric, died and he had to go back again to sell the family farm and help his mother and brother resettle. None of his uncles, Henry, Muhey, or Dean, or his brother, Neal, could do it because they were too elderly. It took much longer than he expected -- 13 months. He returned to the U.S. on January 20, 2012. Before he left, Ron had an apartment on a month-to-month rental agreement. He had to give the apartment up. He left his furniture and some clothes with friends in the same city. He had worked as a cook in a restaurant, but his boss told him before he left that he could find temporary replacements for about two months, but that after that, he would probably have to replace him permanently. His boss asked him to stay in touch to let him know when he would be back, though, to see if he could find some job for him. -

How would you explain the legal issues to Ron so he and you could work together on the case?

-

What are the arguments for and against Ron having disrupted his continuous residence? Could he qualify for naturalization? Why? Why Not? When could he qualify?

-

What are the legal arguments for and against Ron having abandoned his residence? Would he be found to have abandoned his residence? What are some proofs that he did not abandon his residence?

Answer: Explain disruption of continuity of residence and abandonment of residence. When explaining disruption, make sure to say that absences of less than six months will generally not affect his naturalization application for purposes of disruption of continuous residence, and absences of more than one year will mean he has to wait at least four years and one day from the time he returned to the U.S. to become eligible from naturalization again.

Appendix 17-D-4

Unit 17

Case 1

Although Ron's first absence of three months did not disrupt his residence, his 13-month absence would have disrupted his residence. Thus, Ron will have to wait until four years and one day have passed since he returned to the U.S., to qualify for naturalization. Thus, Ron can qualify for naturalization on January 21, 2016.

Unit 17

When explaining abandonment, make sure to say that he must show his absence was temporary, not permanent, and that he did not move his residence to Germany or some other county. Usually his intent is what counts the most. The major factors the CIS, ICE, and the courts will use to determine if he abandoned his residence are: * The purpose of the trip; * The intended length of the trip when he left; * In which country he is employed; * His ties to the U.S.; * His intent when he left the U.S.; and * Where his actual home is. One could successfully argue that neither of his absences constituted abandonment of residence because he didn't intend to abandon it; he left for an emergency reason and had to stay longer than he planned to; he had a fixed end to his trip planned, but had to stay longer than expected; he tried to keep his job and home in the U.S.; and he has a lot of ties to the U.S. Some ideas for proofs that Ron did not abandon his residence include: * Declarations from friends promising to take care of his belongings while he was away. * A declaration from his employer stating he kept Ron's job open for him because Ron told him he'd be returning in a couple of months. * Letters which Ron sent to friends, relatives and his employer saying he had to leave the U.S. due to an emergency and would be back soon. * Farm sale documentation and a death certificate showing the reasons why he had to visit Germany. * A declaration from Ron that he did not work while in Germany and always intended to return.

Appendix 17-D-5

Tab Position 1

Immigrant Legal Resource Center April 2014

* Tax returns filed as a resident alien, and not as a "non-resident alien" for the period when he was in Germany.

Tab Position 1

A Guide for Immigration Advocates April 2014

If Ron is found to have abandoned his residence, ICE could place him in removal proceedings, try to take away his green card, and try to deport him from the U.S. Of course, Ron could challenge ICE’s position in immigration court, and he would have a pretty strong case. In some instances, it would be best if people who may have abandoned their residences not apply for naturalization so they will not jeopardize their green cards.

Tran, from Vietnam, became a permanent resident in November 2012. In February 2013, he married Elizabeth, a U.S. citizen. Now their marriage is on the rocks, and he and Elizabeth are thinking of getting a divorce. Yet, they still live together. He wants to apply for naturalization to help his mother come to the U.S. Tran wants to know when he can apply for naturalization and whether or not divorcing Elizabeth would affect his application. When would Tran be eligible for naturalization if he remains married? Would it change if he were to get a divorce? If so, how? How would you explain to Tran the different options? Answer: If Tran remains married and living with his U.S. citizen wife for three years, he will be eligible for naturalization in February 2016. Tran became a lawful permanent resident in November 2012 and will qualify under the three-year residency requirement as long as he is married to and living with Elizabeth for at least three years. Thus, if he remains married to Elizabeth he would qualify for naturalization in February 2016 three years after his marriage. If Tran and his wife were to divorce, then he would have to wait five years to naturalize and he would not be able to naturalize in November 2017. He would, however, be able to submit his application in August 2017, three months before the date that he would be eligible to naturalize. It is important to explain to Tran the different residence requirements and what they mean. This will enable him to decide what he wants to do as far as the timing and his marital relationship are concerned. Case 3 Sanjiv, from India, has been a lawful permanent resident of the U.S. since 1990. He wants to apply for naturalization so he can vote in the next election and because he wants to be an American citizen. In 1999 Sanjiv was convicted of petty theft and had to pay a small fine and do some community service. In 2011 he was convicted of shoplifting again and had to pay another fine and perform some community service.

Appendix 17-D-6

Unit 17

Case 2

Unit 17

What, if any, problems would Sanjiv have if he applied for naturalization? If Sanjiv asked for your advice what would you tell him? Answer: Sanjiv has some good moral character problems. Petty theft is a crime involving moral turpitude. Because he has been convicted of a crime involving moral turpitude within the statutory period (the five-year period before applying for naturalization) and because he is ineligible for the petty offense exception due to the fact that he has been convicted of more than one crime involving moral turpitude, he is precluded from showing good moral character under INA section 101(f) during the five year statutory period. In the past, in some states, Sanjiv may have been able to get something like an "expungement" of his criminal record to eliminate these convictions for immigration purposes. Now, unfortunately, most expungements and many other similar procedures often do not eliminate these types of convictions for immigration purposes. He could also wait until five years have passed since his last conviction and then he may be able to make a showing of good moral character for the five-year period. But Sanjiv's biggest problem is that he falls under one of the grounds of deportability [INA section 237(a)(2)(A)(ii)] for having been convicted of two crimes involving moral turpitude after admission to the U.S. Although the CIS/ICE have not started removal proceedings yet, they will discover these convictions on Sanjiv's naturalization application. This discovery could allow them to begin removal proceedings and Sanjiv could be removed. Although it is ultimately Sanjiv's decision, he should not risk removal by applying for naturalization. He should instead wait until he and an attorney have determined whether or not anything can be done about cleaning up his criminal record through post-conviction relief and if there might be some defense in removal proceedings. Case 4 Joseph, from Ireland, first came to the U.S. on a visitor's visa in 2001. After being in the U.S. for two months, he met Lorie, a U.S. citizen. Joseph and Lorie became very good friends. Joseph's visa expired and he wanted to remain in the U.S. for a few years and make some money. Although they were not in love and were not planning on living their lives together, Joseph and Lorie decided to get married. They knew this would help Joseph get his papers. Before getting married, Joseph went back to Ireland to collect his belongings. A couple of months later he came back to the U.S. so he could marry Lorie, get a job and live in the U.S. permanently. Once again, he came to the U.S. on a visitor's visa. Within one month of returning to the U.S. Joseph and Lorie got married. Although they never actually lived together, Lorie successfully petitioned for Joseph and he got his green card in 2004. In 2005, Lorie and Joseph divorced. Now Joseph wants to naturalize to bring his mother to the U.S.

Appendix 17-D-7

Tab Position 1

Immigrant Legal Resource Center April 2014

What, if any, problems would Joseph have when applying for naturalization? If he asked your opinion, would you tell him he should apply?

Tab Position 1

A Guide for Immigration Advocates April 2014

Answer: Joseph's problems are visa fraud and marriage fraud. Joseph was not originally eligible for his green card because he was inadmissible for having committed visa fraud under INA section 212(a)(6)(C) because he intended to immigrate to the U.S., although his visa was a non-immigrant visa. Additionally, he obtained his green card through a sham marriage. Thus, he was not eligible for status as a lawful permanent resident.

Case 5 Moosh, from Sweden, has been a permanent resident of the U.S. since 1990, when at the age 12 he obtained his green card through the amnesty (legalization) program. Moosh has been living in the U.S since 1980. Recently, Moosh and his wife got a divorce. His wife obtained full custody of his child. Although Moosh was ordered to pay child support, he has not been working for the past nine months because he was hurt on the job and has been temporarily disabled for work purposes. Moosch has tried to give some money to his ex-wife but she refuses it and makes enough money to support herself and her family. He has been able to buy his child some clothes when they have been together and take her out for meals every couple of weeks. In addition, due to his disability, he thought he did not have to file his tax return for last year. Moosh never registered for the draft. What are the major good moral character issues you and Moosh need to discuss? Should he apply for naturalization? How would you convince a CIS naturalization examiner that Moosh is eligible to qualify for naturalization? Answer: Moosh has three possible good moral character problems. First, he failed to file his income tax returns last year. If he did not make enough money during the year to be legally required to file, then he has nothing to worry about. Moosh should contact the Internal Revenue Service (IRS) and ask them what the minimum amount one needs to make to be legally obligated to file federal tax returns. If, however, he did make enough money at his job to be legally required to file his income tax return, but he failed to do so, the CIS probably will deny his naturalization application for good moral character reasons. Thus, if he had been required to file his taxes, he should go to the IRS and file his tax return now for the year he missed. Once he files his tax returns for the year he missed, the CIS hopefully will not deny him for failing to file.

Appendix 17-D-8

Unit 17

Although it is up to Joseph whether or not he applies for naturalization, he should be very careful. If the CIS determines he obtained his visa fraudulently, they could deny his naturalization and start deportation proceedings. The CIS may have a better chance of finding out information when he applies for naturalization because he is no longer married to Lorie. Most clients would decide that the risk of removal (deportation) would not be worth applying for naturalization and advocates should not help their clients lie. See Unit 13.

Unit 17

Moosh's second problem is that the CIS might deny his naturalization application for failing to pay child support. Moosh should argue that he did not willfully fail to pay, and that he wanted to pay. Unfortunately, Moosh is financially unable to pay because of his disability. Thus, Moosh should argue that he should not be denied naturalization because his failure to pay child support was not willful. Additionally, Moosh could try to argue that his ex-spouse won't accept the child support payments and that he has been sending his child clothes and buying her some meals to the extent that he is financially able. Based on these arguments, Moosh should be able to eliminate any problems he has with failing to pay child support payments, but it will be a tough case to win. Moosh's third problem is that he failed to register for the Selective Service. Moosh is no longer under 26 years old and therefore it is now too late to register. In fact, Moosh is now over 31 years old (he was born in 1978) and it has been more than five years since he failed to register. Thus, Moosh should argue that his failure to register occurred outside of the five year statutory period and should not disqualify him for naturalization. Yet, because he does potentially have a “bad act” during the five year statutory period, CIS could use his failure to register for the draft as an additional factor in the good moral character balance test. Moosh could argue that, assuming it is true, he did not willfully fail to register for the Selective Service because he did not know he was supposed to register. CIS should not deny him naturalization solely based on failing to register for the Selective Service. When one looks at the totality of circumstances in Moosh’s naturalization application, there are quite a few negative factors in the good moral character balance test that CIS should employ (failure to file a tax return, pay child support, and register for the draft). These negative factors can pile up and cause the CIS to tip the balance against Moosh being able to show good moral character. Moosh needs to show some positive equities.

Appendix 17-D-9

Tab Position 1

Immigrant Legal Resource Center April 2014

APPENDIX 17-E PRACTICE EXERCISES ON ACQUISITION OF CITIZENSHIP Susan and Gerald are both naturalized U.S. citizens. In 1984, when both were age 22, they married. In 1987 they moved to Algeria where their son Jimmy was born on April 2, 1989. Did Jimmy acquire citizenship at birth?

2.

Linda, a native of the Philippines, became a naturalized U.S. citizen in 1965, after living in the United States six years. In 1967 she returned to the Philippines and gave birth to Sammy on May 5, 1969. Linda and Sammy’s father were not married when Sammy was born and thus Sammy was born out of wedlock. Sammy’s father has never legitimated him. Sammy’s father is a citizen of the Philippines. Does Sammy acquire U.S. citizenship?

3.

Charles was born in San Diego, California on April 18, 1963. In 1969 he moved with his family to their home country of Nigeria. In 1973 he moved back to San Diego and lived there until 1976 when he returned to Nigeria. He has not returned to the United States since 1976. In Nigeria he married Laura, a Nigerian native and citizen. Laura gave birth to their child, Thomas, on June 13, 1988 in Nigeria. Did Thomas acquire U.S. citizenship at birth?

______________________________________________________________

APPENDIX 17-F SMALL GROUP EXERCISES ON ACQUISITION OF CITIZENSHIP Exercise 1: George and Cecilia are U.S. citizens who were born in California and have lived all of their lives in the United States. They married in 1985. In 1988 they moved to Italy. Their daughter, Marie, was born in Italy on March 14, 1990. Did Marie acquire U.S. citizenship at birth? Exercise 2: Betty was born in Seattle, Washington on August 30, 1934. In 1946 she moved to Australia. On June 15, 1951 she gave birth to Saundra, an illegitimate daughter. Saundra's father is Australian. He has not legitimated Saundra. Did Saundra acquire U.S. citizenship at birth?

Appendix 17-E/F

Unit 17

1.

Tab Position 1

A Guide for Immigration Advocates April 2014

APPENDIX 17-G \ slb \ SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 316 -- GENERAL REQUIREMENTS FOR NATURALIZATION \ § Sec. 316.5 Residence in the United States.

Unit 17

§ Sec. 316.5 Residence in the United States. (a) General. Unless otherwise specified, for purposes of this chapter, including Sec. 316.2 (a)(3), (a)(5), and (a)(6), an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location. (b) Residences in specific cases. (1) Military personnel. For applicants who are serving in the Armed Forces of the United States but who do not qualify for naturalization under part 328 of this chapter, the applicant's residence shall be: (i) The State or Service District where the applicant is physically present for at least three months, immediately preceding the filing of an application for naturalization, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act; (ii) The location of the residence of the applicant's spouse and/or minor child(ren); or (iii) The applicant's home of record as declared to the Armed Forces at the time of enlistment and as currently reflected in the applicant's military personnel file. (2) Students. An applicant who is attending an educational institution in a State or Service District other than the applicant's home residence may apply for naturalization: (i) Where that institution is located; or (ii) In the State of the applicant's home residence if the applicant can establish that he or she is financially dependent upon his or her parents at the time that the application is filed and during the naturalization process. (3) Commuter aliens. An applicant who is a commuter alien, as described in § 211.5 of this chapter, must establish a principal dwelling place in the United States with the intention of permanently residing there, and must thereafter acquire the requisite period of residence before eligibility for naturalization may be established. Accordingly, a commuter resident alien may not

Appendix 17-G-1

Tab Position 1

Immigrant Legal Resource Center April 2014

apply for naturalization until he or she has actually taken up permanent residence in the United States and until such residence has continued for the required statutory period. Such an applicant bears the burden of providing evidence to that effect.

Tab Position 1

A Guide for Immigration Advocates April 2014

(4) Residence in multiple states. If an applicant claims residence in more than one State, the residence for purposes of this part shall be determined by reference to the location from which the annual federal income tax returns have been and are being filed. (5) Residence during absences of less than one year.

(ii) Return to the United States. If, upon returning to the United States, an applicant returns to the State or Service district where the applicant last resided, the applicant will have complied with the continuous residence requirement specified in § 316.2(a)(5) when at least three months have elapsed, including any part of the applicant's absence, from the date on which the applicant first established that residence. If the applicant establishes residence in a State or Service district other than the one in which he or she last resided, the applicant must complete three months at that new residence to be eligible for naturalization. (6) Spouse of military personnel. Pursuant to section 319(e) of the Act, any period of time the spouse of a United States citizen resides abroad will be treated as residence in any State or district of the United states for purposes of naturalization under section 316(a) or 319(a) of the Act if, during the period of time abroad, the applicant establishes that he or she was: (Paragraph (b)(6) added effective 11/28/11, 76 FR 53764) (i) The spouse of a member of the Armed Forces; (ii) Authorized to accompany and reside abroad with that member of the Armed Forces pursuant to the member's official orders; and (iii) Accompanying and residing abroad with that member of the Armed Forces in martial union in accordance with 8 CFR 319.1(b). (c) Disruption of continuity of residence (1) Absence from the United States. (i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under § 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for

Appendix 17-G-2

Unit 17

(i) An applicant's residence during any absence of less than one year shall continue to be the State or Service district where the applicant last resided at the time of the applicant's departure abroad.

or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)

Unit 17

(A) The applicant did not terminate his or her employment in the United States; (B) The applicant's immediate family remained in the United States; (C) The applicant retained full access to his or her United States abode; or (D) The applicant did not obtain employment while abroad. (ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with § 316.5(d), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under § 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant's return to the United States to resume permanent residence. (Amended 9/24/93; 58 FR 49913) (2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident. An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States. (Revised 2/3/95; 60 FR 6647) (3) Removal and return. Any departure from the United States while under an order of removal (including previously issued orders of exclusion or deportation) terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for purposes of this part. (Revised effective 4/1/97; 62 FR 10312) (4) Readmission after a deferred inspection or exclusion proceeding. An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under Sec. 316.2(a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.

Appendix 17-G-3

Tab Position 1

Immigrant Legal Resource Center April 2014

(d) Application for benefits with respect to absences; appeal. (1) Preservation of residence under Section 316(b) of the Act.

(ii) An approval of Form N-470 under Section 316(b) of the Act shall cover the spouse and dependent unmarried sons and daughters of the applicant who are residing abroad as members of the applicant's household during the period covered by the application. The notice of approval, Form N-472, shall identify the family members so covered. (iii) An applicant whose Form N-470 application under Section 316(b) of the Act has been approved, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, raises a rebuttable presumption that the applicant has relinquished a claim of having retained lawful permanent resident status while abroad. The applicant's family members who were covered under Section 316(b) of the Act and who were listed on the applicant's Form N-472 will also be subject to the rebuttable presumption that they have relinquished their claims to lawful permanent resident status. (2) Preservation of residence under Section 317 of the Act. An application for the residence and physical presence benefits of Section 317 of the Act to cover any absences from the United States, whether before or after December 24, 1952, shall be submitted to the Service on Form N470 with the required fee, in accordance with the form's instructions. The application may be filed either before or after the applicant's absence from the United States or the performance of the functions or services described in Section 317 of the Act. (3) Approval, denial, and appeal. The applicant under paragraphs (d)(1) or (d)(2) of this section shall be notified of the Service's disposition of the application on Form N-472. If the application is denied, the Service shall specify the reasons for the denial, and shall inform the applicant of the right to appeal in accordance with the provisions of part 103 of this chapter.

\ slb \ SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 316 -- GENERAL REQUIREMENTS FOR NATURALIZATION \ § Sec. 316.5 Residence in the United States.

Appendix 17-G-4

Unit 17

(i) An application for the residence benefits under section 316(b) of the Act to cover an absence from the United States for a continuous period of one year or more shall be submitted to the Service on Form N-470 with the required fee, in accordance with the form's instructions. The application may be filed either before or after the applicant's employment commences, but must be filed before the applicant has been absent from the United States for a continuous period of one year.

Tab Position 1

A Guide for Immigration Advocates April 2014

\ slb \ SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 319 -- SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SPOUSES OF UNITED STATES CITIZENS \ § Sec. 319.1 Persons living in marital union with United States citizen spouse.

Unit 17

§ Sec. 319.1 Persons living in marital union with United States citizen spouse. (a) Eligibility. To be eligible for naturalization under Section 319(a) of the Act, the spouse of a United States citizen must establish that he or she: (1) Has been lawfully admitted for permanent residence to the United States; (2) Has resided continuously within the United States, as defined under § 316.5 of this chapter, for a period of at least three years after having been lawfully admitted for permanent residence; (3) Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application, and the spouse has been a United States citizen for the duration of that three year period; (4) Has been physically present in the United States for periods totaling at least 18 months; (5) Has resided, as defined in § 316.5 of this chapter, for at least 3 months immediately preceding the filing of the application, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act, in the State or Service district having jurisdiction over the alien's actual place of residence; (Amended effective 11/28/2011, 76 FR 53764) (6) Has resided continuously within the United States from the date of application for naturalization until the time of admission to citizenship; (7) For all relevant periods under this paragraph, has been and continues to be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and (8) Has complied with all other requirements for naturalization as provided in part 316 of this chapter, except for those contained in § 316.2(a)(3) through 316.2(a)(5) of this chapter.

Appendix 17-G-5

Tab Position 1

Immigrant Legal Resource Center April 2014

(b) Marital union. (1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.

Tab Position 1

A Guide for Immigration Advocates April 2014

(2) Loss of Marital Union.

(ii) Separation. (A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part. (B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union. (C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part. (c) Physical presence in the United States. In the event that the alien spouse has never been in the United States, eligibility under this section is not established even though the alien spouse resided abroad in marital union with the citizen spouse during the three year period.

\ slb \ SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 319 -- SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SPOUSES OF UNITED STATES CITIZENS \ § Sec. 319.1 Persons living in marital union with United States citizen spouse.

Appendix 17-G-6

Unit 17

(i) Divorce, death or expatriation. A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.

\ slb \ SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 319 -- SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SPOUSES OF UNITED STATES CITIZENS \ § Sec. 319.2 Person whose United States citizen spouse is employed abroad.

Unit 17

§ Sec. 319.2 Person whose United States citizen spouse is employed abroad. (a) Eligibility. To be eligible for naturalization under section 319(b) of the Act, the alien spouse of a United States citizen must: (1) Establish that his or her citizen spouse satisfies the requirements under Section 319(b)(1) of the Act, including that he or she is regularly stationed abroad. For purposes of this section, a citizen spouse is regularly stationed abroad if he or she proceeds abroad, for a period of not less than one year, pursuant to an employment contract or orders, and assumes the duties of employment; (2) At the time of examination on the application for naturalization, be present in the United States pursuant to a lawful admission for permanent residence; (3) At the time of naturalization, be present in the United States; (4) Declare in good faith, upon naturalization before the Service, an intention : (i) To reside abroad with the citizen spouse; and (ii) To take up residence within the United States immediately upon the termination of the citizen spouse's employment abroad; (5) Be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and (6) Comply with all other requirements for naturalization as provided in part 316 of this chapter, except for those contained in Sec. 316.2(a)(3) through 316.2(a)(6) of this chapter. (b) Alien spouse's requirement to depart abroad immediately after naturalization. An alien spouse seeking naturalization under Section 319(b) of the Act must: (1) Establish that he or she will depart to join the citizen spouse within 30 to 45 days after the date of naturalization; (2) Notify the Service immediately of any delay or cancellation of the citizen spouse's assignment abroad; and

Appendix 17-G-7

Tab Position 1

Immigrant Legal Resource Center April 2014

(3) Notify the Service immediately if he or she is unable to reside with the citizen spouse because the citizen spouse is employed abroad in an area of hostilities where dependents may not reside.

\ slb \ SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 319 -- SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SPOUSES OF UNITED STATES CITIZENS \ § Sec. 319.2 Person whose United States citizen spouse is employed abroad.

Appendix 17-G-8

Unit 17

(c) Loss of marital union due to death, divorce, or expatriation of the citizen spouse. A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(b) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission into citizenship, even though th e applicant subsequently marries another United States citizen.

Tab Position 1

A Guide for Immigration Advocates April 2014

Appendix 17-H

REQUIREMENTS FOR BECOMING A U.S. CITIZEN THROUGH "NATURALIZATION"

Unit 17

To qualify for naturalization, you must: 1. Be at least 18 years old. 2. Be a lawful permanent resident (have a "green card") for five years. If you are married to a U.S. citizen, you may need to be a lawful permanent resident for only three years. 3. Have good moral character. This means not having certain problems with the police or other authorities. Look at the "Red Flag Problem Situations" information on the back of this flyer. 4. Be able to speak, read and write English at a basic level. There are exceptions for older people. You do not have to know English if when you apply for naturalization: 1) You are 55 years or older and have had a green card for 15 years, or 2) You are 50 years or older and have had a green card for 20 years. 5. Be able to pass a test on U.S. history and government. 6. Not have left the U.S. for long periods of time in the last five years. Look at the "Red Flags Problem Situations" information on the back of this flyer. 7. Swear that you are loyal to the United States. 8. If you have a mental or physical disability that can make you unable to learn English or pass the U.S. history and civics exam, you can apply for a waiver. Get help from an expert on naturalization. *** WARNING -- Applying for Naturalization Might Hurt You!! *** If you apply for naturalization and you have certain problems, you could be denied. You could even lose your green card and be deported! Carefully read the back of this flyer. If you checked one of the boxes, see a naturalization expert before you apply.

Prepared by the Immigrant Legal Resource Center – January 2014

Appendix 17-H-1

Tab Position 1

Immigrant Legal Resource Center April 2014

RED FLAG PROBLEM SITUATIONS

Check the appropriate box if you have had any of the following problems:                  

You made trips out of the U.S. for more than six (6) months. You moved to another country since getting your green card You are in deportation or removal proceedings - or - have you ever been deported You ever failed to file federal income taxes or you owe taxes You haven't supported your children or you owe child support You are male and did not register for the Selective Service between the ages of 18 and 26 You are on probation or parole for a criminal conviction You have contradictory information on your application You lied or committed fraud to get your green card or you weren't originally eligible for your green card when you got it. You have been arrested or convicted of a crime or you have committed a crime You lied or committed fraud to receive or to continue to receive public benefits You helped someone enter the U.S. illegally, even if it was a relative You ever claimed to be a U.S. citizen but weren't You have been charged with committing domestic violence, child abuse, or child neglect You have voted illegally in the U.S. or registered to vote in the U.S. and weren’t eligible to. You have made a living by illegal gambling You have been involved in prostitution You have been a habitual drunkard, a drug abuser or a drug addict

IF YOU CHECKED ANY OF THE ABOVE BOXES, YOU MUST CONSULT WITH AN IMMIGRATION EXPERT! Prepared by the Immigrant Legal Resource Center – January 2014

Appendix 17-H-2

Unit 17

IF ANY OF THESE THINGS ARE TRUE ABOUT YOU, YOU MUST SEE AN EXPERT IN IMMIGRATION LAW BEFORE APPLYING FOR NATURALIZATION. BE HONEST AND TRY TO REMEMBER IF YOU HAD ANY PROBLEMS IN THE PAST. These things don't necessarily mean you can't apply for naturalization, but you should talk to an expert before you apply so you'll know whether you have a problem, and how you can best explain the problem to the Immigration Service.

Tab Position 1

A Guide for Immigration Advocates April 2014

REQUISITOS PARA HACERCE CIUDADANO DE LOS ESTADOS UNIDOS POR EL PROCESO DE NATURALIZACION Para calificar para la naturalizacion, hay que cumplir con los siguientes requisitos: Unit 17

6. Tener por lo menos 18 años de edad. 7. Ser residente permanente (tener una "mica") por un minimo de 5 años. El requisito es de solo 3 años para las personas que llevan 3 años casados con ciudadano o ciudadana. Consulte con un experto sobre este punto. 8. Ser de buen caracter moral. Esto significar no haber tenido problemas particulares con la policia y otras autoridades. Consulte la informacion que se encuentra al reverso de este volante. 9. Demostrar abilidad de hablar, leer y escribir el ingles a un nivel basico. Se les exenta el requisito de ingles a las personas que al momento de entregar la solicitud: 1. ya tienen 55 años de edad y un minimo de 15 años de residencia permanente, 2. ya tienen 50 años de edad y un minimo de 20 años de residencia permanente. 10. Pasar un examen de historia y civica de los Estados Unidos. 11. No haberse ausentado de los E. U. por largo plazo desde que arreglo su residencia permanente. Consulte la informacion al otro lado de este volante. 9. Jurar lealdad a los Estados Unidos. 10. Si usted sufre alguna incapacidad mental o fisica la cual le impide aprender el ingles or pasar el examen de historia y civica, puede solicitar que le dispensen de los requisitos de ingles, historia y civica.

*** ¡ALERTA! *** En algunos casos, se corre gran riesgo al presentar la solicitud de naturalizacion. Si usted ha tenido problemas con la ley, impuestos, matrimonio, deportacion o contradicciones de informacion, su solicitud puede ser rechazada. Ademas, puede poner en peligro su mica, y hasta podria ser deportado. Lea cuidadosamente la informacion al reverso de este volante.

Preparado por el Immigrant Legal Resource Center – Enero 2014

Appendix 17-H-3

Tab Position 1

Immigrant Legal Resource Center April 2014

"ADVERTENCIAS" DE SITUACIONES PROBLEMATICAS

Chequee la casilla correspondiente al tipo de problemas que haya tenido:  Ha hecho viajes fuera de los Estados Unidos por mas de 6 meses  Usted se ha mudado a otro pais desde que obtuvo su tarjeta verde de residencia  Ha habido ordenes de deportaciones contra usted en el pasado, o estan en el proceso  No ha sometido sus impuestos federales o debe impuestos  No ha mantenido a sus hijos o debe manuntencion para hijos “child support”  Usted (si es hombre) no se registro para el servicio militar entre las edades de 18 y 26  Esta en un periodo de prueba por la corte (probacion de parol) por una conviccion criminal  Usted da informacion contradictoria en su solicitud de ciudadania  Ha mentido o ha cometido fraude para obtener su tarjeta verde de residencia  Ha tenido arrestos o ha sido declarado culpable por un acto criminal o ha cometido un crimen  Ha mentido o ha cometido fraude para recibir o para seguir recibiendo beneficios publicos  Ha pretendido ser un ciudadano norteamericano cuando no lo era  Ha sido acusado alguna vez de cometer violencia domestica, abuso or negligencia de niños  Ha votado ilegalmente en los Estados Unidos o ha registrado para votar sin ser eligible  Se ha mantenido de apuestas ilegales o juegos ilicitos  Ha ayudado a alguien entrar ilegalmente a los Estados Unidos, aunque haya sido un pariente  Ha estado involucrado en prostitucion  Ha sido un tomador habitual, un abusador de drogas, o un drogadicto

SI MARCO ALGUNA CASILLA DEBE CONSULTAR CON UN EXPERTONO SE EXPONGA! Preparado por Immigrant Legal Resource Center y Northern California Coalition for Immigrant Rights Enero 2014

Appendix 17-H-4

Unit 17

SI CUALQUIERA DE ESTAS COSAS SON VERDAD PARA USTED, NECESITA VER A UN EXPERTO DE LEYES DE INMIGRACION ANTES DE APLICAR PARA LA CIUDADANIA. SEA MUY SINCERO CON USTED MISMO ANTES DE CONTESTAR LAS PREGUNTAS Y HAGA MEMORIA DE TODOS LOS PROBLEMAS QUE PUDO HABER TENIDO EN EL PASADO. Estas cosas no necesariamente significan que no puede aplicar para la naturalizacion, pero recuerde que es importante hablar con un experto antes de hacer la solicitud para saber si tiene algun problema, y como puede explicarlo de la mejor manera al Servicio de Inmigracion.

Tab Position 1

A Guide for Immigration Advocates April 2014

通过『归化』手续= 成为美国公民的条件= = 要符合归化条件，您必须是：=

Unit 17

N． 年满 NU 岁以上= O． 合法永久居民（持有『绿卡』达五年= J 如果你与美国公民结婚，你只需是合法永久居民达三年。= J 如果你是难民或避难者，你不需是合法永久居民达五年。请与办理

归化入籍的专家洽谈。= P． 有良好的道德品质= J 意思是没有与警方或其他官方发生问题。请看本传单背面『红旗问

题情况』的资料。= Q． 具有基本程度的说、读和写英文能力= J 对老年人例外。你不必懂英文，如果：= J 你年满 RR 岁或以上，并持有绿卡达 NR 年，或= J 你年满 RM 岁或以上，并持有绿卡达 OM 年。= R． 通过有关美国历史和政府的考试= S． 在过去五年，没有长期离开美国=

请看本传单背面『红旗问题情况』的资料。= T． 宣誓对美国效忠= U． 如果你有智力或身体方面的残疾，使你不能学习英文或通过美国历史 和公民考试，你可以申请豁免。请向办理归化入籍的专家寻求协助。= = * * * 警告JJJJ=申请归化入籍，有可能对你不利==! ! * * * 如果你申请归化入籍而你存在一些问题，你的申请可能被拒绝。你甚至可能失去绿 卡并被递解出境！请小心细读本传单背页上的资料。如果你在其中一项（方格）上打勾， 请在申请归化入籍之前，面见归化入籍专家。NM/OMMS=

ZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ= Prepared by the Immigrant Legal Resource Center/Northern California Coalition for Immigration Rights Naturalization Brochure, Chinese Language – January 2014

Appendix 17-H-5

Tab Position 1

Immigrant Legal Resource Center April 2014

======================================申请入籍遇到的问题K=================================K= 如果以下的问题与你有关，你在申请入籍时请先与你的律师或顾问商量，诚实地尽

Tab Position 1

A Guide for Immigration Advocates April 2014

量回忆你的问题所在。这些问题不表示你不可以成为公民，但在申请前最好与你的 律师商量，以便知道你是不是真的存在这个问题或着应该如何向移民局解释。= = 以下的问题如果与你有关，请打“X”：= □ 自拿到绿卡开始你移居另外一个国家=

Unit 17

□ 你曾经离境超过 S 个月= □ 你现在或者过去曾被驱逐出境= □ 你没有申报联邦入息税= □ 你没有供养小孩，没有给小孩生活费= □ 你是男性，但没有在 NU 至 OS 岁时登记当兵号码= □ 你正在犯罪保释期内= □ 你表格上的资料与你不符，互相矛盾= □ 你为了获得绿卡提供假证或你拿绿卡的时候根本不符合条件= □ 你曾经犯法，犯罪= □ 你说谎或用假证以领取公共福利= □ 你曾经涉及家庭暴力，辱骂小孩= □ 你是否在美国不合法参加投票选举，或非法登记为选民= □ 你是否以非法赌博为生= □ 你是否涉及嫖妓= □ 你是否有酗酒习惯或吸毒上隐= = 以上内容由移民法律资源中心和北加州移民权益联盟提供=

= ====================如果以上问题与你有关，你一定要与移民专家商量==================K ================================ Prepared by the Immigrant Legal Resource Center – January 2014

Appendix 17-H-6

Unit 17

Tab Position 1

=

UNIT EIGHTEEN IDENTIFYING IMMIGRATION SOLUTIONS

Tab Position 1

A Guide for Immigration Advocates April 2014

This Unit Covers: 

Analyzing your client’s situation and identifying all the possible immigration solutions available to him or her

This Unit Includes: § 18.1 § 18.2 § 18.3 § 18.4 § 18.5 § 18.6

Introduction ...................................................................................................... 18-1 A Systematic Approach to Identifying Solutions ............................................. 18-2 Long-Term Option Sheet.................................................................................. 18-3 Incorporation into the Case File ....................................................................... 18-5 Two-Part Approach .......................................................................................... 18-6 Sample Exercises.............................................................................................. 18-7

This section will introduce you to a system you can use to analyze your client’s situation and identify possible “immigration solutions.” In addition, the exercises will serve as a review of the different immigration solutions (such as visa petitions, cancellation of removal, asylum), which you have learned in prior units. We call these immigration solutions because they are ways of providing your client with either legal immigration status or relief from removal.1 You must be able to identify all the potential immigration solutions that might be available. Failure to identify an available remedy can have disastrous results for the client. Example 18.1: Pete Paralegal does an intake interview with Carlos Cliente, who has come to Pete’s agency because he has a removal hearing before an immigration judge in a week. Carlos, who is undocumented, is married to Maria who has been a lawful permanent resident for four years. Carlos has lived here since 1992. ICE caught him three months ago at his workplace. (He was not using fraudulent documents.) Since coming to the U.S., he has had one two-week absence when he visited his mother in Mexico in 1995, returning two weeks later. He re-entered without inspection. His Notice to Appear charges him with being inadmissible for entering the U.S. without being admitted. For the other examples, assume that any re-entries took place before April 1, 1997 unless it is specifically stated otherwise. 1

Immigration lawyers also often call this “relief,” as in relief from deportation.

18-1

Unit 18

§ 18.1 Introduction

Pete advises Maria to file a 2A visa petition for Carlos. He also suggests that Maria file for U.S. citizenship as soon as she has been an LPR for five years so that she can upgrade the petition to the immediate relative category. Pete determines through the interview that Carlos has committed no crimes, and suggests that Carlos accept voluntary departure at the removal hearing. Pete believes Carlos’s best option is to leave and try to consular process with a waiver for his unlawful presence. Carlos follows Pete’s advice. At his removal hearing, he admits the allegations and charges in the Notice to Appear and requests 60 days of voluntary departure. The immigration judge grants him 60 days of voluntary departure.

Exercise 18.1: a. Did Pete Paralegal miss potential immigration relief? b. How is it possible that the Immigration Judge didn’t notice that Carlos was eligible for cancellation of removal? c. How would Carlos’ legal situation be different if Pete had identified that Carlos was eligible for cancellation of removal at the client interview?

Unit 18

Answers to these questions are found in Appendix 18-A.

The legal worker must identify all possible immigration solutions in order to give proper advice. In the previous example, Pete Paralegal gave his client good advice on some things, such as filing the visa petition and applying for citizenship. But he missed one immigration remedy. Perhaps he was in a hurry, or didn’t listen to his client, but his mistake resulted in Carlos being ordered to return to Mexico when he could have applied to remain in the U.S. In many ways, the legal worker’s role is like a doctor’s. If we fail to make a correct initial diagnosis of our client’s case, we cannot prescribe the correct course of treatment for the problem.

§ 18.2 A Systematic Approach to Identifying Solutions We’re all human. It’s easy to forget to ask something from time to time. How can we check ourselves to make sure we have not missed a crucial immigration remedy? The key is to develop a systematic approach to identifying immigration solutions and to use this system in every case. In this unit we outline one such system. While everyone does not need to use the same system, all legal workers must develop a method to make sure that they have identified all possible solutions before giving advice to the

18-2

Tab Position 1

Immigrant Legal Resource Center April 2014

client. The system should incorporate a standard written checklist so that we do not rely solely on our (very human) memories to determine what solutions are available.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 18.3 Long-Term Option Sheet One system to identify all immigration solutions is the long-term option sheet, located in Appendix 18-B. Please use this appendix to make five or six photocopies to use while you go through this section.

NOTE: The Long-Term Option sheet is reproduced in Appendix 18-B. Note that the LongTerm Option sheet includes a checklist approach to the major areas of grounds of inadmissibility. It uses the acronym CHIP to remember these categories. CHIP is shorthand for: C H I P

Criminal Health Immigration-Related Grounds Public Charge

The long-term option (LTO) sheet lists all possible immigration solutions. You should use this sheet or something like it for every one of your cases and make sure that it is completely filled out after your initial interview with every client. Usually agencies and representatives develop their own after they learn what is easiest for them, but this is sheet is a good way to get started. We suggest the following step-by-step approach in using the LTO sheet: 1. During the interview, check which solutions are available as they come up in conversation. If there is a remedy, or relief from removal, mark the line next to it with a check or put “Yes.” If the remedy is not applicable, write in “No” or “0.” Mark each remedy so you know that you have considered all of them. Many clients will ask about a specific form of relief when they come to your office. Explain why you need to consider all options. 2. After the interview is over, but before the client leaves, review the sheet to make sure you have considered every remedy. Do this while the client is in your office, in case you need to find out more information.

18-3

Unit 18

We use abbreviations and other shortcuts to list the most common inadmissibility grounds in each CHIP category. For example, Under Crimes, “CIMT” is short for “Crimes Involving Moral Turpitude.” Appendix 18-L provides a guide to the abbreviations and shortcuts.

3. Take notes if relief will be available in the future, even if it is not available now. This is a long-term analysis of the client’s immigration possibilities. Immigration cases often last for years so it is important to note all possible future options. The client you meet today may continue to be your agency’s client five or ten years from now. 4. Note the date of entry (DOE) for the cancellation of removal category. Write down this date in all cases, even when the client will not be eligible for cancellation of removal for many years.

Unit 18

Example 18.3: Gloria and her husband Miguel entered without inspection from Mexico in 1992. They have one son who was born in the U.S. on 1/1/94, and another child born in 2000. The paralegal notes under the first category of the LTO sheet that the “IR (Immediate Relative) petition can be filed “when USC (U.S. citizen) son turns 21 (2015).” The paralegal will also note in the activity sheet of the file that Gloria may be inadmissible on immigration grounds because she entered without inspection and will be subject to the ten-year bar if she leaves the country. The paralegal should mark “Yes” or a “” next to the 3/10 line and circle the “10.” (She is not subject to the bar yet, because she has not left the U.S., but if she left, she would trigger this bar.) Next, the paralegal should mark “No” or a “0” on the waiver line next to immigration inadmissibility issue since she doesn’t have a USC or LPR spouse or parent. Since Gloria is not eligible for adjustment of status, the paralegal should mark “No” or a “0” next to 245(a) and 245(i) because she entered without inspection and mark “Yes” or place a “” next to the 3/10 bar section (circling “10”). See Appendix 18-C. The same “adjustment/10-year bar/waiver” analysis should be made where applicable in the other examples in this unit. The paralegal notes the Date of Entry (DOE) as “1992” and also places ““on the line for Cancellation of Removal for Non-LPR’s. See Appendix 18-C for a completed LTO sheet based on Gloria’s case. It is important to notice by looking long term, that even though her son is a USC, Gloria will not be able to immigrate because she will not qualify for a waiver of unlawful presence if she leaves the country (She has no qualifying United States citizens or lawful permanent resident spouse or parent for the waiver.) She also is not eligible to adjust her status here in the United States because she entered without inspection. Gloria should know from her consultation that she is eligible for cancellation of removal, should she ever have a problem with the immigration service. If she is apprehended, she needs to ask for a hearing before the immigration judge so she can apply for cancellation. Additionally, it is good to let her know now to save all records and documents, so she can build a case in the future. The best way to learn to use the LTO sheets is through more case examples.

18-4

Tab Position 1

Immigrant Legal Resource Center April 2014

Exercise 18.3: Review Example 18.1 and complete the Long-Term Option (LTO) sheet for Carlos Cliente on one of the copies of the LTO sheet which you have made. After you have finished, compare your LTO sheet with the completed LTO sheet and notes in Appendix 18-D.

Tab Position 1

A Guide for Immigration Advocates April 2014

Exercise 18.3-a: Maria Lopez entered the United States without inspection (EWI) from Mexico in November 1991. Over a year later, in June 1992, her husband Juan Lopez entered without inspection. Since 1992 the Lopez family has resided without legal immigration status in the U.S. except for a 20 day trip to Mexico in l995 to visit their families. They re-entered the U.S. without inspection. They had a child born in the United States fifteen years ago. Maria’s brother became a lawful permanent resident in 1993. Complete separate Long-Term Option sheets for Maria and Juan. Assume they come to your office on the present date. After you have finished, compare your LTO sheets with the completed LTO sheets in Appendix 18-E.

One major use of the LTO sheet is to provide the paralegal with a summary of the client’s case and immigration options at a glance. Therefore you need to be able to find the LTO sheet quickly and easily. Try the following: 1. Place each completed LTO sheet in the same place in each client file. One convenient location is the first (bottom) page of the Case Activity Sheets. 2. Review the LTO sheet when you review the case or have further client interviews. It is easy to find the LTO sheet because it is located in the same place in all case files. Make new notations, if appropriate, on the LTO sheet, and make sure to date any new notations so any other person working on the client’s case will take note of the most recent changes.

18-5

Unit 18

§ 18.4 Incorporation into the Case File

§ 18.5 Two-Part Approach Representing immigration clients involves a two-prong approach: Part 1: Obtain Immigration Benefits as Quickly as Possible. Part 2: Delay Forced Departure as Long as Possible. You can see from looking at the LTO sheet that immigration solutions fall into two categories. Some solutions, such as visa petitions, are purely immigration benefits (Part 1). These are generally long term solutions. Part of your job is to obtain these benefits as quickly as possible.

Unit 18

Other solutions, such as cancellation of removal, are defenses to removal (Part 2). You need to act on these solutions quickly to make sure that your client is not forced to leave the U.S. under an order of removal or voluntary departure. However, these solutions can take some time and it is important to use whatever legal strategies are available to keep your client from being forced to leave the United States until he or she has exhausted all possible remedies. Example 18.5: Let’s return to the case of Carlos Cliente. His wife’s second preference visa petition as a spouse of a lawful permanent resident (2A), and subsequent immediate relative petition once she becomes naturalized, is an immigration benefit (Part 1). What about his application for cancellation of removal in removal proceedings? This is a defense to removal (Part 2). Both the legal worker and Carlos want to obtain the benefits of the visa petition as soon as possible on the one hand, and to delay a final order of forced departure as long as possible. A legal worker may pursue defenses to removal in immigration court and subsequent appeals as long as the case is not frivolous.

PRACTICE TIP: Removal Defense Strategies Must Be Weighed in Terms of Limitations on Rights to Appeal. In 1996 Congress enacted a law, called IIRIRA which severely limited the rights to appeal removal decisions. First, it limits the right to appeal decisions, which are “discretionary” beyond the BIA. (See discussion of changes to the right to appeal in Unit 9.) Second, IIRIRA eliminated the automatic right to a “stay” of removal when appealing removal decisions to the U.S. Court of Appeals. While the appellate courts grant stays of removal in compelling cases, there is no guarantee that a motion will be granted and deportation stayed during an appeal to the Court of Appeals. If a case is being decided under current law (Notice to Appear issued on or after April 1, 1997), a client is no longer protected from removal during an appeal to the U.S. Court of Appeals. When

18-6

Tab Position 1

Immigrant Legal Resource Center April 2014

evaluating the time that a removal case might provide until one qualifies for other immigration benefits, advocates should no longer count on this period.

Tab Position 1

A Guide for Immigration Advocates April 2014

Of course, if a person is put in expedited removal proceedings (see Unit 10) they have almost no right to appeal this decision. (See Unit 9).

§ 18.6 Sample Exercises Test your knowledge by completing an LTO sheet for each of the following fact situations. Please note all possible immediate as well as long-term immigration solutions for all persons who are not U.S. citizens or lawful permanent residents. Assume that the clients come to you for advice on the date you are reading this unit. Fact Situation #1

Dominique’s’ mother became a lawful permanent resident (LPR) three years ago through her U.S. citizen husband. Complete separate Long-Term Option sheets for Dominique and Jacques. Fact Situation #2 Two friends, Tom Trouble and Clem Clean, both entered the U.S. together with visitor passes from Canada in 1991. They and all their parents and grandparents were born in Canada. They have no parents or grandparents who are or were U.S. citizens. Tom got married to a U.S. citizen in 1998, and became a lawful permanent resident in 2004. One year ago, Tom was convicted of two petty thefts. After serving a six month sentence, he was taken into custody by ICE two weeks ago. He worked as a store clerk prior to his convictions. Clem, who is still single, went to the ICE office to post bond for Tom. After informing Clem that Tom was not eligible for bond because of his convictions, ICE discovered that Clem was living here illegally, and placed him in removal proceedings. Except for a two week stay in Canada six years ago (returning with inspection), Clem has resided in the

18-7

Unit 18

Dominique, age 35, entered the United States in 1999 on a student visa. She brought her infant son with her from Angola. Her partner, Jacques, was involved in protest movements and is afraid to return. Jacques has been coming and going from the U.S., and last entered 4 months ago, and now is sure he cannot go back safely. Dominique is not afraid to return. They have been together for sixteen years but have never been formally married. They now plan to be married. They have no parents or grandparents who are or were U.S. citizens.

U.S. since his original entry. Clem’s uncle, a US citizen, filed a petition for Clem’s father in 1990 a year before Clem turned 21, which were many years before the priority date became current. Clem is employed as an electrical engineer.2 Complete separate Long-Term Option sheets for Tom and Clem. Fact Situation #3 Jose Gomez entered the U.S. without inspection from Mexico in 1984. He has no relatives in the United States. His parents are dead. Six years ago he was convicted by a jury of selling heroin. The only other work he has done is unskilled labor. He is not afraid to return to Mexico. He recently completed his prison term, and is now in immigration custody.

Unit 18

After you have finished working on the three fact situations above, compare your LTO sheets with the LTO sheets in Appendix 18-K. Remember that it is better practice for you to try and work out each fact situation on your own BEFORE consulting the appendices.

2

One option that should always be considered is the possibility of immigrating through employment in a specific job. You only need to know enough about employment based visas to know when to refer a client to an attorney in private practice to determine whether this might truly be a possibility. The information on employment-based visas is found in Unit 21. If a labor certification for Clem were approved, Clem would be able to eventually adjust status (once his priority date becomes current) even though he is living in the U.S. without permission because he is “grandfathered” through the petition filed by his uncle for his father. At that time, Clem was a derivative beneficiary of that petition, even though he cannot use it now.

18-8

Tab Position 1

Immigrant Legal Resource Center April 2014

APPENDIX 18-A ANSWERS TO EXERCISE § 18.1

Tab Position 1

A Guide for Immigration Advocates April 2014

(a) Yes. Pete did not notice that Carlos is eligible for cancellation of removal because he has resided in the U.S. for more than 10 years, and is married to a lawful permanent resident. (b) The immigration judge probably based his decision on the notice to appear, which may have said simply that Carlos entered at an “unknown” date and time of entry. If Carlos specifically asked for voluntary departure, the judge might not have questioned him about possible relief. (c) Carlos would have been able to apply for cancellation of removal. If successful, he would be granted permanent residency. If the Immigration Judge denied his cancellation of removal application, Carlos could appeal that decision to the BIA. He might qualify for permanent residence through his wife's visa petition before the time for his appeal ran out.* Additionally, by asking for relief, Carlos could stay here and prepare his case with his wife for a longer period of time. If his visa became current, or his wife naturalized, they could begin the consular process while he was still in proceedings. This gives Carlos more time with his wife, a better opportunity to prepare his case, and the possibility of more relief options in the future while his case is pending.

However, since he was only granted voluntary departure, he must leave the U.S. within the timeframe granted by the judge, usually 120 days if asked for at the beginning of proceedings. *If the BIA denied his appeal, it is likely that he could not appeal a denial of cancellation to the U.S. Court of Appeals, because the courts of appeals cannot review a discretionary decision. Carlos would have to demonstrate legal error. (See Unit 9 on changes to appeals after IIRIRA and the REAL ID Act.) What if Carlos Entered with a Visa or Was 245i Eligible? Additionally, if Pete missed that Carlos was 245i eligible from an earlier petition in his family, or Carlos actually was inspected and admitted at his last entry, he could adjust status in front of the immigration judge. This is a far superior option for Carlos, because it would not require leaving the country. As such, he would be able to adjust without needing a waiver for unlawful presence. It is really important that Pete ask all these questions before sending Carlos out of the United States.

Appendix 18-A-1

Unit 18

(d) If Carlos was born after June 15, 1981, he is prima facie eligible for DACA, because he came to the U.S. in 1992, before he was 16 years old, and has been here for the required residence period since 2007. If he did not graduate from high school, he may need to enter a qualifying education or training program to meet the DACA criteria. Applying for DACA and administratively closing his proceedings on this basis would allow him to stay with his wife without the threat of deportation.

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-B-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-C-1

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-D-1

NOTES TO APPENDIX 18-D A. IMMIGRANT VISA PETITION (FAMILY). His wife can file a 2A petition for him now. In one year, she can apply for naturalization, and once she becomes a citizen, the petition can be upgraded to Immediate Relative (IR) category. Carlos does not qualify for adjustment because he entered without inspection. He will need a waiver for the 3/10 year bar if he has to do consular processing. Once his wife naturalizes, he may be able to apply for the provisional waiver without leaving the United States.

Tab Position 1

A Guide for Immigration Advocates April 2014

B. CANCELLATION OF REMOVAL. Carlos is eligible for cancellation of removal because he has more than 10 years of continuous physical presence. He has a very strong argument that his two week departure did not break the required Continuous Physical Presence. Note that the date of entry for purposes of accruing continuous physical presence is first entry, not his second, after his short trip. The brief absence will not break his continuous physical presence. He will have to show exceptional and extremely unusual hardship to his wife to actually win cancellation.

D.VOLUNTARY DEPARTURE. Carlos also appears to be eligible for voluntary departure. Note that you will want to take notes on voluntary departure, prosecutorial discretion, and possible motion to suppress because he is in removal proceedings. You do not need to complete these options if your client is not in proceedings nor likely to be placed in removal proceedings.

Appendix 18-D-2

Unit 18

C. DACA. If Carlos was born after June 15, 1981 and he may be able to seek administrative closure of his removal proceedings and apply for DACA. With DACA, he can remain and work in the United States until his wife naturalizes and his immigrant visa is current. Because he entered without inspection, he may still need a waiver of inadmissibility to adjust status.

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-E-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-E-2

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-F-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-F-2

APPENDIX 18-G Cancellation of Removal (for Non-LPRs) CHECKLISTS General E-28 EOIR-42B (to be signed before immigration judge at hearing) photographs affidavit of employer affidavits of witnesses (2) proof of relationship to USC/LPR spouse, parent or unmarried minor child I-151 or I-551, birth certificate, or naturalization certificate birth certificate marriage certificate, death or dissolution decrees releases to P&A for applicants's records, signed, notarized filing fee

II.

Establishing "Continuous Physical Presence" employment (bus, records, check stubs) taxes ___ church school licenses deeds or leases receipts letters bank records social security telephone or power service records

III.

Establishing "Exceptional and Extremely Unusual Hardship" a. medical problems doctor's letter copies of medical records copies of prescriptions b. psychiatric or psychosocial problems letter from psychologist, LCSW, or psychiatrist copies of medical/treatment records c. education/adjustment problems of LPR/USC children letter from teacher letter from principal letter from counselor affidavits of experts d. ties to community church letter letters from organizations client's member in or participate in economic hardship e. misc. hardship factors

Unit 18

I.

Appendix 18-G-1

Tab Position 1

Immigrant Legal Resource Center April 2014

IV.

Establishing "Good Moral Character" Letters re: character from friends, employer, church criminal records - certified copies Letters from probation officers

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-G-2

APPENDIX 18-H INCOME-SCREENING PORTION OF CLIENT INTAKE INTERVIEW Effective income-screening of potential clients is very important in order to make certain that your agency is providing legal services to low income persons who could not afford to hire a private attorney. One approach is to explain how a good income will be helpful to the client's case and then ask questions about the client's income. This is illustrated by the following exercise. EXERCISE ON INCOME SCREENING WENDELL WORKING, a naturalized U.S. citizen, has an appointment to discuss filing a visa petition for his wife, VIOLET VISA, who entered with a tourist visa, which expired two years ago. They have two children. WENDELL just received a raise and earns $14 an hour, and works some overtime. He was hired in the middle of last year at $12 an hour, so he earned $24,000 during the year.

Unit 18

The legal worker, Laura, (L) explains to Wendell (W) that he can file an immediate relative petition for Violet, who will be able to adjust her status in the U.S. Here is the next part of the conversation. L (Laura, the Legal Worker): Were you able to bring your income tax return with you today? W (Wendell): Yes, here it is. (W hands the copy of the income tax return to L.) At this point there are two approaches we could suggest. It is fine for the agency to use either approach. APPROACH 1 - WHERE CLIENT KNOWS THAT THE QUESTIONS ARE FOR THE PURPOSE OF INCOME-SCREENING: L: I need to ask you some questions about your income because our agency is only able to provide services to people with low income. If your income is higher than those in our guidelines, we would be glad to refer you to private attorneys: P: Fine. L: I see that on your income tax return you earned $24,000 last year, and that counting your wife and two children, you have four people in your family. Do you think that you could afford a lowcost attorney? W: No, not really. It is hard to support a family on that income. That's why I hope you can take our case.

Appendix 18-H-1

Tab Position 1

Immigrant Legal Resource Center April 2014

L: Well, your income falls within our guidelines. So, we will be glad to provide you with our legal services.

Tab Position 1

A Guide for Immigration Advocates April 2014

W: Thank you so much. APPROACH 2 - WHERE QUESTIONS ABOUT INCOME ARE ASKED IN TERMS OF ELIGIBILITY TO OBTAIN AN IMMIGRATION BENEFIT -- THE APPROACH WE RECOMMEND: L: I need to ask you some questions about your income because the CIS will not let your wife immigrate unless you can show that you have enough income to support your family. [Laura then explains the requirements for the affidavit of support.] W: I understand. L: I see that on your income tax return you earned $24,000 last year, and that counting your wife and two children, you have four people in your family. This creates a problem because your income for last year is below what the CIS requires on the affidavit of support. Do you have any way of showing that your income is now higher than what it was last year? Is there any way that you can show that you are earning more money now?

L: So at $14 an hour, you are earning over $29,800 a year now? W: I am actually earning more than that because I have been working some overtime. L: Well, that's great! You won't have a problem with showing the CIS that you that you meet the affidavit of support requirement because you can show that you earn enough to support your family. If you would like, I am going to give you referrals to some excellent attorneys who charge very moderate fees for cases like this. Our office won't be able to represent you because we need to help those families who are less fortunate than yours and who can't afford private attorneys. CONCLUSION: The two interview methods yielded two completely different results in terms of income screening.

Appendix 18-H-2

Unit 18

W (answering enthusiastically): I can show that I am earning a lot more now. First of all, I was hired in July last year so I only worked a half a year there. Also, I just received a raise, and now I am earning $14 an hour.

APPENDIX 18-I

CASE ACTIVITY SHEET CLIENT:_______________________________________________________________

A#:____________________________________________________________________

[ADDRESS/PHONE (write in or place sticker)]

Unit 18

DATE

Appendix 18-I-1

Tab Position 1

Immigrant Legal Resource Center April 2014

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-J-1

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-J-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-J-3

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-J-4

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-J-5

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-J-6

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-J-7

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-J-8

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-K-1

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-K-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-K-3

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-K-4

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-K-5

Unit 18

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 18-K-6

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Appendix 18-K-7

APPENDIX 18-L GUIDE TO ABBREVIATIONS IN THE LONG-TERM OPTION SHEET The Long-Term Option sheet is reproduced in Appendix 18-B. This Appendix provides a guide to some of the abbreviations. MANNER OF ENTRY EWI-

Entered Without Inspection

CANCELLATION OF REMOVAL FOR NON-LPRs CPP-

Requires Continuous Physical Presence for 10 years

ASYLUM

Unit 18

TPS-

Temporary Protected Status

PROSECUTORIAL DISCRETION PD DACA

Prosecutorial Discretion Deferred Action for Childhood Arrivals

IMMIGRANT VISA PETITION (FAMILY) IR VAWA SIJS

Immediate Relative Violence Against Women Act Special Immigrant Juvenile Status

INADMISSIBILITY Note that the Long-Term Option sheet includes a checklist approach to the major areas of grounds of inadmissibility. It uses the acronym CHIP to remember these categories. CHIP is shorthand for: C H I P

Criminal Health Immigration-Related Grounds Public Charge

Appendix 18-L-1

Tab Position 1

Immigrant Legal Resource Center April 2014

We use abbreviations and other shortcuts to list the most common inadmissibility grounds in each CHIP category. For example, Under Crimes, "CIMT" is short for "Crimes Involving Moral Turpitude". C

CRIMES

As listed

Ground of Inadmissibility

CIMT DV Agfel

Crimes Involving Moral Turpitude Domestic Violence Aggravated felony

I

IMMIGRATION Ground of Inadmissibility

“Permanent”

Permanent Bar to persons who were unlawfully present for more than one year or were ordered removed, and who enter or attempt to enter without being admitted (must stay outside U.S. for 10 years before qualifying for a waiver, if eligible.)

Misrep

Misrepresentation of a material fact

PUBLIC CHARGE

As listed

Ground of Inadmissibility

Past receipt

Past receipt of public benefits

Appendix 18-L-2

Unit 18

As listed

P

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 18

Tab Position 1

=

UNIT NINETEEN CONSTITUTIONAL AND STATUTORY RIGHTS OF IMMIGRANTS

Tab Position 1

A Guide for Immigration Advocates April 2014

This Unit Covers:    

Constitutional and statutory rights of immigrants; Rights of immigrants during immigration enforcement actions and in DHS detention; Ways to teach clients and community members about their constitutional and statutory rights; and What to do if a client’s rights have been violated

This Unit Includes: § 19.1 § 19.2 § 19.3 § 19.4 § 19.5 § 19.6 § 19.7 § 19.8 § 19.9 § 19.10 § 19.11 § 19.12 § 19.13 § 19.14 § 19.15 § 19.16

19-1

Unit 19

§ 19.17 § 19.18 § 19.19 § 19.20 § 19.21 § 19.22 § 19.23 § 19.24 § 19.25

Overview of the Unit ........................................................................................ 19-2 Overview of Constitutional Rights ................................................................... 19-3 Authority to Question People about Immigration Status ................................. 19-4 Questioning and Types of “Stops” of Immigrants ......................................... 19-12 The Right to Remain Silent ............................................................................ 19-18 Searches .......................................................................................................... 19-21 Rights in Public Places ................................................................................... 19-21 Rights in the Home and Other Private Places ................................................ 19-22 Rights at Schools and Places of Worship ....................................................... 19-24 Workplace Raids ............................................................................................ 19-26 Rights in Automobiles .................................................................................... 19-28 Rights at the Border........................................................................................ 19-30 Rights at Border Equivalents: Airports, Trains/Buses ................................... 19-31 Rights upon Being Arrested by the DHS and While in DHS Detention ........................................................................................... 19-35 Right to Legal Representation ........................................................................ 19-55 Rights Regarding Immigration Detainers/Holds for Those in Criminal Custody ....................................................................................... 19-56 Rights of Juveniles ......................................................................................... 19-63 The “Equal Protection” Rights of Immigrants ............................................... 19-67 Right Not to Be Discriminated against in Employment ................................. 19-67 Rights around Worker Exploitation ............................................................... 19-68 Right to Public Education............................................................................... 19-69 An Overview .................................................................................................. 19-70 Administrative Complaints............................................................................. 19-71 Lawsuits against the DHS .............................................................................. 19-80 Raising Violations of Rights in Removal Hearings: Motions to Suppress and Motions to Terminate ........................................................... 19-81

§ 19.26 § 19.27

Organizing a Community Response to Rights Abuses................................... 19-85 Legal Support When Rights Have Been Violated .......................................... 19-86

§ 19.1 Overview of the Unit Immigrants’ basic civil rights are more important than ever in light of the greatly expanded, aggressive immigration enforcement actions conducted by Department of Homeland Security (DHS), which have resulted in a record number of deportations in recent years. Unfortunately, much of the comprehensive immigration reform debate has focused on stepping up these enforcement actions as a condition for providing undocumented immigrants a path to legalization. Consistent with this rhetoric, DHS has secured and allocated significant resources with the goal of detaining and deporting removable persons in the United States. During this period of draconian enforcement, it is important for immigrants, as well as those representing them, to know their rights and to know how to deal with such overzealous law enforcement. This unit discusses important legal rights guaranteed to immigrants. It describes ways we can teach immigrants how to enforce their rights. It also suggests what to do when rights have been abused. Recognizing when a government action is unconstitutional or in violation of legally guaranteed rights is an important skill for any immigration advocate.

Unit 19

Part One of the unit discusses rights people have in DHS enforcement procedures. Part Two covers rights of people who are being held by the DHS. Part Three describes other rights, such as education and employment rights. Part Four suggests what can be done when rights have been abused. This ranges from simple complaints filed against the agency to lawsuits. In this unit, “DHS” will be used generally to describe the acting governmental authority. However, as discussed earlier in this guidebook, DHS is made of many bureaus, only three of which handle immigration issues: Citizenship and Immigration Service (CIS), Immigration and Customs Enforcement (ICE), and Customs and Border Patrol (CBP). Each bureau plays a distinct role in immigration law. In most cases it is ICE and CBP that will be arresting, detaining and potentially encroaching on immigrants’ civil rights in the process. Advocates must inquire about which bureau within the DHS is taking action against an immigrant client. This unit also contains Know Your Rights resources published by a few immigrants’ rights advocacy groups in response to immigration enforcement actions and detention abuses. These websites and pamphlets provide information on rights if questioned by immigration officials at home, at the workplace, and on the street; rights while in detention and in deportation proceedings; how to develop safety plans in response to raids; and how to develop effective community and legal responses. These resources are attached as Appendix 19-C. For a comprehensive online library of national resources relating to immigration enforcement actions, including know your rights flyers produced by organizations around the country, sample legal pleadings, and legal memos and information about state immigration enforcement issues, go to

19-2

Tab Position 1

Immigrant Legal Resource Center April 2014

www.immigrationadvocates.org. Membership is required and is restricted to non-profits and those providing pro bono services to immigrants.

Tab Position 1

A Guide for Immigration Advocates April 2014

Appendix 19-A to this unit contains a complete outline of a “Know-Your-Rights Workshop,” that could be used to train the community about their legal rights. Appendix 19-F to this unit provides information on enforcement actions and concerns arising in the wake of September 11. This includes information on racial profiling and violations and abuses committed against those arrested post 9/11 and the responses to them.

PART ONE: RIGHTS OF IMMIGRANTS IN DHS ENFORCEMENT ACTIONS § 19.2 Overview of Constitutional Rights We have all heard of “rights,” although we might not know exactly what they are or when they can be used. Because of widespread abuses by Department of Homeland Security (DHS) and other government agencies, it may seem that immigrants have little protection against abuse. However, the Constitution and other laws of the United States guarantee many rights to immigrants. The Constitution guarantees certain rights to everyone within the United States, including persons who are not U.S. citizens, even if they are here unlawfully. No law, practice, or regulation enforced by the government can unreasonably interfere with a person’s Constitutional rights and still be legal. This rule applies to DHS officer actions as well as actions taken by state and local police officers. Laws, regulations, or practices that violate a person’s Constitutional rights can be challenged. Several Amendments to the Constitution give rights to all people in the United States. These rights apply to immigrants in their encounters with the DHS or with police officers. Fourth Amendment: Searches and Arrests. Every person has the right not to be “unreasonably” searched or “seized” (detained or arrested) by the government. A warrant for arrest or search can only be issued if there is “probable cause” (good reason to believe) that a person has violated the law.



Fifth Amendment: Right to Remain Silent and Right to “Due Process” of Law. No one can be forced to be a witness against herself or himself in any criminal case. “The right to remain silent” comes from this Amendment. No person can be deprived of life, liberty, or property without “due process” of law (procedures that ensure fairness to all people under the law).



Fourteenth Amendment: Equal Protection. “Equal protection” under the law must be given to any person affected by actions of a local or state government. (This means that

19-3

Unit 19



people in similar situations should be treated equally under the law. This also applies to laws of the U.S. federal government.) For the text of the Fourth, Fifth, and Fourteenth Amendments, see Appendix 19-B. These rights will be discussed in more detail in the remainder of this unit. The Immigration and Nationality Act and other statutes also grant immigrants certain rights, such as protections in removal proceedings. These rights must also be respected by the federal government.

WARNING! These rights are based on the Constitution and statutes. The definition of what those rights mean, however, comes from cases where courts have interpreted their meaning. As explained in Unit 8, courts in different areas of the U.S. may interpret the meaning of these rights in slightly different ways. Here, we simply give you a summary of the law. It can help you get a feel for where the line between legal and illegal conduct by the government might fall. If you think that rights have been violated, you should try to contact a lawyer who specializes in this area to advise you. See § 19.25 for a list of legal support agencies.

Unit 19

§ 19.3 Authority to Question People about Immigration Status As most immigrants in the U.S. are aware, contact with Immigration Customs and Enforcement (ICE) and the Customs and Border Protection (CBP) (both departments of DHS) can occur nearly anywhere. They conduct investigations in many locations—at the border, airport, or harbor, at fixed and temporary checkpoints, at local jails, at courthouses, on the street, and on public transportation. Officers can go almost anywhere in the country either by roving patrol or utilizing “area control” methods (including raids of workplaces, stores, and neighborhood streets). Increasingly, encounters are happening through various cooperation programs between immigration and local law enforcement. An immigrant must be prepared for a potential encounter with DHS officials when he or she is driving, working, shopping, or just walking down the street. DHS officials have the right to ask people about their immigration status. The INA allows immigration officials “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.”1 There are, however, Constitutional limits that DHS agencies must respect when they question, arrest, or search people. ICE and CBP officials cannot legally just stop anyone they see and start asking questions. They must have a good reason to ask that particular person about his or her immigration status. 1

INA § 287(a)(1), 8 USC § 1357(a)(1).

19-4

Tab Position 1

Immigrant Legal Resource Center April 2014

WARNING! Some local law enforcement officials are deputized to act as immigration officials under an agreement by statute, called 287(g) agreements (see description at § 19.4) or are collaborating and cooperating with DHS officials to enforce immigration laws. An increasing number of anti-immigrant state laws also require local law enforcement officials to determine a person’s immigration status during a lawful contact, stop, detention, or arrest if there is reason to believe the person is undocumented. It is, therefore, important that advocates also understand an immigrant’s rights vis-à-vis local law enforcement officials. For example, immigrants should be cautioned that they might have to respond differently to local police than they would to ICE or CBP if they are stopped and questioned in states with “stop and identify” statutes (see discussion at § 19.5).

A.

Tab Position 1

A Guide for Immigration Advocates April 2014

Trend in Laws Relating to Who Can Question and Arrest an Immigrant

It is important to note that an immigrant can be stopped and questioned about his or her immigration status by law enforcement officers of various government agencies, including ICE, CBP, FBI and increasingly, state and local police. While ICE and CBP are limited to enforcing federal immigration laws, there has been an increasing push to expand the jurisdictional limits of state and local police by involving them in immigration matters. B.

Collaborations between State and Local Law Enforcement Agencies2

The enforcement of immigration law has traditionally been a federal duty. Although federal immigration agency collaboration with local law enforcement dates back to the 1980’s, these efforts did not gain popularity until well into the 1990’s. In recent years, the push for local jurisdictions around the country to increase collaboration with DHS has grown exponentially. The purpose of these efforts is purportedly to assist local efforts to apprehend and remove noncitizens, often labeled as “criminal aliens” in their communities.

2

Thanks to Ann Benson, Director of the Washington Defenders Association Immigration Project for providing much of this discussion. 3 Website for ICE ACCESS. Available at: www.ice.gov/access (last visited May 2012).

19-5

Unit 19

In the last several years as momentum built within federal and state governments for using local systems for immigration enforcement, DHS re-conceptualized its old programs and created several new initiatives. These efforts coalesced in 2007 when ICE, launched the Agreements of Cooperation in Communities to Enhance Safety and Security (ICE ACCESS) program. The ICE ACCESS program is an umbrella scheme coordinating fourteen of its federally funded local collaboration programs designed to “promote the various programs or tools that ICE offers to assist state, local and tribal law enforcement agencies.”3 These programs include Fugitive Operations Teams, Border Enforcement Security Task Force, Operation Community Shield, and many others.

Three primary enforcement programs of ICE ACCESS are the Criminal Alien Program (CAP), the “Secure Communities” program, and the 287(g) program. CAP is a program whereby ICE agents check the immigration status of inmates in jails and prisons, and place holds or detainers (a concept discussed in more detail in § 19.16) on inmates who do not have immigration status or who have crimes that make them deportable.4 “Secure Communities,” the newest program, is a technological version of CAP that allows state/local law enforcement and ICE to automatically and immediately search for a person’s criminal and immigration history in DHS and FBI databases after their fingerprints have been taken by local or state law enforcement.5 The 287(g) program gets its name from the section in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, authorizing agreements between local jurisdiction and the Department of Homeland Security (DHS).6 In this program, local police are authorized to act as ICE agents and enforce immigration law (civil as well as criminal provisions) in the course of their police duties on the streets and in the jails.7 The goal of all three of these programs is to use local law enforcement and jails as a “force multiplier” for identifying and apprehending noncitizens ICE deems subject to deportation and place them into removal proceedings. For many of these noncitizens, this means remaining in, immigration detention until deportation. See Appendix 19-G for a two-page informational flyer on these programs and an advocate’s guide specifically on CAP.

Unit 19

ICE claims that these enforcement efforts are targeted at apprehending “serious criminals.” However, DHS’ own statistics indicate that in reality ICE is aggressively focusing on “easier” targets, either noncitizens arrested for minor violations such as traffic violations and shoplifting or individuals who have no criminal convictions on their record, but have prior orders of removal or other immigration violations. In fact, ICE has designated any noncitizen who has been arrested or convicted for any offense as a “criminal alien” regardless of the severity of the person’s crime, their innocence, or immigration status. ICE’s “criminal alien” dragnet is being used to indiscriminately target, apprehend and deport ever larger numbers of noncitizens. The federal government has initiated some reforms in response to mounting public criticism of the Secure Communities program. These include the exercise of prosecutorial discretion in certain cases, creation of a national Public Advocate position, new hotline for those wrongly held in local custody, and a recent announcement that they will not conduct immigration enforcement against individuals who are merely arrested and not convicted of certain low level driving infractions. However, there is still a lack of effective oversight, accountability, or redress. The negative consequences of these programs still include: jeopardizing community safety by creating distrust in immigrant communities to come forward and report crimes, increasing local 4

ICE Fact Sheet, “Criminal Alien Program,” Mar. 29, 2011, available at: www.ice.gov/news/library/factsheets/cap.htm (last visited Feb. 2014). 5 ICE website, “Secure Communities,” available at: www.ice.gov/secure_communities (last visited Feb. 2014). 6 1996 Illegal Immigration Reform and Immigrant Responsibility Act, 8 USC § 1357(g); and ICE Fact Sheet, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act.” Available at: www.ice.gov/news/library/factsheets/287g.htm (last visited Feb. 2014). 7 Id.

19-6

Tab Position 1

Immigrant Legal Resource Center April 2014

financial costs and liability, compromising the basic promise of fairness and due process at the core of our legal system, and fostering racial profiling and other forms of bias against immigrants.

Tab Position 1

A Guide for Immigration Advocates April 2014

At the other end of the spectrum, a number of cities have enacted “City of Refuge” or “Sanctuary City” resolutions to prohibit their law enforcement officers from involvement in immigration enforcement. Although federal statute prevents localities from enacting any law that prohibits or restricts any government agency or official from sending to or receiving from ICE information on the immigration or citizenship status of any individual, cities have created policies to prevent anyone from asking about immigration status, so that there is no information to share. There are at least 20 major localities that have non- or limited involvement policies regarding enforcement of immigration law by state and local authorities.8 The theory behind these policies is that local law enforcement can prevent crimes and promote public safety more effectively if all of the people in the community, including undocumented immigrants, feel free to report crimes and call on the police for help, without fear of deportation. Several localities have gone even farther, passing laws that stop or limit state and local law enforcement’s cooperation with ICE and in particular with ICE detainer requests. As we will discuss § 19.16, an ICE detainer (or “immigration hold”) is an ICE request, typically to a local jail that has custody of a person that ICE thinks might be a removable noncitizen. The detainer requests that the jail hold someone beyond the time of their criminal detention, so that ICE can have additional time to apprehend them. Cooperating with ICE holds has many consequences that are not good for local government, ranging from legal liability to the local jail bearing the cost of holding someone extra time for ICE. As a result, several counties and states have passed policies or laws to limit or eliminate compliance with ICE holds.9

National and State Legislation; Arizona v. United States and State Laws. Over the years Congress has introduced bills to further facilitate and encourage state and local law enforcement participation in federal immigration enforcement efforts. Laws such as the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act, first introduced in 2003, and in 2013 the Strengthening and Fortify Enforcement Act (SAFE), attempt to incentivize state participation by Some of these cities are Seattle, Portland, San Francisco, Santa Clara County, Los Angeles, San Diego, Salt Lake City, Denver, Phoenix, Dallas, Austin, Houston, Minneapolis, Chicago, Detroit, New York City, Baltimore, Washington DC, and Miami. These policies are passed through ordinances, resolutions, or through legislation. While many of these cities have some policy that prevents inquiry into immigration status, many of them have exceptions, some of which lessen the strength of the policy as a whole. Some examples of the exceptions to the “don’t ask” rule include: when an individual consents, when information is related to the investigation of criminal conduct, when information is necessary for filling out I-9 forms, and when the information is required as part of a city officer’s duties. 9 As of the date of this publishing, various counties and states have passed some sort of detainer discretion law, which may range from honoring only a subset of detainer requests based on the type of offense and other individual factors, to prohibiting the honoring of all detainer requests unless the federal government agrees to fully reimburse the locality for all the costs associated with such detainers. For a current list, see www.ilrc.org/enforcement.

19-7

Unit 19

8

not only giving state and local police departments full authority to enforce federal immigration law, but also by making participation a condition to receiving federal funding. Supporters of such proposed bills argue that local police officers more frequently encounter illegal immigrants, but simply lack the authority and the resources to arrest and apprehend them. Opponents are concerned with the potential abuse of enforcement and the erosion of immigrants’ constitutional rights pertaining to Fourth Amendment stops and questioning. Passage of such laws would allow police apprehension when the only suspicion is a civil violation of immigration laws. Such legislation would further threaten community safety by intimidating immigrants from contacting law enforcement to seek help or report crimes. It is important that immigrant advocates stay informed about pending legislation and ask local congressional members to oppose these proposals. Opposition to the CLEAR Act from state and local governments, law enforcement, and domestic violence prevention advocates played a significant role in defeating the bill in 2004. Arizona v. United States Congress’ reluctance to address immigration, along with other political factors, has moved legislators in several states to enact their own legislation, resulting in a patchwork of state laws addressing local immigration enforcement. Most significantly in April 2010 the State of Arizona enacted SB 1070, a controversial law that makes it a criminal offense to be present in the State of Arizona without documentation and allows law enforcement officers to request proof of immigrant status if someone is pulled over or is involved in other violations of law. Upon enactment, numerous suits were filed challenging the law on several constitutional grounds.10 On July 28, 2010, just a day before the law was to take effect, a federal district in Arizona granted the U.S. government’s request for a temporary injunction blocking a number of the law’s provisions. The Ninth Circuit affirmed the decision, and the U.S. Supreme Court finally decided the case in Arizona v. United States, on June 25, 2012.11

Unit 19

In Arizona v. United States the Supreme Court overturned three of the four contested provisions of SB 1070, on the grounds that they were preempted by federal law. The Court found these provisions to be illegal: 

Section 3, which made failure to comply with federal alien registration requirements a state misdemeanor.



Section 5(C), which made it a misdemeanor for unauthorized aliens to seek or engage in work in the state.

10

U.S. v. State of Arizona, 703 F.Supp. 2d 980 (D.Ariz. 2010), Friendly House v. Whiting, 2012 WL 671674 (D.Ariz. 2012); Gonzalez v. State of Arizona, 624 F.3d 1162 (9th Cir. 2010). 11 Arizona v. United States, 132 S. Ct. 2492 (2012).

19-8

Tab Position 1

Immigrant Legal Resource Center April 2014



Section 6, which provided that a state officer without a warrant could arrest someone if the officer had probable cause to believe that the person had committed any public offense that made him removable from the United States.

Tab Position 1

A Guide for Immigration Advocates April 2014

The Court did leave in place § 2(B), referred to as the “show me your papers” provision—but with some important limits. Section 2(B) requires state officers to make a reasonable attempt to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis, as long as reasonable suspicion exists that the person is an alien unlawfully present in the United States. It also provides that the person’s immigration status shall be determined before the person is released.12 The Court declined to rule on § 2(B) in order to give Arizona courts an opportunity to construe (interpret) the section. The Court stated that Arizona courts might be able to interpret § 2(B) in a way that prevents unlawful delay or detention of the person. The Court suggested that to do this, the immigration check should be completed either (a) during the time that the person would have been stopped or detained anyway for a legitimate other purpose, or (b) after the person was released. The Court also noted that some limits on abuse were already built into the state provision, and that there was no indication from Congress that states should not communicate with ICE. Thus while the Court at present has approved a state’s authority to require people to show immigration papers upon arrest or detention for a crime, it also indicated there are important limits as to when such a law does not interfere in a federally preempted area. The issue of constitutional violations due to racial profiling was not raised to the Supreme Court and is being litigated in another case. Other State Laws to Increase Immigration Enforcement

Utah was the first state to sign one of these copycat bills into law in March 2011. Mirroring the Arizona law, HB 497, requires state and local law enforcement officers to determine lawful presence of anyone they stop, and also gives officers authority to make arrests only on reasonable suspicion that someone may be subject to a deportation order. The law is being challenged in a case that consolidates two suits, one brought by the U.S. government and the other by private parties in a class action.13 After temporarily enjoining the state from enforcing the law in May 12 13

Arizona v. United States, 132 S. Ct. 2492 (2012). Utah Coalition of La Raza v. Herbert, 2011 WL 7143098 (D. Utah 2011).

19-9

Unit 19

Since the passage of the Arizona law, five other states introduced copycat bills. To the extent that these bills contain provisions like those that were overturned in Arizona v. United States, they are likely to be held overturned. However, many of the bills give police who have stopped someone under their regular criminal authority the power or obligation to check that person’s immigration status. Because the Supreme Court left this part of Arizona’s law intact, these other versions may also survive, depending on how far they purport to extend their authority.

2011, the U.S. District Court for the Central District of Utah announced in February 2012, that it would await the outcome of the challenge to the Arizona law before issuing any more rulings but it has yet to apply the Supreme Court’s precedent to HB 497.14 In May 2011, Indiana enacted Senate Enrolled Act 590, which allows state and local law enforcement officers to arrest, without warrant, persons for whom they have probable cause to believe are undocumented or under a DHS removal order. Like the Arizona law, officers would also be required to verify immigration status of individuals when stopped for other reasons. The ACLU and the National Immigration Law Center brought a legal challenge on behalf of immigrant plaintiffs in Buquer v. City of Indianapolis. The lawsuit was filed in federal court in Indiana’s Southern District.15 In June 2011, the Southern District of Indiana granted a preliminary injunction on several of the law’s provisions, including the warrantless searches, and in March 2013, granted a summary judgment in plaintiff’s favor for a permanent injunction against the law.16

Unit 19

Georgia was the third state to follow in Arizona’s footsteps with passage of House Bill 87 in May 2011. Like the Arizona law, HB 87 allows state and local law enforcement to check the immigration status of persons stopped on probable cause for other offenses. The Georgia Latino Alliance for Human Rights (GLAHR) challenged the law in the Northern U.S. District Court of Georgia, where GLAHR won a temporary injunction against portions of the law. The state also filed a motion to dismiss on claims based on the Fourth Amendment, Equal Protection, and Due Process.17 On appeal, the Eleventh Circuit ruled in August 2012 that § 7, which included the state criminal violations created by the law, were likely preempted, and granted a preliminary injunction as to those provisions.18 However, following the Supreme Court’s decision in Arizona v. United States, the court denied an injunction against § 8 which allowed police officers to investigate the status of those who could not provide adequate identification to prove citizenship, if there was probable cause that the person had committed a crime.19 In September 2011 and January 2012, Alabama and South Carolina were the last two states, respectively, to copy Arizona. Alabama’s House Bill 56 contains a provision similar to the other states requiring that state and local enforcement officers check the immigration status of individuals stopped for other criminal violations, and notably, makes it a misdemeanor for immigrants to seek employment without work authorization. Alabama faces three suits in Federal District Court that were joined at the U.S. government’s request. The Northern District of Alabama and the Eleventh Circuit enjoined implementation of several provisions, some pending

14

David Montero, Judge delays ruling on Utah immigration law, The Salt Lake Tribune, (Feb. 21, 2012) available at www.sltrib.com/sltrib/news/53561272-78/arizona-court-decision-federal.html.csp (last visited Feb 2014). 15 Buquer v. City of Indianapolis, 797 F.Supp. 2d 905 (S.D. Indiana 2011). 16 Buquer v. City of Indianapolis, No. 1:11-cv-00708 Doc. 212 (S.D. Ind. filed Mar. 28, 2013). 17 Georgia Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Georgia 2011). 18 Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012). 19 Id.

19-10

Tab Position 1

Immigrant Legal Resource Center April 2014

further litigation on the merits of the law,20 and the Supreme Court denied certiorari on the preliminary injunction in April 2013.21

Tab Position 1

A Guide for Immigration Advocates April 2014

In South Carolina, SB 20 or Act 69, also contains a section requiring the determination of immigration status of persons stopped by law enforcement. Whereas most of the six states have criminalized the transporting or harboring of undocumented immigrants, South Carolina has taken this a step further by extending the penalties to those who allow themselves to be transported or harbored as well. Two suits, one filed by the federal government and the other brought as a class action, sought injunctions against several key provisions. In July 2013, the Fourth Circuit Court of Appeals, in a combined ruling on the federal government’s case and the class action by civil rights groups, upheld the district court’s ruling blocking most provisions of the law.22 Advocates should be aware of similar bills that arise in their states and localities and challenge them before they are passed.

As a result of increased collaboration between state and local law enforcement and ICE and in some states, increased immigration enforcement actions by state and local law enforcement officials, immigrants are increasingly targeted on the street, at home, and at work. Those representing immigrants should be aware and well-informed of these methods of enforcement.

NOTE: Local and state law enforcement agents do not have authority to stop or arrest someone solely on the basis of their immigration status.23 However, they do have authority to enforce criminal laws.24 Under the Supreme Court’s decision in Arizona v. United States, police may investigate immigration status following a stop, so long as it does not unreasonably prolong the stop.25 Nonetheless, those state laws do not provide authority to arrest for purely immigration violations.

United States v. State of Alabama, No. 2:11-cv-02746 (N.D. Ala. filed Sept. 28, 2011), available at www.nilc.org/hb56usval.html; Hispanic Interest Coalition of Alabama v. Bentley, No. 5:11-cv-02151 (N.D. Ala. filed Sept. 28, 2011) available at www.nilc.org/hb56hvb.html; Hispanic Interest Coalition of Alabama v. Bentley, No. 11-14535 (11th Cir. filed Aug. 20, 2012), available at www.ca11.uscourts.gov/opinions/ops/201114535.pdf. 21 Alabama, et al. v. United States, No. 12-884, 569 U.S. __ (2013). 22 United States v. South Carolina, No. 12-1096 (4th Cir. filed Jul. 23, 2013) available at www.nilc.org/sb20.html. U.S. v. State of South Carolina, 840 F.Supp.2d 898 (D. South Carolina 2011). 23 Arizona v. United States, 132 S. Ct. 2492 (2012). 24 The authority of local officers to make arrests for federal crimes is generally an issue of state law. See United States v. Di Re, 332 U.S. 581, 589 (1948). 25 Arizona v. United States, 132 S. Ct. 2492 (2012); see also Muehler v. Mena, 544 U.S. 93, 101 (2005); Arizona v. Johnson, 555 U.S. 323, 333 (2009); Illinois v. Caballes, 543 U.S. 405, 407 (2005).

19-11

Unit 19

20

WARNING! 8 USC § 1357(g) permits ICE to form agreements with other law enforcement agencies and deputize them to act as immigration officials. Under these agreements, local police do have authority to engage in a number of immigration enforcement activities, including interrogating detainees and issuing detainers.26

§ 19.4 Questioning and Types of “Stops” of Immigrants Remember that the Fourth Amendment of the Constitution protects people from “unreasonable searches and seizures.” This means that anytime an official (like a police, ICE, or CBP officer) stops someone, whether it is just for the purpose of asking questions or if it is an arrest, it must be a reasonable stop to be legal.27 A.

Stops and Arrests Based on Race or Ethnic Appearance

An ICE official cannot legally stop and arrest someone simply because of his or her skin color, ethnic appearance, or accent. Example 19.4: ICE officers are questioning people in a bus station about their immigration status. The officers question only persons who appear to be of Latino descent, ignoring all persons who seem to be Caucasian. This would be illegal because it discriminates against people on the basis of race.

Unit 19

The courts agree that the use of race or ethnic appearance alone as a factor is not a basis for justifying a stop or arrest.28 In Gonzalez-Rivera v. INS, the U.S. Court of Appeals for the Ninth Circuit held that a Border Patrol stop of a car based only on the Hispanic appearance of its occupants was an “egregious” violation of the Fourth Amendment to the Constitution.29 An egregious violation is an extremely serious violation. This is especially significant because it means that the evidence gained through this stop can be excluded from the removal proceeding, possibly resulting in the termination of the case. The Ninth Circuit Court of Appeals has gone even further on the issue of arrests based on ethnic appearance beyond its earlier decision in the Gonzalez-Rivera decision that ethnic appearance alone could not support reasonable suspicion to stop a car. In United States v. 26

See, e.g., Memorandum of Agreement, ICE and Mesa Police Department, July 1, 2013, appx. D, avail. at www.ice.gov/doclib/foia/memorandumsofAgreementUnderstanding/r_287gmesapolicedept.pdf. 27 U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690 (1981); Benitez-Mendez v. INS, 707 F.2d. 1107 (9th Cir. 1983), opinion amended by 748 F.2d 539 (9th Cir. 1984). 28 See United States v. Swindle, 407 F.3d 562 (2th Cir. 2005) (summarizing federal cases rejecting use of race or ethnic appearance alone to justify stops and arrests). 29 Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994).

19-12

Tab Position 1

Immigrant Legal Resource Center April 2014

Montero-Camargo,30 the court held that ethnic appearance could not be considered at all as one of the factors adding up to a reasonable suspicion to stop a car in a geographic area where over 70% of the population was Latino. The court said,

Tab Position 1

A Guide for Immigration Advocates April 2014

“Stops based on race or ethnic appearance send the underlying message to all our citizens that those who are not white are judged by the color of their skin alone. Such stops also send a clear message that those who are not white enjoy a lesser degree of constitutional protection—that they are in effect assumed to be potential criminals first and individuals second.” Note: The law in every circuit may be different. Many of the cases outlined in this unit talk about Ninth Circuit law. The law that we explain in this unit may be similar in most circuits, but it is important that you contact an expert attorney to find out about the specifics of how the Constitution is interpreted in your circuit. B.

What Is a “Reasonable” Stop?

Stops are instances where a law enforcement officer (police, ICE) restricts someone’s freedom in one way or another. Officers can only legally stop people when it is reasonable to do so. But how do the courts decide what is a “reasonable” stop? They use a balancing test. On the one hand, they look at how much the officer’s conduct interferes with a person’s freedom. This ranges from just asking the person a question, to arresting the person. On the other hand, the court looks at how strong a reason the officer had to suspect the person might be an immigrant without permission to be here. This ranges from a very weak reason (for example, that a person looks Latino or Asian) to a very strong reason (for example, that the officer saw the person cross the border without inspection.) The rule is: the more the officer’s conduct restricts the person’s freedom, the greater justification the officer needs to have to stop or question that person. When courts use this balancing test they divide “stops” (incidents where an officer restricts someone’s freedom) into three categories. Each category has a different legal rule.

2. If the stop is for a somewhat longer period of time it is a detentive stop. The officer must have reasonable suspicion that the person is an undocumented immigrant.

30

U.S. v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000).

19-13

Unit 19

1. If the stop is very brief, without any show of force and the person being questioned feels free to walk away, it is only “casual questioning.” There the officer must have “articulable facts to justify a suspicion” that the person is an “alien”—that is that the person is not a U.S citizen.

3. If the officer interferes with the person’s liberty for a significant amount of time, or if it is done with a show of force, it is an arrest. The officer must have probable cause to believe that the person is an undocumented immigrant. Let’s look at each of these categories in more detail. C.

“Casual” Questioning

An ICE agent can ask a person questions about her immigration status if he has “articulable facts to justify a suspicion” that she is an “alien” (not a citizen of the U.S.) (For this type of questioning, the agent does not have to suspect that the person is undocumented, just that he or she is not a U.S. citizen.) The courts require very little suspicion because this is such a small interference with one’s liberty, not even amounting to a “seizure” of the person. However, in this type of questioning, the person can choose not to answer any questions and must be allowed to walk away. Example 19.4-a: An ICE agent stops Jorge on the street because he was speaking Spanish and because of his hat, which is a type worn only by Mexican immigrants according to ICE. Even on this thin reasoning, some courts might hold this sufficient as “reasonable suspicion” that Jorge is an immigrant. But that information would not necessarily tell the ICE agent if Jorge is undocumented—he might be a legal Mexican immigrant. The agent asks Jorge where he is from. Jorge won’t answer and starts to walk away. Up to this point, courts would probably find this questioning legal. It can be argued that the agent engaged Jorge in casual questioning as it was on the street and that the agent never detained him. Therefore, the lowest amount of suspicion would suffice.

Unit 19

D.

Detentive or Investigative Stop

When an immigration officer has reason to suspect that a person is undocumented, the agent can stop the person to try to confirm his suspicions. This kind of brief stop for questioning is usually called a “detentive or investigative stop,” and, in most areas of the country, requires a “reasonable articulable suspicion” that the person is an immigrant illegally present in the U.S. Only a very short period of questioning is allowed during a detentive stop,31 so that the officer can either confirm or dispel his reasonable suspicion, though the person is not free to walk away. If the agent finds “probable cause” to believe the person is undocumented, the agent may arrest the person. Example 19.4-b: Li, an undocumented person from China, has just left the day care center where she works. The center is located in a Chinese community in her city. There are similar day care centers nearby, and ICE agents have previously arrested undocumented workers from those places. She is wearing regular street clothes, though her jacket is of a traditional Chinese style. Julia, an ICE officer, stops Li, tells her that 31

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).

19-14

Tab Position 1

Immigrant Legal Resource Center April 2014

she may not leave while she asks her some questions, and then inquires about her immigration status.

Tab Position 1

A Guide for Immigration Advocates April 2014

This is certainly a detentive stop since Julia has detained Li and said so. If the detention is very brief, it may not be an arrest. It may be a legal stop because Julia might have enough evidence for a “reasonable suspicion” that Li is undocumented based upon her clothing and appearance. The stop might be legal if the courts believe that presence in a neighborhood and job site where other undocumented people have been discovered justifies a reasonable suspicion that Li is undocumented. Advocates should understand the relationship between the reasonable suspicion and probable cause standards (discussed further in the next section) as there may be potential challenges that can be made. If reasonable suspicion ripens into “probable cause” during the course of a detentive stop, then an officer is warranted to make a full arrest. The facts that give the officer probable cause to make the arrest can then be used as evidence in court proceedings against the detainee. However, reasonable suspicion that justifies a detentive stop must be backed up by articulable facts, otherwise the detentive stop is improper or unlawful, as is any arrest that follows. If improper, then evidence gathered subsequent to a stop is inadmissible in court proceedings. The reason this is so important is because officers frequently make detentive stops without the requisite reasonable suspicion, and then discover facts that, on their own, would justify probable cause for an arrest. But if the detentive stop is unlawful for lack of reasonable suspicion, then so is any arrest that follows.

Example 19.4-c: An agent stops a car because the driver is wearing a sombrero and blasting Spanish music from his car. This stop, without more, is impermissible. However, if the agent is able to show that the road is known to be used by alien 32

U.S. v. Sigmond-Ballesteros, 285 F.3d 1117 (9th Cir. 2002). Id. 34 U.S. v. Brignoni-Prince, 422 U.S. 873, 885 (1975); see also U.S. v. Sokolow, 490 U.S. 1 (1989) (holding that individual factors that may appear innocent in isolation may constitute suspicious behavior in the aggregate). 35 U.S. v. Arvizu, 534 U.S. 266 (2002). 33

19-15

Unit 19

Some courts have bent over backwards to find that ICE and CBP arrests were legal. Other courts require a higher standard. For example, in U.S. v. Sigmond-Ballesteros the Ninth Circuit held that the government could not use overly broad categories for reasonable suspicion, such as a person driving a pickup truck on a highway known to be used by alien smugglers.32 The court also refused to allow the Border Patrol to justify the stop when there was no evidence in the record to support such arguments.33 To establish reasonable suspicion, law enforcement agents use a “totality of the circumstances” test and may take into account 1) the characteristics of the area, 2) the proximity to a U.S. border, 3) erratic or evasive driving, and 4) previous experience with alien traffic in the area.34 After examining the “totality of the circumstances,” the agent must have an objectively “particularized basis” for the stop.35

smugglers, the driver is driving in such a way as to avoid the agent, and the driver’s vehicle has been spotted several times suspiciously driving across the border, then the agent’s stop may be justified. E.

Arrests

In order to stop individuals for questioning, ICE or CBP must have reasonable suspicion that they are undocumented immigrants. If during the course of their brief stop their suspicions are confirmed, then they will have probable cause to make a full arrest. Probable cause requires a reasonable belief, rather than just suspicion, that the individual is undocumented. This belief should be based on facts that would induce such belief in a reasonable person.36 Facts that could lead to probable cause could include an admission to the investigating officer that he is undocumented, or the discovery of a group of immigrants hiding under the canopy of a truck as they are being transported.37 Officers can make full arrests upon establishing probable cause. A person can be “under arrest” if he reasonably believes that he is not free to leave. A person need not be told he is under arrest or be handcuffed, as long as the officer’s behavior indicates that he is not free to leave. It is sometimes difficult to determine whether “questioning” or a “detentive stop” is actually an arrest. Most cases find that an individual has been arrested where the immigration officer displays weapons; uses force against the suspect; questions the suspect in a threatening manner, such as surrounding the person with several officers; or uses coercive language, such as informing the suspect that he will be deported if he does not answer.38 However, the U.S. Supreme Court has held that the use of coercive language or behavior by the police does not always constitute an arrest. In California v. Hodari, the Court said that an arrest is not made until the police officer applies physical force, or the person obeys after the officer orders him to restrict his movement.39 Advocates should keep in mind, however, that jurisdictions may differ on the degree of coercion or force that constitutes an arrest. For example, pursuit by law enforcement is a functional equivalent of physical restraint in some states.40

Unit 19

Example 19.4-d: Jorge (from Ex. 19.4-a) decides that he does not want to answer the questions posed by the ICE officer and starts to walk away. The officer grabs Jorge by the arm and tells him to go wait in the officer’s vehicle. At this point, Jorge is probably under arrest.

36

Beck v. Ohio, 379 U.S. 89 (1964). U.S. v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984). 38 Florida v. Bostick, 501 U.S. 429 (1991). 39 California v. Hodari, 499 U.S. 621 (1991). 40 Com v. Franklin, 456 Mass. 818, 926 N.E.2d 199 (2010) and State v. Oquendo 223 Conn. 635, 613 A.2d 1300 (1992). 37

19-16

Tab Position 1

Immigrant Legal Resource Center April 2014

An officer can only legally arrest a person if he has “probable cause” to believe that the person is undocumented, not just an immigrant.41 Thus, an officer needs strong evidence to meet this requirement. A higher standard is necessary because an arrest results in the curtailment of a person’s freedom, a liberty interest we regard as extremely important.

Tab Position 1

A Guide for Immigration Advocates April 2014

As described above, an officer may stop someone based on reasonable suspicion alone, but through questioning develop the requisite probable cause to make an arrest. Example 19.4-e: Li (from Ex. 19.4-b) tries to answer Julia’s questions in Chinese, indicating that she does not speak English. Julia then grabs hold of Li’s arm and tells her that she is under arrest. Is the fact that Li does not speak English enough for Julia to have “probable cause” to believe that Li is undocumented? Most courts would hold it is not, since many legal residents do not speak English well. Example 19.4-f: What if Li became very nervous and tried to run. Would this create enough “probable cause” to justify her arrest? According to the courts, fleeing from an agent would suffice. Example 19.4-g: A group of ICE agents, acting on a tip that there might be some undocumented people in a bar in a Latino neighborhood, come in and block the exits. The agents tell all the people there that they are not free to leave until ICE checks the documents of every person in the bar, which takes them more than an hour. Is everyone under arrest? Yes, since they have been told that they are not free to leave and have been physically detained for more than a brief period. Sally Citizen is in the bar with her undocumented friend, Lourdes. When the ICE agent asks for her identification, Sally shows her identification and tells him that she was born in the U.S. The agent lets her leave. Was Sally’s detention illegal? Yes, because, at the time the arrest occurred, ICE did not have probable cause to think that Sally was undocumented.

A person who has been arrested has all the rights discussed in Part Two of this unit, such as the right to talk to an attorney and to remain silent.

41

Michigan v. Summers, 452 U.S. 692 (1981).

19-17

Unit 19

When the agent asks Lourdes for her papers, she admits that she is undocumented, and the agent arrests her. Is Lourdes’ arrest illegal? Yes, for the same reason Sally’s arrest was illegal. Even though Lourdes admitted she was illegal, the agents did not have probable cause to suspect that she was undocumented when they first detained everyone in the bar. A harder question, which we will address in § 19.24, is what, if any, remedies are available to Lourdes.

F.

The Warrant Requirement in Immigration Arrests

The INA requires immigration officials to obtain a criminal or administrative arrest warrant prior to making an arrest. The Act, however, makes certain exceptions to the warrant requirement, such as when an immigrant is caught in the act of trying to physically enter the U.S. without inspection.42 The most commonly used exception by ICE and CBP officials who make arrests away from the border is the “likelihood of escape” exception. An immigration officer may also circumvent the warrant requirement where he or she has “reason to believe”—which courts uniformly recognize as the equivalent of “probable cause”—that a violation of the immigration law has occurred, but only if he or she also believes the suspect is likely to escape before a warrant can be obtained.43 An arrest warrant is issued only for a specific person or persons. If an arrestee’s name is not on the warrant, the officer will need probable cause before placing someone under arrest. See § 19.8 for detailed information on distinguishing the different types of warrants, and on the warrant requirement to enter and search private spaces ICE and CBP rarely get warrants before they arrest someone because they usually argue that the person was likely to escape. However, a person may be able to object to a warrantless arrest. If ICE or CBP made plans to come pick up a specific person, and they knew about the person’s whereabouts before they came to arrest him or her without obtaining a warrant, that person might have grounds to challenge this in a removal hearing. See § 19.25 on Motions to Suppress.

§ 19.5 The Right to Remain Silent

Unit 19

As discussed in § 19.2, the Fifth Amendment to the Constitution gives people “the right to remain silent,” because people cannot be required to provide self-incriminating testimony. Although the Fifth Amendment protection only applies when someone could be subject to criminal penalties, it can also be applied within the immigration context because there are criminal penalties for some immigration offenses, such as entry into the U.S. without inspection or without a proper visa. The right to remain silent is significant because it affords people the right not to have their testimony used against them to establish removability.44 Frequently, ICE has no other way to establish that a person was deportable or inadmissible except by that person’s own statements. Courts have even ruled that solely the fact that the person remained silent, without other evidence, cannot be used to prove that she is not a U.S. citizen.45

42

INA § 287(a)(1)–(5); 8 USC § 1357(a)(1)–(5). INA § 287(a)(2); 8 USC § 1357(a)(2). 44 In immigration proceedings, the judge can draw a negative inference from a client’s choice to remain silent, but that negative inference alone is not sufficient to establish alienage. 45 Matter of Guevara, 20 I&N Dec. 238 (BIA 1991). 43

19-18

Tab Position 1

Immigrant Legal Resource Center April 2014

A.

“Stop and Identify” Statutes

In the past, the right to question did not necessarily impose a duty to answer. However, in June 2004, the Supreme Court ruled on a case where the suspect was arrested and prosecuted for refusing to give his name during a detentive stop.46 In Hiibel v. Sixth Judicial District Court of Nevada, the Court reasoned that a state statute can require a suspect to disclose his or her name in the course of a detentive stop, if reasonable suspicion justifies the stop and the request for identification is related to the circumstances justifying the stop. Thus, refusing to answer a request for one’s name during a detentive stop could lead to an arrest in states with similar “stop and identify” statutes. In Adams v. Praytor, the Northern District of Texas clarified the holding in Hiibel.47 It found that the Supreme Court only held in Hiibel that it is constitutionally permissible for a state law to require a suspect to disclose his or her name in the course of a valid detentive stop. However, if the particular state does not have a statute making it unlawful for a person to refuse to identify himself, then a person may reject a request for identifying information. B.

Tab Position 1

A Guide for Immigration Advocates April 2014

2004 U.S. Supreme Court Case Affects Fifth Amendment Rights

In Hiibel v. Sixth Judicial District Court of Nevada, the Court held that the disclosing of one’s name is unlikely to be incriminating in most cases and thus not a violation of the Fifth Amendment. At the same time, the Court acknowledged that there may be times when “furnishing identity at the time of a stop [could] give police a link in the chain of evidence needed to convict the individual of a separate offense.” Advocates must understand the limitations of the case. Hiibel only requires that a suspect provide his or her name if the state has a self-identification statute and the request for identification is reasonably related to the brief investigation that is part of the detentive stop. In Texas, for example, there is no state law requiring self-identification, so a person could not be arrested based on the fact that he refused to give his name. (See discussion of Adams v. Praytor, above).

If Stopped by ICE/CBP. When ICE and CBP officers make detentive stops, they do so in their limited capacity to enforce federal immigration law rather than state laws that would invoke Hiibel. Therefore, immigrants should always be advised not to give their name, to ask for a lawyer and tell the agents that they wish to remain silent.

46 47

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). Adams v. Praytor, 2004 U.S. Dist. LEXIS 12383 (2004).

19-19

Unit 19

The best advice for immigrants being questioned will therefore depend first and foremost on who is questioning them, and second on whether they are in a state with a Hiibel law. A state with a Hiibel law means a state with a statute making it unlawful for a person to refuse to identify himself in the course of a valid detentive stop.

If Stopped by Local Law Enforcement. On the other hand, if immigrants are stopped by state or local police, then they are only required to give their name when asked if they are in a state with a Hiibel law. They should still ask for a lawyer and they can remain silent as to everything else such as their country of origin or if they have “papers.” Immigrants should be cautioned, though, that by divulging their name they might run the risk of triggering immigration issues if local police are also authorized to enforce federal immigration laws under the 287(g) program. While the U.S. Supreme Court acknowledged the remote possibility of a 5th Amendment defense against having to identifying oneself under Hiibel, it would be speculative to extend that situation to this scenario. Example 19.5-a: ICE officers doing a street patrol question a group of young men in the park. They ask each what country he is from and if he has “papers.” One of them, Yusef, will only tell them that he does not wish to answer their questions and that he wants to speak to a lawyer. The officers arrest Yusef and take him to the ICE office where they try to convince him to give them the information that they want. Is this arrest legal? No, the officers need probable cause for the arrest. Once Yusef asserts his right to remain silent and demands an attorney, the questioning should stop.

Unit 19

Example 19.5-b: What if, instead of releasing Yusef, the ICE officers get frustrated with Yusef and threaten him physically—is this a legal method to gain information? No, never. If Yusef gave the requested information under this type of coercion, his advocate could challenge its use in a removal proceeding, as well as sue the officers for any damages suffered.48 See Part Four of this unit. An unfortunate truth is that frequently ICE officers do not respect the right to remain silent, and persons who decide to use it should be prepared for a bad reaction from the ICE agent. This may result in the ICE agent arresting the uncooperative person and then trying to convince the person to talk. But it may sometimes lead to violent and abusive behavior by the ICE or CBP agent. Immigrants who try to assert their right not to answer should be prepared for what to do in case of abuse or violence. See §§ 19.19–19.24 below. ICE officers often try to trick people who refuse to answer their questions by stating that they won’t be released or they will be placed and kept in immigration detention until they make a statement, or that lawyers cost too much money and they will be deported anyway so they should not ask for one. The “right to remain silent” does not mean that the person must literally not open his mouth. It means that the person can say, “I don’t want to speak with you about it,” or “I wish to use my rights under the Fifth Amendment,” or “I know I have the right to remain silent.” Neither asking for a lawyer or a legal worker nor giving one’s name means that the person has “waived” (given up) the right to remain silent as to one’s legal status in the U.S. As noted above, the Fifth Amendment may not provide protection against compelled disclosure of one’s name if there is a state statute requiring self-identification. Furthermore, disclosing one’s name can make it easier for family members and friends of detained individuals to locate them in ICE custody. 48

Ali v. INS, 661 F. Supp. 1234, 1244-1245 (D.Mass 1986).

19-20

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 19.6 Searches The Fourth Amendment requires that all searches be based on “probable cause” and that the person or thing to be searched must be described specifically in a warrant. All searches require a search warrant, with a few exceptions. The major exceptions are as follows:       

Tab Position 1

A Guide for Immigration Advocates April 2014

Searches that are part of an inspection for entry at the border, airport or seaport; Searches of cars (see below); Searches connected to a lawful arrest, but only of the area within the reach of the arrested person;49 Searches with the consent of the person; Searches of items that are in plain view; Searches to get items or evidence that might be immediately destroyed; and Searches when an officer is chasing a suspect.

While these are exceptions to the warrant requirement, remember that all searches must be based on “probable cause” that a crime has occurred, and that the search will uncover some evidence of that crime—except for searches at the border or ports of entry. Most searches that ICE and CBP conduct are done without a warrant, but with the consent (permission) of the person. Many immigrants are not aware that they can say “no” to a search request. It is not legal for ICE or CBP to threaten a person in order to get them to give permission. In Bond v. United States, the U.S. Supreme Court found that the squeezing of a person’s bag by a Border Patrol agent who did not have consent or a warrant violated the Fourth Amendment.50 In that case, the exploratory squeezing of a bag in an overhead luggage compartment on a bus by the Border Patrol agent who boarded the bus at a permanent checkpoint near the border was considered an unreasonable search.

§ 19.7 Rights in Public Places

49 50

Chimel v. California, 395 U.S. 752 (1969). Bond v. United States, 529 U.S. 334 (2000).

19-21

Unit 19

ICE and CBP are legally allowed to go anywhere that is a “public place,” and to question people without a warrant (within the limitations discussed in § 19.4). This includes all kinds of places such as parks and streets. They can question anyone in a public area, as long as they have a “reasonable suspicion” that the person is an immigrant. For a brief, detentive stop, they must have a reasonable suspicion that the person is an undocumented immigrant. To arrest a person, they need to have “probable cause” to believe the person is an undocumented immigrant, and, in some situations, they will need a warrant. See § 19.4.

ICE (and even sometimes CBP) does some of its questioning and arrests on streets and in public places in order to avoid getting either permission to enter a private place or obtaining an arrest or search warrant. ICE and CBP consider the public area of business, restaurants and bars to be public places. They also consider courthouses, schools, churches, and hospitals to be “public areas.” In response to public pressure, ICE and CBP may limit warrantless enforcement activities in some “public” areas. See § 19.9, Rights at Schools and Places of Worship.

§ 19.8 Rights in the Home and Other Private Places Under the laws of the United States, we have the most protection against questioning and searches in private places—especially in homes. The definition of a private home is broad, and includes all places where people live, such as migrant farm worker housing.51 No police or immigration officer can enter a private house to search unless he or she has either the consent of the occupants (permission), or a warrant. A warrant must be signed and issued by a judge or magistrate who has determined that the law enforcement agency requesting the warrant shows “probable cause” that a specific person in the home has broken the law.52 Furthermore, a landlord cannot give police or immigration officers permission to enter the immigrant tenant’s dwelling to perform a warrantless search (unless the landlord shares the living space with the tenant).53

Unit 19

The only time that a warrantless entry into a home or a private section of the workplace is permitted is when there are “exigent circumstances.” An exigent circumstance is one where a reasonable officer believes that entry is necessary to prevent imminent physical harm to the officers or other persons.54 A typical example of an exigent circumstance is when officers are in hot pursuit of an armed suspect. If this suspect flees into his or another person’s home, law enforcement officers may enter the home due to the exigent circumstances. During a targeted enforcement action, ICE agents may display one of several types of “warrants”—some grant them legal authority to enter the private space without permission, while others do not. When ICE claims that they have a warrant to enter and search the premises, it is important for immigrants to ask them to slide it under the door and to examine the warrant closely.

51

LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985). 18 USC § 2236. 53 Chapman v. U.S., 365 U.S. 610 (1961). 54 U.S. v. Arellano-Ochoa, 461 F.3d 1142 (9th Cir. 2006), see also LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000). 52

19-22

Tab Position 1

Immigrant Legal Resource Center April 2014

ICE and other enforcement agencies may present the following types of warrants: 1. Arrest Warrant This is the only warrant that gives ICE valid legal authority to enter one’s home or private areas of the work space to arrest specific people—but ICE rarely has this. It is important that people not confuse this arrest warrant with an administrative arrest warrant that is signed and issued by an ICE agent instead of a judge (see below for more on administrative warrants). A regular arrest warrant is signed and issued by a judge or magistrate. Note that even if ICE agents have a judge-issued warrant, they may only enter a private space for the purposes of arresting the person or persons specified on the warrant. Even if ICE has a warrant to enter the private space, remember that individuals still have the right to remain silent under the Fifth Amendment.

Tab Position 1

A Guide for Immigration Advocates April 2014

2. Search Warrant A search warrant is a warrant signed by a judge giving ICE agents authority to enter a private section of a workplace for the purposes of questioning people and inspecting the premises. Agents may not make arrests under a search warrant unless the questioning reveals probable cause for arrest. If officers show up with a search warrant, an individual still has the right to remain silent when questioned. 3. Administrative Warrant This is the most common kind of warrant that ICE carries. An administrative warrant is a warrant signed and issued by ICE or DHS officials to authorize ICE agents to enter a home or a private section of the workplace. Since this is not a judge-issued warrant, it does not give ICE legal authority to enter the home without first obtaining permission to enter from the person who owns or leases the home.

Example 19.8.1: An ICE officer follows 9-year-old Gabriela home from school. The officer asks Gabriela if she can come into the house. This would not be legal consent since the officer may be taking advantage of Gabriela’s age. What if the officer instead knocked on the door and asked Gabriela’s mother for permission to enter—would her mother be required to let the officer enter? No. If she told the officer to come in, would that be sufficient consent? Yes, it would. Gabriela’s mother still has the right to remain silent, even though she lets the officer into her home.

19-23

Unit 19

If ICE knocks on the door, people can refuse to let them in unless the agents show a search warrant for specific people at that address, and even then they can refuse to answer ICE’s questions. If ICE officers say they have a warrant, individuals should ask them to slide it under the door so that they may examine it closely. On the warrant an individual should look for the name of someone residing at the residence, the address of the residence, and a signature of a magistrate or a judge.

Example 19.8.2: ICE officers have brought Manuel’s landlord along to his apartment, and tell Manuel that the landlord has given them permission to enter the apartment and search the premises without a warrant. This search is illegal since permission given by landlords to enter is valid only if the landlord also resides in the same living space. Example 19.8.3: ICE officers knock on Kofi’s door on a Monday afternoon and ask to be let in. They claim they have a warrant and slide the warrant under the door for Kofi to see. Kofi notices that the warrant was not signed and issued by a judge, but by an ICE field office director. This is an administrative warrant and Kofi can refuse to let the officers enter his home. Other “private places” include non-public areas of the workplace. See § 19.20 below.

§ 19.9 Rights at Schools and Places of Worship While ICE and CBP consider schools and churches to be “public areas” allowing them to enter and question without a warrant, in response to public pressure they have generally avoided enforcement activities in these locations. In 1993 and 2001, ICE released internal policy memos stating that it will not conduct raids at schools (primary, secondary, and post-secondary), places of worship, and religious ceremonies.55 In 2011, after significant media fallout from ICE operations outside of Detroit elementary schools, ICE Director John Morton pledged that agents would cease patrolling around schools and stopping residents who were picking up and dropping off their children.56 That month, ICE issued a revised policy memorandum superseding the agency’s previous guidance, and requiring prior approval by a high-level supervisor before targeting anyone near a sensitive location, as well as annual retraining on sensitive locations operations.57 In January 2013, CBP followed suit with a similar memo.58

Unit 19

55

John Morton, U.S. Immigration and Customs Enforcement, Enforcement Actions Focused on Sensitive Locations (Oct. 24 2011); CBP Memo: Enforcement Activities at Schools and Places of Worship, AILA Doc. No. 08050774 (May 7, 2008); Robert A. Wallis, INS Internal Policy Memo on Enforcement Activities at Schools, Places of Worship, or at Funerals or Other Religious Ceremonies (June 14, 2001); James, A. Puleo, INS Internal Policy Memo on Enforcement Activities in Schools, Places of Worship, or at Funerals or Other Religious Ceremonies, (May 17th 1993). For certain of these documents, see Appendix 19-E. 56 Matt Hildreth, ICE Agents in Detroit Stalk Local Elementary School in Search of Undocumented Immigrants, America’s Voice Online (Apr. 6, 2011) available at http://americasvoiceonline.org/blog/ice_ag ents_stalk_elementary_school_searching_for_undocumented_immigrants/ (last visited Feb. 2014). 57 ICE Policy Number 10029.2: Enforcement Actions at or Focused on Sensitive Locations (Oct. 24, 2011) www.ice.gov/doclib/publicadvocate/pdf/10029.2-policy.pdf (last visited Dec. 31, 2012). The 2011 policy memo designates as “sensitive areas” schools (from pre-schools, to universities, to vocational schools), hospitals, houses of worship, the sites of public religious ceremonies such as funerals and weddings, and sites “during the occurrence of a public demonstration” (i.e., marches, rallies and parades). The policy provides generally that any action planned at or near such a “sensitive area” be pre-approved by either the Assistant Director of Operations or Executive Associate Director of Homeland Security Investigations (HIS), or either the Assistant Director for Field Operations or Executive Associate Director of Enforcement

19-24

Tab Position 1

Immigrant Legal Resource Center April 2014

Notwithstanding ICE’s updated policies and additional training, its agents still make arrests near such sensitive locations.59 In particular, although these zones may be generally safe spaces, ICE agents can and do operate around the perimeters, for example ICE has arrested immigrant parents or guardians who wait outside of schools for their children. In these situations, ICE has stated that it has a protocol to stay on the scene until the arrestee parents can make arrangements for the care of their children, or until the arrestee parents ask ICE agents to enter school grounds to pick up their children.

Tab Position 1

A Guide for Immigration Advocates April 2014

Immigrant parents susceptible to deportation should have adequate safety nets in place to prepare for any immigration enforcement activity. They should be advised to make emergency plans with friends and/or family members to pick up their children in case they are picked up by ICE. They can fill out a notarized or signed caregiver authorization form which allows someone else to making ongoing decisions regarding their child’s school and medical care if they are arrested and deported. Schools also often have forms that can be filled out authorizing other individuals to pick their children. Making these alternative arrangements will help parents who are arrested avoid having to authorize ICE agents to retrieve the children from school grounds. School districts and communities can also provide a safer environment for students and parents. Schools can adopt policies to refuse to allow ICE onto their campuses. If ICE agents do enter schools on parents’ behalf, school administration officials should be advised to receive and keep the ICE agents in the administrative offices—and to keep ICE agents from entering classrooms—in the interest of students’ well-being and safety. Teachers, administrators, and immigrant students should also be educated on their Constitutional rights to remain silent and to refuse a warrantless search in case ICE officers do come inside school grounds. Finally, school districts can coordinate to have other parents who have documentation either pick up students or accompany parents and students who are at risk for deportation.

and Removal Operations (ERO). ICE officers may act without such approval if one of the following exigencies exist: the enforcement action involves “a national security or terrorism matter” or “the immediate arrest or pursuit of a dangerous felon, terrorist suspect, or any other individual(s) that present an imminent danger to public safety,” or there is an “imminent risk” either of “death, violence, or physical harm to any person or property” or “of destruction of evidence material to an ongoing criminal case.” The policy urges agents to carry such exigent actions out “in a discrete manner.” 58 David Aguilar, Deputy Commissioner for Customs and Border Protection, U.S. Customs and Border Protection Enforcement Actions at or Near Certain Community Locations (Jan. 18, 2013), available at http://foiarr.cbp.gov/streamingWord.asp?i=1251. 59 Julia Preston, Groups Protest Operation by Immigration Agents, New York Times, A25 (Oct. 18, 2012) available at www.nytimes.com/2012/10/18/us/groups-protest-operation-by-immigration-agents.html.

19-25

Unit 19

Immigration Enforcement at Colleges and Universities. Students who come to the U.S. to study have temporary student or exchange visas and are subject to monitoring by the Department of Homeland Security through the Student Exchange and Visitor (SEVIS) Program. The schools they attend are required to participate in SEVIS by recording in a database whether students are complying with the academic visa requirements—such as continued school enrollment and

maintenance of satisfactory grade point averages. Students who are no-shows or disappear after arriving in the U.S. are terminated in SEVIS for failure to pursue program activities. An exchange visitor who does not depart the U.S. within three calendar days of the end of her program is classified as a non-returnee, absent prior approval of extension, and is terminated in SEVIS for violating sponsor rules. Non-returnees and no-shows are reported to the DHS and are subject to arrest, detention, and deportation. Termination in SEVIS is likely to affect their ability to reenter the U.S. in future. Some administrators do not understand that the SEVIS requirements apply only to these students and not to students with any other immigration status. Some schools have also expressed concern that their failure to report an undocumented student to DHS could subject them to a federal criminal charge of “harboring.” DHS clarified, however, in May 2008, that colleges and universities are not required to ask about the immigration status prior to enrolling their students or to report undocumented students to the government. They are only required to monitor the immigration status of those who came on student visas through the SEVIS program. For information on this issue go to www.nilc.org.60 For information on the Right to Public Education for undocumented students see § 19.22.

§ 19.10 Workplace Raids

Unit 19

The standards for both questioning and seizure during ICE raids at a workplace are generally the same as the standards already discussed in §§ 19.7 and 19.8. Remember that ICE can search public areas of a workplace or business without a warrant.61 Before ICE can enter “non-public” areas of a workplace, however, they must either have valid consent from the owner of the property or a valid search warrant issued by a judge. Non-public areas would include places restricted to certain personnel, or anywhere that isn’t normally accessible to the public. A reception area, for example, might not be a “private place,” but a workshop would be. Law enforcement officers, including ICE, may also enter the non-public areas if there are exigent circumstances—situations where they need to enter to prevent the destruction of evidence or to prevent imminent physical harm to other people.62

60

NILC “No Federal Requirement that School Administrators Inquire About Students’ Immigration Status or Report Those Who Are Undocumented, DHS Confirms.” Updated Aug 6, 2008. Available at www.nilc.org/dreaminquire.html (last visited February 2014). 61 Mendoza v. INS, 559 F. Supp 842, 849 (W.D. Tex. 1982); Bond v. U.S., 529 U.S. 334 (2000). 62 International Molders’ and Allied Workers’ Local No. 164 v. Nelson, 643 F. Supp 884 (N.D. Cal. 1986), 799 F.2d 547 (9th Cir. 1986); see, e.g., Pennsylvania v. Labron, 518 U.S. 938 (1996).

19-26

Tab Position 1

Immigrant Legal Resource Center April 2014

ICE does need consent or a search warrant to raid farms and other outdoor agricultural operations.63 However, in other types of open areas outdoors, they do not need a search warrant.

Tab Position 1

A Guide for Immigration Advocates April 2014

ICE cannot force an employer to consent to an entry. But if ICE does get the owner’s valid permission to enter the property to question workers, or they get a valid search warrant, the agents have been allowed to question workers without individual suspicion that each person is undocumented, as long as each person being questioned feels free to leave and not to answer questions.64 Example 19.10.1: ICE agents arrive at a garment factory and meet with the owner in the reception area. They do not have a warrant. The owner gives her consent for the officers to go into the work areas and question the workers about their immigration status. The officers have no tips about specific workers. They ask Du, a worker from Kenya, about his immigration status. He does not answer and continues to work. The officers probably do not have legally sufficient information to arrest Du, unless they obtain additional information from the employer or another source. The ICE agents are not able to obtain the additional information from anyone else and leave the factory without arresting anyone. Example 19.10.2: ICE agents come back to the garment factory with a judge-issued inspection warrant, and the front desk allows the agents in to inspect the premises and question the workers. The ICE agents again question Du, who does not answer and keeps working. The agents then arrest Du without obtaining additional information. This arrest is illegal since the inspection warrant only authorizes entry to the workplace to inspect and question, it does not authorize an arrest. However, if an officer questioned Du’s coworker Ashan, who voluntarily answered that she was undocumented, ICE agents have the authority, based on probable cause from Ashan’s answer, to arrest Ashan. A.

I-9 Audits and E-Verify

63

INA § 287(e), 8 USC § 1357(e). International Molders’ and Allied Workers’ Local No. 164 v. Nelson, 643 F. Supp 884, 895 (N.D. Cal. 1986).

64

19-27

Unit 19

One of the ways that ICE currently enforces immigration law in the workplace is through I-9 audits on employers. I-9s are the forms that employees must complete on their immigration work status. ICE has access to these records and conducts “audits” to see if employers have hired unauthorized immigrants. When I-9 audits reveal that possible unauthorized immigrants are employed it gives ICE reason to raid the workplace to question or arrest immigrant employees at their workplace in order to remove them. Employers can also face sanctions in the form of fines or even criminal liability for a range of violations from suspect record keeping to knowingly hiring undocumented immigrants. In addition or as a substitute to raids, ICE has used audits as a means of pressuring employers to dismiss workers with documentation irregularities. In 2009, clothing manufacturer American Apparel found itself a target of one such audit. Facing the threat

of sanctions for discrepancies in employee documentation, the company instead dismissed 1,800 of its employees amounting to over a quarter of its work force.65 DHS also developed a companion program called E-Verify that allows employers to screen prospective employees based on submitted I-9 forms. The E-Verify program began as a pilot in 1997 and has expanded to a web-based interface that gives employers a way to check employment eligibility in real time by screening I-9s against Social Security and DHS records.66 Whereas workplace inspections and I-9 audits allow DHS to enforce immigration laws postemployment, E-Verify functions as a preemptive tool to keep employers from running afoul of immigration laws by screening out ineligible workers. Currently, employer participation in EVerify is for the most part voluntary; however, federal contracts frequently contain provisions mandating its use and some states are enacting laws requiring most businesses to participate in the program.67 At the national level, many legislative proposals have included amendments to the INA to require mandatory and permanent requirements for all employers to use E-Verify. For example, Senate bill 744, which passed in the Senate in June 2013, would require all employers to use EVerify, phased in over time.68

For a list of your rights during an ICE enforcement action, as well what to do and what not do to, see Appendix 19-C.

§ 19.11 Rights in Automobiles

Unit 19

Away from the border, an immigration officer can stop a vehicle without a warrant only if he or she has a “reasonable suspicion” that the vehicle contains undocumented immigrants.69 But again, the key question is what factors create a “reasonable suspicion” that there are undocumented immigrants in a car or truck.

65

New York Times “Immigration Crackdown with Firings, Not Raids.” September 29, 2009. Available at www.nytimes.com/2009/09/30/us/30factory.html?pagewanted=all (last visited Feb 2014). 66 USCIS “What Is E-Verify?” available at www.uscis.gov/e-verify/what-e-verify (last visited Feb 2014). 67 USCIS “E-Verify: for Employees,” available at www.uscis.gov/e-verify/employees (last visited Feb 2014). 68 Immigration Policy Center, A Guide to S.744: Understanding the 2013 Senate Bill (July 10, 2013) available at www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senateimmigration-bill. 69 Brignoni-Ponce, 422 U.S. 873, 884 (1975).

19-28

Tab Position 1

Immigrant Legal Resource Center April 2014

An ICE agent must be able to point to specific, “articulable facts” that would lead an experienced immigration official to believe that a vehicle contains undocumented people,70 such as: appearance (dress or hairstyle indicating that an occupant of the vehicle is from another country); behavior of driver or passengers that shows evasion from an immigration official, or erratic driving; a car with big storage capacity (e.g., hidden compartments where immigrants might be smuggled), or a heavily loaded down vehicle.71 Ethnic appearance alone cannot justify a stop, either of a person or of a vehicle, but it can be considered as one supporting factor in most areas of the country, although not in the Ninth Circuit. See § 19.3, above.

Tab Position 1

A Guide for Immigration Advocates April 2014

Example 19.11: An ICE officer spies an early model Camaro more than 300 miles from the border with passengers who appear to be of Mexican descent. He radios another ICE official farther up the road, who follows the car after watching it pass. This official, driving a plain, unmarked car, travels at 100 mph to catch up to the Camaro. The second official notices that the car has a very uneven paint job, the driver and passengers appear dirty with uncombed hair, and the passengers are nervous. Based on this information, the official stops the car. Is this stop legal? No, this stop is illegal for the following reasons: given the distance from the border, there was no reason to believe that the car had recently come from the border; the agent stopping the car did not know that the road had been used to smuggle aliens before; the Camaro was not “evasive” since the ICE car was not marked as a law enforcement vehicle; and the uneven paint job does not provide evidence that the car was used to smuggle immigrants. ICE did not have grounds for a reasonable suspicion that the car held undocumented persons.72 The U.S. District Court for the Northern District of Ohio concluded that Hispanic drivers who were referred to the Border Patrol by the Ohio State Highway Patrol were deprived of their equal protection rights.73 In coming to this conclusion the court noted that the officer testified that they referred Hispanic drivers to the Border Patrol when, in the same situations, they would not refer white drivers.

70

Id. Id. at 884-885. 72 U.S. v. Ortega-Serrano, 788 F.2d 299 (5th Cir. 1986). 73 Farm Labor Organizing Committee v. Ohio State Highway Patrol, 95 F.Supp.2d 723 (N.D. Ohio 2000), affirmed and remanded by 308 F.3d 523 (2002). 74 U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, Program Complaint No. FS-11-5171 (Apr. 28, 2012), available at http://nwirp.org/Documents/PressReleases/DecisionOfOASCRUSDAreCivilRightsComplaintREDACTED forRelease.pdf. 71

19-29

Unit 19

In April 2012, the U.S. Department of Agriculture Office for Civil Rights found the Forest Service in Washington had a pattern of discrimination against Limited English Proficiency (LEP) individuals in its programs and services by using Border Patrol agents as “interpreters.”74 The Civil Rights Office ordered the Forest Service to correct its behavior and develop a policy to

ensure the provision of LEP access to Forest Service lands and services. Three days after this decision, the Northwest Immigrant Rights Project sent a formal complaint to the Department of Homeland Security and the Department of Justice, alleging racial discrimination and violations of the civil rights of LEP individuals.75 The complaint documented numerous instances of racial profiling and intentional referrals of traffic stops from local police to Border Patrol. In December 2012, the Department of Homeland Security announced that Border Patrol would no longer be acting as interpreters for other agencies.76 Instead, CBP officers are instructed to refer requests to local or national translation services. However, the new guidance, which has not been publicly released, does not affect officers’ responses to requests for other types of assistance.77

§ 19.12 Rights at the Border The rights of immigrants at or near the border are greatly restricted. An immigration official at the border can question anyone seeking entry, without any “reasonable suspicion” or “probable cause” that a person trying to enter the U.S. is undocumented. Officials can also search without a warrant any person seeking admission to the U.S., and anything in the person’s possession.78 For searches of persons, baggage or mail “arriving” at the border or border equivalent, the government does not need to establish “reasonable cause” or a “good faith” belief that there is any illegal activity involved. These types of searches may include a person’s components within a vehicle, such as the fuel tank.79 People must prove their legal status in the United States at places that courts have called “the functional equivalent of the border.” These are places that are not right on the border, but through which people entering the country frequently pass. For example, international arrival terminals of airports, established stations near the border, and places where at least two roads that extend from the border meet, are all considered “functional equivalents of the border.”80 Immigration officials can also board and search any boat, plane, train or car they think might be bringing undocumented people into the country.81

Unit 19

75

Northwest Immigrant Rights Project, Complaint Regarding Violations of Title VI of the Civil Rights Act and Executive Order 13166 Due to the Actual or Purported Use of Border Patrol Agents as Interpreters, May 1, 2012, available at http://nwirp.org/Documents/PressReleases/ComplaintToUSDOJandDHSreInterpr etationAssistanceFinalRedacted05-01-2012.pdf. 76 Associated Press, Washington: Border Guards Will Cease Acting as Interpreters (Dec. 13, 2012). 77 Lisa Graybill, Border Patrol Tightens Up its Policy On Providing Interpretation Policies, Immigration Impact (Dec. 17 2012). 78 INA § 287(c), 8 USC § 1357(c). 79 United States v. Flores-Montano, 541 U.S. 149 (2004); United States v. Hernandez, 424 F.3d 1056 (9th Cir. 2005); United States v. Taghizadeh, 41 F.3d 1263 (9th Cir. 1994); United States v. Cortez-Rocha, 394 F.3d 1115 (9th Cir. 2005) (permitting the slashing of a vehicle’s spare tire at the border). 80 Almeida-Sanchez v. U.S., 413 U.S. 266, 273 (1973). 81 Compare this general rule allowing searches at “functional equivalents of the border” to Bond v. U.S., 529 U.S. 334 (2000), discussed infra § 19.6. In Bond, the Court acknowledges the stop of the Greyhound bus as a “permanent checkpoint,” but placed limits on the type of search.

19-30

Tab Position 1

Immigrant Legal Resource Center April 2014

Any person attempting to enter the U.S. at one of the “border equivalents” may be questioned by an immigration officer about citizenship or immigration status.82 The law requires all people trying to enter the U.S. to present documents proving that they are admissible to the U.S.83

Tab Position 1

A Guide for Immigration Advocates April 2014

While ICE and CBP are permitted to question people and search bags at the borders as people attempt to enter the U.S. without the usual levels of required suspicion, there are still limits to the types of behavior that is lawful in that circumstance. Some examples of unreasonable searches and seizures might include: abusive body cavity searches without reasonable cause, refusal to accept valid documents, and rapes and assaults.

§ 19.13 Rights at Border Equivalents: Airports, Trains/Buses With the prevalence of international travel and national security levels at such a high since September 11, 2001, the law surrounding a person’s Fourth Amendment rights within an airport is of serious concern to immigrants. The discussion of airport detentive stops and searches only applies to international terminals because domestic terminals are arguably not part of the “functional equivalents of the border” definition. The Border Patrol has also set up internal checkpoints, where they are authorized to stop and question motorists without reasonable suspicion.84 However, agents still need probable cause to arrest you or search your car, and you always have the right to refuse to answer.85 A.

Airports

By treating the international terminal of airports as a “border,” the same guidelines for searches at borders apply. Routine detentions and searches do not require reasonable suspicion because the government’s interest in preventing the smuggling of illegal contraband and flight risks outweighs the minimal intrusion on the passenger.86

82

U.S. v. Silva, 715 F.2d 43 (2d Cir. 1983). 8 CFR § 235.1(b). 84 See United States v. Martinez Fuerte, 428 U.S. 543 (1976). 85 United States v. Ortiz 422 U.S. 891 (1975). But see United States v. Massie, 65 F.3d 843 (10th Cir. 1995) (Border Patrol may refer individuals to secondary inspection without individualized suspicion, and may make a “cursory visual inspection of the vehicle”). 86 U.S. v. Montoya De Hernandez, 473 U.S. 531, 538 (1985); see also U.S. v. Ramsey, 431 U.S. 606 (1977). 83

19-31

Unit 19

The special category of airport detentive stops and searches applies only to international terminals because domestic terminals are arguably not “functional equivalents of the border.” The rationale is that an immigrant’s rights near the border are greatly restricted and the international terminal serves as the first point where there is an entry across a “border” such that a stop, search and/or seizure can be feasible. Where a passenger flies between two domestic

airports, the search should be analyzed under standard “interior,” rather than “border,” rules.87 At least one circuit court has held that if a person has been under constant surveillance after entering the international terminal of an airport, airport officials may still search the person and his luggage without a warrant after the person has left the customs area and is outside waiting for a cab.88 B.

Routine Searches

The definition of “routine” reflects the idea that the government’s interests in protecting the borders and safety in air travel outweigh the Fourth Amendment interests of the passenger entering or exiting the border. The Ninth Circuit has held that a search at the airport is “reasonable,” and therefore within the definition of routine, if 1) it is no more extensive or intensive as necessary in light of current technology; 2) it is confined in good faith for the purpose of detecting weapons or explosives; and 3) passengers may avoid the search by electing not to fly.89 Non-routine searches include strip searches, body-cavity searches and involuntary x-ray searches.90 A pat-down may be non-routine if an officer reaches under the subject’s clothing, or fondles their genitals, breasts or buttocks.91 Furthermore, a 90-minute detention of a person’s luggage at an airport is beyond the narrow authority of the police to detain briefly luggage that is reasonably suspected of containing narcotics.92 Though passengers can avoid an airport search by choosing not to fly, they must make this choice before entering the airport’s secured area. It is not clear how far such secured areas extend from the airplane boarding gate to the street door, but it extends at least as far as the point where a passenger places his luggage on the conveyor belt for an x-ray scan or passes through the magnetometer, or other airport security body scanner.93 Advocates should be aware that it is possible that DHS might inspect those leaving the United States as well those entering. CBP checks passenger lists on incoming and outgoing

Unit 19

87

See United States v. Place, 462 U.S. 696 (1983) (under non-border analysis, 90-minute detention of luggage at airport was beyond police’s authority to briefly detain luggage reasonably suspected of containing narcotics). 88 U.S. v. Martinez, 577 F.2d 960 (5th Cir. 1978). 89 Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002). Also note that the Supreme Court has only held that no reasonable suspicion is required for routine searches, but has yet to clarify the standard to apply for searches that are no longer “routine.” See U.S. v. Montoya De Hernandez, supra. 90 United States v. Montoya de Hernandez, 473 U.S. 531 n.4 (1985) (Customs officials had reasonable suspicion to stop suspected cocaine mule arriving from Colombia; 16-hour detention to await court order for rectal examination after suspect refused x-ray was not unreasonable). 91 Van Beek v. Robinson, 2012 WL 2891191 (E.D. Mich. Jul. 16, 2012); but see, Bradley v. United States, 299 F.3d 197 (3rd Cir. 2002) (pat-down of breasts over clothing was not invasive). 92 United States v. Place, 462 U.S. 696 (1983). 93 U.S. v. Aukai, 497 F.3d 955 (9th Cir. 2007).

19-32

Tab Position 1

Immigrant Legal Resource Center April 2014

flights to find people who have violated immigration laws. There have been several known cases, all occurring in Texas, where immigrants leaving the country were taken out of airplane lines to be detained, prosecuted for illegal entry into the United States or illegal re-entry into the United States after deportation, and then deported.94

Tab Position 1

A Guide for Immigration Advocates April 2014

Summary -- Helpful Points for Rights in Airports:     

C.

Routine border searches without a warrant and without reasonable suspicion are permissible. “Routine” searches are only those that are “reasonable” considering the government and public’s interest in safety in air travel. Body-cavity and strip searches are not “routine.” Passengers can avoid searches by choosing not to fly before they enter airport secured area. Border searches apply to persons and objects entering OR exiting the U.S.95

Trains and Buses

In 2010 the New York Times reported on a year’s-long pattern of CBP “sweeps” of trains and buses in upstate New York. The vehicles were traveling entirely between domestic stations and without crossing the Canadian border, but were nonetheless a target for Border Patrol enforcement sweeps. In these sweeps, Border Patrol agents would board the train or bus and, without individualized suspicion, question passengers about—and demand proof of—their immigration status.96 Civil rights groups sought more data on these raids, and won a FOIA action in federal court, forcing CBP and ICE to release statistical information on the arrests. The advocates published an analysis of the available data between 2006 and 2009, finding numerous examples of invasive and unreasonable stops and arrests.97 In recent years, these sweeps have reportedly become much less common.

94

“Don’t Leave Until We Can Deport You,” Mary Flood, Houston Chronicle, February 25, 2008. U.S. v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982). 96 See, Nina Bernstein, “Border Sweeps in North Reach Miles into U.S.,” The New York Times, Aug. 29, 2010. 97 See New York Civil Liberties Union, “Justice Derailed,” Nov. 2011, www.nyclu.org/files/publications/NYCLU_justicederailedweb_0.pdf. 95

19-33

Unit 19

Generally, stopping vehicles without reasonable suspicion appears to violate the limits on “roving patrol” stops of automobiles—particularly since the vehicles involved have not crossed an international border. But ICE and CBP can get around that obstacle where the private carrier, such as the bus company, has consented to their vehicles being so inspected. An individual on board such a vehicle is still protected by the ordinary Fourth Amendment seizure rules and may refuse to answer any questions put to them. Individuals should be aware, however, that their cooperation is likely to be coerced with threatened or actual removal from the vehicle— regardless of whether that detention is legal.

Implementation of National ID under the REAL ID ACT. In 2005, Congress passed the Real ID Act. This Act gives authority to the DHS to establish national standards for identification cards. Thus, persons who live or work in the U.S. will need a federally-approved ID card to travel on an airplane, open a bank account, or to take advantage of almost any government service.98 Although the implementation date has been postponed numerous times, DHS has announced that enforcement would be completed in phases starting in January 2014 and will be completed on some date no sooner than 2016.99 According to DHS, as of December 2013, 41 states are either fully compliant or have made some progress.100 The Act will make enforcement of immigration law easier on ICE since there would be uniform and mandatory national ID’s. Also of greatest concern to immigrants is that the Real ID Act implements a strict identification process to obtain the new ID. To obtain the new ID, one will be required to show an identifying document with the person’s photo, birthday, and address, in addition to proof of his or her Social Security number. Foreigners will be required to show a valid visa before obtaining something as simple, yet important, as a driver’s license. Needless to say, this will affect immigrants at the immigration application and deportation level as well as on a more local, daily level.

Unit 19

Supporters of the Act believe it will hinder the entry of terrorists because it requires proof of lawful presence, and will facilitate enforcement. Opponents of the Act fear the discretion it gives to DHS to add requirements for the national ID card. Although states can individually “opt out” of the national ID, the ID is still required for many federal benefits. The result is that undocumented immigrants who are currently able to, will not be able to obtain driver’s licenses, or will not update old ones, thereby further hindering their ability to enter the workforce. Opponents also fear that this Act will give anyone affiliated with the government access to private information such as birth dates, social security numbers, etc., which constitutes intrusions into the right to privacy.

98

Testimony of Office of Policy Assistant Secretary David Heyman for a House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security hearing titled “Secure Identification: the REAL ID Act’s Minimum Standards for Driver’s Licenses and Identification Cards.” Mar. 21, 2012. Available at www.dhs.gov/ynews/testimony/20120321-plcy-real-id-hjc.shtm (last visited Feb. 2012). 99 DHS Releases Phased Enforcement Schedule for REAL ID (Dec 20 2013), available at www.dhs.gov/news/2013/12/20/dhs-releases-phased-enforcement-schedule-real-id (last accessed Feb. 2014). 100 Id.

19-34

Tab Position 1

Immigrant Legal Resource Center April 2014

A number of states have reacted unfavorably to the Real ID Act. According to the National Conference of State Legislatures, as of January 2014, 26 states have enacted laws or resolutions opposing compliance with the Real ID Act.101

Tab Position 1

A Guide for Immigration Advocates April 2014

PART TWO: RIGHTS OF PERSONS IN DHS DETENTION AND REMOVAL PROCEEDINGS § 19.14 Rights upon Being Arrested by the DHS and While in DHS Detention When DHS has enough information to begin removal proceedings against a person (and if the person will not leave under pre-hearing voluntary departure), the acting DHS bureau must write up a Notice to Appear (formerly an Order to Show Cause) to begin removal proceedings.102 See Unit 10 for more information on the Notice to Appear and bonding out of detention. Strangely enough, in most situations, this is also the point at which DHS issues a warrant of arrest. Often, this means DHS has already apprehended the person before issuing the warrant document. A.

Rights Relating to an Arrest for Immigration Violations

For persons who are arrested without a warrant (which is most people), the following procedural protections apply (except for those in expedited removal):  





101

See State Legislative Activity in Opposition to the Real ID (January 2014), available at www.ncsl.org/documents/standcomm/sctran/REALIDComplianceReport.pdf (last visited Feb. 2014). 102 8 CFR § 239.1.

19-35

Unit 19

 

The person must be questioned by an officer other than the arresting officer, if possible. 8 CFR § 287.3(a). Within 48 hours after making an arrest the DHS must bring the person before a DHS officer to decide if there are grounds to pursue removal and whether the person will be bonded out or released. Additional time may be granted in the event of emergency or extraordinary circumstances. 8 CFR § 287.3(d). The arrested immigrant must be advised of reasons for his or her arrest and of the right to counsel at no expense to the government. 8 CFR § 287.3(c). DHS shall provide a list of local, free legal services. 8 CFR § 287.3(c). DHS shall inform the arrested immigrant that any statement made by him or her can be used against him or her. 8 CFR § 287.3(c). Advisals of rights: The INA only requires “Miranda” style warnings that one’s statements may be used against him or her, post interrogation (which has been upheld where the person is accused of violations of civil immigration law).The rule is different for those who are being interrogated for criminal law violations. Immigration enforcement officers



sometimes interrogate immigrants for suspected violations of criminal law. Where this is the case and the situation shows that the person was effectively “arrested,” the courts have held that Miranda warnings are required.103 The immigrant has the right to communicate with a consular official from his or her home country, if the country has a treaty agreement with the U.S. See 8 CFR § 236.1(e).

Exceptions for Suspected Terrorists under USA Patriot Act: Under the USA PATRIOT Act, if the DHS suspects the person to be a terrorist, there is an exception to the time limit that within 48 hours after making an arrest DHS must bring the person before a DHS officer to decide if removal proceedings will be initiated and whether the person will be bonded or released. The law allows DHS to detain a suspected terrorist for seven days before bringing immigration or criminal charges. The USA PATRIOT Act further allows the Attorney General or the Deputy Attorney General to certify a person as a terrorist if they have reasonable grounds to believe that the person is a terrorist or has committed a terrorist activity. If the Attorney General or the Deputy Attorney General certifies a person as a terrorist, the person is subject to mandatory detention and will be held in custody until removed even if the person is eligible for some form of relief from removal or if relief from removal is granted. If the person is determined not to be removable, he or she cannot be kept in detention under the mandatory detention section of the USA PATRIOT ACT. The certification of a person shall be reviewed every six months and a person may request to have his or her certification reviewed every six months. This is discussed further in Unit 10 of this manual.

B.

Rights during Immigration Detention

Unit 19

The Attorney General has the power under the INA to arrest and take into custody certain non-citizens. The Secretary of Homeland Security is then charged with the safe, secure, and humane detention of the immigrants in DHS custody. INA §§ 232, 235 and 236. See Unit 10 for rules on who DHS may detain. Congress passed laws that went into effect in October 1998,104 which vastly multiplied the numbers of immigrants that were required to be detained under the INA. These new rules combined with recent aggressive immigration enforcement have resulted in a sharp increase of immigrants being housed in detention centers across the country, often in remote places outside of their home states where their families and communities are located. Immigrants can be detained at local county jails, private prisons which contract with the federal government or federal immigration detention centers. 103

See U.S. v. Gonzalez-DeLeon, 32 F.Supp.2d 925 (W. Dist. Tex. 1998). In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

104

19-36

Tab Position 1

Immigrant Legal Resource Center April 2014

The U.S. immigration detention system has grown significantly over recent years. ICE holds about 30,000 people in detention each day and removes around 400,000 each year.105 The number of daily detention beds has nearly doubled over the past eight years, from 18,000 in 2004 to the current capacity of 34,000. From 2001 to 2010, the total number of immigrants who pass through ICE detention per year has also nearly doubled, from 209,000 individuals in 2001 to almost 392,000 individuals in 2010.106 To accommodate this surge of ICE detainees, the government gives ICE billions of dollars per year to operate over 440 detention centers.107

Tab Position 1

A Guide for Immigration Advocates April 2014

As a result of this burgeoning system, immigrants’ rights while being detained are frequently violated. While detainees have the right to be represented by counsel, there is no court-appointed counsel, or “public defender” leaving most detainees without an attorney. Further, detainees are frequently transferred to different parts of the country, making family contact nearly impossible.108 In addition, food is unhealthy and frequently too scarce, and medical treatment is dangerously substandard. The conditions in many of the detention facilities are so bad that there have been reports of deaths due to inadequate medical care.109 There have been 131 deaths from October 2003 to December 2012.110 The appalling conditions of immigration detention facilities have become the focus of news reports, human rights reports, and Congressional hearings.111 As a result, DHS has created and many times revised its detention standards in what is known as the Performance-Based National Detention Standards 2011 (PBNDS 2011). Advocates can review ICE detention standards in the PBNDS 2011 on the ICE website at

105

19-37

Unit 19

Department of Homeland Security, Budget-in-Brief Fiscal Year 2013, available at www.dhs.gov/xlibrary/assets/mgmt/dhs-budget-in-brief-fy2013.pdf. 106 National Immigration Forum, The Math of Immigration Detention: Runaway Costs for Immigration Detention Do Not Add Up to Sensible Policies, 3 (August 2013), www.immigrationforum.org/images/uploads/mathofimmigrationdetention.pdf. 107 Id. 108 ICE issued a policy directive in January, 2012, to change the procedures for transferring detainees to facilities far from the areas in which they were initially detained. The policy sets factors that weigh against transferring detainees to other areas. These include a detainee’s (1) immediate family, (2) an attorney of record, (3) pending or ongoing removal proceedings, or (4) the granting of bond or scheduling of a bond hearing in the area. The policy also gives Field Officer Directors the discretion to consider transfer requests, safety, security and medical concerns when making transfer determinations. USCIS “Policy 11022.1: Detainee Transfers.” January 4, 2012. Available at www.ice.gov/doclib/detention-reform/pdf/hddetainee-transfers.pdf (last accessed Feb. 2014). 109 Nina Bernstein, Officials Hit Truth of Immigrant Deaths in Jail, The New York Times (Jan. 9 2010), available at www.nytimes.com/2010/01/10/us/10detain.html?ref=incustodydeaths&_r=0 (last accessed Feb. 2014). 110 List of Deaths in ICE Custody, October 2003-December 6, 2012, available at www.ice.gov/doclib/foia/reports/detaineedeaths2003-present.pdf (last accessed Feb. 2014). 111 See, e.g., Julian Brookes, Dispatches: US Immigration Detention Still Costly, Still Unfair, Human Rights Watch (Dec. 11, 2013); Sarah Childress, Why Immigrant Detainees Still Aren’t Safe from Abuse, Frontline (Nov. 20, 2013); see generally www.detentionwatchnetwork.org (last accessed Feb. 2014).

www.ice.gov/detention-standards/2011/. However, skeptics point out that the standards are unenforceable, internal guidelines.112

Unit 19

Because ICE has been known to intimidate and trick immigration detainees into making self-incriminating statements or signing their deportation orders, it is crucial for immigration detainees to know their rights while in ICE detention. Here are some basic tips: 

Since everything a detainee says may be used against him, immigration detainees should be advised not to tell the questioning officer anything, but that he or she wishes to speak to an attorney. ICE will often discourage this by telling detainees that attorneys are too expensive, not needed, that requesting one will result in extra detention time, or may even deny access to an attorney. However, as outlined in the section above, immigration detainees have the right to be represented by an attorney, and it is crucial to speak to an attorney before the detainee divulges any information.



Detainees should be advised against signing any documents before consulting with a lawyer, as ICE has been known to trick detainees into signing their deportation orders (also known as Stipulated Orders of Removal).



Detainees should request from ICE officers a hearing on their case at the nearest immigration court. To prevent ICE from transferring persons to another, more distant detention facility, detainees should notify officers if they have any immediate family in the area. They should also have an attorney in the area file Form G-28, Notice of Entry of Appearance, on their behalf. If the detainee has been granted bond or faces an upcoming bond hearing or other proceedings in the area he should notify officers of this as well, as these are all factors ICE relies on under its policy to minimize detainee transfers.

In addition to detainee rights, advocates should be aware of ICE policy that favors granting release to detainees who have been granted protection relief by an immigration judge. Forms or qualifying relief include asylum, withholding of removal under § 241(b)(3) of INA, and withholding or deferral of removal under the U.N. Convention Against Torture (CAT), see 8 CFR § 1208.16(d)–1208.18. This policy applies at all times following a grant of protection, including during any appellate proceedings and throughout the removal period. These policies are reflected in INS113 and ICE114 memorandums published in 2000 and 2004, respectively, and most recently reiterated by ICE in March 2012.

112

The Huffington Post “When Good Isn’t Enough.” Mar. 6, 2012. Available at www.huffingtonpost.com /lovisa-stannow/when-good-isnt-enough_b_1317745.html (last visited May 2012). 113 Vol. 77 Interpreter Releases 1460, October 9, 2000. 114 Vol. 81 Interpreter Releases 381, March 22, 2004.

19-38

Tab Position 1

Immigrant Legal Resource Center April 2014

REMEMBER: If a client is detained by ICE, he or she should exercise the right to remain silent and insist on speaking to a legal representative.

C.

Tab Position 1

A Guide for Immigration Advocates April 2014

Detention Standards

After numerous lawsuits attempting to force INS, now DHS, to change detention practices and years of advocacy by concerned organizations, INS issued a more comprehensive set of “Detention Standards” in 2000, which became effective in 2001. In 2008, ICE released updated Standards called the Operations Manual ICE Performance Based National Detention Standards (PBNDS), but detention facilities were by and large managed under the 2000 standards absent a clear timeline for implementation. A comprehensive review of the detention system commissioned by ICE in 2009 led to yet another revision; the Performance-Based National Detention Standards 2011 (PBNDS 2011).115 These standards are now active, though their applicability may vary depending on the individual detention center. The “Detention Standards” apply not only to DHS operated detention facilities, but also to contract centers, which include facilities leased by DHS in local and county jails and private prisons who contract with the federal government. It is extremely important to note that the standards apply to local, county, and private prison detention facilities, since they house the majority of detained individuals.116 Despite the existence of these standards, they are frequently violated. Because they are just standards and are not regulations or binding law, they are not legally enforceable. Moreover, there has been little to no independent oversight outside of ICE or the contract facilities to ensure that they are complying with these standards.

115

Testimony of the American Immigration Lawyers Association Submitted to the Subcommittee on Immigration Policy and Enforcement of the Committee on the Judiciary of the U.S. House of Representatives Hearing on: “Holiday on ICE: The U.S. Department of Homeland Security’s New Immigration Detention Standards” Mar. 28, 2012. Available at www.aila.org/content/default.aspx?docid=39077 (last visited Feb. 2014). 116 Vol. 77 Interpreter Releases 1637, November 20, 2000.

19-39

Unit 19

PRACTICE TIP: At this time, it is confusing to understand what detention standards are in place and how they can be enforced. This is because the current state of detention standards are unclear and are composed of a hodgepodge of various provisions, some of which are binding via contract with facilities and others which are merely aspirational. The 2000 standards are written into facility contracts with ICE and thus, ICE is monitoring compliance with these standards. As facilities were taking steps to comply with the 2008 PBNDS, the standards were again revised and released as the PBNDS 2011 version. In monitoring detention centers, it is advised that advocates measure the current performance of these facilities against the newest and best standards to see how far they are from meeting them and report these conditions to ICE.

However, depending on when the contract was entered into, it is possible that a prior version of the standards applies.

Advocates can review the ICE detention standards in the Detention Operations Manual on the ICE website at www.ice.gov/detention-standards/2011/.

Unit 19

Short descriptions of some of the most important of the standards follow: 

Detainee Visitation. Detainees shall be allowed to visit with family, friends, legal representatives, special interest groups and the news media.117 This standard has specific definitions of who is included in these categories as well as the actual procedures for detainee visitation. Detainees may receive small amounts of property from visitors although visitors shall not give property or money directly to a detainee, but must turn it over to a designated staff member. Included in the items detainees may receive are: small religious items, religious and secular reading material, legal documents, pictures (though size and quantity may be limited), and other items approved by the Chief Detention Enforcement Officer.118



Legal Visitation. Detention facilities must permit detainees to visit with legal representatives seven days a week, including holidays, with a minimum of eight hours a day on regular business days and four hours a day on weekends and holidays. Meetings with legal representatives and consular officials are to be conducted privately and shall not be subject to auditory supervision. Officers may observe such meetings visually through a window or camera.119



Access to Legal Materials. Detainees must have access to legal materials and an opportunity to prepare legal documents. This standard provides that legal materials, facilities, equipment and access to a law library shall be made available at any detention facility holding detainees for more than 72 hours. Each detainee shall be permitted to use the law library for a minimum of five hours per week. Detainees may not be forced to forego their minimum recreation time in order to use the law library.120



Group Legal Rights Presentations. This section establishes the standards and procedures for presentations by attorneys and BIA accredited representatives to detainees for the purpose of informing them of immigration law and procedure. Detainees will have access to written materials and services provided by legal groups. Presenters will

117

PBNDS 2011, § 7.2 “Interviews and Tours.” PBNDS 2011, § 5.7 “Visitation.” 119 Id. 120 PBNDS 2011, § 6.3 “Law Libraries and Legal Material”; see also § 5.5 “Recreation.” 118

19-40

Tab Position 1

Immigrant Legal Resource Center April 2014

generally be granted a one hour minimum for presentation and additional time for question-and-answer.121 Telephones. At least one telephone must be provided for every 25 detainees at service process centers (SPCs), contract detention facilities (CDFs) and state or local government facilities used by ERO through Intergovernmental Service Agreements (IGSAs) that hold detainees for more than 72 hours. Generally, detainees or the persons they call shall be responsible for the costs of telephone calls with certain limited exceptions. The facilities are required to ensure privacy when detainees are making calls regarding their legal matters and are prohibited from electronically monitoring the phone calls absent a court order.122



Correspondence and Other Mail. Detainees are able to send and receive correspondence within 24 hours of receipt. Although mail is subject to inspection, “special correspondence” or “legal mail” as indicated on the envelope from legal representatives, courts, judges and the like are not to be read or copied by staff.123



Health and Recreation. All detention facilities run by the immigration service and contract detention facilities must have a health program to provide for the health and general well-being of the detainees.124 The Standards also include program requirements for recreational activities, including physical exercise and guidelines for preventative supervision and treatment of suicidal detainees and detainees on hunger strikes.125



Religious Practices and Marriage. Immigration detention facilities must provide detainees of different religious beliefs with reasonable and equitable opportunities to participate in the practices of their faith.126 Requests for marriage will be reviewed on a case-by-case basis.127



Grievance Procedures. The detention facility staff is required to forward detainee grievances regarding allegations of officer misconduct to a supervisor or higher-level official in the chain of command. Each detention facility must institute procedures for informal resolution of oral grievances. In addition to the informal process, the detainee also has the option of submitting a formal, written grievance to the facility’s grievance committee. Detainees submitting their complaints to the formal committee may do so either because he or she is not satisfied with the outcome of the informal process or

121

PBNDS 2011, § 5.7 “Visitation”; see also § 6.4 “Legal Rights Group Presentations.” PBNDS 2011, § 5.6 “Telephone Access.” 123 PBNDS 2011, § 5.1 “Correspondence and Other Mail.” 124 PBNDS 2011, § 4.3 “Medical Care.” 125 PBNDS 2011, § 5.4 “Recreation”; § 4.6 Significant Self-harm and Suicide Prevention and Intervention; § 4.2 “Hunger Strikes.” 126 PBNDS 2011, § 5.5 “Religious Practices.” 127 PBNDS 2011, § 5.3 “Marriage Requests.” 122

19-41

Unit 19



Tab Position 1

A Guide for Immigration Advocates April 2014

because he or she chooses to bypass the informal process and proceed directly to the formal process. If the detainee is not satisfied with the decision of the formal grievance committee, he or she then has the option to appeal the decision to the Grievance Appeals Board (GAB). A detainee also can file a complaint directly to DHS Office of Inspector General (OIG) about staff misconduct, physical or sexual abuse or civil rights violations; complaints may be filed by calling the DHS OIG Hotline at 800-323-8603 or by writing to: Department of Homeland Security Attn: Office of the Inspector General Washington, DC 20528.128 

D.

Access to Facility. Legal representatives shall be required to provide appropriate identification such as a bar card from any state. An attorney or accredited representative should not have to submit a Notice of Appearance for a pre-representation interview. An unaccompanied legal assistant may meet with a detainee during legal visitation hours upon presentation of a letter of authorization from a supervising attorney. Health professionals and interpreters with appropriate identification should also be allowed entry.129 Additional Detention Guidelines

In March 2004, in response to the Office of Inspector General (OIG’s) report that documented the widespread abusive and degrading conditions for detainees who were seized by the FBI after the September 11th attacks,130 DHS issued a guidance memo responding to some of the OIG’s recommendations.131 The memo directed some changes in policy and procedures. However, it mostly provided clarification on existing procedures at that time. The following summarizes key points in the memo:   

Unit 19

 

A custody determination and charging decision shall be made within 48 hours of the detainee’s arrest. The initial custody determination, documented on a Notice of Custody Determination (Form I-286), will be served on the detainee within 48 hours of arrest. The Notice to Appear (NTA- a charging document to appear before an immigration judge) shall be served on the detainee within 72 hours of arrest. No detainee shall be transferred to another jurisdiction prior to receiving a Notice to Appear (unless exigent circumstances exist). Where the FBI requests detention solely based on information that a person is allegedly associated with terrorism, local Chief Counsel must approve any national security related

128

PBNDS 2011, § 6.2 “Grievance System.” PBNDS 2011, § 5.7 “Visitation”; see also § 6.4 “Legal Rights Group Presentations.” 130 A copy of the OIG report can be found at: www.usdoj.gov/oig/special/0306/full.pdf. More background on the report itself and the context which led OIG to issue the report can be found in Appendix 19-F. 131 Hutchinson, DHS Mem. Guidance on ICE Implementation of Policy and Practice Changes Recommended by the Department of Justice Inspector General, (March 30, 2004), available at https://www.ilw.com/articles/2004,0929-ice.pdf (last accessed Feb. 2014). 129

19-42

Tab Position 1

Immigrant Legal Resource Center April 2014

NTA charges pertaining to the detainee. Chief Counsel is also responsible for issuing the NTA within regulation timeline requirements.

Tab Position 1

A Guide for Immigration Advocates April 2014

The DHS memo instructs that absent an “emergency or other extraordinary circumstance,” when a noncitizen is arrested, a determination should be made within 48 hours whether the person is to be kept in custody or released on bond, whether an arrest warrant for the person will be issued, and whether he or she will be issued a Notice to Appear (NTA). Therefore, when an “emergency or other extraordinary circumstance” exists, the time allowed for a determination for detention may exceed 48 hours. The definition of “emergency or other extraordinary circumstances” is vague and examples given in the memo include “significant” disruptions to infrastructure or logistics caused by terrorism or natural catastrophe, “compelling law enforcement needs” such that the agency resources are overwhelmed, and factors unique to the person arrested, such as the need for medical care. The memo instructs that when “emergency or other extraordinary circumstances” exist, the officer should include a detailed written explanation in the person’s file of why the custody determination and charging decision could not be made within 48 hours.132 E.

Enforcement and Implementation of Detention Standards

Many of the standards would be a good solid first step if enforced. Significantly, however, in spite of years of advocacy, the former INS and current DHS have not turned these guidelines into regulations, which would make them enforceable in court. Combined with the decades of INS failure to follow through with seriously needed reforms within detention facilities, advocates have had to respond aggressively where the standards are not being followed. Advocates need to closely monitor these standards for ICE and/or private contractor compliance.

The American Bar Association’s Online Resources: The Commission on Immigration Policy, Practice and Pro Bono of the ABA published several guides on complaint procedures for immigrants in detention. These publications can be downloaded from the ABA website: www.americanbar.org/groups/public_services/immigration/publications.html.

The Department of Justice (DOJ) provides a similar list, available at www.justice.gov/eoir/probono/states.htm.

132

See http://140.174.87.56/pubs/iru/2004/IRU3-04.pdf, “DHS Issues New Guidance for Treatment of Non-U.S. Citizen Arrestees,” Immigrants’ Rights Update, Vol. 18, No. 3, May 20, 2004.

19-43

Unit 19

For a list of free or low-cost legal service providers for immigrants in each state, go to www.immigrationadvocates.org/nonprofit/legaldirectory

F.

Filing a Complaint for ICE/CBP Abuses during Detention

If a detainee wishes to file a complaint to report incidences of neglect, abuse, discrimination, or sub-standard conditions, he or she must do so within 5 days after the incident in question. See Part Four of this unit for specific complaint procedures. Advocates and legal representatives may also file a G-28 and file the complaints on the clients’ behalf. For information on how to file complaints with the DHS or the Department of Justice (DOJ), see § 19.21 and § 19.22. G.

Detention Reforms

In recent years, advocates, the media, and Congress have exposed the deficient treatment of detainees in the U.S. detention system. These problems include overcrowding, dilapidated physical facilities, poor management practices by private prison corporations, use of family detention facilities resulting in interference with family rights and significant restrictions upon children, and medical malpractice and neglect of detainees with serious illnesses, in some instances resulting in their deaths. In response to the exposure of these detention issues, DHS over the years has announced a series of ICE detention reforms. See Appendix 19-H for a Fact Sheet on Detention Reform. These reforms, amongst other things, include:   

Unit 19



October 2009, ICE Detention Reform: Principles and Next Steps, detailing reform efforts including greater federal oversight, detainee care, increased utilization of alternatives to detention (ATD), and uniformity at detention facilities;133 October 2009, Directive providing notice of detainee deaths to Office of the Inspector General, Office of Professional Responsibility, Congress, media, and stakeholders such as non-governmental organizations;134 November 2009, ICE guidelines to prevent prior errors where U.S. Citizens have been placed in proceedings, detained, and removed;135 December 2009, ICE policy with presumption that all arriving aliens who claim to fear persecution will apply for parole, weighing in favor of release from detention;136

133

Available at Appendix 19-H. Directive Title: Notification and Reporting of Detainee Deaths, available at www.ice.gov/doclib/detention-reform/pdf/rpt-detainee-deaths.pdf (last accessed Feb. 2014). 135 John Morton, Superseding Guidance on Reporting and Investigating Claims to United States Citizenship (Nov. 19 2009), available at www.ice.gov/doclib/detention-reform/pdf/usc_guidance_nov_2009.pdf (last accessed Feb. 2014). 136 U.S. Immigration and Customs Enforcement, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture, available at www.ice.gov/doclib/detention-reform/pdf/credible-fear.pdf (last accessed Feb. 2014). 134

19-44

Tab Position 1

Immigrant Legal Resource Center April 2014

   

December 2012, National Detainer guidance limiting the use of ICE detainers (“ICE holds”);137 April 2013, Guidance related to Procedures for Unrepresented Detainees with Serious Mental Disorders or Conditions;138 August 2013, Parental Interest Directive, relating to policies and procedures of noncitizen parents, including those in detention;139 and September 2013, Review of Use of Segregation Directive140

Tab Position 1

A Guide for Immigration Advocates April 2014

In addition to these reforms, on January 9, 2008, ICE issued a new policy prohibiting the practice of involuntary sedation of detainees under any circumstances unless ICE has first obtained an authorization order from a Federal District Court.141 As a first step in overhauling detention reforms, in late 2009, DHS created an Office of Detention Policy and Planning and an independent Office of Detention Oversight, both housed within ICE. The offices were tasked, respectively, with the redesign and federal oversight of the immigration civil detention system. In February 2012, the Enforcement and Removal Operations (ERO) Public Advocate Position was also created to resolve enforcement and detention concerns. While this office was defunded in March 2013,142 the public may continue to reach out to the ERO Community Field Liaisons.143

137

19-45

Unit 19

John Morton, Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems, available at www.ice.gov/doclib/detentionreform/pdf/detainer-policy.pdf (last accessed Feb. 2014). 138 John Morton, Civil Immigration Detention: Guidance for New Identification and Information-Sharing Procedures Related to Unrepresented Detainees with Serious Mental Disorders or Conditions (April 22, 2013), available at www.ice.gov/doclib/detentionreform/pdf/11063.1_current_id_and_infosharing_detainess_mental_disorders.pdf (last accessed Feb. 2014). 139 U.S. Immigration and Customs Enforcement, 11064.1: Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities, available at www.ice.gov/doclib/detentionreform/pdf/parental_interest_directive_signed.pdf (last accessed Feb. 2014); ILRC Guide on the same available at www.ilrc.org/files/documents/parent_directive_summary_final_0.pdf. 140 U.S. Immigration and Customs Enforcement, 11065.1 Review of the Use of Segregation for ICE Detainees (Sept. 4, 2013) available at www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf (last accessed Feb. 2014). 141 See “Amended Medical Escort Policy” memorandum by John Torres, Director of Office of Detention and Removal Operations, DHS (January 9, 2008). Available at www.aclusc.org/attach/s/sedation_policy_memo.pdf (last visited Feb. 2014). 142 Consolidated and Further Continuing Appropriations Act, 2013, Pub. L. No. 113-6, § 567, 127 Stat. 198, 382 (2013). 143 See www.ice.gov/about/offices/enforcement-removal-operations/ero-outreach/ero-faq.htm (last accessed Feb. 2014).

In a timeline of Detention Reform Accomplishments published on ICE’s website and included in Appendix 19-H, ICE chronicles its overhaul efforts to date.144 Among the listed accomplishments are:          

Centralization of detention facility contracting under one roof to better monitor contract compliance and standardization of sanctions for non-compliance; Design and launch of an automated Risk Assessment and Classification Tool in select field offices to determine the detention and medical needs of incoming detainees, as well as their suitability for Alternatives to Detention; Ongoing pilot project to expedite adjudication of cases within the Alternatives to Detention program; Improvement of detention conditions, recreation, and visitation; Streamline of detainee health care treatment authorizations; Launch of the online search system to locate detainees (see https://locator.ice.gov/odls/homePage.do); Issuance of a directive to minimize the long-distance transfer of detainees who have family, attorneys, or pending immigration proceedings in the area (described above); Issuance of a Directive on Sexual Abuse and Assault Prevention and Intervention; Distribution to all detention facilities of “Know Your Rights” and self-help materials; and Establishment of a toll-free hotline to address various public concerns about prosecutorial discretion, immigration court cases, and detention concerns.

For a list of ICE’s stated policy reforms, see: www.ice.gov/detention-reform/policyreform.htm, also available at Appendix 19-H.

Unit 19

For a list of ICE’s stated Detention Reform Accomplishments, see: www.ice.gov/detention-reform/detention-reform.htm. Also available at Appendix 19-H. In terms of the future for immigration detention centers, ICE unveiled the first of its detention centers built specifically for low-risk, minimum-security adult male detainees in March, 2012. The Karnes County Civil Detention Center in Karnes, Texas, showcases a new generation of facilities designed to look and feel more like a campus and less like a penal institution.145 The facility boasts “dormitories of bunk beds, a gymnasium, a library, computers with Internet access, cable television, a medical center, landscaped courtyards, an outdoor soccer pitch and courts for basketball and volleyball.”146 However, critics still point to problems at remaining facilities that contravene the 2011 standards, particularly in the area of sexual abuse and treatment of transgender detainees. 144

ICE “Detention Reform Accomplishments” Available at www.ice.gov/detention-reform/detentionreform.htm (last visited May 2012). 145 The New York Times “Detention for Immigrants that Looks Less like Prison.” Mar. 13, 2012. Available at www.nytimes.com/2012/03/14/us/model-immigration-detention-center-unveiled-in-texas.html?_r=1 (last visited Feb. 2014). 146 Id.

19-46

Tab Position 1

Immigrant Legal Resource Center April 2014

While the new standards move away from segregating transgender detainees, a measure that resulted in solitary confinement for lengthy detentions, media reports detail that this is an ongoing practice with punishing psychological effects.147 Linked to this is DHS’ resistance to adopt rules proposed by DOJ to implement the 2003 Prison Rape Elimination (PREA) Act, favoring instead its internal, non-legally binding standards.148 Nearly ten years after passage of PREA, DOJ issued its final rules for implementation in May 2012.149 While these regulations are not binding on DHS, the White House issued a Presidential Memorandum expressing its view that PREA requirements should apply to all federal agencies operating confinement facilities, giving the agencies 120 days to submit procedures for compliance.150 H.

Tab Position 1

A Guide for Immigration Advocates April 2014

Legislative and Legal Responses to Detention Abuses

In Congress, various detention reform proposals were introduced as part of the backlash to deficiencies in the detention system. Beginning in June 2008, Senator Lieberman introduced the Secure and Safe Detention and Asylum Act (S. 3114). The bill would have provided for minimal health and safety standards at detention centers. However, this and similar bills in 2008 and 2009 died in committee. A number of these issues were resurrected in 2011, albeit many were in bills that would tighten immigration enforcement. For example, bills addressed a range of issues including detention space (H.R. 100, H.R. 1274), detainee care, and expansion of the alternatives to detention program (H.R. 933, S. 1258).151 None of these bills were enacted. Comprehensive immigration reform presents another opportunity for change and advocates should stay abreast of updates in bills.152 Finally, organizations such as the ACLU have filed lawsuits to challenge detention conditions in various facilities. For example, the ACLU reached class action settlements with the Hutto Detention Center (no longer holding families), and a similar facility in San Diego, regarding the poor physical conditions and management practices at both facilities. Before the ACLU sued, these facilities had problems with overcrowding (packing several detainees into a cell designed for two), poor policy and treatment towards children (allowing children only 2

147

19-47

Unit 19

The Advocate “Eight months in solitary,” May 7, 2012. Available at www.advocate.com/news/newsfeatures/2012/05/07/transgender-detainees-face-challenges-broken-immigration-system (last visited Feb. 2014). 148 Id. 149 Department of Justice Office of Public Affairs “Justice Department Releases Final Rule to Prevent, Detect, and Respond to Prison Rape.” May 17, 2012. Available at: www.justice.gov/opa/pr/2012/May/12ag-635.html (last visited Feb. 2014). 150 White House Office of the Press Secretary “Presidential Memorandum: Implementing the Prison Rape Elimination Act.” May 17, 2012. Available at www.whitehouse.gov/the-pressoffice/2012/05/17/presidential-memorandum-implementing-prison-rape-elimination-act (last visited Feb. 2014). 151 Congressional Research Service “Immigration-Related Detention: Current Legislative Issues.” January 12, 2012. Available at http://assets.opencrs.com/rpts/RL32369_20100127.pdf (last visited May 2012). 152 For updates on Comprehensive Immigration Reform Bills, see http://immigrantjusticenetwork.org/.

hours of school time per day and no toys or play time), and poor sanitation (one unpartitioned, exposed toilet per overcrowded cell).153 Despite some litigation wins, the conditions in many detention centers remain dire. In 2012, Detention Watch Network published a report detailing the ten worst immigration detention centers in the United States. While substandard detention conditions exist beyond these facilities, the report documents some of the worst and is available here: www.detentionwatchnetwork.org/ExposeAndClose#jails. Immigration advocates should proactively make sure that detention facilities follow the ICE detention standards and that laws like the 2008 Secure and Safe Detention and Asylum Act are passed. To find detention centers near you, see the following: www.detentionwatchnetwork.org/dwnmap www.ice.gov/detention-facilities To remain updated on advocacy regarding immigration detention, see the following: www.detentionwatchnetwork.org www.aclu.org/immigrants-rights/immigration-detention www.endisolation.org

Unit 19

I.

Alternatives to Detention

In the face of the human rights abuses and costs related to detention, advocates have increasingly pushed for alternatives to detention. The discussion around alternatives to detention became increasingly relevant in 2009, since it was one critical part of the detention reform plan announced by DHS. In January 2010, ICE also piloted a project with the Department of Justice in Baltimore and Miami to expedite the adjudication of cases of immigrants supervised on the Alternatives to Detention (ATD) program. This included developing a risk assessment instrument to measure initial and ongoing suitability of an immigrant for participation in the program. ICE’s ATD program is currently comprised of a full-service program in which contractors provide equipment and case management, as well as technology-only, in which contractors provide equipment but ICE monitors the individuals.154 The government has grown

153

See In Re Hutto Detention Facility. No. A-07-CA-164-SS (Aug. 26, 2007), www.aclu.org/immigrants/detention/28856res20070306.html; Kiniti v. Myers. No. 3:05-CV-1013-DMSPCL (June 4, 2008), www.aclu.org/immigrants/detention/35530lgl20080604.html. 154 National Immigration Forum, The Math of Immigration Detention: Runaway Costs for Immigration Detention do Not Add Up to Sensible Policies (Aug. 2013), available at www.immigrationforum.org/images/uploads/mathofimmigrationdetention.pdf (last accessed Feb. 2014).

19-48

Tab Position 1

Immigrant Legal Resource Center April 2014

these programs, increasing their funding to 96.5 million for the 2014 fiscal year.155 Despite the fact that ICE has acknowledged that there are high compliance rates with ATD programs, ICE spends significantly more on detention.156

Tab Position 1

A Guide for Immigration Advocates April 2014

While these detention alternatives exist and there are increasingly more people arrested by DHS than there is currently bed space for, it appears that DHS is increasingly continuing to detain individuals without resorting to available alternatives. Below is a summary of the various alternatives to detention. J.

Federally Funded Alternatives to Detention 1. Release on an Order of Recognizance (ROR)

The detainee in immigration proceedings is released from detention, but must abide by certain restrictions including regular reports to the Office of Enforcement and Removal Operations (ERO). ROR is the least restrictive out of all the alternative forms of detention and is usually used when the detainee does not possess the financial resources to post a bond, but does not pose a threat to the community or national security. 2. Release on bond Under the release on bond alternative, the detainee does not remain in the detention facility, but must post a minimum bond of $1,500 which is forfeited if the detainee fails to appear in court as required by ICE. The bond may be set by an ICE agent at the onset of custody or by an immigration judge. In many cases, the bonds are set much higher than $1,500. Although this is a reasonable alternative to detention, many immigrants do not have enough money to pay bond, and are therefore deprived of this alternative to detention. Increasingly, those immigrants who may be bond eligible are being denied due to immigration judge’s decisions that they are flight risks and/or dangers to the community. 3. Intensive Supervision Appearance Program (ISAP)

155 156

Id. Id.

19-49

Unit 19

ISAP is a program available to individuals who are not subject to mandatory detention, in immigration court proceedings or awaiting removal from the United States, and are unlikely to pose a threat to the public or national security. In practice, however, assignment to the program is determined in part by a person’s location of residence as it is available to immigrants who live within a 50 to 85 mile radius of the 24 field offices. Participants are generally assigned to a case specialist who is responsible for monitoring them through an electronic monitoring device, home visits, work visits and telephone reports. The program is provided by vendors on contract with ICE. ISAP is the most restrictive and costly alternative to detention.

For those who would otherwise be detained in an immigration detention facility, ISAP is a better alternative. The restrictions lessen as time passes and as a person complies with the requirements. Sometimes, however, DHS applies ISAP to individuals who would normally be released without electronic monitoring or other restrictions. Also, some participants have had problems complying with the requirements because they have to go to work or attend school, have family obligations, do not live close to the office administering the program, or have no reliable transportation to get there. 4. Release to NGO shelters that provide community ties Several non-governmental organizations have also developed alternative programs to traditional detention in cooperation with the government. These programs typically start with an agreement with the government (DHS) to release detainees to the program’s custody. The program then promises to use all reasonable efforts to ensure that the released immigration law violators show up at their scheduled hearings. Some of these programs provide housing while others use a periodic meeting/reporting method to make sure that their clients do not run away or otherwise fail to appear at their hearings.

Unit 19

The Vera Institute pioneered the program first in the criminal system, but later adopted the methods and applied it to immigration detainees with great success—over 90% of all released immigrants eventually returned and showed up at their scheduled hearings, and supervision was found to be less costly than detention.157 Vera interviewed asylum seekers who were still eligible to apply for a legal remedy, but whom the immigration authorities indicated were subject to detention. After an asylum seeker was accepted into the project, they were required to report twice a month. Incentives to ensure that they reported included a resource library with materials to help their cases and a referral service for social assistance and legal advice. If they were denied asylum, but were willing to cooperate with their deportation, they also received additional information and administrative assistance. Examples of other programs are run by: Asylum House (Baltimore, MD), Freedom House (Detroit, MI), Vive (Buffalo, NY), La Posada Providencia (San Benito, TX), International Friendship House (York, PA), and Casa de San Juan (San Diego, CA), Refugee and Immigration Ministry (Boston, MA), the Florence Project (Florence, AZ), and Catholic Charities (New Orleans, LA). These non-governmental programs are often highly successful, with compliance rates reaching 96%—and they do not require tax funding. This means that an overwhelming majority of immigrants released by DHS show up at their hearings, and tax payers do not need to pay the government to detain people. Advocating with key government actors regarding detention alternatives is an important step in changing the landscape of immigrant detention. 157

Vera Institute of Justice “Testing Community Supervision for the INS: an Evaluation of the Appearance Assistance Program.” August 1, 2000. Available at: www.vera.org/content/testing-communitysupervision-ins-evaluation-appearance-assistance-program (last visited Feb 2014).

19-50

Tab Position 1

Immigrant Legal Resource Center April 2014

K.

Revised Parole Policy for Arriving Aliens with Credible Fear Claims

On January 4, 2010, a DHS revised parole policy for arriving aliens with credible fear claims took effect. Under the new policy, immigrants who arrive in the United States at a port of entry and are found to have a credible fear of persecution or torture, who establish their identities, pose neither a flight risk nor a danger to the community, and for whom no additional factors weigh against their release will automatically be considered for parole. This is a change from the prior policy, which required immigrants to affirmatively request parole in writing. ICE is not considering applying the policy to other immigrants. Currently, immigrants other than arriving aliens may generally have their continued detention by ICE reviewed by the Executive Office of Immigration Review, the Board of Immigration Appeals, and the Federal Circuit Courts. L.

Tab Position 1

A Guide for Immigration Advocates April 2014

Indefinite and Prolonged Detention 1. Indefinite detention; persons with final orders of removal

With the expansion of the immigration detention system, lengthy detentions are an increasing problem. Since the 1980’s, detainees have challenged in the courts the government’s indefinite detention in cases where the government had ordered their detention but their home country refused to take them. In June 2001 the Supreme Court held in Zadvydas v. Davis that an alien’s post-removal period detention should be limited to only a period “reasonably necessary” to bring about that alien’s removal.158 The Court strongly stated that a statute permitting indefinite detention of an alien raises “a serious constitutional problem.” The question, then, is what length of detention is “reasonably necessary” after a removal order is final to secure the person’s removal. Once there is a final order of removal, detention is permitted during the 90-day “removal period.”159 Any detention beyond 90 days must then be “reasonably necessary” to secure the alien’s removal and must not be indefinite. The Supreme Court held that immigration detention is presumed to be “reasonably necessary” for a period of six months.160

158

Zadvydas v. Davis, 533 U.S. 678 (2001). INA § 241(a)(6); 8 USC § 1231(a)(6). 160 Zadvydas, 533 U.S. at 701; Clark v. Martinez, 543 U.S. 371 (2005). 159

19-51

Unit 19

Persons who can show that there is no significant likelihood of removal in the reasonable foreseeable future may qualify for release from detention under Zadvydas. The government will also have the opportunity to rebut this showing with its own evidence. Examples of individuals who may not be removable in the near future are those from countries where the U.S. does not have a repatriation agreement or the consulate fails to issue travel documents. The Ninth Circuit has found that an applicant for asylum who had won relief from removal three times before the immigration judge, but had been detained nearly five years on the basis of allegations that he had

been involved in terrorist activities, fell within Zadvydas.161 The court ordered his release from detention. The Ninth Circuit has held that the detainee may not bring a constitutional challenge to indefinite detention during the 90-day removal period because the statute explicitly authorizes detention during these 90 days. However, following the Zadvydas decision, the former-INS published regulations to implement the Supreme Court’s decision. Under these regulations, an individual may file an administrative request for supervised release within the 90-day removal period.162 Persons must show that there is no significant likelihood that he or she will be removed in the reasonably foreseeable future. Under Zadvydas, arguably, the government must decide whether to grant supervised release within 6 months of post removal detention. If the request is denied, detainees may file a petition for habeas corpus in the federal district courts to challenge the agency’s decision. Federal regulations at 8 CFR § 1241.14 further provide that the government may continue to detain a person past six months who meets any of the following criteria:

Unit 19

1. The person has a highly contagious disease that is a threat to public safety; 2. The person is detained on account of serious adverse foreign policy consequences of release; 3. The person is detained on account of security or terrorism concerns, or 4. The person is determined to be “specially dangerous.” “Specially dangerous” is defined as those who have committed one or more crimes of violence described in 18 USC § 16, persons for whom no conditions of release can reasonably be expected to ensure the safety of the public, and persons with mental disorders that make them likely to engage in future acts of violence.163 Detention of “specially dangerous” aliens has been successfully challenged. In Thai v. Ashcroft, the Ninth Circuit held that the Supreme Court’s construction of INA § 241(a)(6) did not authorize the continued and potentially indefinite detention of a person based on a determination that the alien’s mental illness made him specially dangerous to the community.164 The court also held that the danger of criminal conduct by an alien was not automatically a matter of national security as that term was used in Zadvydas.

161

Nadarajah v. Gonzales, 443 F.3d 1069, 1076-78 (2006). 8 CFR § 241.13, 8 CFR § 1241.13. 163 Aliens continually detained pursuant to 8 CFR § 1241.14, except for the “specially dangerous” category, are subject to a semi-annual review but are not permitted further administrative review. 164 Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004); accord Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008). But see Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008). 162

19-52

Tab Position 1

Immigrant Legal Resource Center April 2014

2. Prolonged detention pending removal proceedings The courts have not extended the heightened protections in Zadvydas to persons who are subject to prolonged immigration detention while removal proceedings are ongoing. The Supreme Court in Demore v. Kim165 distinguished detention during removal proceedings from potentially permanent detention beyond the “removal period.” The rationale is that the pending removal proceedings anticipate eventual removal, and detention will have a termination point. Furthermore, the Court reasoned that, in 85% of cases, detention during removal proceedings lasts an average of 47 days and in the remaining 15% where the person appeals to the BIA, detention averages 4 months. In reality, however, immigration detention during removal proceedings can be significantly longer lasting from several months to years.

Tab Position 1

A Guide for Immigration Advocates April 2014

While removal proceedings are either pending or have not yet concluded, a person’s right against prolonged detention is significantly less. This is particularly true for detainees with a criminal record. Noncitizens who are detained based on criminal grounds are not yet in the 90day removal period because their removal is still pending.166 Due to the criminal grounds, many will be held in mandatory detention without the opportunity to go before an immigration judge to ask for release on bond. However, due to the increased prolonged detention of immigrants over the course of their removal proceedings and federal appeals process, which may and often lasts years, many district courts, and in at least one instance, a federal circuit court have found that this prolonged detention may still be unreasonable and violate due process, leading to release of immigrants from detention pending the outcome of their cases.167 3. Bond hearings for those in prolonged detention Joseph Hearing. Even if someone is allegedly subject to mandatory detention, the person still may be able to show that he or she is not subject to mandatory detention at a Joseph hearing by showing that he or she is not properly included within a mandatory detention category.168

165

Demore v. Kim, 538 U.S. 510 (2003). Demore v. Kim, 538 U.S. 510, 567 (2003). 167 See, e.g., Tijani v. Willis, 430 F.3d 1241, 1246 (9th Cir. 2005). 168 Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). 169 According to “Case Completion Goals” of the April 26, 2002 memo from the Office of the Chief Immigration judge, all custody hearings should be completed within three days. See Memo, OCIJ, Case Completion Goals (April 26, 2002) www.aila.org/content/default.aspx?bc=8735|17026|9002. Therefore, if a hearing is requested but not scheduled soon thereafter, it can be argued that the detention violates due 166

19-53

Unit 19

Matter of Joseph held that a permanent resident is not properly included within a mandatory detention category if ICE is “substantially unlikely” to establish at the merits hearing that the charges that would subject the person to mandatory detention. A Joseph hearing should be scheduled immediately after requested, or else it may be a violation of the person’s rights.169

If the person prevails at the Joseph hearing, he or she is entitled to a bond hearing.170 The results of the Joseph hearing, however, may be challenged in federal court. In Tijani v. Willis, the Ninth Circuit questioned the holding in Matter of Joseph, finding that imposing the burden of proving that ICE is “substantially unlikely” to establish the charges on the permanent resident is contrary to the Constitution. When the fundamental right of liberty is at stake, the Supreme Court has consistently rejected laws that place the burden of protecting his or her fundamental right on the individual.171 Thus, representatives should argue that when ICE alleges that a person is subject to mandatory detention under INA § 236(c), ICE should also bear the burden of proving that it would be substantially likely to prevail in sustaining the charges before a permanent resident client can be denied the right to bond. Representatives in the Ninth Circuit should cite to Tijani v. Willis, while representatives in other jurisdictions should cite both to Tijani v. Willis and to the Supreme Court cases cited therein.

Unit 19

Casas-Castrillon Hearings. Due to the constitutional problems raised by lengthy detention without any type of hearing, the federal circuit courts and district courts have held that the government must provide a bond hearing at a certain point. In a significant opinion called Casas-Castrillon v. DHS, the Ninth Circuit Court of Appeals found that a person in certain circumstances cannot continue to be detained throughout the length of his removal proceedings without an opportunity for a bond hearing.172 The court specifically held that where an individual is initially apprehended and subject to mandatory detention, the noncitizen is entitled to an individualized bond hearing once he files a petition for review, and the Ninth Circuit grants a stay of removal. The Third Circuit Court of Appeals held that the individual is entitled to a bond hearing once detention exceeds a reasonable amount of time.173 In Casas-Castrillon, the Ninth Circuit reasoned that lengthy detention without due process cannot be constitutional and thus, the court held that the individual’s custody status changes under immigration law so that he is no longer held under mandatory detention. CasasCastrillon also found that the burden in such a bond proceeding is on the government to prove that the person should not be released because he is a flight risk or a danger to the community.174 In a later decision, the Ninth Circuit held a high standard of proof applies; the government burden is to prove flight risk by “clear and convincing” evidence.175 Under this decision and other court decisions, many immigrants are now challenging whether their lengthy detention during the circuit court appellate process is constitutional and permitted under the immigration detention statute scheme. process. By failing to provide a prompt hearing, the government is also arguably violating the procedural protection that the Supreme Court used to justify the application of § 236(c) to lawful permanent residents in Demore v. Kim. See Kim, 538 U.S. at 531-32 (Kennedy, J., concurring). 170 Joseph, 22 I&N at 806. 171 Tijani, 430 F.3d at 1244-45. 172 Casas-Castrillon v. DHS, 535 F.3d 942, 948 (9th Cir. 2008). 173 Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). 174 Id. at 950. 175 Singh v. Holder, 638 F.3d 1196 (2011).

19-54

Tab Position 1

Immigrant Legal Resource Center April 2014

Rodriguez Hearings. In Rodriguez v. Robbins,176 a U.S. District Court in the Central District of California stated that certain people, even those subject to mandatory detention, are allowed to request bond hearings after they have been detained for six months or more. While the decision may read as though only detainees in the Central District of California are subject to this rule, advocates in other jurisdictions may attempt to obtain such a hearing as well.

Tab Position 1

A Guide for Immigration Advocates April 2014

For more information, including to see if a client qualifies for such a hearing, see the ACLU Advisory titled, “Bond Hearings for Certain Immigrants Subject to Prolonged Immigration Detention Under Rodriguez v. Robbins” available at: http://blog.endisolation.org/wp-content/uploads/2013/04/Rodriguez-Advisory-v7-English-11.pdf (last accessed Feb. 2014).

§ 19.15 Right to Legal Representation Once ICE or CBP has arrested a person, he has certain rights that are supposed to ensure that the system treats him fairly. One of those is the right to legal representation, which is guaranteed in the INA. See INA §§ 240(b)(4)(A), 292. People in detention and in removal proceedings should be taught to exercise this right along with the right to remain silent. As mentioned earlier, however, removal proceedings are considered not to involve criminal punishment. Therefore, people arrested by ICE or CBP do not have one of the main rights people arrested for crimes have; that is, the right to a lawyer who is paid by the government.177 Thus, there is no “public defender” in immigration court. A very large number of immigrants, however, lack the resources to hire a private attorney. Free immigration legal services are scarce across the country as well, leaving a large percentage of immigrants unrepresented.

When a detainee requests to speak to counsel, ICE and CBP are required by law to respect that right by ceasing questioning and allowing him or her to find counsel. 176

Rodriguez v. Robbins, 2:07-cv-03239 (C.D. Cal. Sept. 13, 2012). See, e.g., Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir. 1974), cert. denied 49 U.S. 1113, 95 S.Ct. 789, reh’g denied 420 U.S. 984, 95 S.Ct. 1417 (1975). 178 List available at: www.justice.gov/eoir/probono/states.htm (last accessed Feb. 2014). 177

19-55

Unit 19

List of Free Legal Services.178 The Office of the Chief Immigration Judge in the Executive Office of Review is the agency responsible for maintaining a current list of the free legal services available in each district. 8 CFR § 1003.61. As mentioned before, BIA recognized organizations, and those that are not recognized but have an attorney on staff, are eligible. The rules also allow Bar Associations and attorneys who promise to offer some free service to indigent persons to be included. As required by IIRIRA, the list also includes free legal services for people applying for asylum. ICE and CBP are required to give the list to everyone whom it arrests.

The right to have counsel for immigrants in proceedings is also based on the right of access to the courts, which even immigrants are guaranteed. For this reason, barriers that make it difficult for immigrants to contact and work unhampered with their representative can—and should be—challenged, such as transferring an immigrant far away from her legal representatives and therefore, limiting her ability to prepare her case adequately. Mentally-Incompetent Detainees. There have been significant strides in establishing counsel for mentally-incompetent detainees.179 A Los Angeles federal district judge ordered ICE, the Attorney General, and the Executive Office of Immigration Review (EOIR) to provide legal representation to immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves in immigration hearings. The ruling in the class-action lawsuit is the first of its kind for immigrant detainees. The implications of this ruling are yet to be seen in full. However, former ICE Director John Morton released a memorandum instructing ICE to develop procedures for initial screening of detainees for mental-incompetency. Further, the memorandum directs that ICE procedures will provide for information-sharing to gather and facilitate the collection of documentation related to a detainees’ mental capacity. The information is to be gathered from medical facilities, family and other community groups to be forwarded onto the Office of Chief Counsel (OCC) for the final determination of whether a particular detainee should be represented by legal counsel at the government’s expense.180

Unit 19

§ 19.16 Rights Regarding Immigration Detainers/ Holds for Those in Criminal Custody181 As described in § 19.4, there is an unprecedented collaboration between local and state law enforcement and DHS to enforce immigration laws and consequently, immigrants are funneled into the deportation system in greater numbers by state and local law enforcement agencies. At times, the contact is initiated by the local police or correctional officers who think the person might be removable and then contact either ICE or CBP. Most often it is ICE that contacts the police or correctional officers at county jails and prisons to see if there are any immigrants who have been arrested, are being held on criminal charges, or serving a criminal sentence. Through a series of programs such as the Secure Communities program, the Criminal Alien Program, 287(g), and finally ICE holds, ICE locates, detains and deports hundreds of thousands of people each year.

179

See Franco-Gonzales v. Holder, 767 F.Supp.2d 1034 (C.D. Cal. 2013). For full story and information on the lawsuit, visit: www.aclu.org/immigrants-rights/franco-gonzales-v-holder. 180 Id. 181 Thanks to Ann Benson, Director of the Washington Defender Association’s Immigration Project for providing portions of this discussion.

19-56

Tab Position 1

Immigrant Legal Resource Center April 2014

A.

What Is an Immigration Detainer?182

Once ICE identifies noncitizens through cooperation with local law enforcement, the “immigration hold”183 (also known as an “immigration detainer”), facilitates ICE taking custody of the individual. ICE identifies an allegedly removable person through programs such as Secure Communities (“S-Comm,” active in all jurisdictions), the Criminal Alien Program184 (active in many jurisdictions), and 287(g) (active in some jurisdictions). After an allegedly removable person is identified through one of these programs, ICE will often issue an immigration hold.

Tab Position 1

A Guide for Immigration Advocates April 2014

An immigration hold is a request that a law enforcement agency, such as a local jail, to hold someone for extra time beyond the release in the criminal case, so that immigration authorities can arrange to take custody of the individual. Once ICE suspects that a person in custody is foreign born or has been identified as a non-citizen through any number of federal immigration enforcement initiatives, ICE issues the hold. Thus, instead of releasing people such as when the criminal sentence is complete, or the judge in criminal proceedings orders release, law enforcement may keep someone for up to 48 hours, plus weekends and federal holidays, to make the person available for transfer to ICE. The legal authority for the issuance of a hold is found at 8 USC § 1357(d) and the federal regulations that implement this statute are located at 8 CFR § 287.7. If you look at both provisions closely you will see that the regulations are written much broader than the statute and are subject to legal challenge. The standard for issuing a hold is quite broad—anyone whom the federal government has a “reason to believe … is subject to ICE detention for removal or removal proceedings” can be subject to a hold. In many instances ICE issues the hold prior to conducting any reliable investigation as to whether the person is, in fact, subject to deportation/removal; often no legal determination of the person’s removability is made at the time the hold is issued. Courts have begun to acknowledge that this lack of probable cause leads to an unlawful detention, which results in legal liability for the locality enforcing the hold.185

182

Advocates should ideally use the term immigration “hold” instead of “detainer” to avoid the potential misconception that immigration holds are mandatory. However, law enforcement and other parties including ICE, will likely use “detainer.” 183 Because immigration holds can be issued by CBP as well as ICE, advocates will sometimes use the term “immigration hold” to discuss both types of holds. 184 For more information on the Criminal Alien Program (CA), see Pushing Back on ICE Enforcement inside Jails: An Advocacy Guide to the Criminal Alien Program (“CAP”) -- the DHS Enforcement Program Responsible for More Deportations than Secure Communities, available at www.ilrc.org/files/documents/cap_advocacy_guide.pdf. 185 See, e.g., Miranda-Olivares v. Clackamas Cnty., 3:12-CV-02317-ST (D. Or. Apr. 11, 2014).

19-57

Unit 19

Importantly, ICE holds are unlike criminal arrest warrants or detainers, which are issued based upon probable cause by a neutral, third-party adjudicator. Because of the broad standard for issuing immigration holds, they are often placed on anyone in criminal custody who has admitted to being foreign-born. This has led to routine issuance of holds in all types of cases, including against undocumented and lawful immigrants; those who are innocent of the charges or

have the criminal charges against them dismissed; those who may not be deportable; those that have defenses against removal; and in some cases, even U.S. citizens186 in error. ICE has qualified that officers should “take particular care” when issuing holds against LPRs because some convictions are not grounds for removal, but nonetheless, these errors still occur. The number of challenges to these practices and the constitutionality of immigration holds is growing.187 Finally, the policy arguments against ICE holds are considerable. To have a tool—ICE holds—which treats people differently based on immigration status alone, is unjust and creates a two-tiered criminal justice system. By honoring ICE holds and transferring someone to immigration custody, the individual loses the opportunity to participate in valuable rehabilitative programs. ICE holds also erode community trust. If local law enforcement is seen as an extension of ICE, people are less likely to report crime or to serve as witnesses. Finally, the costs of complying with an ICE hold are borne entirely by the locality since there is no specific reimbursement for additional custody time as the result of an ICE hold. Various studies show that an individual with an ICE hold is incarcerated an average of over 20 days more than an individual without an ICE hold.188 Finally, as detailed above, complying with ICE holds can result in costly litigation. B.

Limitations on Detainers: Not Mandatory and the 48-Hour Rule

Compliance with immigration holds totally voluntary. Various court cases, and even ICE, have confirmed that immigration holds are mere requests, enforceable at the discretion of local officials.189 Thus, localities may not enforce any ICE holds at all, as has been done in many

Unit 19

186

See, e.g., Chief Justice Earl Warren Institute on Law and Social Policy, University of California, Berkeley Law School, “Secure Communities by the Numbers: An Analysis of Demographics and Due Process,” October 2011 (finding based upon federal data that approximately 3,600 United States citizens have been arrested by ICE through the Secure communities program), available at: www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf; Transactional Records Access Clearinghouse (TRAC) Reports Inc., ICE Detainers Placed on U.S. Citizens and Legal Permanent Residents. 187 See, e.g., Miranda-Olivares v. Clackamas Cnty., 3:12-CV-02317-ST (D. Or. Apr. 11, 2014); Galarza v. Szalczyk, 745 F.3d 634 (3d Cir., Mar. 4, 2014); Jimenez, et al. v. Napolitano, Case No. 1:2011cv05452 (Illinois Northern District Court, filed 8/11/2011) and Brizuela v. Feliciano, Case No. 3:2012-cv-00226 (Connecticut District Court, filed 2/15/2012). 188 See, e.g., Judith A. Greene, The Cost of Responding to Immigration Detainers in California, Preliminary Findings, Justice Strategies, August 22, 2012; Kathy A. White & Lucy Dwight, Misplaced Priorities: SB90 & The Costs to Local Communities, The Colorado Fiscal Institute (December 1, 2012). 189 See, e.g., Letter from Daniel H. Ragsdale, Acting Director, U.S. Immigration and Customs Enforcement, to various members of Congress regarding Immigration Detainers (Feb. 25 2014); Miranda-Olivares v. Clackamas Cnty., 3:12-CV-02317-ST (D. Or. Apr. 11, 2014); Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014); Attorney General Kamala Harris, Attorney General, Responsibilities of Local Law Enforcement Agencies under Secure Communities, Information Bulletin, December 4, 2012 (“[s]everal local law enforcement agencies appear to treat immigration detainers, sometimes called “ICE holds,” as mandatory

19-58

Tab Position 1

Immigrant Legal Resource Center April 2014

jurisdictions across the country, and be fully compliant with the law.190 Constitutional separation of powers prohibits the federal government from coercing any state or local agency into utilizing its own resources for the purpose of enforcing a federal regulatory scheme, such as immigration. Were the federal government to require state or local agencies to detain individuals at their own expense for federal civil immigration purposes, such a mandate would clearly run afoul of the Tenth Amendment.191 Because these holds are not mandatory and pose other policy concerns, a number of localities across the country have exercised their discretion to not honor all or some subset of immigration holds. See § 19.4 for a list of jurisdictions.

Tab Position 1

A Guide for Immigration Advocates April 2014

Even if a jurisdiction voluntarily chooses to comply with some/all immigration holds, there are specific limitations for how long they may hold an immigrant after the criminal case is over. Federal regulations provide that a law enforcement agency can hold a noncitizen on a hold no more than 48 hours past the time when he or she otherwise would have been released, excluding weekends and federal holidays. See 8 CFR § 287.7(d). The 48 hour rule may be triggered in a number of situations: the case is still pending but the court orders release; the case is dismissed and the person is to be released; or the person has completed his or her sentence. Importantly, the 48 hour period begins when the person would otherwise be released even when the local law enforcement fails to notify ICE. After this time expires, there is no longer any claim to hold the immigrant and the detained immigrant must legally be released at that time, whether or not ICE has come to pick up the immigrant. If, in fact, the criminal jail refuses to let the person out, one can take the jail to state court to request an order that it release the person (called a petition for writ of habeas). State and local law enforcement officers may not, on their own, place a “hold” on an alleged noncitizen beyond the time the individual would otherwise be released. Only ICE is authorized to place an immigration hold on an individual. See 8 CFR § 287.7(d). ICE Interim Policy Guidance on Detainers also provides that holds may not be issued to individuals not independently arrested by a law enforcement agency for a violation of local criminal law and for individuals who are temporarily detained, but not arrested (e.g., Terry stops or roadside stops). See INTERIM POLICY NUMBER 10074.1: Detainers, issued 08/02/2010 by U.S. Immigration and Customs Enforcement.

Unit 19

orders. But immigration detainers are not compulsory. Instead, they are merely requests enforceable at the discretion of the agency holding the individual arrestee”) (emphasis in original). 190 See, e.g., Santa Clara County, CA; Cook County (Chicago, IL); Washington DC; and many counties in Oregon. For an updated list, see www.ilrc.org/enforcement. 191 Buquer v. City of Indianapolis, (S.D. Ind. June 24, 2011)(“A detainer is not a criminal warrant, but rather a voluntary request that the law enforcement agency advise [DHS], prior to release of the alien, in order for [DHS] to arrange to assume custody.”)

19-59

C.

Challenging Immigration Holds

Increasingly, cities, counties and even entire states are challenging immigration holds and passing laws and policies which limit or totally eliminate compliance with immigration holds.192 Jurisdictions across the nation including Santa Clara County, CA, Cook County (Chicago), IL, Washington DC, and many others no longer honor any immigration holds. Several other localities nation-wide limit the circumstances in which ICE holds may be enforced.193 At the state level, states such as California,194 Connecticut, and Colorado have passed similar policies. Additional policies at the state and local level are pending nationwide. Many of these policies go a step farther, by stopping the ICE hold from being issued in the first place, for example by stating that ICE is not allowed in the jails without a warrant. Advocates should check locally to see what additional protection may be available via a local policy. Even if an individual is not protected by a local policy, advocates may reach out to the local law enforcement agency with custody of the individual (e.g., the Sheriff’s Dept.), and ask if in their discretion they will not honor the immigration hold. Since immigration holds remain discretionary, local law enforcement may choose not to honor an immigration hold in any given case. Here, an advocate may have to be ready to explain this discretion to law enforcement.195 Law enforcement will be concerned first and foremost with “public safety.” Thus, a request with law enforcement will more fruitful for individuals with minor or less serious criminal history. It is also prudent to make such requests with the assistance of a criminal defense attorney, or immigration attorney, if possible.

Unit 19

192

See, e.g., California TRUST Act (AB 4); Miranda-Olivares v. Clackamas Cnty., 3:12-CV-02317-ST, 2014 WL 1414305 (D. Or. Apr. 11, 2014); Galarza v. Szalczyk, 745 F.3d 634 (3d Cir., Mar. 4, 2014). 193 See www.ilrc.org/enforcemet for a list of jurisdictions nationwide which limit or eliminate compliance with immigration holds. 194 For more information on the California TRUST Act (AB 4) please visit www.catrustact.org. 195 See, e.g., Kamala Harris, CA Attorney General, Information Bulletin, “Responsibilities of Local Law Enforcement Agencies under Secure Communities” (Dec. 4, 2012) (“immigration detainers are not compulsory. Instead, they are merely requests.…”) Available at: www.aclunc.org/docs/immigration/ag_in fo_bulletin.pdf (last accessed Feb. 2014); Letter from David Venturella Assistant Director Immigration and Customs Enforcement to Santa Clara County Counsel Miguel Marquez (“ICE views an immigration detainer as a request that a law enforcement agency maintain custody of an alien”) available at, http://altopolimigra.com/wp-content/uploads/2012/05/2010-09-01_SC-County-Counsel-Memo.pdf (last accessed Feb. 2014); Letter from Illinois State Attorney Anita Alavarez to Cook County Commissioner Garcia (July 26, 2011) (“ICE detainers are not akin to a criminal warrant, but rather a voluntary request of a law enforcement agency to cooperate with ICE”), available at, http://altopolimigra.com/wpcontent/uploads/2011/12/SA-opinion-7_26_11.pdf (last accessed Feb. 2014); Memorandum from County Attorney Robert A. Cuevas, Jr. to Miami-Dade Mayor Carlos Gimenez (July 15, 2013) (“compliance with ICE detainer requests is voluntary and not mandated by federal law or regulations”). See Alfonso Chardy, County Attorney: Feds can’t require longer immigration detentions, Miami Herald, July 29, 2013, available at www.miamiherald.com/2013/07/29/3529450/county-attorney-feds-cant-require.html (last accessed Feb. 2014).

19-60

Tab Position 1

Immigrant Legal Resource Center April 2014

Finally, an advocate may make a direct request with ICE through the Enforcement Removal Operations (ERO) Community Field Liaison.196 Here, ICE is unlikely to lift the immigration hold except in rare circumstances. For example, if the individual is mentally ill or is the only caretaker of a child.197 Another circumstance is where the immigration hold has been lodged incorrectly (e.g., against a U.S. citizen or against a lawful permanent resident (green card holder) who is not deportable). Here, ICE is not likely to respond without some evidence. You can submit birth certificates or obtain an analysis from an attorney expert in this area about how the person could have acquired citizenship or how the person is not deportable. If a noncitizen is deportable, ICE may be persuaded to exercise prosecutorial discretion and lift the immigration hold on an individual eligible for immigration relief and/or with substantial equities. Under prosecutorial discretion memos issued by ICE Director John Morton in June 2011, ICE has the discretion to make a range of enforcement decisions including, “deciding to issue or cancel a notice of a detainer.”

Tab Position 1

A Guide for Immigration Advocates April 2014

In immigration court, some immigration attorneys are bringing motions to suppress information on alienage based on Fourth and Fifth Amendment violations relating to holds. Motions to terminate a deportation case are based on ICE’s statutory, regulatory, and constitutional violations relating to holds. Finally, damages actions have been filed for those claiming harm caused by an immigration hold. For discussion on motions to suppress and motions to terminate see § 19.25. D.

Immigration Holds’ Impact on a Noncitizen’s Criminal Justice Proceedings

Rapid expansion of immigration enforcement in the criminal justice system coupled with rampant confusion and misunderstanding amongst criminal justice stakeholders (jailers, judges, and prosecutors) regarding their legal obligations to cooperate with ICE has resulted in widespread bias against immigrants in the criminal justice system. In particular, the increase in immigration holds has resulted in a two-tiered system of justice, in which noncitizens are: 



196

Advocates should contact the Enforcement Removal Operations (ERO) Community Field Liaison at www.ice.gov/about/offices/enforcement-removal-operations/ero-outreach/ero-faq.htm (last accessed Feb. 2014). 197 See, e.g., U.S. Immigration and Customs Enforcement (ICE), Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities (Aug. 3, 2013), available at www.ice.gov/doclib/detention-reform/pdf/parental_interest_directive_signed.pdf (last accessed).

19-61

Unit 19

  

Routinely denied bail, given disproportionate bonds, or unable to even post their bail without being taken into immigration custody; Jailed for longer periods as a result of being unable to post bail; Subject to higher security classifications in jail/prison; Disqualified from alternative release programs or other rehabilitation programs, which are often used to prove rehabilitation to immigration courts; and Pressured to unnecessarily plead guilty to an offense to get out of jail sooner.

Because of the increased intertwining of the criminal and immigration systems, it is important that advocates establish relationships and work more closely with criminal defenders, such as the local public defenders’ office. Immigration advocates will need to educate criminal defenders on what immigration holds are and are not and work with them to mitigate the various immigration consequences of a criminal case. In particular, advocates should work with defenders on the following issues: 

 



Denial of bail or the significant increase in the amount of bail due to the presence of an immigration hold. Studies have shown that immigrants are not a greater flight risk or danger to the community. Furthermore, the presence of an immigration hold is not an indicator of flight risk or danger. The disclosure of immigration status in criminal court (other than to demonstrate community ties where necessary and appropriate). Such information may later be used to criminally prosecute an immigrant in federal court. Determining whether someone should post bail in the criminal justice context based upon whether he or she is eligible for an immigration bond. Individuals who are not in custody (either immigration or criminal) pending their criminal case have a greater advantage of getting better resolutions in both criminal and immigration court. Advising and defending against the immigration consequences of a criminal plea. The Sixth Amendment to the Constitution requires that defense counsel affirmatively and competently advise noncitizen defendants of the immigration consequences of a criminal case due to the harsh immigration consequences of criminal convictions. See Unit 3, § 3.17.

Unit 19

A practice advisory for criminal defense counsel on immigration holds is at: www.ilrc.org/enforcement. Because of technological advances, increased information sharing, ICE presence in jails and prisons, and other local law enforcement collaboration with ICE, any noncitizen in criminal custody is at risk of being identified for deportation and having an immigration hold placed on them. Advocates should closely monitor practices in their local jails, provide know your rights to noncitizens in custody, challenge any abuses, work with criminal defense counsel to minimize the immigration consequences in a criminal case, and advocate for local and/or state policies that limit or eliminate local law enforcement cooperation with holds. For more information on immigration holds and immigration enforcement generally, including advocacy, see: www.ilrc.org/enforcement.

Know Your Rights For Immigrants In Local Criminal Custody: If an immigrant is detained in criminal custody and local law enforcement or ICE speaks to him or her about immigration related information (including place of birth), he should exercise the right to remain silent and insist on having his criminal defender present before divulging such information to ICE or local law enforcement. Information gathered in these interviews are used to lodge immigration holds and ultimately used against individuals in removal proceedings. 19-62

Tab Position 1

Immigrant Legal Resource Center April 2014

If the immigrant believes the hold was issued erroneously, she is a witness or victim to a crime, or she has significant equities to justify having the hold lifted, she should call the 1-800 number on the ICE form or have an advocate contact the local ERO Community Field Liaison.198 If the immigrant believes that there is a 48-hour violation, he or she should immediately notify the jailer with custody over her and/or her criminal defender to advocate for release before ICE is notified. See Appendix 19-C for know your rights information for those held in custody.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 19.17 Rights of Juveniles A.

Rights in Removal Proceedings

Immigrant children and youth in removal proceedings face overwhelming obstacles. They are held to the same standard of proof as adults in fighting their deportation. They are provided with very little information about their legal rights, such as viable defenses against deportation, for which many of them are eligible. They often do not understand the nature of the proceedings due to age, language and cultural barriers, and importantly, may lack access to counsel. Although children—even unaccompanied children in removal proceedings—currently have no right to paid or appointed counsel, under federal regulation children must have a friend or family member in court before they can admit that they are removable.199 Failure to provide these protections invalidates the removal proceedings. Other protections during removal have also been secured for children. The Ninth Circuit, for example, in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), held that immigration authorities must provide notice of a removal or deportation hearing to the adult taking custody of a minor, including a minor over the age of 14. However, the Second Circuit has declined to extend this notice to custodial adults for children over 14.200

198

For a map of local contacts go to: www.ice.gov/about/offices/enforcement-removal-operations/erooutreach/ero-faq.htm (last visited Feb. 2014). 199 8 CFR § 1240.10(c). (“The immigration judge shall not accept an admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend.”) 200 Llanos-Fernandez v. Mukasey, 535 F.3d 79 (2nd Cir. 2008). 201 An unaccompanied child is defined as an undocumented person under the age of 18 who does not have a parent or legal guardian in the U.S. or have a parent or legal guardian who is willing or able to provide care and physical custody. See 6 USC § 279(g)(2).

19-63

Unit 19

Unaccompanied children in the custody of the Office of Refugee Resettlement (ORR), the federal branch of government in charge of the care and custody of “unaccompanied” children,201 are now significantly more likely to receive representation due in part to ORR efforts to increase representation of unaccompanied children. There is also an ORR pilot program to

provide guardians ad litem to youth in custody. Importantly, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) signed into law on December 23, 2008, provides broader legal protections and access to services for unaccompanied youth. In particular, it promotes greater access to legal counsel for unaccompanied immigrant children by requiring “to the greatest extent practicable” that these children have legal representation, encourages the appointment of child advocates for trafficking victims and other vulnerable children, and requires more expansive training of federal officials who work with unaccompanied children.202 B.

Apprehension and Detention of Children

When immigration authorities apprehend children, depending on the circumstances the government may immediately return them to their country of origin, release them to their families or other responsible adults, or detain them while their deportation proceedings are pending. Children may be detained for a few months and sometimes even years in various immigration detention settings.

Unit 19

Once a child is arrested by a DHS officer, he or she must be expeditiously processed and be held in a facility that is safe and sanitary. DHS authorities will attempt to determine the child’s age, ascertain his or her nationality, conduct background checks, and notify the appropriate country’s consulate that the youth is being detained. A critical initial determination at this time also includes whether the juvenile is “accompanied” or “unaccompanied.” While immigration laws do not define the term “accompanied,” it defines “unaccompanied” as an undocumented person under the age of 18 who does not have a parent or legal guardian in the U.S. or a parent or legal guardian who is willing or able to provide care and physical custody.203 The outcome of this initial assessment will determine what set of procedures apply to the child and who will have custody over the child. Within 48 hours of apprehension, if the child is determined to be “unaccompanied,” DHS must assess whether the child has been a victim of a severe form of trafficking or there is credible evidence that the child is at risk of being a victim of trafficking; has a fear of returning to his or her country; and has the ability to make an independent decision to withdraw his or her application to be admitted to the U.S. TVPRA § 235(a)(2)(A). If the child does not meet this criteria, is from a border country (e.g., Canada or Mexico), and is inadmissible, DHS can allow the child to withdraw his application for admission and return the child to his or her home country. TVPRA § 235(a)(2)(B). On the other hand, if the child meets such criteria or if DHS cannot make such a determination within 48 hours, the unaccompanied child must be immediately transferred to the custody of ORR. DHS will then generally place these children in removal proceedings under INA § 240. The TVPRA specifically provides that once a minor is determined to be unaccompanied, or there is a claim or suspicion that the person in custody is 202

For more information on providing legal resources to unaccompanied youth, see generally: www.vera.org/project/unaccompanied-children-program (last accessed Feb. 2014). 203 6 USC § 279(g)(2).

19-64

Tab Position 1

Immigrant Legal Resource Center April 2014

under the age of 18, all federal departments and agencies must notify ORR within 48 hours. TVPRA §§ 235(b)(1)-(b)(2). DHS is further required under the TVPRA to transfer the child into the custody of ORR within 72 hours of apprehension, unless exceptional circumstances are present. TVPRA § 235(b)(3).

Tab Position 1

A Guide for Immigration Advocates April 2014

If the minor is considered accompanied, DHS retains jurisdiction over the child. DHS may immediately remove the child (with his or her family or others) if apprehended near the border. If DHS does not immediately remove the child and initiates removal proceedings, the youth may be detained in a juvenile secure facility or in a family detention setting, granted parole, released on bond, or ordered released on recognizance pending those proceedings.204 Provisions governing the release of an accompanied minor, including to whom, are provided in federal regulation at 8 CFR § 1236.3(b). Federal regulation and the Flores Settlement Agreement (a settlement arising out of a lawsuit against federal immigration authorities entitled Flores v. Reno)205 further provide that all children must be given a notice of rights upon apprehension by DHS. Each child is to be provided a notice of a right to a phone call, a list of free legal services, Form I-770 (Notice of Rights and Disposition), an explanation of the right to judicial review, and their right to a hearing before being presented with a voluntary departure form.206 If the child is under 14 years of age or unable to understand Form I-770, the notice must be read and explained to the child in a language that he or she understands. C.

Expedited Removal

Under the TVPRA, unaccompanied children must be placed in removal proceedings under INA § 240 and therefore, should not be subject to expedited removal proceedings. TVPRA § 235(a)(5)(D). Only in certain cases, such as when the youth is from a neighboring country and has been properly screened in accordance with the TVPRA, he or she may be subject to voluntary removal (withdrawal of their application for admission). TVPRA § 235(a)(2)(B).

D.

Immigration Enforcement in the Juvenile Justice System

In recent years, there has been increased collaboration between ICE officials and juvenile justice personnel. While it is not a known national ICE priority to target youth in the juvenile justice system, juvenile justice personnel across the country believe that they are legally obligated 204

8 CFR § 1236.3. Stipulated Settlement Agreement, Flores v. Reno, Case No CV85-4544-RJK (C.D. Cal. 1996). (Hereinafter “Flores.”) 206 Id. 205

19-65

Unit 19

In these cases, children and youth do not receive a formal order of deportation. Finally, youth apprehended in the interior of the country, particularly those from the juvenile justice system, may be subject to voluntary departure and administrative removal orders.

to cooperate with federal immigration officials. To that end, they report youth suspected to lack legal immigration status and may permit ICE officials to enter juvenile facilities and interview youth whom they suspect may be undocumented. ICE may then choose to place an immigration hold on the youth. There are many reasons why these measures are bad public policy, or in some cases illegal. There is no federal law and in most states, no state laws that require affirmative enforcement of federal immigration laws by local law enforcement.207 Enforcement of immigration laws against juveniles may violate provisions of state law, especially relating to confidentiality.208 Immigration enforcement does not promote the goals of individual state juvenile justice systems to rehabilitate and support youth. Despite what may be common perception, immigrant youth in the juvenile justice system often do have avenues of relief to stay in the United States because they are minors and juvenile delinquency dispositions do not carry the immigration consequences that adult criminal convictions carry. See § 3.18. As state and local police increasingly become yet another enforcement arm of DHS, familiarity with enforcement methods and procedures is ever more important for the immigrant community and those representing them. Advocates should push back against immigration enforcement in this context and advocate for policies that preclude court personnel, including judges, probation officers, and detention personnel from affirmatively inquiring into a juvenile’s citizenship or immigration status. This is best done in a broad coalition.

Unit 19

E.

Asylum Guidelines for Children

Under the U.S. Citizenship and Immigration Service’s (CIS) Asylum Officer Basic Training Course (AOBTC) “Guidelines for Children’s Asylum Claims” and the recent Trafficking Victims Protection and Reauthorization Act of 2008, immigrant youth applying for asylum are entitled to specific protections and evidentiary rules.209 Specifically, the TVPRA created important procedural protections for unaccompanied youth who are in removal proceedings and seeking asylum. Critically, they provide that unaccompanied minors’ defensive asylum applications are to be adjudicated by CIS before presenting the case in Immigration Court. The regulations to implement these procedures are still being developed, and were published in the fall 2013 Unified Agenda for proposed rulemaking.210 207

See, e.g., Law Governing Immigration Enforcement against Juveniles in California (Jan. 2014) available at www.ilrc.org/resources/law-governing-immigration-enforcement-against-juveniles-in-california (last accessed Feb. 2014). 208 Id. 209 See “Guidelines for Children’s Asylum Claims,” memorandum by Jeff Weiss, Acting Director, Office of International Affairs, INS (December 10, 1998) and USCIS’ Asylum Division, Affirmative Asylum Procedures (AAPM) (Nov. 2013). Available at www.uscis.gov/sites/default/files/USCIS/Humanitarian/Ref ugees%20%26%20Asylum/Asylum/2007_AAPM.pdf (last visited Feb. 2014). See also 76 Interpreter Releases 1 (January 4, 1999) for a summary and additional information. 210 Available at www.reginfo.gov/public/do/eAgendaViewRule?pubId=201310&RIN=1615-AB96 (last accessed Feb. 2014).

19-66

Tab Position 1

Immigrant Legal Resource Center April 2014

The AOBTC guidelines recognize that children have special procedural needs in the asylum process. They provide that children should have a “child-friendly” asylum interview environment that allows them to freely discuss their case, that they should be allowed to bring a trusted adult to the interview, and that asylum officers should be trained to handle children’s cases. They also articulate different, somewhat lower, standards for children in meeting each element of an asylum claim. While the guidelines are not binding in Immigration Court, they are persuasive and the guidelines do provide some citations to case law which may be binding, depending on an individual case.

Tab Position 1

A Guide for Immigration Advocates April 2014

PART THREE: OTHER RIGHTS OF IMMIGRANTS § 19.18 The “Equal Protection” Rights of Immigrants The Fourteenth Amendment guarantees “equal protection” under the laws to all persons physically present in the U.S. Basically, this was meant to ensure that the government treats all people within our borders equally. The Fourteenth Amendment was passed after the Civil War, primarily to prevent Southern states from discriminating against African-Americans. Courts have held that this protection also applies to immigrants who are physically in the U.S., but without a legal immigration status. This rule protects people from many types of discrimination including such areas as government jobs and services.

§ 19.19 Right Not to Be Discriminated against in Employment

However, the 1986 IRCA law also authorizes penalties against employers of undocumented persons, upholding the general principle that undocumented people do not have the right to work in the United States. Work place enforcement is increasingly occurring throughout the United States through their ICE Worksite Enforcement initiative, which audits I-9 forms of various employers. 211

For example, INA § 274(B). See, e.g., Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013) (holding that employment provisions of a city ordinance that regulated and prohibited a broad range of economic interactions with noncitizens were preempted by IRCA).

212

19-67

Unit 19

Several different laws protect lawful permanent residents from being discriminated against in their employment on the basis of race or foreign birth. Some federal laws211 and state fair employment and anti-discrimination laws provide more specific protections. Several laws shield immigrants from employment discrimination based on “national origin” (discrimination against people who seem foreign). Title VII of the 1964 Civil Rights Act and the IRCA antiemployment discrimination laws protect immigrants from national origin discrimination.212 Another IRCA provision protects lawful permanent residents and certain other immigrants from discrimination based on immigration status.

The Supreme Court has upheld certain laws that require people to be U.S. citizens for jobs that carry out “governmental functions,” which can include school teachers and police officers.213 Other state policies that blocked permanent residents from public employment and from receiving professional and occupational licenses, such as gaining admission to the Bar or becoming a notary were held unconstitutional.214 In November 2001, Congress passed a law called the Aviation and Transportation Security Act that limited airport security screener positions to U.S. citizens only. Immigrant airport screeners sued the Department of Transportation and other government agencies after they were laid off from their jobs as a result of this law. The plaintiffs claimed the law violated the Equal Protection clause of the 14th Amendment because they were being discriminated against based on their national origin. After a few positive early rulings from the courts, Congress amended the Aviation and Security Transportation Act to now allow permanent residents to be eligible for federal airport screening jobs.

§ 19.20 Rights around Worker Exploitation

Unit 19

While the problem of immigrants being held against their will and forced to work is not a new phenomenon, increasing public awareness of this problem over the years has resulted in legislation aimed at the problem and in new resources from the federal government to fight it. While forced employment without pay has long been illegal under federal law, the law provides some protections that are aimed at making it both easier to prove a case against an employer and provide for legal status for complaining immigrant witnesses. On October 28, 2000, the President signed into law the Victims of Trafficking and Violence Protection Act of 2000. It created a new criminal provision for trafficking immigrants for the purpose of forced labor, increases the criminal penalty for existing offenses, and also made it possible to make a case where there is nonviolent coercion, including coercion by withholding one’s immigration documents or passport. But the most significant change in the law was the increased opportunity to get legal status for the complaining immigrant victims. The law created two types of visas—T visas and U visas. (For more detail on T and U visas for crime and trafficking victims, see Unit 5 of this guide.) Victims of trafficking under this law can also qualify for the federal witness protection program. The law also increases the federal government resources for pursuing these cases. Additional protections for trafficking and crime victims were created through the Trafficking Victims Protection and Reauthorization Act of 2008 (TVPRA), signed into law on December 23, 2008.

213

Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067 (1978); Ambach v. Norwich, 441 U.S. 68, 99 S.Ct. 1589 (1979). 214 In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851 (1973); Bernal v. Fainter, 467 U.S. 216, 104 S.Ct. 2312 (1985).

19-68

Tab Position 1

Immigrant Legal Resource Center April 2014

In an attempt to combat human trafficking and forced labor, the Department of Justice (DOJ) created the Trafficking in Persons and Worker Exploitation Task Force. The Task Force aims to prevent the smuggling and forced labor of foreign nationals within the United States. The Task Force has taken several measures to better address the problem, including implementing new guidelines and training for federal prosecutors working on these cases and an outreach program to victims and community organizations. Efforts to increase inter-agency cooperation between the DHS, FBI and DOJ complement these measures.

Tab Position 1

A Guide for Immigration Advocates April 2014

Perhaps most importantly, the Attorney General established a toll-free national hotline to report exploitation complaints at 1-888-428-7581. This hotline is staffed full time, 24 hours a day. The TPWETF Complaint Line call is a toll-free call and has foreign language translation services in most languages as well as TTY.

§ 19.21 Right to Public Education Under a U.S. Supreme Court case called, Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, (1982), all undocumented children have the same right to attend kindergarten through high school as do citizens and LPRs. Under the current law, states also cannot create policies that could prevent children from exercising this right, such as requiring the parents or children to have a Social Security number. School officials approached by ICE or CBP about potential undocumented students must not give information about a specific student to them because this would prevent undocumented children from going to school. Despite the ruling, at least two states proposed laws to bar children from enrolling in schools if they couldn’t verify legal immigration status. The right of undocumented children to receive a K-12 public education established in Plyler was first challenged by Proposition 187, a 1994 ballot initiative in California. Proposition 187 would have denied any state provided social or medical services to undocumented immigrants. It also would have required school districts to verify the immigration status of children before admitting them to public schools, directly contravening Plyler. A federal court ruled these provisions unconstitutional in 1999 and the state forewent appeals.215

215

League of Latin American Citizens v. Wilson, 908 F.Supp. 755, (C.D. Cal. 1995). U.S. v. Alabama, 443 Fed.Appx. 411, (11th Cir. 2011). 217 United States v. Alabama, 691 F.3d 1269, 1297 (11th Cir. 2012) cert. denied, 133 S. Ct. 2022, 185 L. Ed. 2d 905 (U.S. 2013). 216

19-69

Unit 19

As part of the slew of recent state initiatives to enact immigration laws discussed in § 19.4, Alabama’s House Bill 56 carried a provision requiring every public school to determine whether a child was born outside the U.S. In late 2011, the 11th Circuit issued an injunction against the provision pending appeal of the case.216 In August 2012, the Court held that the provision requiring immigration verification violated the equal protection clause.217

The right to attend public colleges and universities is not as clear, and some states have denied the right to attend college to undocumented individuals altogether. A related issue is whether undocumented students can qualify for in-state tuition for such colleges and universities. To a large degree, both of these depend on state law, which vary from state to state. At least sixteen states have passed laws allowing certain qualifying undocumented students to pay the same tuition as their classmates at public colleges. These laws generally require the students to have: 1) attended a school in the state for a certain number of years; 2) graduated from high school in the state; and 3) signed an affidavit stating that they have either applied to legalize their status or will do so as soon as eligible. The sixteen states that have passed these laws are California, Colorado, Connecticut, Illinois, Kansas, Maryland, Minnesota, Nebraska, New York, New Mexico, New York, Oklahoma, Oregon, Texas, Utah, and Washington.218 In addition to extending in-state tuition to undocumented students, the state of California has gone a step further by passing legislation that makes some undocumented students eligible to receive financial aid. The Development, Relief, and Education for Alien Minors (DREAM) Act became state law in June 2011 with the signing of related bills A.B. 130 and A.B. 131. Not to be confused with the federal legislation by the same name, which would have provided certain immigrants a path to citizenship had it passed in 2010, the California DREAM Act allows qualifying students to receive private scholarships funneled through public universities as well as state-administered financial aid, grants, and fee waivers.219 In early 2011 similar bills were introduced in the New York State Legislature (S. 4179 and A. 6829) as the New York DREAM Act.220

Don’t forget to read the outline of a “know your rights” community workshop that follows this unit at Appendix 19-A.

PART FOUR: WHAT YOU CAN DO IF A PERSON’S RIGHTS ARE VIOLATED

Unit 19

§ 19.22 An Overview Even if we train immigrants to understand and assert their rights, there will, unfortunately, still be situations where their rights will be violated. Immigrants do have the right to complain about such violations and should be encouraged to complain when their rights are violated. 218

National Immigration Law Center “Basic Facts about In-State Tuition for Undocumented Immigrant Students” Dec. 2013. Available at www.nilc.org/document.html?id=170 (last visited Feb. 2014). 219 For more information on the California dream act, visit the California Student Aid Commission at www.csac.ca.gov/dream_act.asp (last accessed Feb. 2014). 220 As of the date of this publishing, the New York bill is still pending. For updates, see www.nydreamact.org/.

19-70

Tab Position 1

Immigrant Legal Resource Center April 2014

We need to be realistic, however, about the many factors that make it difficult for immigrants to get adequate relief when their rights have been abused. Immigrants may have difficulty with the language, or might be afraid of arrest by immigration officers if they or their family members do not have a lawful status in the U.S. The laws themselves sometimes have been written in ways that make it difficult to get relief. There may be few attorneys willing to take on these types of cases in some regions. Finally, some immigrants believe that the government agencies that investigate these complaints are often biased in favor of the government officer and against the complaining immigrants.

Tab Position 1

A Guide for Immigration Advocates April 2014

In any case, filing complaints can still be a useful tool for changing the behavior of the government agency in the long run, even if it does not always give much satisfaction to the individual who complained. Changes will never happen if the government agencies can claim that there are no rights violations since so few complaints are filed. The usefulness of filing complaints is, of course, greatly strengthened by filing them in conjunction with immigrant communities’ organizing efforts, filing a lawsuit against the government, getting press coverage, and by mobilizing political clout in support of such complaints. See § 19.24 and Unit 20.

§ 19.23 Administrative Complaints The purpose of “administrative complaints” (complaints to the government agency that engaged in abusive behavior) is to establish a record of abuses by the government agency in order to change their future actions and (sometimes) to make a further record for a lawsuit. They have sometimes resulted in the officer being punished in some way. And they can also result in changes to the agency’s policies or practices. No money is awarded in this kind of case. People who want to try to get money damages need to consult an attorney about either filing a claim under the “Federal Torts Claims Act” against the government or another type of lawsuit. See § 19.22.

A.

Department of Homeland Security (DHS) Complaint Procedures

DHS Office of the Inspector General. Any misconduct or abusive behavior by DHS immigration officers whether it involves the violation of a constitutional, civil, or statutory right, or even just a common courtesy should be addressed by filing a complaint with the Office of the Inspector General for Department of Homeland Security. The DHS includes Citizenship and

19-71

Unit 19

There are three offices that investigate misconduct and abuses by government employees involved in immigration: (1) the Office of the Inspector General, of the Department of Homeland Security; (2) the Office of the Inspector General for the Department of Justice; and (3) the Office of Professional Responsibility of the Department of Justice. We will describe briefly below the operation of these offices and also that of the Department of Homeland Security’s CIS Ombudsman, which is another office that assists with immigration problems—in a slightly different way.

Immigration Services (CIS), Immigration and Customs Enforcement (ICE) and the Customs and Border Patrol (CBP). Complaints about abuses by any of these sub-agencies can be addressed by filing a complaint with the Department of Homeland Security with the Office of the Inspector General (OIG). The OIG of the Department of Homeland Security website is found at www.oig.dhs.gov. Significantly, for immigrants who may be fearful, the Department of Homeland Security offers the options of filing a complaint anonymously or confidentially. Also any persons wishing to lodge a complaint pertaining to violations of the DHS enforcement standards (which are found at 8 CFR § 287.8) should file these complaints to the OIG in DHS as well. If filing a complaint, the DHS OIG has three ways to contact them: by phone, by email and by mail. The DHS has a toll-free hotline number for complaints, which is 800-323-8603. One can also email them at [email protected]. Or, one can file a complaint by ordinary mail at OIG headquarters at: 1. For misconduct or abuse by ICE, border patrol (CBP), or a jail official involving a violation of a constitutional, civil, or statutory right, or issues of common courtesy, file your complaint with: the DHS OIG by phone and by mail to file a complaint. The DHS Allegation Form is recommended and is available online.221 Where an immigrant may have limited access to a computer or might lack the computer literacy to access the form, the immigrant may submit a written complaint with as much information as possible, including: dates and times of problems, names of alleged offenders, victims, witnesses, etc., and leads on any applicable data, documentation or other evidence.

Unit 19

Department of Homeland Security Attn: Office of Inspector General/MAIL STOP 0305 Attention: Office of Investigations -- HOTLINE 245 Murray Drive, SW Washington, DC 20528 Toll free complaint hotline: 800-323-8603 Fax: 202-254-4292

221

The DHS OIG Online Allegation Form is available at: www.oig.dhs.gov/hotline/hotline.php.

19-72

Tab Position 1

Immigrant Legal Resource Center April 2014

2. For misconduct or abuse conducted by ICE employees: use the DETAINEE GRIEVANCE FORM (Form I-847) to file a complaint with the Office of Internal Audit. Mail to:

Tab Position 1

A Guide for Immigration Advocates April 2014

Department of Homeland Security Joint Intake Center, ICE/CBP PO Box 14475 1200 Pennsylvania Ave., NW Washington, DC 20044 Telephone: 877-2INTAKE (877-246-8253) Fax: 202-344-3390 Email: [email protected] The usual process for the OIG is that once it receives the complaint it goes to the Investigations Division for review. If the investigator needs any more information, he or she will contact the person who filed the complaint. Unfortunately, the OIG’s policy is not to give out any information about the case after it has been entered into the system. In order to find out about the status of the case, the complainant or her representative must file a request under the Freedom of Information Act. If making a request under the Freedom of Information Act, your request should be directed to the central FOIA office of the particular component of the Department of Homeland Security or Department of Justice that holds the records you are seeking. A list of these component offices can be found on the DHS web site at www.dhs.gov/department-components. Additionally, it is a good idea to file a FOIA request with the Office of the Inspector General in case they may have the records. B.

DHS Citizenship and Immigration Services Ombudsman

1. What do I report to the ombudsman? The CIS Ombudsman’s role differs from that of the Office of Inspector General. The Ombudsman deals with individual case problems that do not rise to the level of abuse or waste, and the Ombudsman is to proactively come up with systemic ideas for improvements. 222

6 USCA § 272.

19-73

Unit 19

Within DHS, the newly-created Ombudsman’s Office works to resolve immigration issues of citizenship and immigration services and improve the administration of such benefits. The Ombudsman Office makes recommendations on how to fix systemic problems that individuals and employers face when seeking services from U.S. Citizenship and Immigration Services (USCIS). These recommendations are made to CIS who is statutorily required to respond within three months.222 The current occupant of the position, as of this publishing, is Maria M. Odom.

Compared to the other complaint procedures described in this section, the CIS Ombudsman’s focus is on broader, systemic problems that individuals and employers of immigrants may encounter through their interactions with CIS. Complaints about not only the immigration or work visa process, but also about immigration statutes may be forwarded to the CIS Ombudsman. For example, an immigrant can complain if they are facing an emergency or hardship caused by a mistake, error, or delay by CIS. The CIS Ombudsman’s recommendations are intended to ensure national security and the integrity of the legal immigration system, increase efficiencies in administering citizenship and immigration services, and improve customer service in the rendering of citizenship and immigration services. For requests for help in an individual case, advocates may submit a case problem, and the Ombudsman forwards the case problem to CIS for further action. 2. Where do I file? The general contact for the Ombudsman is: Office of the Citizenship and Immigration Services Ombudsman Department of Homeland Security Mail Stop 0180 Washington, DC 20528 Phone: 1-855-882-8100 (toll free) or 202-357-8100 (local) Fax: 202-357-0042 Additionally, you can submit the following types of inquiries by e-mail:   

Unit 19

C.

For general and case inquiries: [email protected] For Public Affairs inquiries, such as information relating to a teleconference, an Ombudsman update, or stakeholder engagements: [email protected] To submit feedback or a complaint about the Ombudsman’s office: [email protected] Individual Case Assistance

To submit a request for help on an individual case problem, a request may be sent electronically through the CIS Ombudsman website, by e-mail, or by mail. To submit a case assistance form online, visit https://cisomb.dhs.gov/oca/form7001.aspx to complete DHS 7001 Form. Note that you cannot save the form and your session will time out after 20 minutes of inactivity so it is recommended to review the form first. The PDF version of the DHS 7001 form and accompanying instructions are available at, www.dhs.gov/publication/form-dhs-7001instructions. To submit the DHS 7001 Form by e-mail send the completed form, including supporting documentation to: [email protected].

19-74

Tab Position 1

Immigrant Legal Resource Center April 2014

D.

Regular Mail Complaint Submission

To submit a DHS 7001 Form via regular mail send to:

Tab Position 1

A Guide for Immigration Advocates April 2014

Via Regular Mail: Citizenship and Immigration Services Ombudsman Department of Homeland Security Attention: Case Assistance Washington, DC 20528-1225 Via Expedited Delivery Service: Citizenship and Immigration Services Ombudsman Department of Homeland Security Attention: Case Assistance 245 Murray Lane Mail Stop 1225 Washington, DC 20528-1225 The Ombudsman recommends, but does not require, that case problems be accompanied by a DHS Form 7001 to expedite the case solution process. This form can be downloaded at www.dhs.gov/xlibrary/assets/cisomb_dhsform7001.pdf. E.

Department of Justice Complaint Procedures

DOJ Office of the Inspector General. While most immigration officers would now be under the Department of Homeland Security, there are some individuals and agencies that are still operating out of the Department of Justice, specifically: the Executive Office of Immigration Review, including the immigration court judges and the FBI and anyone contracting with the DOJ. If they have engaged in abusive behavior you can file a complaint at the Office of the Inspector General within that agency.

U.S. Department of Justice Office of the Inspector General Investigations Division 950 Pennsylvania Ave., N.W., Room 4706 Washington, DC 20530 Hotline: 800-869-4499 Fax: 202-616-9881

19-75

Unit 19

1. To report misconduct or abuse:

2. To file discrimination-based and violation of Due Process-based complaints: U.S. Department of Justice Office of the Inspector General Civil Rights & Civil Liberties Complaints 950 Pennsylvania Avenue, N.W., Room 4706 Washington, DC 20530 Hotline: 800-869-4499 Fax: 202-616-9898 3. To file a complaint against an immigration judge: If the complaint is against an immigration judge, you may also file a complaint directly with the Office of the Chief Immigration Judge. Complaints may be submitted by email at [email protected], or by post to the appropriate supervisory Assistant Chief Immigration Judge, an updated list of which is available here: www.justice.gov/eoir/sibpages/ACIJAssignments.htm. Include the following in your complaint:

Unit 19

1. 2. 3. 4. 5.

The name of the judge about whose conduct you wish to complain. A statement of what occurred. The time and place of the occurrence(s). Any other information which may be helpful in investigating the complaint. Your name, address, telephone number and any other contact information you wish to provide.

The DOJ OIG telephone Hotline is in both English and Spanish. The OIG also have staff members with other language capabilities, so detainees and/or their representatives should be encouraged to call. The Office of the Inspector General for the Department of Justice also has a website with information on filing complaints at www.justice.gov/oig/hotline/index.htm#doj. Complaints may also be filed electronically through this website. The website provides information about procedures for filing complaints regarding abuses and violations of civil rights. During the investigation of the complaint, the Office of the Inspector General will sometimes try to interview the complainant. If this person has a representative, advise him or her to insist on doing the interview in the presence of counsel, especially if a lawsuit may later be filed about the complaint. If the complaint is for conduct that may result in a criminal prosecution, those cases are referred by OIG to the Civil Rights Division of the Department of Justice. If that Division decides to file criminal charges, it will continue with the case itself.

19-76

Tab Position 1

Immigrant Legal Resource Center April 2014

F.

Completing Letters of Complaint to Offices of Inspector General

There is no form required for these complaints. Thus, one should write a letter as part of the complaint. The letter can be brief, but it is important to give as many important details as possible, especially descriptions of the behavior of the government agency staff that you are complaining about. Most importantly, make sure that you give a correct statement of what happened. You do not have to give all the small details, but try to describe anything that you find particularly offensive. Try to get the complaining party to describe the officer involved if they didn’t get his or her name. Be particularly careful on facts such as the time of day, the exact location, date, the numbers of other officers who were there, etc. You do not want the entire complaint to be discredited because you or the complaining party made a mistake about something like the date the abuse happened.

Tab Position 1

A Guide for Immigration Advocates April 2014

Note that complaints should be filed as soon after the pertinent incident(s) as possible. DHS currently requires that complaints be filed within 5 days of the incident or within five days of the unsuccessful conclusion of an informal (oral) grievance. It is also good to include the following statement signed and dated by the person complaining: “I declare under penalty of perjury that the foregoing is true and correct. Signed [signature] Executed on [date].” Lastly, in order for a third party to witness and track the progress of your case, it is a good idea to send a copy of the complaint and other supporting documentation to the National Immigrant Justice Center.

E-mails: [email protected] and [email protected]

Additional Practice: Look at the exercise found at Appendix 19-D. This asks you to write up a complaint about an abuse that occurred. See instructions in Appendix 19-D. Give a good, detailed description of the abusive behavior. Although it is not required, you should state in your complaint the law or the regulation that you think the DHS has violated, if you know. A twopage complaint should be sufficient for this purpose.

19-77

Unit 19

Royce Bernstein Murray (Director of Policy) Jennifer Chan (Associate Director of Policy) National Immigrant Justice Center 208 S. LaSalle Street, Suite 1818 Chicago, IL 60604 Phone: 312-660-1370 Fax: 312-660-1505

PRACTICE TIP: File Notices of Entry of Appearance. There have been some problems in the past with complainants being interviewed without their attorney or accredited representative. If you are an attorney or accredited representative, you can avoid this problem, by filing a Notice of Entry of Appearance form (G-28) with the complaint.

Department of Justice Office of Professional Responsibility (OPR). The Office of Professional Responsibility’s jurisdiction is limited to reviewing allegations of misconduct made against Department of Justice (DOJ) attorneys and judges, including immigration trial attorneys and immigration judges, who are involved in prosecution, litigation, and investigation. Complaints against DOJ attorneys and judges must be forwarded to OPR in writing. Upon receiving a complaint, the DOJ OPR will review it and determine whether further investigation is needed. Depending on the nature of the complaint, the OPR may request a response from the person against whom the allegation has been made and/or conduct on-site investigations. After investigation, the OPR prepares a report of its findings and conclusions and sends the report to the head of the component at issue and to the Office of the Deputy Attorney General. The OPR also will advise the complainant of the conclusion it reached. When filing a complaint to the OPR, no particular forms are required. However, the names and titles of the individuals suspected of misconduct, the details of the allegations including case names, and any other relevant information should be included in the complaint. The complaints should also include copies of any documentation they have pertaining to the matter. The complaint and supporting information should be mailed to:

Unit 19

Robin C. Ashton Counsel Office of Professional Responsibility U.S. Department of Justice 950 Pennsylvania Ave., NW, Ste. 3266 Washington, DC 20530 1. Cases with facts of abuse under both Department of Homeland Security and Department of Justice If there are situations where abuse has occurred that involves both Department of Homeland Security and Department of Justice staff, it appears that complaints should be made to both agencies. G.

Filing Discrimination Complaints with Other Federal Administrative Complaint Bodies

For those who have complaints that involve other types of discrimination disallowed by law, there are a number of other avenues for administrative complaints. While detailed 19-78

Tab Position 1

Immigrant Legal Resource Center April 2014

information on all of these is beyond the scope of this book, it is useful to at least mention some. The Civil Rights Division of the Department of Justice participates in outreach efforts to affected communities as well as investigations of incidents and prosecutions of offenders. The Civil Rights Division also handles criminal violations, many different types of discrimination claims, voting rights claims, and others.

Tab Position 1

A Guide for Immigration Advocates April 2014

In addition, the Office of Civil Rights, Office of Justice Programs, the Department of Transportation, the Equal Employment Opportunity Commission, and other federal agencies may be able to provide assistance to those with discrimination claims. For more information, visit www.usdoj.gov/crt/legalinfo/howtofile_other.htm.

NOTE: All violations of people’s rights are serious. However, there are times when a violation is outrageous, or results in very serious harm to a person (for example, the person has to be hospitalized). If you encounter violations such as these, you should suggest that the person speak with an attorney about the possibility of filing a lawsuit. In cases where serious injuries have resulted, do not file an administrative complaint until that person has talked to an attorney. Otherwise you might risk the victim making statements to the government that could possibly harm the case.

Summary of Complaint Procedure DHS: CIS Ombudsman

DOJ: Office of Professional Responsibility Allegations of Abuses and Individual and misconduct of DOJ employer problems violations of civil rights by DOJ attorneys and with the CIS process and system. employees (includes judges (including Complaints that do immigration judges immigration trial not rise to the level and the FBI, Drug attorneys). of abuse or waste go Enforcement Administration, to the CIS Federal Bureau of Ombudsman. Prisons, and anyone contracting with these agencies).

19-79

DOJ: Office of Inspector General

Unit 19

DHS: Office of the Inspector General (OIG) Subject of Any misconduct by Complaint DHS immigration officers. May range from constitutional violations to lack of common courtesy. Violations of enforcement standards (8 CFR § 287.8)

Procedure Complaints go to Investigation Division for review. Status of cases is given only upon request filed under the Freedom of Information Act (FOIA). Note that the DHS Other Comments includes CIS, ICE and CBP. Complaints about any of these agencies may be filed with the DHS: OIG. FOIA requests should be sent to specific office. See www.usdhs.gov.

Contact Info.

Toll free: 800-3238603

CIS Ombudsman receives complaints and provides recommendations to solve the problem.

OIG will investigate complaint and may interview the complainant. If criminal in nature, case will be referred to DOJ: Civil Rights Division.

No forms are required. Complaints must be in writing and should be detailed and include any supporting documents.

Specific to complaints about CIS. Note: the role of the CIS Ombudsman is not that of an advocate! The CIS Ombudsman provides recommendations, but its focus is to improve the system rather than grant individual relief. www.dhs.gov/topic/c is-ombudsman

Advise complainant to have counsel present if there is an interview.

These complaints may be made in addition to complaints filed with DHS OIG.

Toll free: 800-8694499

OPR Phone: 202514-3365

Unit 19

www.oig.dhs.gov

www.usdoj.gov/oig/ www.usdoj.gov/opr/ process.htm

§ 19.24 Lawsuits against the DHS Sometimes a lawsuit can be a very effective way of addressing an individual problem or of getting some changes in the system. For people who have suffered an abuse by federal immigration officers, there are several kinds of lawsuits that may be available to them. When a particular agent has participated in some outrageous behavior, it may be possible to sue that agent directly, either to receive money damages or to get an order from the court to stop the agent from that behavior. When a person experiences some kind of abuse that is part of a larger pattern of immigration officer abuse involving many people, another kind of lawsuit called a “class action” may be more appropriate. In a class action lawsuit, the person joins together with others who

19-80

Tab Position 1

Immigrant Legal Resource Center April 2014

have experienced a similar type of abuse, and they demand that the court put an end to these illegal practices.

Tab Position 1

A Guide for Immigration Advocates April 2014

A client who has been detained for an inordinate amount of time or treated very badly by the DHS or the DOJ, particularly a client who has suffered some kind of physical abuse, should be advised to speak with a lawyer immediately about possible legal actions. Your agency should put together a list of organizations and/or attorneys who might be willing to take this type of case. Clients may hesitate to meet with a lawyer for a number of reasons, for example because of the cost involved. Depending upon the action, however, prevailing parties may be awarded attorneys’ fees and costs. Clients also may have had bad experiences with the court system and wish to avoid it; they may feel that a lawsuit would be a wasted effort; or they may be nervous about challenging the DHS when they are depending on the DHS to grant them some form of discretionary relief. While explaining the option of a lawsuit, you should be sensitive to these issues and be prepared to discuss them with the client. It is very important in this situation that proof of the abuses be preserved. This means that in a case of physical abuse, the victim should be encouraged to go to a doctor right away who can describe the victim’s condition. Photographs should be taken of any bruises or other conditions that might change over time. Remember, in this type of situation do not file an administrative complaint with the DHS or Department of Justice until the person has spoken to an attorney.

§ 19.25 Raising Violations of Rights in Removal Hearings: Motions to Suppress and Motions to Terminate

The best outcome of a successful Motion to Suppress is that DHS is unable to prove the legal elements (that the person is an immigrant and/or is removable from the U.S.) and the judge orders the end of the removal proceedings. The law, however only permits evidence to be kept out of a removal hearing if it was gained through an “egregious” (outrageous) violation of one’s constitutional rights, transgressing notions of fundamental fairness. Information gathered in a way that egregiously violates one’s right against illegal searches and seizures under the Fourth

19-81

Unit 19

When a person is put into removal proceedings based on information that was gathered by illegal methods, such as a forced entry by ICE or CBP into the person’s house or a statement by an immigrant obtained forcibly by illegal means, that person’s advocate can try to keep the illegally gained evidence out of the removal hearing. This is done by filing a “Motion to Suppress”—that is, a request to suppress (keep out) evidence that the government obtained because it violated someone’s rights.

Amendment, and due process under the Fifth Amendment (the right to fairness and not to be coerced) may also be used to suppress evidence in removal proceedings.223 The Ninth Circuit has defined an “egregious” violation where “evidence is obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should [have known] is in violation of the Constitution.”224 The following are some examples of specific instances where “reasonable officers” should have known that their conduct violates the Fourth Amendment: 1. Where an officer seizes someone with show or use of force with no reason at all.225 2. Where an officer seizes someone solely on the basis of racial characteristics or a foreignsounding name.”226 3. Where an officer, without a warrant or valid consent of the occupant, searched a home and seized incriminating evidence. Courts in other Circuits may apply different standards and practitioners should research the relevant law of their Circuit, if there is any. Garden-variety Fourth Amendment violations that have been brought by individuals include warrantless, investigatory detentions unsupported by probable cause,227 detention without probable cause for the purpose of gathering additional evidence,228 and detention under an immigration hold in excess of 48 hours.229

Unit 19

Even if there is no egregious violation under the Fourth Amendment, individuals are still entitled to procedural due process under the Fifth Amendment in a removal proceeding.230 Procedural due process does not allow the government to use statements that are involuntarily made to support deportation. However, courts have held that the statement(s) obtained by an officer must be through coercion, duress, or improper action to be suppressed in court.231 Coercion, duress, or improper action are based on a number of factors including voluntariness of the person’s statement; the temporal proximity of the illegality and the confession; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct.232 Some examples of duress and coercion have been physical abuse, hours of interrogation, denial of food or drink, threats or promises, or interference with a person’s attempt to exercise their rights.

223

INS v. Lopez Mendoza, 104 S.Ct. 3479 (1984). Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 (9th Cir. 1994). 225 Almeida-Amaral, 461 F.3d 231 (2nd Cir. 2006). 226 Gonzales-Rivera, 22 F.3d at 1447, Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994). 227 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). See also Dunaway v. New York, 442 U.S. 200 (1979), Hayes v. Florida, 470 U.S. 811 (1985), and Kaupp v. Texas, 538 U.S. 626 (2003). 228 County of Riverside v. McLaughlin, 500 U.S 44 (1991). 229 Id. 230 Reno v. Flores, 507 U.S. 292, 306 (1993). 231 Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979). 232 Brown v. Illinois, 422 U.S. 590 (1975). 224

19-82

Tab Position 1

Immigrant Legal Resource Center April 2014

Finally, some immigration lawyers advocate filing motions to suppress evidence gathered in connection with immigration holds (detainers), arguing that in addition to Fourth Amendment claims described above, detainers also violate Fifth Amendment due process. This is because individuals are constitutionally guaranteed both notice and opportunity to contest deprivation of their liberty.233 Other due process grounds for suppressing evidence gathered through detainers include 1) characterizing detainers as de facto investigatory detentions, which are unconstitutional under the Fourth Amendment; and 2) challenging ICE’s promulgation of detainer regulations as beyond the scope of the powers granted the agency by Congress or the Administrative Procedures Act.234 For more on detainers see § 19.16.

Tab Position 1

A Guide for Immigration Advocates April 2014

For further explanation on Fourth and Fifth Amendment rights, see §§ 19.3–19.13. Another tactic besides suppressing evidence in removal proceedings is to file a “Motion to Terminate,” which asks the court to discontinue the proceedings altogether. Usually, an advocate will file a motion to terminate with a motion to suppress. This is because you are indicating that if the evidence is suppressed, they no longer can meet their burden to prove removability, so the case should be terminated. Another basis for filing a Motion to Terminate includes instances when an officer’s acts violate federal regulations and/or statutes with the effect of depriving an individual of his fundamental rights.235 Certain statutes and regulations promulgated by Congress and DHS ensure due process rights of immigrants. For example, one regulation protects an immigrant’s Fifth Amendment rights by requiring that when a person is arrested without a warrant, an officer other than the arresting officer must be the one to examine the person. See 8 CFR § 287(a). If an immigrant’s rights are violated by failure of DHS to follow one of these regulations or statutes, then in addition to suppressing any statements made, the court may also terminate the proceedings if requested to do so. The Board of Immigration Appeals (BIA) has upheld this theory of suppression to promote and ensure fair enforcement practices.

233

Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532 (1985). Jones v. U.S., 463 U.S. 354 (1983). 235 Accardi v. Shaughnessy, 347 U.S. 260 (1954). 236 See, e.g., Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317 (D. Or. filed April 11, 2014). 237 8 CFR § 287.7. 234

19-83

Unit 19

Termination of proceedings can be requested upon suspected violation of the laws that govern detainers. Advocates can argue that detention under an immigration detainer for any amount of time is unlawful on the basis that it does not include a probable cause determination.236 Additionally, detention under an immigration detainer is only allowed for 48 hours, excluding weekends and federal holidays.237 Thus any time detained beyond this point is unlawful. Detainers that follow from these violations should be argued as unlawful detentions, which in turn result in the deprivation of individuals’ fundamental rights to liberty. Specific rights at issue invoke the 4th Amendment prohibition on seizure without probable cause or warrant and the 5th Amendment right to liberty and freedom from restraint. Individuals are also deprived of their 5th Amendment rights to due process because there is no opportunity to challenge the detention or to

retain a lawyer. Finally, detainers contravene the 10th Amendment by compelling states to enforce federal regulation, and the U.S. Supreme Court has acknowledged the interest individuals have in objecting to laws that disturb the “constitutional balance” between the federal government and the states.238 Example 19.25-a: Mauro is sleeping in his apartment one night, when ICE conducts an enforcement action in his building. They enter his apartment without his consent, even though they have no search warrant. After a lot of questioning they get the information that Mauro is from Paraguay and has no papers. They arrest him. Could this information be used to deport him? The arrest was clearly in violation of his right to be free from unreasonable search and seizure. But depending on the judge, this might or might not be found to be an “egregious” violation of rights. If found to be egregious, the judge would not allow the evidence gathered this way to be used, and Mauro would go free. (Mauro could also file an OPR complaint, but that would probably not prevent his removal.) Example 19.25-b: Celso is arrested by the CBP. While in detention, he asks to talk to a lawyer. Another arrestee gives him the name and phone number of a lawyer and Celso writes it on the back of his hand. Before Celso can make the call, an immigration agent rubs the number off his hand, tells him he will be deported, tells him that he will not be allowed to speak to an attorney, and does not tell him of his right to a removal hearing. Finally Celso admits that he is from Mexico. Can Celso’s confession that he is an immigrant be used in a removal hearing? If Celso’s advocate filed a Motion to Suppress and the immigration judge believed Celso, it must be found to be an illegally coerced confession. Because a forced confession violates the Fifth Amendment, the judge should find that the information cannot be used.

Unit 19

Example 12.25-c: ICE officers received tips from Artem’s neighbors that there may be an undocumented immigrant in Artem’s apartment. The officers saw that Artem’s door was slightly open and entered without his permission and without a warrant. They searched the apartment and found that Artem was an immigrant, but did not have his papers with him or anywhere in the apartment. The officers then arrested him in his room and brought him back to ICE offices. The same officer who arrested him later questioned him about his status. The officer never told Artem of his right to an attorney and never made available to him a list of free legal services. No one else in the agency gave him these required notices. Artem then admitted that he is in the country illegally.

238

Bond v. U.S., 131 S.Ct. 2355, 2364 (2011).

19-84

Tab Position 1

Immigrant Legal Resource Center April 2014

In this example, the ICE officers violated not only Artem’s Fourth Amendment rights, but also federal administrative rules. The officers did not have a search warrant, nor did they obtain Artem’s consent to enter and search his apartment. The entry to Artem’s specific apartment was not based on probable cause because it was open, and they only arrested Artem as a result of the illegal entry. The officers then failed to follow federal regulations that mandate officers provide a list of free legal services and inform Artem of his right to legal representation. Because of this, Artem admitted that he was here illegally. The arresting officer also violated another administrative regulation prohibiting an arresting officer from later questioning his arrestee. The 4th Amendment violations would most likely be sufficiently egregious to suppress Artem’s confession. The administrative rule violations would further bolster Artem’s case to suppress the evidence completely.

Tab Position 1

A Guide for Immigration Advocates April 2014

Finally, if you are pursuing a motion to suppress, it is extremely important that your client remain silent and not admit any allegations in court. If you or your client provide an independent basis to prove removability, then the government will be able to prove removability without the bad evidence. Don’t admit allegations on the notice to appear, don’t turn in declarations that admit alienage or removability, and advise your client to remain silent in the courtroom until the motion has been ruled upon. For a sample motion to suppress see Appendix I. § 19.26 Organizing a Community Response to Rights Abuses One thing that legal workers and clients have learned over the years is that working together and organizing is often the best way to get the DHS to adopt and use fair and legal policies. Some communities have developed task forces made up of representatives from the immigrant communities and others that meet with DHS officials on a regular basis to express concerns about the way the DHS treats community members. In other communities there are volunteer networks to assist people who have been mistreated by the DHS. There have been many successful community responses to immigration enforcement activity and abuses at detention centers.

Local political representatives may also be a valuable resource. You may have city council people, state legislators, or members of Congress who are already sympathetic to this issue. If not, you may need to educate them on the issue to gain their support. See Unit 20 for more information.

Community Responses and Solutions to Growing Immigration Enforcement. DHS’ immigration enforcement has become so far-reaching and egregious that many more community

19-85

Unit 19

Educating both the immigrant community and the larger public about immigration officers’ abuses is another important way to put pressure on the DHS to treat immigrants with more respect and with more humane policies. This can be done through the media (television, radio, newspapers), and through other organizations.

members, community leaders, and state and local government officials are seeing the effect of and intent behind these enforcement efforts, and the harm that they cause to communities. In response, organizations and community groups across the country have dedicated significant resources to addressing immigration enforcement issues and have become very involved in advocacy efforts to challenge Secure Communities (S-Comm), immigration holds, and other immigration enforcement programs. Communities around the country have been successful in their organizing efforts. They have challenged immigration holds by having many cities, counties, and states adopt policies which limit or eliminate this cooperation. Communities should, continue to engage their local and state officials across the country to replicate local and state pro-immigrant legislation to counter the “Arizonification” of America. Communities should continue to advocate for individuals facing deportation through the exercise of prosecutorial discretion and media campaigns.

§ 19.27 Legal Support When Rights Have Been Violated National organizations who are working on the issue of abuses of immigrants’ rights can be valuable allies in your local struggles. They may be able to provide you with advice on dealing with the situation in your community or the specific situation your client is facing, and may be interested in gathering information from you about what is happening in your area. A.

Detention Issues

Unit 19

U.S. Detention Watch Network 3333 14th Street NW 205 Washington, DC 20010 Tel: 202-350-9055 Website: www.detentionwatchnetwork.org American Bar Association Commission on Immigration 1050 Connecticut Avenue, NW, Suite 400 Washington, DC 20036 Website: www.americanbar.org/groups/public_services/immigration.html B.

Immigration Enforcement Abuses American Friends Service Committee: U.S.-Mexico Border Program PO Box 126147 San Diego, CA 92112 Tel: 619-233-4114 Fax: 619-233-6247 [email protected] Website: www.afsc.org/program/san-diego-us-mexico-border-program

19-86

Tab Position 1

Immigrant Legal Resource Center April 2014

National Network for Immigrant and Refugee Rights 310 Eighth St., Ste. 303 Oakland, CA 94607

Tab Position 1

A Guide for Immigration Advocates April 2014

[email protected] Tel: 510-465-1984 Fax: 510-465-1885 Website: www.nnirr.org C.

Immigrant Rights: General American Civil Liberties Union of Northern California 39 Drumm St. San Francisco, CA 94111 415-621-2493 Fax: 415-245-1478 www.aclunc.org

Amnesty International USA Western Office 350 Sansome St., Ste. 210 San Francisco, CA 94104 415-288-1800 Fax: 415-391-3228 www.amnestyusa.org

Catholic Legal Immigration Network (CLINIC)239 8757 Georgia Ave., Suite 850 Silver Spring, MD 20910 301-565-4800 Fax: 301-565-4824 www.cliniclegal.org

Center for Human Rights and Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213-388-8693; Fax: 213-386-9484 E-mail: [email protected] http://centerforhumanrights.org/index.html

Human Rights Watch Children’s Rights Division 350 Fifth Ave., 34th Floor New York, NY 10018 212-290-4700 Fax: 212-736-1300 www.hrw.org/topic/childrens-rights

National Immigration Project of National Lawyers’ Guild 14 Beacon St., Ste. 602 Boston, MA 02108 617-227-9727 Fax: 617-227-5495 www.nationalimmigrationproject.org

National Immigration Law Center 3435 Wilshire Blvd., #2850 Los Angeles, CA 90010 213-639-3900 Fax: 213-639-3911 www.nilc.org

239

This is CLINIC’s national office. For an affiliate near you, see https://cliniclegal.org/affiliates/directory.

19-87

Unit 19

American Civil Liberties Union Immigrant Rights Project 125 Broad St., 18th Floor NY, NY 10004 212-549-2500 Fax: 212-549-2654 www.aclu.org/immigrants-rights

Women’s Commission for Refugee Women and Children c/o IRC, 122 E. 42nd St. NY, NY 10168-1289 212-551-3115 Fax: 212-551-3180 www.womenscommission.org

Americans for Immigrant Justice (formerly Florida Immigrant Advocacy Center) 3000 Biscayne Blvd., Ste. 400 Miami, FL 33137 305-573-1106 Fax: 305-576-6273 E-mail: [email protected] http://aijustice.org/

Unit 19

Human Rights First 805 15th Street NW, Suite 900 Washington, DC 20005 202-547-5692 Fax: 202-543-5999 www.humanrightsfirst.org

19-88

Tab Position 1

Immigrant Legal Resource Center April 2014

APPENDIX 19-A ASSIGNMENTS, OUTLINES AND MATERIALS FOR A “KNOW YOUR RIGHTS” COMMUNITY MEETING

Tab Position 1

A Guide for Immigration Advocates April 2014

ASSIGNMENT FOR ALL STUDENTS All students should read the attached Know Your Right Workshop Materials. Those of you who are not presenting for the Workshop will be asked to play immigrants in the audience. Please prepare questions that you will ask the students who will be the presenters.

ASSIGNMENT FOR STUDENTS PRESENTING THE KNOW YOUR RIGHTS TRAINING FOR UNIT 19 A group of 3 to 5 students should be assigned to prepare a short (20 minutes plus 10 minutes of questions and answers) “Know Your Rights” presentation for the training session. The training should be presented as if the presenters were immigrant rights advocates doing a presentation to immigrants in their community. The other students in the class will be told to act the role of people in the community and they will constitute the “audience.” Please make the workshop as realistic as possible, and as interesting as possible. You can either use the scripted skits included in this Appendix or you can adapt those scripts to something more in line with the kinds of facts that happen in your area. Remember in your presentation, you should talk at the level understandable to people in the community who know nothing about immigration law or the rights of immigrants. The use of skits, role plays, songs, and other devices is encouraged.

Appendix 19-A-1

Unit 19

We recognize that you cannot present very much information in about 20 minutes of presentation. (Normally community workshops are at least 90 minutes long.) We understand that you are just doing a piece of a full workshop here.

OUTLINES AND MATERIALS FOR A “KNOW-YOUR-RIGHTS” COMMUNITY WORKSHOP

NOTE FOR PARALEGAL TRAINING PARTICIPANTS: During the training session, we will all be participating in a Know-Your-Rights Workshop. Some students will be asked to prepare and present and they may use these and other materials to create a 20 minute Know-Your-Rights presentation, as if they were doing it to a community group. Students who are not presenting on this will be asked to play the role of a community person who has had some bad experiences and who knows little about the rights of immigrants. To play this role, you should look over the materials and think about the types of questions that a community member might have. During the training session, you will also have a chance to practice explaining some of the concepts of immigrants’ rights to the class.

THE MATERIALS IN THIS APPENDIX INCLUDE: A.

Introductory Information on Setting Up a Know-Your-Rights Workshop in the Community; and

B.

The Outline for a Training Using Skits to Teach the Concepts of Rights (with scripts for the skits).

A. INTRODUCTORY INFORMATION ON SETTING UP A KNOW-YOUR-RIGHTS WORKSHOP IN THE COMMUNITY

Unit 19

Why Do a Know Your Rights Workshop? Organizing a Know-Your-Rights Workshop is based on the belief that if people know about their rights, they are more likely to be able to use them and will know when those rights aren’t being respected. Even immigrants who already have some knowledge about their rights can be taught to have more confidence in asserting those rights. Through role plays, videos, skits, and discussions, these workshops help people think about and understand their rights, and practice asserting them. For example, Know-Your-Rights workshops can help prepare for: what to do if you are a victim of or witness to an ICE or other DHS bureau abuse, how to defend oneself during an ICE enforcement action or what to do if you are a witness to such an action, or what to do in case of arrest, and what family members or friends of someone who is arrested by them can do. One real life example may help describe its purpose.

Appendix 19-A-2

Tab Position 1

Immigrant Legal Resource Center April 2014

Example: Mohammed, an undocumented man who has helped organize some workshops, lives in a building where there is an ICE targeted action. He recognizes what is happening and drives to a nearby community agency for help. On his way out of the complex, the ICE tries to stop him. Instead of answering questions, Mohammed knows his rights and continues on his way without acting nervous. He slowly drives off, and then he calls the community organization to report what has happened. He also calls several people in the building advising them to stay indoors, that the ICE is there and that they should not answer any questions. Later in the day, he and several others pass out notices to other tenants about what had happened.

Tab Position 1

A Guide for Immigration Advocates April 2014

The workshops also provide some side-benefits. Confidence can be built and concepts introduced in this area might spill over to other areas of people’s lives as well. In one community, some workshop participants went on to organize presentations about the census for their apartment buildings. Others decided to lobby the city about the health and safety code violations in their apartments. Who Can Sponsor a Know-Your-Rights Workshop Community agencies are in a good position to organize “Know Your Rights” workshops. The workers usually know the community and community members, and they can recruit other people (such as clients and other community members) to help with the workshops. Churches, unions, clubs, consulates, and other non-profit organizations can all sponsor or assist in these workshops. Work to Build a Self-Sustaining Network of Lay Advocates in the Community Getting other community members involved in a meaningful way with the workshops is crucial to guaranteeing that the workshops continue even if the organization is unable to do them any more. Creating a group of trained “lay advocates” makes the immigrant community more independent and provides a continuing resource.

How to Get People to Attend a Workshop These workshops can only be successful if people actually attend them. Many people are afraid to attend organized events precisely because of fears about ICE and DHS. Also, people

Appendix 19-A-3

Unit 19

These workshops can be started by a couple of dedicated people, but they should try to recruit a good core of community people to help them. They can recruit by passing around a sign-up sheet at the end of each workshop to get volunteers to help out more. Some people may want to become very involved, participating in the skits and the presentation, helping with the outreach, and helping to organize a large workshop in their building or even a small one in their apartment for a few friends.

don’t like to think about the possibility of being picked up by ICE and DHS and deported. Thus, some ideas for helping convince people of the importance of the workshops might be: ** Advertise to both documented and the undocumented immigrants of the community. While documented people might be less likely to be arrested in an ICE enforcement action, they do suffer many types of discrimination and abuse too, and they can serve important roles as witnesses and as advocates for others. ** Conduct as much outreach as possible. For example, develop a flyer in both English and the languages spoken by your audience to distribute at local sites. Some places to advertise might be: community agencies, churches, places people go to do their laundry, markets, and restaurants. Send the flyer to clients or ex-clients who may be interested. Contact other community agencies to see if they would want to work together planning the meeting. Also, contact the local foreign language media to see if they will make a free public service announcement for you. ** Have something concrete to give to people when advertising the workshop, such as a “Know Your Rights” information card such as the red cards produced by the ILRC, a one page information sheet about people’s rights, a list of agencies and lawyers who handle immigration cases, or just a flyer about the workshop. Then they can come to the workshop for more information and discussion.

Unit 19

** Present the workshop as a “human rights” issue, not just an ICE and DHS issue. But also make sure people understand that it affects them directly. For example, you could say it could help people in a family where some people are documented and others are not. If there have recently been raids in the area, be sure to stress how urgent it is that people learn how to protect themselves. ** Community members are usually the best advertisement for any kind of presentation. Thus, the more community members who are involved, the more likely it is that they will know people who would be interested in coming. They also probably already have a relationship of trust with other community members, which will help draw people to the workshop. Try to have community members with you to do your outreach. If people in the community are nervous about meeting in a public place, do these as a series of “house meetings” in the privacy of people’s homes. What Might Be Included in Your Know-Your-Rights Workshops People need to learn more than just what the law says their rights are. They want to learn how things actually work in realistic situations; how they can assert their rights without courting physical harm; what to say and do when the reality of DHS practices conflicts with the ideal.

Appendix 19-A-4

Tab Position 1

Immigrant Legal Resource Center April 2014

Know-Your-Rights workshops need to address these issues and do so in a way that provides an opportunity for community members to actually “see” these situations through demonstrations, that gives them a chance to practice in a mock situation.

Tab Position 1

A Guide for Immigration Advocates April 2014

Workshops are most effective when there is group participation. People remember things better and enjoy it more when they are actively learning rather than just listening. Encourage people to ask questions and share their experiences and fears with the group. Ask participants who have experienced abuses of their rights to relate their experiences. In the skits, encourage members of the audience to take a small role. The outlines below will give suggestions for ways to involve the audience in the presentation through discussion, critiques and role plays. Sample Agenda for a Workshop: A more detailed description of one model for a workshop follows this section, but generally, workshops contain three parts: 1. Introduction - Introductions of everyone attending the presentation, talk on why the workshop material is important, and summary of the agenda. 2. Skits - Skits should present some issues about common abuses of rights and what one should do. 3. Group discussion - Discussion of the issues raised in the skits, or other current issues in the community. B. WORKSHOP MODEL USING SKITS This workshop model is an ideal way to present the workshop if you have a good number of volunteers willing to help you plan the skits. Children can participate in the skits without much preparation, which can often make for a lively atmosphere.

The basic format is: 1. Introduction: Why We Are Here Today; What We Are Going To Do Today; Who We All Are -- Introductions (around the room)

Appendix 19-A-5

Unit 19

Churches are a good place to hold this kind of workshop, perhaps involving an adult education class or a similarly organized group to act in the skits. A community center, apartment complex with a large room, or outdoor area are also good spots.

-- We are here to share ideas and information about our rights. You know that the ICE (DHS) conducts immigration enforcement actions in our area. They could also do one here in this community. It doesn’t matter if we have papers or not; we have to know our rights. We have to know what we can do in case of an immigration enforcement action or in case one of us gets picked up by the ICE. We also need to know how we can help each other. -- Today we are going to see some skits about an immigration enforcement action. After we see them, we’ll share ideas and together we’ll answer some important questions about what rights immigrants have and how you can protect them. We want everybody to participate in the discussion. Together we can learn how to act during an immigration enforcement action by the ICE. 2. Skits 1 & 2 -- these are all attached at the end of this section. 3. Group Discussion The format for the discussion can have different looks. You might want to have a discussion after each skit, or you might want to wait until all three are over and then have a general discussion. Here are some other questions to go along with the skits: SKIT 1: -- How did Teresa act? What might she have done differently? -- What would you have done in her position?

Unit 19

SKIT 2: -- How did Wang Ling act? What did she and her family do that was different from what Teresa did? -- What would you have done in her position? -- What did the grandmother and grandson do to help out? -- How else might the ICE have reacted in this situation? What if instead the ICE had broken down the door, then what would or should Wang Ling and her family have done then? Asking a lot of questions like this brings out the points of the skits and encourages people to talk about their reactions to what the different actors are doing. It allows people to express their own reservations or fears, as well as to share ideas about other strategies they might use.

Appendix 19-A-6

Tab Position 1

Immigrant Legal Resource Center April 2014

4. Wrap-Up The end of the workshop should include two important parts: first, a summary of the ideas talked about during the workshop, and second, a sign-up sheet to get volunteers to help with future workshops.

Tab Position 1

A Guide for Immigration Advocates April 2014

The summary should cover the basic information presented (such as the right to remain silent, the importance of talking to a lawyer before you sign anything, and times when it might be better not to assert your rights) as well as the strategies and ideas people had to address different situations. You could also hand out Know Your Rights cards such as the red cards produced by the ILRC, with the phone number of a community agency in your area. The sign-up sheet should be used to encourage people to get involved with helping others in the community to learn this information. You can also stress that the more active people become, the more information they can learn and the more prepared they will be.

KNOW YOUR RIGHTS WORKSHOP: SKIT 1 Actors: One woman (Teresa), two children (optional), one ICE agent (Officer Smith), and a narrator. The Scene: An apartment (Teresa is reading, the children are playing). To one side of the “stage,” there should be a sign marked “Detention Area,” where those people arrested in the skits will be led. The same scene can be used for all three skits. Narrator:

The ICE is in the process of conducting an immigration enforcement action at an apartment building. Let’s see what happens. We hear a knock on the door (knock, knock, knock); the woman inside opens the door and asks:

Teresa: Who is it? My name is Officer Smith. I am the police. I want to ask you some questions.

Teresa: Okay. What do you want to ask me? ICE:

What is your name?

Teresa:

My name is Teresa.

ICE:

Where were you born?

Teresa:

I was born in Jalisco, Mexico.

ICE:

How did you enter the U.S.? Do you have papers? Are you here illegally?

Appendix 19-A-7

Unit 19

ICE:

Teresa:

Well, I . . . well . . . no, I snuck in.

ICE:

You must come with me. You are violating the law. You are here in an illegal status. But my children! I want to bring them, but they were born in the United States.

Teresa: ICE:

I don’t care about your kids. They are United States citizens. They can’t come with you. They can’t be deported.

Teresa:

I can’t leave them alone. Their father doesn’t live here. Who will take care of them?

ICE:

I don’t care about your kids. You are violating the law and that’s what I care about.

(The ICE officer takes her to the detention area.)

KNOW YOUR RIGHTS WORKSHOP -- SKIT 2 Actors: Two ICE officials, one grandmother, two women, two kids (optional), one young person, two other kids (optional), and a narrator. Total: 11 people.

Unit 19

[Note: This can be done with one ICE official, one woman, one young person (grandson), and one grandmother. Total: 4 people.] Narrator:

The family is sitting at home in their apartment one day. Suddenly someone arrives and knocks at the door. The woman goes to the door and asks:

Wang Ling:

Who is it?

ICE:

(In a business –like tone of voice) We are [I am] the police and we want to ask you some questions. Please open the door.

Wang Ling:

I’m sorry, sir, but I can’t open the door to a stranger, and I’m not used to talking to just any person that I don’t even know.

ICE:

(forcefully) Look, if you don’t open the door, I’m going to break it down. You’d better open up right now.

Wang Ling:

Do you have an arrest or search warrant? If you have one, please pass it under the door.

ICE:

No, we don’t have a warrant. We are immigration. Open the door immediately or you will have a lot of problems.

Appendix 19-A-8

Tab Position 1

Immigrant Legal Resource Center April 2014

Wang Ling:

If you don’t have an arrest or search warrant, I won’t open the door.

ICE:

If you don’t open up now, we are just going to come back later so you might as well open the door now.

Grandmother

(aside, to her grandson): Hey sonny -- call the neighbors and tell them that the ICE is here. Tell them not to leave and not to open the door to the ICE people. Hurry!

Tab Position 1

A Guide for Immigration Advocates April 2014

Grandson goes to the telephone and dials the neighbors’ number. We hear the “brrring, brrring” of the telephone. Neighbor:

Hello?

Grandson:

Hello. I’m calling to tell you that the ICE people, that is the immigration service agents, are here. Don’t open the door, whatever you do. And call your other neighbors. Tell them the same thing. We have to warn everybody in the building.

ICE:

(increasingly angrily) A warrant! We’re Immigration. We don’t need warrants to come in!

Wang Ling:

Well, I’m not letting you in here without it!

ICE:

Okay lady. I’m not going to play your games anymore. This is your last chance. If you don’t open the door right now, I’m going to put you in jail for a long long time and you won’t see your kids or the rest of your family for a long time. I can cause a lot of problems for you and your family, you know.

Wang Ling:

I’m not going to open the door. I don’t believe that you can do this because I know my rights.

Officer # 1

Should we break it?

Officer # 2:

No, It’s too much trouble. Besides our van is full now and we’d have to call another van. I’m beat, let’s go.

Officer #1:

(Yells at her through the door) - “I’ll be back!” (They leave)

The End…For Now.

Appendix 19-A-9

Unit 19

(Finally the ICE officials consult with each other behind the door)

APPENDIX 19-B RELEVANT CONSTITUTIONAL AMENDMENTS:

FOURTH AMENDMENT (Search and Seizure): “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

FIFTH AMENDMENT (Due Process by Federal Government): “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

FOURTEENTH AMENDMENT (Equal Protection/Due Process by State Governments):

Unit 19

“§ 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Appendix 19-B-1

Tab Position 1

Immigrant Legal Resource Center April 2014

Immigration Enforcement:

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-1

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-2

Acciones Policiales: Afirme Sus Derechos

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-3

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-4

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-5

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-6

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-7

Tab Position 1

Immigrant Legal Resource Center April 2014

Or use the online detainee locator system: https://locator.ice.gov/odls/homePage.do

For a national list of pro bono legal service providers from EOIR, see:

Unit 19

http://www.justice.g ov/eoir/probono/state

Appendix 19-C-8

Tab Position 1

A Guide for Immigration Advocates April 2014

O puede usar el sistema de localización electrónico: https://locator.ice.gov/odls/homePage.do

Para una lista nacional de servicios legales gratuitos, diríjase a: http://www.justice.g ov/eoir/probono/state

 

Unit 19

Appendix 19-C-9

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-10

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-11

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-12

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-13

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-14

Tab Position 1

A Guide for Immigration Advocates April 2014

P.O. Box 654, Florence, AZ 85132

Appendix 19-C-15

Unit 19

02108

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-16

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-17

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-18

Tab Position 1

A Guide for Immigration Advocates April 2014

ICE tiene una Sistema Locializador de Detenidos por el internet: https://locator.ice.gov/odls/searchByName.do 

Números de contacto de las oficinas locales de ICE en los E.E.U.U.: http://www.ice.gov/contact/ero/index.htm 

Unit 19

Appendix 19-C-19

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

También puede pedir su archivo del fiscal.

Appendix 19-C-20

02108

Appendix 19-C-21

Unit 19

P.O. Box 654, Florence, AZ 85132

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-22

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-23

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-24

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-25

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-26

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-27

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-28

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-29

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-30

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-31

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-32

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-33

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-34

Tab Position 1

A Guide for Immigration Advocates April 2014

Your family can also find you using the online detainee locater system https://locator.ice.gov/odls/homePage.do

Unit 19

Appendix 19-C-35

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-36

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-37

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-38

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-39

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-40

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-41

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-42

Tab Position 1

A Guide for Immigration Advocates April 2014

Si está detenido, su familia lo puede encontrar usando el sistema de búsqueda electrónica: https://locator.ice.gov/odls/homePage.do

Unit 19

Appendix 19-C-43

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-44

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-45

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-46

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-C-47

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-C-48

APPENDIX 19-D HOMEWORK ASSIGNMENT - ADMINISTRATIVE COMPLAINTS

Tab Position 1

A Guide for Immigration Advocates April 2014

(For those in training session or course) Please compose a letter to the Department of Homeland Security’s Office of the Inspector General complaining about an abuse, a violation or a violation of an immigrant’s civil rights. You can either use your imagination to come up with something or write it based on an actual story that you may know about. You should include a lot of detail, if it is important to what you are complaining about. Be sure to also include the following facts:       

The name of the person that this happened to (if they instead want to file it anonymously, say so but give information on who they can contact about it). The date, time and location where it occurred. The names of the DHS employees involved (if known) and/or a description of their appearance. A fairly detailed description of the abuse or civil rights violation that occurred. Try to state (for the homework assignment purpose) what rule, statute, part of the Constitution, or rule of courtesy was broken by the DHS action. Include the following statement signed and dated by the person complaining “I declare under penalty of perjury that the forgoing is true and correct. Signed [signature]. Executed on [date].” Find the address in Unit 19 of the Advocate’s Guide for the Department of Homeland Security OIG and address the letter to them.

Unit 19

Appendix 19-D-1

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-E-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-E-2

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-E-3

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-E-4

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-E-5

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-E-6

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-E-7

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-E-8

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-E-9

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-E-10

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-E-11

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-E-12

APPENDIX 19-F Immigration Enforcement in the Wake of September 11, 2001 The terrorist attacks on September 11th, 2001, triggered increased enforcement of our existing immigration laws as well as racial profiling of noncitizens, especially of those with possible Muslim connections or perceived connections. These persons have been subjected to unfair enforcement practices and have found their immigration and detention hearings classified as “secret” or “closed.” This appendix provides background on some of the actions taken by the federal government in the aftermath of 9/11. FBI and Immigration Collaboration for Heightened Enforcement In December 2002, former Attorney General Ashcroft quietly authorized more than 11,000 FBI agents and several thousand U.S. marshals to stop and arrest those who violate civil and criminal immigration laws. This power, previously exclusive to immigration officers, extends even if there is no separate criminal charge involved. The FBI can hold those suspected of having overstayed their visas, or otherwise being “out of status.” However, this new authority is limited to detaining immigration violators during the normal course of anti-terrorism investigations, and to instances where immediate action is required. Racial Profiling after September 11th

Unit 19

In the wake of the September 11th terrorist attack, persons who are, or even merely appear to be, Middle Eastern, Central Asian or Muslim have been treated differently from other people in the U.S. They are being picked up by police or DHS and held for long periods where others would not be, undergoing greater scrutiny in airports, being singled out for questioning by the FBI, and suffering harsher scrutiny when trying to gain immigration benefits. Many immigrants and immigrant organizations have argued that this is inappropriate racial discrimination. The government has argued, however, that because of the nature and seriousness of the events of September 11th and the involvement of persons born abroad from those groups in these events distinctions in treatment are necessary and not discriminatory in this context. Obviously, whether this is legal or not will have to be decided in the courts. Department of Justice Bans Racial Profiling Except for “National Security” Purposes On June 17, 2003, following a two-year study on the matter, the Department of Justice issued a policy forbidding the use of racial profiling in federal law enforcement. The Department denounced the use of racial profiling because it said the practice is based on an erroneous assumption that individuals of one race or ethnicity are more likely to commit crimes than other individuals of other ethnicities, and because it results in a mistrust of law enforcement. The policy does permit the use of race or ethnicity based on victim identification or another type of individualized suspicion, if the information is relevant to the investigation and is trustworthy and tied to a particular criminal incident.

Appendix 19-F-1

Tab Position 1

Immigrant Legal Resource Center April 2014

However, after showing strong disapproval of racial profiling on various grounds, the Department added a “national security” exception to the policy. Unlike the relevance, trustworthiness, and relation elements that must be satisfied before federal law enforcement can use ethnicity in an investigation, this exception only requires that the investigation be one regarding terrorism or national security. Racial profiling can only be used to the extent permitted by federal law and the Constitution.

Tab Position 1

A Guide for Immigration Advocates April 2014

Any usefulness that this policy might have had in curbing the government’s racial profiling among immigrants from these communities will likely be undermined by this major loophole. Prior experience with the government’s extremely broad definition of terrorism and national security leads many to predict that the policy will not affect any improvement in racial profiling where immigrants are concerned. The fact sheet on this policy can be found at http://www.usdoj.gov/opa/pr/2003/June/03_crt_355.htm Although there are currently no laws or acts that specifically ban racial profiling, there have been attempts to ban racial profiling. The End Racial Profiling Act of 2007 (ERPA), would have prohibited law enforcement agents or agencies from engaging in racial profiling. In addition, it would have allowed for individuals injured by racial profiling to bring civil actions for declaratory or injunctive relief. Unfortunately, it failed to get passed the Judiciary Committee. ERPA was again introduced in the House and the Senate in 2013, as SB 1038 and HR 2851 but again, has yet to pass. National Security Exit-Entry Registration System

During the Government’s secret detention program, when former INS detained Muslims indefinitely and closed all court proceedings to the public, a disproportionate amount of those impacted in New York City were Pakistanis. Without search warrants, homes were searched and items were illegally confiscated. Secret detainees were taken to local county jails in New Jersey and the New York metropolitan area and held for months without being charged for terrorism. Men were interrogated by the Federal Bureau of Investigation and former INS without access to counsel. Bond was denied across the board when most individuals were charged with overstaying their visa. Many were deported without ever being charged with terrorism.

Appendix 19-F-2

Unit 19

A post 9/11 program called the National Security Exit-Entry Registration System, or NSEERS, required that certain nationals report to former INS for interrogation, fingerprinting, and deportation. The INS targeted 24 Muslim countries not limited to the Middle East, including Bangladesh, Indonesia and Pakistan. North Korea was also targeted. According to a report by the Asian American Legal Defense and Education Fund, 77% who registered reported spending longer than 5 hours at ICE and 59% spent more than 10 hours at ICE. Those who spent more than 10 hours at immigration were denied access to counsel. Nationwide of the 83,000 that reported for NSEERS, approximately 13,000 were placed in deportation proceedings. In New York City, the disproportionate impact of the program meant that it wiped out entire communities completely, specifically, Pakistanis in Brooklyn and Indonesians in Queens.

Seven years after 9/11, these policies continued to be selectively enforced against certain nationals. In 2007, male Filipinos over the age of 18 were increasingly being targeted for deportation due to their possible ties to Muslim militias in the southern Philippines. Many people from a Muslim minority in Western China faced a similar predicament. The DHS justification for this is that men over 18 who are originally from these regions are more likely to be involved with Muslim militants and therefore pose a greater threat to the security of the United States. For example, in 2007 a Pakistani national was detained for approximately five months at Santa Clara County Jail because of claims that he provided material support to an International Muslim organization. He was a Silicon Valley worker, married to a U.S. citizen, and had two U.S. citizen children. After five years of filing his adjustment application, he was taken into ICE custody when his application was denied on the basis that he was a Board Member of a domestic Muslim nonprofit organization that provided services to inner city Muslim youth. Post 9/11 OIG Report:

Unit 19

Widespread violations of some of the Detention Standards were reported in the aftermath of September 11th, at least for detainees of Middle Eastern or Central Asian descent. On June 2, 2003, the Office of the Inspector General (OIG) released a special report detailing the conditions of detention for 762 people seized by the FBI after the September 11, 2001 attacks on the World Trade Center and the Pentagon - The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks. The study includes the detainees who were housed at the INS facilities in Paterson, NJ and Brooklyn, NY, just a portion of the immigrants actually detained after September 11, 2001. In a welcome surprise, the OIG, a watchdog agency within the Department of Justice (DOJ), issued an unvarnished, totally factual, and highly critical report of the policies of the DOJ (including the FBI), the INS and the Bureau of Prisons that resulted in the serious mistreatment of so many immigrant detainees. A copy of the OIG report can be found at: http://www.usdoj.gov/oig/special/0306/full.pdf (last accessed Feb. 2014). The report documents widespread abusive and degrading conditions for this group of detainees at both of these detention centers. The report concludes that the INS (now DHS) and FBI arrested people in an indiscriminate and haphazard manner. While a few were arrested and detained based on an existing connection to those responsible for the attacks, others were picked up for nothing more than illegal presence in the U.S. The report also confirms that many immigrants were detained and held in a policy of preventive detention without either the INS or the FBI ensuring that any evidence existed that supported an allegation of them being terrorists. The report also showed that INS and FBI implemented a policy of holding immigrants picked up in the post 9/11 sweeps without timely filing formal immigration charges, as required by law. This meant that many of them were held for unduly long periods of time, an average of 15 days at the Metropolitan Detention Center (MDC) in Brooklyn, before being charged. Therefore, detainees were being held without knowledge of what charges they faced, which affected their ability to seek appropriate counsel and delayed their opportunities to request bond re-determination hearings.

Appendix 19-F-3

Tab Position 1

Immigrant Legal Resource Center April 2014

The report documented the Department of Justice’s policy of holding many of the September 11th detainees until the FBI cleared them of any involvement with terrorism. The clearance process was extremely lengthy and resulted in the unnecessary holding of hundreds of innocent men. The average time it took to clear a 9/11 detainee was 80 days, during which those held were often denied the opportunity to consult with counsel or their families. Nor would they permit immigrants to leave the country even if they had been given a deportation or voluntary departure order, and wanted to depart, until the FBI cleared their names.

Tab Position 1

A Guide for Immigration Advocates April 2014

The mistreatment of detainees was also made apparent by the report – some were physically or psychologically abused. People reported that guards slammed them into walls on occasion. In addition, prisoners at the MDC were subject to a 23-hour lockdown, and put in handcuffs, leg irons, and heavy chains whenever they left their cells. The report also documents a widespread policy at these detention centers to interfere with the September 11th detainees’ outside communication. At the MDC, prison officials lied to inquirers, including family members and their attorneys, about whether certain people were being held there, citing a need for a communication blackout. The report also documents how these detainees had been effectively blocked from phone access as well. The report included 21 very specific recommendations for policy changes directed at the DOJ, INS (now DHS) and the Bureau of Prisons that sought to prevent future occurrences of these serious abuses. DOJ’s immediate response to this report was discouraging, raising doubts that it would take on reform on its own without the courts or others ordering it. Several days after the report was released, Attorney General Ashcroft testified before the House Judiciary Committee and stated that he believed the actions of the government were legal. He only conceded that the FBI clearance process needed to be improved. He stated that he felt holding innocent people was a waste of resources, but not necessarily a violation of individual Constitutional rights.

Lawsuits on Detention Rights and Conditions In response to the extensive violations of immigrants and detainee rights, various law suits were brought against the Department of Justice and the Bush administration to challenge the treatment of people detained since September 11th. In one case, Turkmen v. Ashcroft, the Center for Constitutional Rights filed a class-action lawsuit in early 2002 in U.S. District Court in Brooklyn against Former Attorney General Ashcroft, claiming that the detention conditions violated the civil rights of those detained by the INS (now DHS) after September 11. The Office

Appendix 19-F-4

Unit 19

While the OIG report takes no position on whether these practices and policies are illegal or unconstitutional, it does provide much factual support to cases by immigrant rights and civil liberties groups that are challenging these practices and to the efforts to advocate for change within the government bodies in charge. (For more information on lawsuits on these issues, see Lawsuit on Conditions of Detention of September 11th Detainees, directly below.) The policies and practices described arguably violate a vast number of laws as well as the Constitution, but the question remains whether the courts will find these violations permissible due to the emergency situation created by the September 11th attacks.

Unit 19

of the Inspector General’s findings issued in June 2003 bolstered the plaintiff’s claim. (See above for more details.) In January 2006, disciplinary actions were taken by the Bureau of Prisons against some of the detention officers. Five men from the Metropolitan Detention Center (MDC) were disciplined for their role in the abuse: two were terminated, two were suspended for 30 days, and one was demoted. More actions may be pending, and the case itself continues to progress through the court system. As of March, 2011, the government presented oral arguments to dismiss plaintiffs’ Fourth Amendment claims.1 For information on these cases and other law suits relating to post September 11 detention see: http://www.ailf.org/lac/lac_otherresources_litigationlist.asp (last accessed Feb. 2014).

                                                             1

For a timeline of the case and motions and pleadings filed with the court, see www.ccrjustice.org/turkmen-v-ashcroft. (Last visited Feb. 2014)

Appendix 19-F-5

Tab Position 1

Immigrant Legal Resource Center April 2014

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-G-1

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-G-2

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-G-3

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-G-4

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-G-5

Unit 19

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 19-H-1

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 19

Appendix 19-H-2

Unit 19

Tab Position 1

Immigrant Legal Resource Center   April 2014

Appendix 19-H-3

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Detention Reform Accomplishments Detention Reform Accomplishments Date

Accomplishment

08-2009

Appendix 19-H-4

Unit 19

Created the Office of Detention Policy and Planning – as well as an independent Office of Detention Oversight that reports directly to the ICE director – to focus on greater federal oversight, to provide specific attention to detainee car, and to design a civil detention system. 08-2009 Established two advisory boards comprising local and national stakeholders, and secured ongoing non-governmental organization collaboration on key reform initiatives. 09-2009 Discontinued family detention at the T. Don Hutto Family Residential Facility in Texas and converted the facility to be used solely as a female detention center. 09-2009 Issued new protocols to increase transparency related to the reporting and notification of detainee deaths. 10-2009 Centralized detention facility contracts under ICE headquarters supervision in order to aggressively enforce contract compliance and initiate new procurements. 12-2009 Transitioned the alternatives to detention program to a single provider, allowing for better performance and evaluation. 12-2009 and Collaborated with vendors to provide specific no-cost improvements, such ongoing as increased recreation and contact visitation, to improve conditions of confinement. 01-2010 to Reduced the number of ICE authorized facilities (from 341 to 255) – 10-2010 improving efficiency and oversight while reducing costs. 01-2010 Issued a revised parole policy permitting arriving aliens found to have a credible fear of persecution to be automatically considered for parole if they establish their identities, pose neither a flight risk nor a danger to the community and have no additional factors weighing against release. 01-2010 Streamlined the process for detainee health care treatment authorizations, ensuring clinical directors have autonomy to approve requests. Installed regional managed care coordinators throughout the United States, to provide expeditious and ongoing case management for complex medical

Tab Position 1

Immigrant Legal Resource Center   April 2014

Detention Reform Accomplishments Date

02-2010 02-2010

04-2010

07-2010

09-2010

Unit 19

09-2010

12-2010 09-2011 09-2011

Accomplishment

cases across the country. Improved conditions of detention and secured cost savings by discontinuing use of the Varick Street facility for detention in New York. Created the Detention Monitoring Council, which engages ICE senior leadership in the review of detention facility inspection reports, assessment of corrective action plans, and the follow-up to ensure remedial plans are implemented and determine whether ICE should continue to use a particular facility. Established an On-Site Detention Compliance Oversight Program, comprising a corps of more than 40 new federal detention site managers located at major detention facilities, housing more than 80 percent of the detainee population. On an ongoing basis, DSMs inspect facilities to ensure compliance with ICE detention standards, to report and respond to problems, and to work with local ICE field offices to address concerns Launched a Web-based detainee locator system enabling attorneys, family and friends to find a detainee in ICE custody and to access information about the facility, including address and visiting hours. Developed a new Intergovernmental Service Agreement template to standardize detention services contracts and improve compliance with terms and conditions by clearly identifying the sanctions associated with non-compliance. Began housing ICE detainees at the Theo Lacy and Musick detention facilities in Orange County, Calif., to improve alignment of detention capacity with apprehension activity, ultimately resulting in a 90 percent reduction in pre-final order long-distance transfers of detainees from the Los Angeles area of responsibility. Simplified the process for detainees to receive authorized health care treatments and thereby improved accessibility of care. Issued a new Access Policy Directive, establishing procedures for stakeholders to tour and visit detention facilities. Opened Delaney Hall, a 450-bed civil detention facility in Essex, N.J., to provide low-risk detainees with improved conditions of confinement, including robust indoor and outdoor recreation, freedom of movement and contact visitation. Improved alignment of detention capacity with apprehension activity results in a 96 percent reduction in pre-final order long-distance transfers of detainees from the New York area of

Appendix 19-H-5

Detention Reform Accomplishments Date

01-2012

02-2012

02-2012

03-2012

05-2012

07-2012

responsibility. Issued a new Transfer Directive that will minimize the long-distance transfer of detainees within ICE's detention system. This directive establishes criteria for transfer decisions that will substantially reduce the transfer of detainees who have family members in the area, local attorneys, or pending immigration proceedings. Promulgated the 2011 Performance-Based National Detention Standards, developed in collaboration with ICE personnel and stakeholders, which better addresses the needs of ICE's unique detainee population by, among other things, improving medical and mental health care, maximizing access to counsel and legal resources, reinforcing protections against sexual abuse and assault, augmenting religious opportunities, and enhancing procedures for reviewing and responding to detainee grievances. Created the Enforcement and Removal Operations (ERO) Public Advocate position to help resolve immigration enforcement and detention problems or concerns in a timely manner. Opened the Karnes County Civil Detention Center in Karnes City, Texas, which is the first facility designed and built from the ground up with ICE's civil detention reform standards in mind, to offer the least restrictive environment permissible to manage persons in administrative custody. Issued a Directive on Sexual Abuse and Assault Prevention and Intervention, which establishes a zero-tolerance policy with respect to sexual abuse or assault of individuals in ICE custody. This policy delineates duties of agency employees for timely reporting, coordinating response and investigation, and effective monitoring of all incidents of sexual abuse or assault of individuals in ICE custody. Pursuant to the directive, an agencywide acting prevention of sexual assault coordinator, along with 62 ERO field office prevention of sexual assault coordinators have been appointed. Distributed to all detention facilities a "Know Your Rights" video, which was developed by the American Bar Association, and self-help legal materials, which were developed by various Legal Orientation Programs, to enhance availability of accessible legal resources for detainees. Initiated nationwide deployment of a new automated Risk Classification Assessment instrument to improve transparency and uniformity in detention custody and classification decisions. This assessment is incorporated into the ICE book-in process. It contains objective criteria to guide decision

Appendix 19-H-6

Unit 19

06-2012

Accomplishment

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Tab Position 1

Immigrant Legal Resource Center   April 2014

Detention Reform Accomplishments Date

09-2012

Accomplishment

making, regarding whether an alien should be detained or released, and if detained, the alien's appropriate custody classification level. The Risk Classification Assessment incorporates factors that reflect the agency's civil enforcement priorities. It also requires ICE officers to determine whether there is any special vulnerability that may impact custody and classification determinations. Established a toll-free hotline to better address concerns from the public, including prosecutorial discretion requests, questions about immigration court cases and detention concerns. ICE will expand the hotline to all immigration detention facilities in a multi-phase approach. Full implementation is expected by early 2013.

Unit 19

www.ice.gov/detention-reform/detention-reform.htm (last accessed Feb. 2014)

Appendix 19-H-7

Summary of Policy Reforms

Appendix 19-H-8

Unit 19

Date Accomplishment 2009-04-30 Worksite Enforcement: ICE issued a revised worksite enforcement strategy to focus on prosecuting employers, not simply arresting and removing workers. This policy steps away from the large raids resulting in significant numbers of arrested workers. 2009-07 Refocusing the 287(g) Program: ICE revised the standard memorandum of agreement to restrict the immigration authority delegated to our state and local partners. The new agreements prohibit street officers from arresting aliens solely for civil immigration violations and convey clearly that officers must act in a manner consistent with ICE’s highest priority—the arrest of aliens convicted of crimes, with a particular focus on level one offenders. 2009-09-24 Victims of Crimes: ICE issued a directive to ICE attorneys to move to dismiss cases against aliens who are prima facie eligible for U-visas as the victims of crime. The same document directs that the aliens be granted a stay of removal pending the adjudication of their application for a U-visa. 2009-10-01 Reporting Detainee Deaths: ICE issued a directive to promote transparency and accountability following any detainee death. The directive includes notifications to the Office of the Inspector General, Office of Professional Responsibility, Congress, media, and stakeholders such as nongovernmental organizations. The prior media policy failed to facilitate disclosure to the media, as detailed in a recent New York Times article. See a list of detainees who died in ICE custody. 2009-11-19 U.S. Citizens: To address concerns that some U.S. citizens have been placed in proceedings, detained, and removed, ICE instituted new guidelines to ensure such errors do not occur. 2009-12-08 Parole of Arriving Aliens with a Credible Fear of Persecution: Reversing a 2007 policy that was broadly criticized, ICE issued a policy that presumes all arriving aliens who claim to fear persecution will apply for parole. The policy weighs in favor of release from detention so long as the alien’s identity is reasonably known and the alien does not present a danger to the community or a significant risk of flight.

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 19

2009-12-08 Refocusing Fugitive Operations: To address concern that more “collateral” aliens were arrested during fugitive operations than fugitive aliens, ICE issued new guidance that prioritizes criminal fugitives over non-criminal fugitives. Except in extraordinary circumstances, the policy also prohibits the detention of aliens who are seriously ill, disabled, pregnant, nursing, or the sole caretakers of children or the infirm. 2010-06-09 ICE Strategic Plan: ICE issued a memo outlining its organizational priorities and targeted goals to improve overall performance, effectiveness, and efficiency. 2010-06-30 ICE Civil Immigration Enforcement Priorities: ICE issued a memo outlining the prioritization of its enforcement mission by directing resources toward the apprehension and removal of – 1) aliens who pose a threat to national security or public safety, such as convicted criminals, 2) fugitives, and 3) recent border violators and visa overstays. ** An additional statement was added to ICE Policy 10072.1, "Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens." A memorandum on the policy was reissued on March 2, 2011. The policy contained in the memorandum was not altered or changed. 2010-08-20 Removal Proceedings of Aliens with Pending or Approved Petitions: ICE issued guidance on the handling of alien removal proceedings to increase efficiency from the issuance of a Notice to Appear through the entry of a final administrative order. 2011-06-17 Detainer Form: ICE issued a revised detainer form to clarify the 48-hour rule, notify the subject of the detainer that a detainer has been issued, and increase flexibility for the field to issue a detainer contingent on conviction. 2011-06-17 Prosecutorial Discretion Memo: Certain Victims, Witnesses and Plaintiffs: ICE issued a policy to guide officers, agents and attorneys in how to handle the cases of victims and witnesses of crime and cases of plaintiffs in civil rights suits. 2011-06-17 Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens: ICE issued a new policy to guide officers, agents and attorneys in their exercise of prosecutorial discretion. The policy complements the civil enforcement memorandum issued on June 30, 2010. ICE soon will advise the unions of the implementation plan.

Appendix 19-H-9

Tab Position 1

Immigrant Legal Resource Center   April 2014

www.ice.gov/detention-reform/policy-reform.htm (last accessed Feb. 2014)

Appendix 19-H-10

Unit 19

2012-01-04 Transfer Directive: ICE issued a new transfer directive that will minimize to, the greatest extent possible, the long-distance transfer of detainees within ICE's detention system. This directive establishes requirements for transfer decisions that will substantially reduce the transfer of detainees who have family members in the area, local attorneys, or pending immigration proceedings. 2012-12-21 National Detainer Guidance: This guidance limits the use of detainers to individuals who meet the Department's enforcement priorities and restricts the use of detainers against individuals arrested for minor misdemeanor offenses such as traffic offenses and other petty crimes, helping to ensure that available resources are focused on apprehending felons, repeat offenders and other ICE priorities. It is applicable to all ICE enforcement programs, including Secure Communities. 2013-04-22 Civil Immigration Detention: Guidance for New Identification and Information-Sharing Procedures Related to Unrepresented Detainees With Serious Mental Disorders or Conditions: ICE issued guidance for new identification and information-sharing procedures related to unrepresented detainees with serious mental disorders or conditions. 2013-08-23 Parental Interests Directive: ICE issued a directive that compliments existing ICE policy and procedures to address certain alien parents. The directive addresses the placement, monitoring, accommodation, and removal of certain alien parents or legal guardians. 2013-09-04 Review of the Use of Segregation Directive: ICE issued a directive that establishes policy and procedures for the review and oversight of decisions to place ICE detainees in segregated housing for over 14 days, or placements in segregation for any length of time in the case of detainees for whom heightened concerns exist based on factors related to the detainee's health or other special vulnerabilities. The purpose of the Directive is to ensure that detainees are housed in segregation only when necessary, and that less restrictive options are utilized when appropriate and available.

Tab Position 1

A Guide for Immigration Advocates April 2014

 

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-2

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-3

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-4

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-5

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-6

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-7

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-8

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-9

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-10

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-11

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-12

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-13

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-14

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-15

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-16

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-17

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-18

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-19

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-20

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-21

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-22

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-23

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-24

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-25

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-26

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-27

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-28

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-29

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-30

Unit 19

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 19-I-31

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 19

Appendix 19-I-32

Unit 19

Tab Position 1

=

UNIT TWENTY NEGOTIATION SKILLS AND BUILDING COMMUNITY SUPPORT

Tab Position 1

A Guide for Immigration Advocates April 2014

This Unit Covers:   

Techniques for negotiating with CIS and ICE; Preparing clients to negotiate with CIS and ICE; Building community support

This Unit Includes: § 20.1 § 20.2 § 20.3 § 20.4 § 20.5 § 20.6 § 20.7 § 20.8 § 20.9 § 20.10 § 20.11 § 20.12 § 20.13

What Is Negotiation? ........................................................................................ 20-2 Clients as Negotiators....................................................................................... 20-2 Negotiating: Practical Tips ............................................................................... 20-4 Negotiation Strategies ...................................................................................... 20-6 Introduction ...................................................................................................... 20-9 Obtaining Letters and Testimony ................................................................... 20-10 Organizing Campaigns in the Immigrant Community ................................... 20-10 Encouraging Clients to Be Advocates ............................................................ 20-12 Helping Immigrants Form Immigrant-Based Committees ............................. 20-13 Committee Activities...................................................................................... 20-15 Media Coverage ............................................................................................. 20-17 Effectiveness of the Public Campaign on Family Unity ................................ 20-18 Public Campaign on Income Requirement for Affidavits of Support: The Ana Rivera Case................................................................... 20-19

Victor filed his naturalization application over two years ago. He has called CIS several times and even filed a second application but cannot get an interview. The Border Patrol has started to visit local elementary and junior high schools. Officers are asking children about the immigration status of their parents. Some parents are keeping their children home from school out of fear that ICE will arrest the children. Mr. and Mrs. Morales qualified for legalization, but their children did not qualify for Family Fairness. In 1990, the Immigration Service put their children under deportation proceedings and the children were ordered to leave voluntarily by a certain date. These problems were solved by negotiation and community action.

Unit 20

20-1

PART ONE: NEGOTIATING WITH THE IMMIGRATION SERVICE § 20.1 What Is Negotiation? Negotiation is communicating back-and-forth with someone to try to reach an agreement on something. In some cases it means reaching a compromise, in which both sides give in a little. We, as well as our clients, negotiate every day. Families negotiate about what to eat for dinner, what time their teenage children must be home, and how much money to spend. People who work together negotiate about who has to do what task. People negotiate with their landlord about fixing the toilet and with a boss about taking time off from work. Most people, whether they know it or not, have a lot of negotiating experience. In immigration work negotiation is a common way that our clients and we resolve problems with the government. Paralegals, lawyers, clients, and community groups negotiate with CIS, ICE, CBP, and other agencies. Our clients and we negotiate with individual immigration officers to get positive results in their immigration cases. We might negotiate to convince one of the immigration agencies to grant work authorization, to act on a request that has been pending for months, to grant a stay of deportation, to let us look at the client’s file, or simply to find a lost immigration file. Groups of people such as coalitions of community agencies, or concerned members of the community often negotiate with one of the DHS immigration agencies to stop illegal practices, to make changes in policy, or to clarify what CIS, ICE, or CBP policy is on an issue. This can be extremely effective. Part Two of this unit will discuss how community organizing can support these negotiations effectively—and even help change the law. As you may know from experience, negotiating with CIS, ICE, or CBP can be a real challenge. Part One of this unit provides practical tips and looks at some of the skills involved. The ideas here come from paralegals and others who have learned it the hard way—by trying different tactics with CIS, ICE, and CBP. Whether you are an experienced negotiator or someone who is just beginning to deal directly with CIS, ICE, and CBP this section will help you look at your own skills and improve them. In addition, you will see ideas for how to prepare your clients to negotiate. Think of these as suggestions or ideas. They may not always be appropriate given variations in cases.

Unit 20

§ 20.2 Clients as Negotiators Often our clients must negotiate their own cases at CIS or ICE. Legal workers don’t have the time to go with each client every time personal contact has to be made at CIS or ICE. Moreover, clients can be very effective negotiators, sometimes getting better results than a lawyer or legal worker would. Given that we can’t accompany a client on every trip to CIS or ICE, how can we work with them to increase their effectiveness as negotiators?

20-2

Tab Position 1

Immigrant Legal Resource Center April 2014

We have two goals in preparing clients for negotiation. First, we want to help the client resolve his legal case. Second, we want to help the client learn from the experience and gain confidence. This can help him in other negotiating experiences, and it may help him help others who have to deal with CIS or ICE in the future. The following are some suggestions for client preparation: 

Explain why you cannot go with the client to the CIS or ICE, and express confidence that the client can do a good job.



Explain exactly whom the client needs to see at CIS or ICE and how to get to the correct department.



Make sure the client understands what the requirements are for getting what he wants from the CIS, CBP, and ICE. Work with the client on developing and articulating his reasons for needing the specific request.



If you know that the government will try to deny the request, warn the client, and discuss with her possible answers to government objections. If there is written legal authority to support your side such as a regulation or CIS or ICE policy statement, give her a copy of it or a letter from you discussing it, and advise her to use this when she speaks with the immigration officer.



Tell the client to call you on the phone from CIS or ICE if he is denied. You can possibly phone the immigration officer and continue negotiating.



Suggest to the client that she might want to bring a friend with her to the immigration office for support.



Do a role-play (that is, practice) what the encounter with the CIS or ICE worker may be like.



When the client returns, have a “de-briefing” session. If there was a victory, celebrate it and analyze what tactics worked. If the request was denied, talk over the next step. Get information from the client about what happened. You can use this to prepare other people to negotiate with the CIS or ICE. Find out how long the visit took, what questions were asked, with whom she spoke, how well the preparation worked, and other details.

Tab Position 1

A Guide for Immigration Advocates April 2014

Besides our help, clients have important resources: their own life experiences and problem-solving skills, and the help of friends and community. Friends, relatives, and community activists can help the client negotiate. They can provide moral support, help clients practice negotiating, and, in some limited circumstances even accompany clients to CIS or ICE. They may be more assertive and have stronger English skills than the client—or even have experience in dealing with the CIS or ICE.

Unit 20

20-3

Paralegals, clients, or others who negotiate with CIS and/or ICE can use the negotiation tips mentioned in the next section.

§ 20.3 Negotiating: Practical Tips Here are some suggestions to keep in mind when negotiating with CIS, ICE or CBP. 1. Target the Right Person When dealing with bureaucracies like CIS, ICE, or CBP, you can save a lot of time if you first find out exactly who has the power to make the decision that you want. Since these three agencies are large bureaucracies, you can waste weeks trying to get through to one person, only to find out that a different branch of really has your case. Start by knowing what branch or unit will handle the case. Some information is provided in Unit 1, which discusses the structure of immigration service within the Department of Homeland Security (DHS). If possible, get the phone number of that unit and call them to try to make an appointment or to make sure that your letter should go to that unit. Try to find out how long it should take to get a reply. If the reply takes much longer than they said it would, contact them again. 2. If Necessary, Ask to Speak with a Supervisor Example 20.3-a: Marta has brought her clients to a marriage fraud interview. The adjudicator says that he will find that the marriage is fraudulent because the woman did not change her name to her husband’s last name. Marta knows this is wrong and the wife has the right to choose her own name. Marta demands to see the supervisor. She convinces the supervisor to tell the adjudicator that this is not a proper reason. Some decisions, especially ones that affect a large policy or that concern a unique and compelling case, may be best handled by the appropriate DHS agency local director. Example 20.3-b: ICE is detaining asylum applicants from the People’s Republic of China without bond for removal proceedings. A community group supporting the applicants arranges a meeting with the Director to ask her to release the applicants. Before the meeting, the local member of Congress contacts ICE to voice her disapproval.

Unit 20

3. Leave a Paper Trail! If you are having problems with any part of the DHS that handles immigration issues (such as the CIS, CBP, or ICE), it is critical to make a record of everything that happens. Keep careful notes in your client’s file of all of the times you phoned CIS, CBP, or ICE about the problem. If you reach an agreement, write a confirming letter so they know that you are keeping a record. When you write letters, refer to all the previous times you have tried to resolve the

20-4

Tab Position 1

Immigrant Legal Resource Center April 2014

problem. This is much more impressive than saying, “I tried to call several times.” If many people are having the same problem, collect declarations from them and consider sending a group letter or arranging a meeting with whichever part of the DHS you are working with to resolve the problem

Tab Position 1

A Guide for Immigration Advocates April 2014

4. Always Take the Name of the Person with Whom You Speak It is very likely that you’ll need this in later negotiations. 5. Be Well Prepared for Meetings At a CIS, CBP, or ICE appointment you may speak to an adjudicator who has never heard of your case before. Be prepared to prove your whole case from the beginning. Bring:     

an organized file with copies of all relevant documents; notes on the history of the case, including the dates of important actions like filing an application or receiving a denial, and any history that has to do with immigration court; notes on what you want to say during the negotiation; a notepad to take notes during the negotiation; if the client is a negotiator, she will be able to bring a friend to provide moral support and might, in some circumstances, even be allowed to bring a friend to translate. The friend might not be allowed in to the actual interview. She should also bring your phone number.

If possible, talk to other people about the DHS officers with whom you will be meeting. Find out who responds to sympathetic stories and who responds to threats. Share stories of what works with different officers. 6. Know What Your Client Wants; Be Prepared to Compromise Learn what your clients want from the negotiation. Make sure they know all their options. Explore any other alternatives with your clients, their families or other members of their community. Understand what compromises they will agree to (although it is ok to ask for a few minutes to talk with your client alone during the meeting before agreeing to anything). 7. Organize with Others

20-5

Unit 20

CIS, ICE, and CBP will often pay more attention to a group than an individual. Coalitions of agencies (or agencies and attorneys) can get more benefits for their clients than they can by working alone. They can “speak with one voice” to CIS, ICE, and CBP, as well as to the press, local government, and Congressional representatives. They can request official liaison meetings, where they can try to solve problems on a policy level instead of as individual cases. The ILRC has a packet on how to start and conduct liaison meetings. You may form a coalition to deal with just one problem—such as abuses in ICE raids—or to deal with problems on an

ongoing basis. Many existing immigration coalitions or other groups are willing to advise people who are forming a group.

§ 20.4 Negotiation Strategies These strategies may help paralegals, clients, and others who deal with DHS around immigration issues. They apply to face-to-face and telephonic negotiations. Most of these strategies also apply to situations when advocates or clients write letters as a way to negotiate with the DHS around immigration issues. A.

Be Prepared to Make a Legal Argument; Bring Legal Authority and Supporting Documents

Part of negotiating is making a legal argument to the immigration officer. This means using legal authority, arguing the facts of the case, and providing documentation to support your facts. If you are arguing that you are right under the law, be sure to use legal authority. Enclose a copy of the case, regulation, or memo with your request. If you are trying to convince the immigration officer to grant your request as a matter of discretion, prepare it as if it were for an application for a waiver, or for Cancellation of Removal under INA § 240A(b). Bring documents about medical problems, good character, etc. that may make the officer view your client sympathetically. Example 20.4-a: Eliza has been ordered deported to Bolivia. Pedro is helping her to apply to ICE for a temporary stay of deportation (an order stopping her deportation) so that Eliza can be here while her five-year old son has surgery. ICE has the discretion whether or not to grant a stay. Pedro treats this in-person negotiating session like a waiver application. He tells the ICE officer about the hardship caused to the boy if he does not get the operation; that the family can pay for it here with insurance but can not afford the operation in Bolivia; stresses that Eliza has no criminal record and only the one illegal entry; and makes other arguments based on her story. He has documents to support these facts. He finally reaches a compromise with ICE. They will stay deportation for four months instead of the six for which he asked. He understands that there will be no more extensions, unless a doctor says the child is too ill to travel.

Unit 20

B.

Attack the Problem, Not the Immigration Officer; if Necessary, Accept a Reasonable Compromise

Whenever possible, separate the problem you and your client are working on from the immigration officer. Some problems are not the immigration officer’s. Moreover, you probably

20-6

Tab Position 1

Immigrant Legal Resource Center April 2014

will negotiate with the same immigration officers another time. It is important to maintain as good a relationship as possible. Be open to looking at the problem from the officer’s viewpoint and making a reasonable compromise.

Tab Position 1

A Guide for Immigration Advocates April 2014

Example 20.4-b: Lin, a paralegal, is helping Victor apply for naturalization. The CIS has lost Victor’s file, which included his application for naturalization. The application has been pending for almost two years. Victor has even submitted a second application, which is also lost. Lin and Victor make an appointment to see the head of the citizenship branch. Everyone knows that the citizenship branch is busy. At the meeting, Lin and Victor acknowledge that the branch faces a huge task and that officials have been courteous to them, but they stress that after waiting for two years, Victor needs to be naturalized now. They show copies of the many letters they have written to CIS about the problem. They finally make a deal: if CIS has not found the file in two weeks, it will create a substitute file. Victor will submit yet another application at that time, without a fee. Victor’s case will get expedited (fast) processing so he will have his naturalization interview within a couple of months. After the meeting, Lin writes a letter to citizenship the branch head thanking her for the meeting and stating the terms of their agreement. (See Appendix 20-A.) C.

If a CIS, ICE, or CBP Worker Is Behaving Wrongly, Cite the Law; if Necessary, Ask to Speak with a Supervisor

In some cases the CIS, ICE, or CBP worker might clearly be breaking the rules. If possible, be strong but calm and polite. Don’t get personal. A good tactic is to talk about the law and ask the worker to justify his behavior in legal terms. If necessary, ask for a supervisor. Example 20.4-c: Alicia is in a naturalization interview with her client. The client did not file taxes last year because she was out of work and made less money than was legally necessary to file taxes. The CIS adjudicator was going to deny the application based on a lack of good moral character because the applicant didn’t file her taxes last year. The adjudicator is new.’’ Alicia knows her client didn’t have to file taxes last year.’ She would like to say, “Listen you idiot! Don’t you even know the law?” Instead, Alicia remains calm. She tells the officer, “My client only made $3,000 last year and legally did not have to file taxes. Thus, you cannot hold the failure to file taxes against her. I have the Internal Revenue Code section right here showing if she made only $3,000, she didn’t make enough money to have to file taxes. If you insist on denying this application’, I’d like to speak with your supervisor.” The CIS officer finally decides to grant the application.

Unit 20

20-7

D.

Look for Creative Solutions; Consider the Point of View of the Immigration Officer and His or Her Interest in Efficiency

Sometimes CIS, ICE, and CBP will reach a compromise if you can convince them that what you are asking makes sense—for them. Example 20.4-d: During the amnesty program of the late 1980s, community groups in San Francisco wanted to set up a table and have an advocate help people who came to the Legalization Office at the Immigration Service. They formed a coalition and met with the head of the Legalization Department. They pointed out that the Legalization Office was crowded with clients who had a lot of questions and problems. The Immigration Service did not have enough personnel to help all the people. There was a crowd control problem in the office, and some people who were eligible were not applying, which was not good. The Legalization Office agreed to provide space for a full-time community advocate who could counsel the public and distribute educational materials. The advocate worked there for three years. Example 20.4-e: DHS had a procedure where a person had to speak with three different branches to get certain papers. This might take a person several hours. At a liaison meeting with CIS, advocates stated that this not only wasted their clients’ time, it was very inefficient for DHS to tie up three officers. DHS decided to change the practice. Sometimes CIS, ICE, and CBP will reach a compromise if you make it too embarrassing or costly not to reach an agreement. These efforts can be linked to community organizing. Example 20.4-f: ICE has been conducting raids on several street corners in San Jose, California for the last four weeks. Several of the raids have taken place near schools and churches. Frightened parents have kept their children out of school because they do not want ICE to pick them or their children up on their way to school. Community members, school and church officials are outraged because school attendance has decreased. They have joined together and started a group called “Committee for the Rights of Immigrants.” The group has held community forums and several press conferences.

Unit 20

The group is able to schedule a meeting with ICE. People in the group state that visiting schools is not a good way to carry out ICE’s “legitimate” functions. Because of bad publicity and community pressure, ICE makes a formal agreement that it will no longer visit any school in the county.

20-8

Tab Position 1

Immigrant Legal Resource Center April 2014

E.

Practice Negotiating before You Negotiate with Any of the DHS Immigration Agencies

Tab Position 1

A Guide for Immigration Advocates April 2014

Practice with your clients and co-workers by doing role-plays and demonstrations. This is especially useful for people who are just beginning to negotiate with CIS, CBP, and ICE. Model cases are included at Appendix 20-C. F.

Keep Aware of Your Other Options: Community Intervention, Presswork, and Working with Members of Congress

These options are discussed more in Part Two. When considering these other options, be sure to know what your client wants. In particular, only certain cases can be helped by the press. In some cases, using the press could backfire and cause harm to your client’s case or to the community. Even if press coverage would be helpful, some clients do not feel comfortable “going public.” Their wishes, of course, must be respected. G.

Use the Negotiating Style That Suits Your Personality

Some people find it works best to be distant and formal with immigration officers; others like to be more friendly and casual. Some people naturally use reason and others tend to be more threatening. With practice you will find what is most comfortable for you. The important things to remember are: don’t let the DHS worker intimidate you; don’t make the fight personal; and, whenever you can, rely on the law.

FOR MORE INFORMATION ON THIS SUBJECT, see Getting To Yes: Negotiating Agreement without Giving In, Roger Risher and William L. Ury

PART TWO: BUILDING COMMUNITY SUPPORT § 20.5 Introduction The first part of this unit discussed negotiation skills generally. Part II of this unit explores in detail how to build community support for individual cases as well as for issues concerning immigrants’ rights. Community support can often help a client win his or her case. In many cases, people from the community can write letters or present testimony in favor of a client. See § 20.6. In more select cases, this community support may involve a public campaign. See subsections beginning with § 20.8.

Unit 20

20-9

The importance of civic participation campaigns is greater now than it has been for many years due to the increase in immigrant bashing and immigrant scapegoating. Now is the time for agencies providing legal services to immigrants to put to use the special relationship they have with new immigrants to help them become voters, activists, organizers, and active civic participants. Now is the time for agencies that have helped people immigrate and naturalize to expand their role and help those same immigrants become more active and powerful players in society.

§ 20.6 Obtaining Letters and Testimony The legal worker must discuss with the client the importance of this support and stress that the client’s active participation is the key to obtaining support. The purpose of the evidence will depend on exactly what the legal worker is trying to establish or prove. In addition to the actual value of the letters or testimony as evidence, community support makes the immigration judge, CIS or ICE official aware that people are concerned with what happens to this person or family. Example 20.6: Juan and his wife Silvia are applying for Cancellation of Removal under INA § 240A(a). They have a seven year-old daughter born in the U.S. Juan has worked at the same job for five years, and received several promotions. To improve his opportunities, he attended two years of adult school to learn English. Silvia does not speak much English. She has just started volunteering at her daughter’s school program. Both attend the local church. A number of people at the church as well as their neighbors are concerned that the Garcias are in removal.

Question for discussion 20.6: Would community support help Juan and Silvia establish the exceptional and extremely hardship requirement for cancellation of removal? What types of things would you suggest that Juan and Silvia do to use this support to help their case?

§ 20.7 Organizing Campaigns in the Immigrant Community

Unit 20

Several discussions throughout this unit (the first reference is on page 20-1) refer to the “Family Fairness” policy, which proceeded, and has been replaced by, the statutory provisions for Family Unity, discussed in Unit 16. The brief description of the Family Fairness policy below in § 20.7 is all you need to know about this policy.

Building a public campaign in support of your clients can help some cases. These are cases that dramatize the problems or situations of immigrants and refugees in general. These

20-10

Tab Position 1

Immigrant Legal Resource Center April 2014

campaigns serve two purposes. First, they can create public pressure, which can help win the case. Second, they educate the public about the need for a more humane immigration and refugee policy. Yet even if you do suggest the campaign, the decision is the client’s. If the client is interested, it is best to review the positive and negative aspects of such a decision together with the client before pursuing the campaign.

Tab Position 1

A Guide for Immigration Advocates April 2014

Clients and the immigrant community must play a central role in this campaign. First, clients have the biggest direct stake in obtaining a just solution to a particular case and general issue. Second, immigrants themselves can provide the most direct and eloquent testimony of the need for change in legislation or policy. Finally, this campaign provides an important opportunity to involve the immigrants and refugees in the process of social and political change in the U.S. In the future, similar campaigns can be waged around other issues affecting immigrants such as: defending immigrants’ constitutional rights during immigration raids; stopping ICE raids altogether; improving the schools for the children of immigrants; repealing overly strict legislation such as AB 1070 in Arizona; helping everyone, regardless of immigration status, the right to a driver’s license; discouraging local law enforcement from assisting ICE; and other issues. In this unit we’ll use an example based on the old INS Family Fairness policy, which preceded the present Family Unity law. See Unit 16. Under the old Family Fairness policy, the spouse or minor child of someone who received amnesty could obtain extended voluntary departure—permission to stay and work in the U.S.—if he or she entered the U.S. prior to November 6, 1986. This story is about one of the many community campaigns which took place in an effort to help individual families and to change the law. The events in this story took place in 1989 and early 1990 before passage of the Immigration Act of 1990 and its Family Unity provision. In fact, lobbyists used this campaign and the publicity from it to get Congress to change the law. Example 20.7: Eduardo and Ester Morales became lawful temporary residents through the SAW program. Their two children, Eduardo Jr., 6, and Norberto, 3, did not qualify for amnesty because they entered the U.S. in 1989. In 1989 Eduardo and Norberto were placed in deportation proceedings and were supposed to leave the United States by May 20, 1990. The INS’ Family Fairness policy was not going to be able to help prevent the separation of the Morales family because the children entered the U.S. after the November 6, 1986 cut-off date. Therefore, the Morales family and their community decided to advocate for a law which would protect families in this situation.

20-11

Unit 20

Congress passed the Family Unity law in 1990, which allows the spouse or minor child of someone who received amnesty to obtain Family Unity status—permission to stay and work in the U.S.—if the spouse or child entered the U.S. on or before specified dates in 1988. See Unit 16. Although the Morales children entered the U.S. after that date, and therefore could not benefit from the new Family Unity law, their case and cases like

theirs generated the necessary pressure to get Congress to fashion relief for many families. Public support of the Morales family helped their children win extended voluntary departure as well. Although this campaign was conducted quite a long time ago, it still serves as a wonderful example of how to make change. Since this campaign was successful there have been many other campaigns such as the statewide campaigns to allow everyone, regardless of immigration status, the right to a driver’s license.

Question for Discussion 20.7: Pretend it is 1990 and you are representing the Morales family. You are reviewing their file because next week, on February 5, 1990, they have an appointment with you. They want to find out what can be done about the May 20th departure date for their children. Do you think a public campaign could be launched to support the Morales’ family? Why or why not? Would such a campaign help their case? Would it help educate the public about the need for a more humane Family Fairness policy?

§ 20.8 Encouraging Clients to Be Advocates Representing a client in immigration proceedings is always a partnership between the legal worker and the client. In all cases, the client should take an active role in his or her own case. This is also very important for a successful public campaign in support of a case. First, because of the ethical problems explained in Unit 13 of this manual, you cannot publicize a case (even without using real names) without your client’s permission. And our clients really are better at presenting their cases to the public than we are because they can tell their stories more effectively and convincingly than we can. Once a legal worker has identified a case for which a public campaign would be helpful, he or she must discuss this strategy with the clients. Ultimately it is the clients’ decision. A client and legal worker must discuss the positive and negative points of such a campaign and decide accordingly. The campaign’s success depends on the clients’ active and enthusiastic participation.

Unit 20

Question for Discussion 20.8: Still pretending that it is 1990, Mr. and Mrs. Morales come to your office for the appointment. How would you present the strategy of a public campaign? What would you tell them about the risks and benefits? What would happen during the campaign? How would you explain their role in the campaign?

20-12

Tab Position 1

Immigrant Legal Resource Center April 2014

§ 20.9 Helping Immigrants Form Immigrant-Based Committees Where appropriate, we suggest that legal workers and community organizers work with immigrants to start immigrant-based committees to campaign for a more just immigration policy. In most instances, it probably will be best to form the committee around a particular issue. The impulse for a committee may even come from the desire to support a particular family (in our example, the Morales family).

Tab Position 1

A Guide for Immigration Advocates April 2014

We suggest that you first see if there is an ongoing community organizing project that already exists in your area that has a strong base in an affected immigrant community. You can contact them to see if they are interested in taking up an immigration campaign. The professional organizers may be interested if they perceive that their grassroots leaders are interested. We at the ILRC had our first very good experience partnering with such an organization, the Sacramento Valley Organizing Committee (SVOC), which is an affiliate of the Industrial Areas Foundation (IAF), and then worked closely with the PICO National Network. There is often a great thirst for information in the immigrant community about a particular law or immigration policy, especially a new change which has been advertised in the press. Community informational meetings might draw hundreds of people. This provides a real opportunity to initiate local committees. We suggest calling a community informational meeting centered on a particular issue of concern. You should publicize the meeting through Spanish-speaking or other foreign language media. The meeting serves two purposes. First, practitioners can communicate essential information about the benefits and limitations of the immigration policy or program. In addition to making presentations, distribute a basic informational leaflet. Second, the organizers can present to the participants the idea of starting a committee to bring about a change in the current law or CIS or ICE practice. In Family Fairness, for example, this flowed naturally from a discussion of the limitations of the policy at the time. There are several components to holding a community meeting. A.

Outreach and Publicity for the Meeting

Strong outreach and publicity efforts make a tremendous difference in attendance at these meetings. Here is a checklist of ideas about outreach:   

20-13

Unit 20

Hold the meeting in a place where immigrants will feel comfortable. This might be a church, community agency or community center with which immigrants are familiar. Contact clients, other community members and other agencies in your community to see if they would like to work together planning the meeting. Together with these groups, develop a flyer announcing the meeting. Distribute this flyer at community agencies, churches, Laundromats, markets, restaurants and other local sites. Send it to clients and ex-clients who might be interested.



Contact the foreign-language media, including radio, television and newspapers. Often radio and television stations will allow community agencies to make free public service announcements.

Question for Discussion 20.9: It is still 1990 and Eduardo and Ester Morales want to start a public campaign to prevent the deportation of their children. You and other practitioners have been talking for some time about calling a general informational meeting about the Family Fairness program. How would you involve Mr. and Mrs. Morales in planning and building for the meeting? In the meeting itself?

B.

The Meeting

Once again, imagining that it is 1990, it is important to present both purposes of the meeting—education and organizing for action—right at the beginning. The following suggestions for what to cover during these meetings are based on experience in forming these local groups around the Family Fairness issue. People will present situations in which they do not qualify for an immigration benefit. We should point out how legislative change (e.g., new cut-off date) will provide a solution to these cases.



Emphasize the importance of the immigrants’ role in the process of change. The organizer might say something like, “The current policy is not good enough. When Congress passed the amnesty law in 1986, many people in government said that they weren’t going to separate families. But they have not provided a solution for the family members who did not qualify. This is not fair. The immigrant families themselves are in the best position to bring this situation to the attention of the American people.”



One of the immigrant leaders with whom you are working or you should distribute a sign up list asking for the names, addresses and telephone numbers of people who are interested in future committee activities.



Prior to the meeting, have a tentative date for a follow-up meeting. The participants may wish to change this date, but it is good to be prepared.



Identify participants who will be leaders and others who will volunteer time. (This is often not possible until the follow-up meeting.)



Solicit and give ideas of concrete activities for the group to do.

Unit 20



20-14

Tab Position 1

Immigrant Legal Resource Center April 2014

C.



Allow the immigrants room to contribute, tell their stories and help plan future events, activities and policies. The more room they have, the more likely they will contribute in the future. They are the best champions for their cause.



Bring up the possibility of supporting families affected most severely by the policy (e.g., the Morales’ case).

Tab Position 1

A Guide for Immigration Advocates April 2014

Follow-Up Meetings

At the first meeting, choose a date, time and place for the follow-up meeting. Try to arrange for a core group of participants (usually prospective leaders and volunteers) to meet prior to the larger follow-up meeting. This core group can plan the follow-up meeting. They can set an agenda and decide which one of them will be responsible for each item of the agenda. At the follow-up meeting, decide whether the group wants to have regular meetings (such as every month) or occasional meetings. Participants should be encouraged to bring family, friends, coworkers and neighbors to the meetings. Follow-up meetings and planning meetings will provide opportunities to train the leaders and volunteers. Many leaders and volunteers already are good organizers, speakers and lobbyists. With a little training on the legal requirements, these leaders and volunteers will be outstanding advocates for the cause. It is important for the committee to have concrete activities in which the members can participate. The following sections discuss some possible activities.

§ 20.10 Committee Activities There are a number of activities which a newly formed committee can undertake. In addition to those listed here, it is important to keep soliciting ideas from the campaign or committee supporters. A.

Establishing Naturalization Liaison Meetings between Community Agencies and the CIS (Formerly the INS)

20-15

Unit 20

The Immigrant Legal Resource Center (ILRC) and National Immigration Paralegal Training Program graduate, Nelly Reyes, worked with community agencies in Northern California to establish an ongoing naturalization liaison between non-profit agencies and the agency then in charge of naturalization adjudications, the Immigration and Naturalization Service (INS). The meetings have continued with the CIS and now include all sorts of CIS issues, not just naturalization. The meetings have been very useful for the community agencies in a number of ways. The staffs from the participating agencies have become more knowledgeable about the practical operation of the CIS naturalization process. The liaison meetings have also served as an informal forum to discuss the agencies’ concerns about the CIS administration of the naturalization process, both in terms of on-going issues as well as individual cases. The meetings

have also resulted in a closer cooperative working relationship between the agencies and the CIS in the context of naturalization. We at the ILRC believe that such liaison meetings have great potential in establishing a cooperative effort to promote naturalization throughout the country.

If you would like a copy of our packet which describes how we initiated and developed the liaison meetings, please visit our website, www.ilrc.org, to download the packet entitled “Establishing Naturalization Liaison Meetings between Community Agencies and the INS.” Click on the menu item “Information on Immigration Law,” then select the “Promoting Citizenship & Civic Participation” category in the list. There is no charge for this packet.

B.

Petitions and Support Letters

Petitions and letters can either request a general change in law or policy and/or ask for a favorable decision in a particular case. Example 20.10-a: Local immigrant-based committees (as well as immigrant rights advocates) can launch support campaigns for families facing forced separation. In the Morales case a group of parents called Equal Rights Congress in Merced, California launched an impressive petition campaign to stop the deportation of the children of the Morales family. The parents of the children played an active role in distributing petitions and speaking about the case. (See Appendix 20-B.) C.

Organizational Endorsements

Gather organizational endorsements for changes in law and policy or support for particular clients. Immigrant and ethnic organizations, civil liberty groups, local governmental bodies, and church groups all should be approached to support this campaign. D.

Obtaining Congressional Support

Often it is possible to obtain help from Congressional offices to resolve particular cases with CIS or ICE. A phone call or letter from a staff person of a local Congressional office can work wonders at CIS or ICE.

Unit 20

Example 20.10-b: The legal worker and members of a community-based committee requested the intervention of local members of Congress on behalf of the Morales family. Then-Congresswoman Barbara Boxer wrote a letter to the INS, requesting that the children’s permission to stay in the U.S. (voluntary departure) be extended. See Appendix 20-B.

20-16

Tab Position 1

Immigrant Legal Resource Center April 2014

In some particularly compelling cases you may request that a member of Congress author a private bill to provide relief for a client. This may be very difficult to obtain. It is only appropriate where all existing administrative and legal remedies have been tried and there is no other solution. Finally, immigrant-based committees can request meetings with members of Congress or their assistants to get support for specific legislation. E.

Tab Position 1

A Guide for Immigration Advocates April 2014

Put Pressure on Officials Where You Can Reach Them

As noted throughout this manual, immigration law is made by the U.S. Congress, in Washington, DC. The Morales family and their advocates helped influence national immigration law because their efforts were joined by other groups throughout the country, and because their joint efforts supported policy advocacy by national immigrant advocacy organizations. However, immigrants, their communities and their advocates can think creatively about influencing policy makers closer to home, as well. For example, in 1994, immigrant advocates supported passage of a resolution in the California Senate urging that the Family Unity law be amended to protect legalized aliens’ family members who entered the U.S. after 1988. Immigrants’ efforts succeeded in getting the resolution passed. See the article about Ana Rivera, which demonstrates problems of family separation, in Appendix 20-D. F.

Presenting Cases in the Media

This is discussed in the next section.

§ 20.11 Media Coverage Legal workers should seek media coverage (TV, radio, newspapers, blogs, and other social media) where it will strengthen their client’s case. The CIS will often approve a case where it fears that unfavorable publicity will result from a denial. In fact, former INS’ own regulations take into account the possibility of adverse publicity as a valid factor in making decisions. See discussion of deferred action in Unit 16. We can’t call the press on all our cases. Legal workers should analyze what cases are best suited for media exposure. The following questions may be helpful.    

Is the client’s situation one with which the general public will be sympathetic? Is there an “angle” or “hook” that will attract the media’s attention? Is publicity likely to put pressure on the CIS or ICE to act more favorably in the particular case? Or, could the publicity backfire and actually hurt the case, the community, or others in similar circumstances? Does the case dramatize policy issues that are important to present to the public?

20-17

Unit 20

Once the legal worker decides that it would be helpful to publicize a case, he or she must lay the choice squarely before the client. In the end, it is the client, not the legal worker, who will live with the consequences of the publicity.

Question for Discussion 20.11: Assuming it is still 1990, do you think it will be helpful to publicize the Morales’ case? Why? If you were the Morales’ legal representative, how would you present the option of publicizing the case?

Example 20.11: The Morales family, their legal worker, and the local committee held a number of press conferences about the case. Media coverage at the deportation hearings was especially dramatic. The media coverage built a great deal of support for the family’s cause. A San Francisco AM radio station ran an editorial requesting that the INS District Director permit the children to say. Advocates collected the news articles and videos of TV coverage for groups in Washington who were trying to change the law. See Appendix 20-B. In 1990 the Family Unity law was finally enacted.

§ 20.12 Effectiveness of the Public Campaign on Family Unity Public campaigns can be effective in marshaling support for individual cases as well as educating the public about immigration issues. Let’s see what happened in the Morales case. Example 20.12: In May 1990, the INS granted the Morales children’s application for an extension of their voluntary departure until October, 1990. This reversed an earlier negative decision. The new decision was clearly a result of the public campaign in support of the Morales family. INS Commissioner Gene McNary wrote a letter about the case to the Morales’ attorney. See Appendix 20-B. The case also helped to dramatize the need for legislative change that would guarantee the unity of amnesty families. As noted above, because of many such efforts, immigration advocates were able to convince Congress to expand the Family Fairness program and make it a statutory right in the Immigration Act of 1990. The new law became what was called the Family Unity law. The date a person must have entered the United States in order to qualify under the Family Unity law changed from November 6, 1986 to one of two dates in 1988.

Unit 20

This campaign did not end then, however. The Morales children, and thousands like them, entered the United States after 1988 and therefore still faced possible separation from their parents. Advocates continued the fight to expand protection of families under the Family Unity Program. As noted above in § 20.10, in 1994 advocates conducted a successful campaign to support a resolution in the California legislature to urge the U.S. Congress to amend the Family Unity statute in order to establish a current cut-off date of entry to protect and spouses of legalized aliens who entered the U.S. after the federal cutoff date of 1988. The Morales family’s case demonstrates that public campaigns have the potential to contribute to a more just immigration policy. With your encouragement, this kind of community 20-18

Tab Position 1

Immigrant Legal Resource Center April 2014

involvement in immigration issues can continue to grow around citizenship, immigrants’ rights to public benefits, preserving all the family based ways of immigrating to the U.S., obtaining a legalization program for all undocumented residents, and others.

Tab Position 1

A Guide for Immigration Advocates April 2014

§ 20.13 Public Campaign on Income Requirement for Affidavits of Support: The Ana Rivera Case On her eighth birthday on September 27, 1996, Ana Rivera had her final deportation hearing before an immigration judge in San Francisco, California. Her mother, Lucia Rivera, who became an LPR through the SAW program, had a low annual income because she worked mainly as a farm worker in the area of Fresno, California. Ana was seeking adjustment of status based on the approved 2A visa petition, which her mother filed on her behalf. Her priority date was current. During the same week of Ana’s hearing, Congress was completing its work on the Illegal Immigrant and Immigrant Responsibility Act (IIRIRA) of 1996, which was enacted a few days later on September 30, 1996. Community groups in Fresno launched a campaign in the weeks prior to the hearing to prevent Ana’s deportation and separation from her family. They tied the effort on Ana’s behalf into a campaign against the proposal in the IIRIRA legislation that a petitioning parent such as Lucia would have to earn up to 200% of the poverty level established by the U.S. Poverty Guidelines. They pointed out that Lucia would have to earn over $30,000 if that proposal became law. The groups, which included Colegio Popular, the Latino Civil Rights Network, and the Immigrant Legal Resource Center, conducted a number of organizing activities, including: lessons in ESL/citizenship classes for citizenship applicants about how the case illustrates our legislative process; a petition campaign that gathered over 1,000 signatures, press conferences and appearances on Spanish radio shows; visits to the local offices of a U.S. Senator and Congressperson; and the visible presence of a group of people with signs about Ana’s situation when President Clinton made a campaign stop in Fresno. The campaign generated a great deal of interest in the immigrant community as well as the general community. The local daily newspaper, the Fresno Bee, covered the case with several articles, including a front-page article the day after the hearing and two editorials. Appendix 20E reproduces three newspaper articles, one of the editorials, and a thank you letter from Lucia Rivera. Appendix 20-D reproduces a prior newspaper article about Ana’s case. The immigration judge granted Ana permanent residency at the hearing. As she walked with her mother and her attorney into the courtroom filled with press, the judge said to Ana gently, “Come up here. You’re the star of the show.” Immediately after the hearing, Ana’s mother Lucia said how happy she was and pointed out how many other families in her situation might not be able to immigrate their children if the new law passed.

Unit 20

20-19

A few days after the hearing, Congress modified the sponsor’s necessary income to require that a person submitting an affidavit of support must generally show that she earns 125% of the poverty level established in the Poverty Guidelines rather than 200% in the original bill. The publicity on the case and Congressional visits by immigrant advocates and Fresno community groups contributed to the nationwide effort which resulted in the modification of this provision. Potential for Future Campaigns. Community groups can work with low income families like Ana Rivera’s to show the public how even the lower income requirements for sponsors required by IIRIRA will result in the separation of many low-income families. Cases like Ana’s put a compelling human face on this issue. New citizens can play a particularly important role in campaigns like this. First, many of them are in the process of petitioning for family members, so they are directly affected by IIRIRA’s affidavit of support rule. Secondly, ESL/citizenship classes for citizenship applicants provide an ideal setting for describing the consequences of IIRIRA within the context of a lesson about how our legislative system operates. Other current and recent campaigns by immigrant groups and others include urging the Congress, the President, and, in some instances, local and state governments and policy makers to: 1. 2. 3. 4.

Permanently extend § 245(i), Enact a new legalization (amnesty) law, Oppose policies that further criminalize immigrants, Grant all immigrants the opportunity of obtain a driver’s license (a state policy issue), and 5. Many others.

Please also see the ILRC’s website at www.ilrc.org for a guide to doing community meetings, including Spanish and English informational packets.

Unit 20

Question for Discussion 20.13: What civic participation and community education projects are you and your agency working on, or could you work on in the future?

20-20

Tab Position 1

Immigrant Legal Resource Center April 2014

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 20

Appendix 20-A-1

Unit 20

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 20-B-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 20

Appendix 20-B-2

Unit 20

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 20-B-3

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 20

Appendix 20-B-4

APPENDIX 20-C Exercise: Community Meeting Facts for Persons Role-Playing the U.S. Immigration and Customs Enforcement (ICE) Negotiators Instructions Read these facts. Each participant will be assigned a role in this exercise. You will be given 15-20 minutes to prepare for a meeting with community members who are upset about some enforcement activity around an elementary school. You must: 1. Come up with an overall strategy of what you want out of this meeting. What is your bottom line? Will you offer anything to the community? Are you going to believe their side of the story? If so, will you admit it or try to minimize it? 2. Make a plan for who will cover which issues in the meeting. 3. Each of you needs to plan a 2- to 3-minute statement for the meeting. Number of participants for ICE: 1-3 Background The U.S. Immigration and Customs Enforcement Agency (ICE) has been stopping and questioning people on street corners near schools in San Jose, Calif., for the last four weeks. You know that community members have complained that ICE picked up several undocumented children on their way home from school. You know that both parents and school administrators are upset and will be at the meeting. You also know that undocumented people have constitutional rights, but they are here illegally and can be placed in deportation proceedings. You realize that stopping children on their way to school could present some public relations problems for ICE and you do not want the press involved in this because it could present an embarrassing situation to your office.

Unit 20

Main Role  John (or Jane) Beasley, head of ICE. You want to try to take the position that the questioning was “legal” and “by the book,” but you don’t really know much law on it or care a lot about the law. You are actually concerned about the image of ICE, although you try to hide it at first. You want people to “like” you. You think you are doing your job by detaining children without legal status, but figure as a practical matter it may not be worth a big controversy. You won’t promise never to stop children, but you might consider staying away from the few blocks around schools if the community members directly ask for a policy concession.

Appendix 20-C-1

Tab Position 1

Immigrant Legal Resource Center April 2014

Optional Roles (only if you need more roles)  Miranda White, General Counsel (attorney) for ICE. You are the legal person. You believe these stops of children were “legal.” You personally don’t like the idea of stopping these detentions, since you believe they are legal. Since Mr. or Ms. Beasley is your boss, you will go along with his positions in the end. Also, you can support giving concessions if it avoids the possibility of a messy lawsuit over this since it would be your job to work on some of it. 

Tab Position 1

A Guide for Immigration Advocates April 2014

Joe Smith, ICE Agent who was involved in some of the activity near the schools. You are a nice enough guy but you did not do anything wrong in your eyes. You were just doing your job and even offered some of the kids some gum when you picked them up. Whenever you arrested someone you did it by the book. You were always polite and nice when you arrested people. No one ever complained to you during the raids about the fact that you were doing your job so close to the school. You thought it was a perfect place to conduct your work because so many undocumented women and children were walking by you and the other ICE agents.

Unit 20

Appendix 20-C-2

Tab Position 1

Immigrant Legal Resource Center April 2014

Exercise: Community Meeting Facts for Community Members’ Roles Instructions Read these facts. Each participant will be assigned a role in this exercise. You will be given 15-20 minutes to prepare for a meeting with the director of ICE in your sector. You must: 1. Come up with an overall strategy of what you want out of this meeting. 2. Make a plan for who will cover which issues in the meeting. 3. Each of you will be permitted to make a two-minute (very short) statement at the meeting, so think about what you want to say. Number of student participants: There is a maximum of seven roles but you do not need to use them all if you do not have enough student participants. Background ICE has been stopping and questioning children on street corners near schools in San Jose, Calif., for the last four weeks. Several undocumented children have been arrested in this way on the way home from school. ICE agents asked some children to take them home with them, which they did. Frightened parents have kept their children out of school because they do not want ICE to pick them or their children up on their way to or from school.

Unit 20

School officials are outraged because attendance has decreased. Tomorrow evening at 5:00 p.m., a group of you will be meeting with the head of ICE, John Beastley, to talk to him about it. You need to plan for the meeting. Each of you needs to speak for at least two minutes during the meeting. Your group must decide what order each member will speak and what each will emphasize during the meeting.

Appendix 20-C-3

Roles  Perry Legal, a paralegal with San Jose Legal Aid. You have spoken with many of the members of the immigrant community who are upset about this. 

L. Gonzalez, a community advocate who works with a group called Raza Unida. Your group has told you that they feel like someone should go to the press about this problem.



M. Delacour, principal of the Rose Hills Elementary School, the school closest to the point where children were being questioned. You are very protective of the rights of your children not to have to fear deportation when going to school. You are also concerned because the low attendance means less state support money to your school.



C. Leyva, a parent of a child, 8-year-old Carmen, who goes to Rose Hills Elementary. Your child is a U.S. citizen and you are a permanent resident. ICE asked your daughter if she had papers and she said no. They asked her to take them home and you were home when ICE arrived. You are furious at this intrusion.



P. Benavides, president of the PTA and a U.S. citizen. The child of your next-door neighbor was put in removal proceedings. You want to speak for your neighbors because they are undocumented and afraid to speak.



L. Smith, owner of a small store one block from the school. You have seen ICE’s abuses and are outraged by them. Many of your most valued customers have been questioned by ICE while taking their children to school.



D. Nguyen, a community leader. You saw ICE’s actions, and many people have come to you complaining about what ICE has done. You have friends who send their children to Rose Hills Elementary School and you think the activities that ICE have been doing in the community are outrageous. You are a refugee from Vietnam.

Tab Position 1

A Guide for Immigration Advocates April 2014

Note: The entire negotiation with ICE will be limited to 15-20 minutes!

Unit 20

Appendix 20-C-4

EXERCISE 2 NEGOTIATING WITHOUT AN ADVOCATE CLIENT’S SIDE - PREPARING THE CLIENT TO NEGOTIATE Number of participants on client's side: 2 OR 3 Instructions: You will have 15 minutes to: 1. Read these facts. 2. Prepare the client (and friend?) to know how to negotiate with U.S. Immigration and Customs Enforcement (ICE) on the case. 3. Prepare their statements for what they will say to ICE. Roles: A. Fong - The advocate. Neither you nor anyone in your office has the time to go to the ICE office with your client. Thus, your client must go alone or go with a friend. (The advocate does not do the negotiation session in this practice. The advocate prepares the client to do it alone.) J. Ramirez - The client. ICE has agreed to grant him or her deferred action status (discussed in Unit 16). S/he is from Dominican Republic and works in a factory that makes plastic bags. S/he has four minor children (all U.S. citizens) that s/he supports. S/he has no spouse. S/he has never before had to try to negotiate anything with ICE. [Optional role] D. Washington - The client's best friend. They work together at the factory. S/he is a native born U.S. citizen who speaks both Spanish and English and can translate. D. Washington is willing to go along to ICE and help in any way possible. Facts: Ramirez needs work authorization because the job is necessary to support his/her family. The boss has demanded that Ramirez bring in proof of work authorization to keep the job. Ramirez went to ICE yesterday to ask for work authorization but ICE officer F. Lucas refused. Fong knows that work authorization for people with deferred action status is discretionary and that it is given to those who can show "economic necessity." Ramirez will have to convince the ICE to grant him or her work authorization on this basis. Fong has prepared a letter to ICE stating why Ramirez needs work authorization (i.e. his/her monthly expenses, and the income s/he needs). Ramirez will go back to see F. Lucas again.

Unit 20

Note: They are going to a very busy ICE office, so they can expect to have only 5 minutes to talk with the ICE officer. Prepare accordingly!

Appendix 20-C-5

Tab Position 1

Immigrant Legal Resource Center April 2014

EXERCISE 2 NEGOTIATING WITHOUT AN ADVOCATE FACTS FOR U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) OFFICER ON RAMIREZ CASE

Tab Position 1

A Guide for Immigration Advocates April 2014

Instructions: You will have 15 minutes to: 1. 2.

Read these facts. Prepare for when the next applicant for work authorization arrives for his or her appointment, by thinking about what facts could get you to give him or her work authorization.

ICE Role: F. Lucas is a low-level bureaucrat who hates his/her job. S/he is pretty inflexible and not very sympathetic, except on the issue of children. Facts: You see that the next applicant is (again) J. Ramirez. S/he has been granted deferred action status. S/he came to you yesterday to ask for work authorization but you refused to grant it. You told him/her that work authorization for people with deferred action status is discretionary and that it is given to those who can show "economic necessity." You are surprised and annoyed that s/he's back so soon. S/he had better be prepared to prove economic necessity. Your initial attitude is that Ramirez is just another one of the million of illegals who think they should work. You are irritated to see him/her back again after you told him/her no yesterday. With a sympathetic approach from Ramirez however, you can be persuaded to grant it.

Note: You are in a very busy ICE office, so keep moving him/her along, and give him/her only about 5 minutes.

Unit 20

Appendix 20-C-6

EXERCISE 3 PRE-HEARING NEGOTIATIONS WITH U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) DISTRICT COUNSEL FACTS FOR CLIENT'S SIDE Instructions: You will have 15 minutes to: 1. 2. 3. 4.

Read these facts. Prepare a strategy on how to negotiate with ICE on the case. Prepare what you will say in the upcoming meeting with the Government Attorney. Anticipate what the Government Attorney will say and how to respond to it.

Number of student participants: Two: the advocate and the government attorney Facts: You are an accredited representative in a community- based organization. Your client, Billy Ho, is a 40 year-old native of Hong Kong. Billy is presently in immigration court proceedings. Billy has been in the United States since 1986. Both his children are United States citizens and the only language they speak, read, and write is English. Billy is going to apply for cancellation of removal and then try to adjust status to become a permanent resident. He has never left the U.S. since he first came here and he has never had problems with the police. He speaks English very well, supports his two children financially and emotionally as an only parent, and has no family in Hong Kong. One of his children has a severe learning disability, and needs to attend a special school to help him with learning (there is no school of the same type in Hong Kong). He is the President of the PTA at his eldest child's school, and his elderly permanent resident mother, whom he takes care of, lives with him. Because he has a pretty good case, you think that the Government Attorney might be persuaded to agree not to oppose the grant of cancellation of removal in the hearing. You have made an appointment to meet with Mr./Ms. Dillon, the Government Attorney on the case to discuss it.

Unit 20

Note: Because the Government Attorney is in such a hurry, you will only have 5 minutes to try to convince him/her, so try to make it to the point!

Appendix 20-C-7

Tab Position 1

Immigrant Legal Resource Center April 2014

EXERCISE 3 PRE-HEARING NEGOTIATIONS WITH U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) DISTRICT COUNSEL FACTS FOR GOVERNMENT'S SIDE

Tab Position 1

A Guide for Immigration Advocates April 2014

Instructions: You will have 15 minutes to: 1. 2. 3. 4.

Read these facts. Prepare a strategy for the upcoming meeting with a representative who wants to negotiate an agreement about a case that is before the immigration judge. Prepare what you will say in the upcoming meeting. Anticipate what the Client's rep will say and how to respond to it.

Number of student participants: Two: the advocate and the government attorney Role: Government Attorney Dillon is extremely over-worked and a little nervous about agreeing to something without checking with his/her supervisor. Facts: You see as you quickly look over the applicant's file (for the first time) that this is about Billy Ho, a 40 year- old native of Hong Kong who is currently undocumented. Billy is presently in immigration court proceedings. Billy has been in the United States since 1986. That's about all you can tell from the file, except that he is applying for cancellation of removal, with plans to adjust status to become a permanent resident. During this meeting, you are not unsympathetic about the case and tend to agree that the judge would probably grant the case anyway. You can be persuaded if the other side appeals to your own interest in not wasting time preparing for a case that could be settled. However, you are limited to (at most) saying you will agree to ask you boss about it since you don't have authority to decide this alone.)

Note: Because you are in such a hurry, you will only have 5 minutes to try to do this meeting and reach a conclusion!

Unit 20

Appendix 20-C-8

EXERCISE 4 NEGOTIATING TO GET ACTION ON NATURALIZATION CASE CLIENT'S SIDE Instructions: You will have 15 minutes to: 1. 2. 3. 4.

Read these facts. Prepare a strategy on how to negotiate with U.S. Citizenship and Immigration Services (CIS) on the case. B. Goode should prepare the client for what s/he will say in the upcoming meeting with CIS. You should decide what B. Goode will say at the meeting.

Number of Student Participants: Three: the client, the advocate and the CIS supervisor. Roles: B. Goode, an accredited representative at Community Immigration Services. S. Long, a client of B. Goode. You have been a lawful permanent resident for 15 years and have never left the county since you immigrated. You had some criminal problems six years ago, when you were convicted of misdemeanor shoplifting in a store. You were sentenced to eleven months in jail. Then you had to serve three years of probation. You have had no criminal problems either before or since. You are working and have an infant child. Facts: S. Long wanted to become a U.S. citizen. B. Goode analyzed the case and said that the crime would not bar S. Long from getting naturalized since the crime was so long ago, but that it might cause problems because CIS would have to decide if S. Long had good moral character for a long enough time. S. Long applied for naturalization two and a half years ago. CIS interviewed him/her and s/he passed the English/Civics test over a year ago. As B.Goode suspected, CIS said that they couldn't approve the application at that time because they needed time to decide whether s/he had good moral character. They said that it would take about two months to decide, but you haven't heard anything yet. B. Goode made an appointment to talk to Mr/Mrs. Bridges, the head of the naturalization unit about the case.

Unit 20

Note: You will be given a total of 10 minutes for the entire negotiation!

Appendix 20-C-9

Tab Position 1

Immigrant Legal Resource Center April 2014

EXERCISE 5 NEGOTIATING WITH U.S. CITIZENSHIP AND IMMIGRATION SERVICE (CIS) TO GET ACTION ON A NATURALIZATION CASE

Tab Position 1

A Guide for Immigration Advocates April 2014

Instructions: You will have 15 minutes to: 1. 2.

Read these facts. Prepare a strategy for your next appointment with a representative and her client S. Long, who applied for naturalization. You will need to decide how you think you will decide on the case and what you plan to ask and tell the representative.

Number of Student Participants: Three: the client, the advocate and the CIS supervisor. Role: Mr./Ms. Bridges is the supervisor of the naturalization unit of CIS, and is initially distrustful of this "criminal." S/he is very defensive about the delays in the naturalization department. But s/he is often persuaded to hurry things both in order to get your work done and because of the fear of lawsuits. S/he is working and has an infant child. Facts: You see from the file that S. Long, the applicant, had some criminal problems six years ago, when he/she was convicted of misdemeanor shoplifting in a store. He/she was sentenced to eleven days in jail. She then had three years of probation. S/he has had no problems either before or since this arrest. S. Long applied for naturalization two and a half years ago. CIS interviewed him/her and s/he passed the English/Civics test over a year ago, but CIS said that they couldn't approve the application at that time because they needed time to decide whether s/he had good moral character. You see from the file that CIS has not really done anything since then on the case, but CIS didn't find anything else bad on the client when they did a few background checks. You can be won over on the good moral character issue if approached on the basis of what a spotless life the client has led since the trouble. You do have the authority to decide the case now.

Note: You will be given a total of 10 minutes for the entire negotiation!

Unit 20

Appendix 20-C-10

Unit 20

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 20-D-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 20

Appendix 20-D-2

Unit 20

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 20-E-1

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 20

Appendix 20-E-2

Unit 20

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 20-E-3

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 20

Appendix 20-E-4

Unit 20

Tab Position 1

Immigrant Legal Resource Center April 2014

Appendix 20-E-5

Tab Position 1

A Guide for Immigration Advocates April 2014

Unit 20

Appendix 20-E-6

Unit 20

Tab Position 1

=

UNIT TWENTY-ONE HISTORY OF IMMIGRATION LAW AND POLICY AND EMPLOYMENT-BASED IMMIGRATION

This Unit Covers:  

Part One provides an overview of the history of U.S. immigration law1 from the first immigrants to current policy debates; Part Two covers an overview of permanent resident visas gained through employment2

This Unit Includes: § 21.1 § 21.2 § 21.3 § 21.4 § 21.5 § 21.6 § 21.7 § 21.8 § 21.9 § 21.10 § 21.11 § 21.12 § 21.13 § 21.14 § 21.15 § 21.16 § 21.17 § 21.18 § 21.19 § 21.20 § 21.21

The Interests That Affect U.S. Immigration Policy ......................................... 21-2 The First Immigrants (Colonial–1800)............................................................. 21-4 European Immigration to the East Coast, the First Wave: 1800s ..................... 21-5 Chinese Immigration to the West Coast, 1848–1890 ....................................... 21-6 The Second Wave of Europeans (1880–1915) ................................................. 21-8 West Coast II, Mexican Migration (1900–1930) ............................................. 21-9 1938–1965: World War II and McCarthyism ................................................ 21-10 Changing Political Views (1965–1976) ......................................................... 21-11 Refugee Act of 1980 and Act of 1986 ............................................................ 21-12 The Anti-Immigrant Crusades of the 1990s ................................................... 21-13 The Effects of September 11 .......................................................................... 21-16 Conclusions .................................................................................................... 21-18 A Word to Nonprofit Agency Staff on Employment Visas............................ 21-18 Overview and Relation to Other Immigration Options .................................. 21-19 The Employment-Based Preference System .................................................. 21-20 The First Preference: Extraordinary Aliens, Outstanding Professors and Researchers, Multi-National Executives and Managers .......................... 21-21 The Second Preference: Professionals and Exceptional Ability Immigrants ......................................................................................... 21-23 The Third Preference: Professionals, Skilled Workers and Other Workers ......................................................................................... 21-25 The Fourth Preference: Special Immigrant Religious Workers ..................... 21-27 The Fifth Preference: Special Immigrant Investors........................................ 21-28 Labor Certification ......................................................................................... 21-30

1

This section on History of Immigration was first written in 1994 by Christal Archibald, Boalt Hall School of Law, Class of 1996; with subsequent updating by Amita Vasudeva, Legal Program Assistant, ILRC; Susan Lydon, former Executive Director, ILRC; and Katherine Brady, Esq., ILRC. 2 This part was written by Neil Grungras, an immigration attorney in private practice in San Francisco, California. He writes and lectures frequently on employment-based immigration. The 2001–2008 updates were written by Erica Tomlinson, Esq.

21-1

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

§ 21.22

Special Considerations: Adjustment of Status and Consular Processing for Employment-Based Immigrants ............................................. 21-37

PART ONE: A BRIEF HISTORY OF U.S. IMMIGRATION LAW AND POLICY Immigration has always been a highly politicized issue in the United States. In good times, immigrants have been welcome, while in difficult times immigrants have often been scapegoated. This is as true today as it has been at other times in our history. For example, in the bad economic times of the early 1990s, U.S. immigration policy became a political flashpoint in much of America, and many Americans supported some of the most extreme measures against immigrants. Some of the proposals that had wide public support included: barring undocumented immigrant children from public schools; barring access to public benefits for legal immigrants; and calling for a moratorium on immigration. Since September 11, 2001, anti-immigrant sentiment has increased dramatically across the nation over national security concerns. As a result, today the government engages in racial profiling of immigrants and citizens of Arab, Muslim, and South Asian descent. This has engendered more anti-immigrant sentiment in the public through the politics of fear. In reviewing immigration history, one sees that this is not the first time that newcomers among us have been demonized and scapegoated, and blamed for bad economic times. Learning and teaching others about our history of both welcoming and despising immigrants may help us promote a discussion on current policy based in fact rather than fear.

§ 21.1 The Interests That Affect U.S. Immigration Policy 1883: Emma Lazarus writes her poem that is inscribed on the Statue of Liberty welcoming immigrants in the harbor of New York City. Give me your tired, your poor, your huddled masses, yearning to breathe free; The record refuse of your teeming shore, Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door! 1882, 1884: The first of the Chinese Exclusion Acts are passed and amended by Congress, barring all workers from China from immigrating to the U.S. How is it possible that these contradictory expressions of our feelings about immigrants could co-exist at the same time in our history? Is our country just a bit schizophrenic?

21-2

In U.S. history, immigration has always had many strong voices in favor and at times equally strong voices against it, co-existing at the same time. We will identify these different voices in terms of different “interests,” either pro-immigration or anti-immigration. On immigration questions, it is inadequate to try to identify these interests as merely “conservative” or “rightist” and “liberal” or “leftist.” For example, through most of U.S. history organized labor has been anti-immigration, although usually identified as the “left.” Business interests have historically been more “pro-immigration.” Unions, once made up of primarily native-born U.S. workers, historically feared that immigrant labor would undercut the gains that they had won in working conditions.3 Business interests, on the other hand, often view immigration as a means of acquiring a type of labor that they need or prefer—either those willing to work at lower wages or, sometimes, to bring in highly skilled labor from other countries. The other pro-immigration interests are sometimes ideological: for example, those who see immigration restrictions as an unwelcome limitation on a free market capitalistic international system; those from a leftist perspective who believe in free or unrestricted borders from a human rights or civil liberties perspective; and those who believe in providing refuge from a humanitarian perspective. We can identify other pro-immigration interests: for example, persons from abroad who wish to immigrate to the U.S. or recent immigrants who want to petition for their families. But, as you will see, these unorganized interests have historically had little power or voice in the debate compared to organized economic or ideological interests. On the anti-immigration side, the history of anti-immigration movements and organizations in the U.S. is unfortunately rife with both racism and “xenophobia” (fear of foreigners.) These are two powerful, emotionally charged reasons for the depth of the hatred that so frequently has been unleashed on new waves of immigrants to our shores. A continuing theme in U.S. history of those that fear new immigrants is that the new group of immigrants—no matter where that group is from—is so culturally different that they are unable to “assimilate” to “mainstream” U.S. culture. They are identified as not having the same values, and as being morally less fit in some way (criminals, prostitutes, drug and alcohol abusers, or lazy). From the beginning of U.S. history, some anti-immigrant forces have claimed that the new group is less intelligent than settled people and that they are not learning to speak English. For brevity we will be focusing on three main groups of immigrants out of the hundreds of nationalities that have contributed to the U.S.: Europeans; Chinese; and Mexicans. As we give a brief overview of the history of immigration laws, keep in mind the following questions:  

How did various groups (business, labor, grassroots, civil rights, etc.) influence the changes? What has been the public perception of immigrants at different times in our history?

3

Unions, such as the AFL-CIO are currently pro-immigrant, since a large part of their constituency consists of immigrant workers.

21-3

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014



What have been the factors that influenced the public’s perception about immigrants at that time? (Labor shortages or excess; economic boom or depression, organized campaigns by groups in favor or opposed, etc.)

§ 21.2 The First Immigrants (Colonial–1800) The first wave of voluntary immigrants to what would become the U.S. came primarily from Europe: Spain; Portugal; France; England; Holland; Sweden; and Germany. These Europeans were either merchants looking to trade and barter, or settlers in search of religious freedom. The indigenous people that they encountered in what was later termed the “New World” (which we now know as Massachusetts, Rhode Island, New York, and Virginia) at first welcomed these immigrants. Two other significant groups of immigrants involuntarily came to the British colonies in North America during this time period: English convicts and African slaves. The slave trade, which started in 1619, resulted in 350,000 people being transported from Africa to the New World by the time it ended in 1807. While the colonists generally wanted the slaves in the Colonies as a form of cheap labor with few rights, they viewed English convicts as a potential nuisance dumped onto the Colonies. Under the English Parliamentary Law of 1663, about 50,000 “rogues, vagrants, and sturdy beggars” were sent to the Colonies. Eventually the Colonies fought back with several of them passing laws against the practice of English “dumping” of their criminals in the Colonies. Ironically, this law opposing the immigration of convicts was passed by some recent descendants of criminals that had earlier been sent to the Colonies. As the United States was being formed, the “founding fathers” did not recognize Native Americans, nor African slaves and their descendants as U.S. citizens. Yet the population of European-Americans at that time was not all English-speaking people of British descent. However, even at that time, there was a debate among the “Founding Fathers” as to how they viewed the new United States—was it a country that viewed itself as White, Anglo-Saxon, and Protestant, or was it a country that could welcome newcomers from different countries and different religions? The two factions coalesced in the years following the Revolution into two political groups: the Federalists and the Republicans. The Federalists were primarily afraid of the possibility of French immigrants radicalized by the French Revolution, coming to the U.S. and creating political turmoil. Playing on Americans’ fears of the upheaval in Europe, the Federalists convinced the Congress in 1795 to enlarge the residence requirement for citizenship from 2 years to 5 years. By 1798 there was more anxiety over events in Europe. When the Federalists gained control of the government, they changed the citizenship rules to fourteen years of residence and

21-4

created the Alien Enemies Act & Friends Act and the Alien Sedition Act. These laws allowed the President to deport any alien believed dangerous to national security. In 1800, the Republican Party gained power and did not renew the Alien and Sedition Acts. In 1802, the Republicans moved the citizenship requirement back to five years, where it remains to this day. For the next 80 years, the federal government did little to regulate immigration.

§ 21.3 European Immigration to the East Coast, the First Wave: 1800s During the first three decades of the 19th century, immigration from Europe to the U.S. either held steady or even decreased. From 1776 to 1819, 250,000 people immigrated from Europe to the U.S. From 1819-1829 the number decreased to 125,000 people. By mid-century, however, European immigration had skyrocketed. Between 1830 and 1860, 4.5 million Europeans immigrated. This first distinct “wave” of European immigration was mostly comprised of Irish Catholics and German Catholics. To understand why they came to the U.S., one must look at both the “push factors” (those conditions that made them ready to leave their home country) and the “pull factors” (what specific conditions made them immigrate to this country). The factors that pushed the Irish and Germans to leave their home countries are well known. The potato famine in Ireland combined with the confiscation by the British of the Irish lands forced millions to leave. Likewise in Germany, an economic depression in the 1840s and religious intolerance of Catholics caused emigration. However, somewhat less commonly known is that these immigrants were actively recruited by U.S. employers and even by the various state governments of the U.S. The U.S. government authorized private recruiters to recruit workers in Europe and “contract” them to work for an employer until they had paid off their passage to the U.S., or longer. Why was there such a demand for immigrants in the U.S.? There were two reasons: first, the U.S. was industrializing at a rapid pace and the workers were needed for production, and second, the U.S. government and the states were interested in staking out a claim for the western half of the U.S. against both the native people and against the Spanish by populating it with northern European settlers. Today, of course, the descendants of Catholic Irish and Germans from this wave of immigration are completely assimilated into and accepted within U.S. society. However, the resistance of the native born, primarily Protestant Americans at the time was fierce. The Congressional Select Committee on Immigration in its July 1838 report warned: … the number of emigrants from foreign countries into the U.S. is increasing with such rapidity as to jeopardize the peace and tranquility of our citizens if not the permanency of

21-5

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

the civil, religious, and political institutions of the United States.… Many of them are the outcasts of foreign countries: paupers [poor], vagrants and malefactors [bad people] … sent hither at the expense of foreign governments to relieve them from the burden of their maintenance. Irish immigrants were barred from many jobs. The anti-Catholic and anti-Irish sentiment among the population was extremely high. Political groups like the secret Order of the Star Spangled Banner and the Know Nothing Party organized to try to get a ban on Catholic immigration. They claimed that Catholic immigration was a papal plot to culturally overwhelm the U.S. The anti-Catholic riots in U.S. cities at that time are still among the largest ethnic riots ever in our history. These forces against immigration were intense, but, as we noted above, so was the need for more industrial labor and more settlers. Eventually, rather than limit the numbers of immigrants, Congress instead reacted in 1875 by creating the first “exclusion laws” barring prostitutes and convicts. “Idiots” and the poor were added to the list in 1882. This is a significant turning point because it marked the end of the prior “open” period of immigration policy.

§ 21.4 Chinese Immigration to the West Coast, 1848–1890 Chinese peasants and laborers began coming to the United States in the 1840s because of a population explosion and rice shortage in China. They were further pushed to leave by the unrest caused by the Opium War (1839-42) and the Taiping rebellion (1850-64). U.S. business started to recruit Chinese to work as contract laborers in the Western U.S. during a time of labor shortage. It was actually cheaper for U.S. employers to get laborers from the other side of the Pacific than to transport workers from the Eastern part of the U.S. The employers recruited young, single men who intended to come to the U.S. and work temporarily, save money and return to China. The recruitment of Chinese laborers was initially supported by business interests and politicians in the West. The Governor of California went as far as suggesting that the government should give land to the Chinese to encourage them to settle in California. When gold was discovered in California in 1848, many Chinese tried their luck at gold mining. They were frequently relegated to working in gold mines abandoned by whites. After the Civil War, Chinese immigrants were employed to build the water levees that transformed much of California’s Central Valley into a rich agricultural region. The Chinese also played a major role in completing the Western half of the railroad that linked the East and West Coasts. The total number of Chinese immigrants coming to the country at that time was relatively small. In 1860, 40,000 Chinese immigrated to the U.S., but by 1880, over 100,000 Chinese immigrated.

21-6

After the levees and railroad were completed, the Chinese did not return to China because of the lack of economic opportunity there. Instead they turned to U.S. industrial cities to work in the service industry as cooks and launderers. At this time, the initial welcome chilled. By 1858, the State of California had passed a law to bar entry of Chinese and “Mongolians.” In 1862 the state legislature passed a “police tax” of $2.50 per Chinese resident. In 1879, the second Constitution of the State prohibited towns and corporations from hiring Chinese and required towns and cities to remove Chinese outside of the city limits. Americans in the Western states formed groups, such as the Knights of Labor, and Workingman’s Party of California to fight the presence of Chinese. Not coincidentally, the pressure against Chinese workers reached its peak during the economic recession of the 1870s. Unions argued that “native” labor needed to be protected against immigrants who were taking jobs from them. The severe racism inherent in the Workingman’s Party is clear from passages from its Manifesto, published in 1876: To an American death is preferable to a life on a par with the Chinaman.… Treason is better than to labor beside a Chinese slave.… The people are about to take their affairs into their own hands and they will not be stayed either by … state militia or U.S. troops. As this Manifesto threatened, anti-Chinese riots and violence became common place in the American West. Eventually Congress decided that the anti-Chinese feelings of the voting public outweighed the advantages Chinese labor gave the economy. Congress eventually responded with sweeping anti-Chinese immigration laws of its own. In 1870, Congress let those of African descent become citizens, but not the Chinese. In 1882, the U.S. enacted the first of three Chinese Exclusion Acts, which virtually stopped Chinese immigration, and marked the first time the U.S. had controlled migration based on national origin. In 1888, only ten Chinese entered the U.S. The Chinese exclusion laws were repealed in 1943, when China was an American ally during World War II. However, the annual quota of Chinese allowed to immigrate at that time was only 140! Chinese immigrants also were allowed to become naturalized U.S. citizens in 1943. The history of other Asian immigrants to the United States parallels the experience of Chinese. Periods of welcome were followed by eras of rejection for Japanese (Gentlemen’s Agreement of 1907) and Asian Indians (1917 Asiatic Barred Zone). Filipinos, who were noncitizen nationals after the U.S. takeover of the Philippines in 1898, were eventually granted independence (1934 law becoming effective in 1946) largely to render them “aliens” subject to exclusion laws.

21-7

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

§ 21.5 The Second Wave of Europeans (1880–1915) The second wave of European immigration occurred during the period between 1860 and 1915. Large numbers of these immigrants were from Southern and Eastern Europe, and many were Jewish. Between 1896 and 1915, Russia, Austria and Italy accounted for 60 percent of U.S. immigrants. These new arrivals were seen by Americans already settled here as dark-skinned and undesirable. Jewish immigrants had the double burden of having to face discrimination based upon their religion. As with most immigrants, there were both incentives luring them to the U.S. and factors in their home countries pushing them out. In Europe there was an economic shift from a largely agriculturally-based economy to a newly-industrializing economy. This resulted in migrations within European countries, with people moving from farms to cities; while people were leaving behind the agricultural life they had always known, many took the extra risk and moved to U.S. cities. As industries in the U.S. were rapidly expanding, immigrants from Mexico and Europe were recruited to fill jobs requiring little training and long, hard work hours. By the 1870s the competition for immigrant labor had become so fierce that state governments actually set up “immigration bureaus,” advertising in newspapers in Europe and even sending their own agents to Europe to personally recruit immigrant workers. While there was a large need for immigrant labor, there was also a strong anti-immigrant feeling among the native born population who saw this group of immigrants as “morally inferior.” As a compromise between the business interests that wanted more immigrants and the part of the population that feared that allowing in Italians, Jews, and Greeks would bring with it— as Senator Henry Cabot Lodge put it—a “decline in the quality of American citizenship,” in 1891 the first medical examinations were required when an Act barring people having, “loathsome and contagious diseases” was enacted. It also excluded those convicted of “crimes of moral turpitude.” Interestingly, the 1891 Act also forbade advertising in foreign countries which encouraged immigration to America. In 1903 anarchists and other subversives were also added to the exclusion lists, as Congress feared radicals coming from Europe. In 1907, the popular fear of immigrants coming who would be unable to support themselves became written into another exclusion barring those “likely to become a public charge.” Many of these exclusions are still on the books today. In response to the release of a number of pseudo-scientific reports on the inferiority of certain races, as well as the growing anti-immigrant sentiment by native-born people, in 1909 Congress and the President established the Dillingham Commission, which was to report on the effects of immigration on the country. The Commission concluded that 20th century immigration was different from earlier immigration and that it was dominated by “inferior peoples.” Because of this, it argued, the U.S. no longer benefited from liberal immigration policies and should become more restrictive. The Commission recommended that the U.S. not accept any more people from Eastern and Southern Europe and that a literacy test be required.

21-8

Whether to add an exclusion ground for those who were not literate in some language was strongly contested. Congress passed literacy test statutes in 1912 and 1915, but they were vetoed by President Cleveland both times. Literacy was being pushed as an issue at this time because such a high portion of the poor immigrants, mainly peasants from the sending countries that the anti-immigrant forces saw as “inferior,” were not literate. In 1917 Congress finally overrode the presidential vetoes and passed the first comprehensive immigration act, which included a literacy test requirement. In an atmosphere of heavy racial and ethnic prejudice, the country moved closer to barring immigrants based on their ethnicity. In 1917, Congress created an “Asiatic Barred Zone” under which no Asian immigrants were allowed except for a few Japanese, who were then being employed in agriculture on the West Coast in accordance with the Gentlemen’s Agreement of 1907. In the Quota Laws of 1921 and 1924, Congress enacted quotas for how many immigrants could come from each country, and excluded all Japanese. The quotas in the 1921 Act were based on how many immigrants from each nationality were in the U.S. in the 1910 census. Since the population of the U.S. was still overwhelmingly descendants of Northern Europeans, the 1921 Act insured that it would continue to be so. The Acts continued to bar Asians completely. All of the Western Hemisphere countries (North, Central, and South America) were exempt from the quotas. The National Origins Quotas effectively stopped the large in-flow of immigrants and marks the end of the second large wave of European immigration.

§ 21.6 West Coast II, Mexican Migration (1900–1930) At the end of the Mexican American War in 1849, the U.S. claimed the right to land we now know as the states of California, Texas, Arizona, New Mexico, and parts of Colorado, Utah and Nevada. The Treaty of Guadalupe Hidalgo gave all Mexicans in these areas the option of returning to Mexico. Some Mexicans did return, but most did not and they continued to live in what was now the U.S. Sharing such a long land border in a relatively unpopulated region, neither the U.S. nor Mexico did much border “enforcement.” A “border culture” developed among the people who lived close to the border. The difference between what was Mexico and what was the United States was not important to American businessmen and laborers, nor to Mexican children, and laborers would make their homes in one country, and go to school or work in the other country. A border-crossing tradition developed, where people followed the examples of their parents and grandparents in finding temporary work in the U.S. Between 1880 and 1900, even with the above custom, few Mexicans sought to live permanently in the United States. There was no perceived “Mexican border problem”; in fact, Mexican immigrants were exempt from the National Origins Quotas. (They were also exempt from the 1917 “head tax” and the literacy requirement that other immigrants had to meet.)

21-9

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

However, at the turn of the century, Mexican immigration rose dramatically. One major reason that Mexican immigration increased was because U.S. employers started to recruit Mexicans to work in agriculture, since both Chinese and Japanese were excluded from working in the United States. Their recruitment efforts were successful because of civil unrest and economic disruption in Mexico before and during the Revolution of 1910. When World War I arrived and the Southwestern U.S. needed labor, Mexicans were recruited in larger numbers. By 1920, around 350,000 Mexicans had entered the United States. During the 1920s, probably half a million Mexicans crossed the border. From 1900 to the 1930s, there were many organizing drives by unions among western agricultural workers. Some employers intentionally recruited Mexican immigrant labor in order to break the unionizing drives. Mexican immigrant workers were at a disadvantage because they were unfamiliar with unions and could be easily deported by their employers. When Mexicans did organize, as in the 1928 Imperial Valley agricultural strike, the employers simply deported them. (Over 3000 Mexican farmworkers were rounded up and deported in that strike.) The first organized campaign against Mexican immigrants occurred, not coincidentally, during the Great Depression of the 1930s. In the “Mexican Repatriation” campaign, massive law enforcement raids in the Southwest sent hundreds of thousands of people of Mexican descent (including U.S. citizens) back to Mexico. These large scale raids were undertaken by the INS, the Border Patrol and local police officers. This was a highly coercive program whereby people of Mexican descent were forced to return to Mexico. One estimate is that of the 500,000 people who were forced to return, over half were actually native born U.S. citizens.

§ 21.7 1938–1965: World War II and McCarthyism During and after World War II, the United States’ immigration policies began to reflect the country’s changing views on foreign policy. Beginning in the 1920s, immigration admissions were based on a quota system—a limited number of people from each country were allowed to immigrate to the U.S. In a world in which huge numbers of people had suddenly become refugees, our isolationist immigration policy came to be seen as inhumane. In 1939 a bill that would have allowed 20,000 children to be rescued from Nazi Germany was defeated by Congress on the grounds that doing so would result in exceeding Germany’s immigrant quota of 27,370 persons. Others fleeing Nazism, even when they made it within the strict quotas, were denied entry on the grounds that they were likely to become a public charge (i.e., too poor). The heartlessness of our immigration laws was clearly demonstrated to the world when in May, 1939, the U.S. denied entry to a boat, the St. Louis, full of Jewish refugees escaping Nazi-Germany. They were sent back to Europe where many of them were eventually captured and imprisoned in concentration camps. Almost no provisions for refugees were made until after the War. World War II was a time of sudden severe labor shortage. Women were encouraged to work but still there was a need for more labor. One way to bridge the gap in labor was the

21-10

implementation in 1942 of the “Bracero” program. This program brought in temporary workers mainly from Mexico, but also from Barbados, the Bahamas, Canada and Jamaica. While the Braceros were given jobs, they were paid extremely low wages, their children were not allowed to attend school, and their living conditions were horrible. They worked mainly in agriculture and they were not allowed to join unions or to organize. Long after World War II, growers were still using this program to prevent farmworkers in the Southwest from organizing. Congress terminated this program in 1964. After the war, U.S. immigration policies became less restrictive. In December 1945 president Truman allowed 40,000 war refugees to immigrate, and also 120,000 alien wives, husbands and children of U.S. military people were allowed to immigrate through the 1946 “War Brides Act.” The Chinese Exclusion laws were repealed in 1943. With the spread of Communism across Eastern Europe, the U.S. Congress passed several Acts allowing people fleeing Communist regimes as well as some Middle Eastern countries to immigrate. Those who entered due to refugee status were, however, counted in their country’s quotas. America’s fear of Communism led to a suspicion of anything foreign in the 1950s. The McCarthyist fear of Communism was intertwined with a fear of foreigners who, as they reasoned, brought us Communism. In 1952, the McCarran-Walter Act was passed and became the framework for future immigration law. This Act preserved the National Origins system, but repealed remaining Asian exclusion provisions and established a small quota for the Asia Pacific Triangle. Because it was enacted during the Communist hysteria, it included many provisions, such as excluding members of the Communist Party, or requiring all immigrants to report their addresses to INS at six month intervals, that still influence our immigration laws. Gays and lesbians also became excludable under a provision that barred those “of psychopathic personality.”

§ 21.8 Changing Political Views (1965–1976) John F. Kennedy’s short presidency focused attention on the need to reform our immigration laws. Before Kennedy became President, he wrote a book called A Nation of Immigrants, which gave reasons why the U.S. should change the national origins quota system, which he saw as biased and inappropriately race-based. As President, Kennedy introduced a bill that would replace the old National Origins Quotas with a system based on preferences for different types of family members and those with special skills. After Kennedy was assassinated, President Johnson signed the bill into law. (The 1965 Amendments). This preference system, with a few changes, exists today. The 1965 Act had a major negative impact on countries in the Western hemisphere, most dramatically on Mexico. The Act provided a Western hemisphere quota that restricted Mexican migration for the first time, and by 1976, Mexico and other Latin American countries were

21-11

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

subject to per country quotas for the first time as well. Long waiting lists for immigrants from Mexico resulted. Starting in the 1960s, the countries from which the majority of immigrations came began to change. In 1960, seven of the top ten sending countries were European, but because of the new system, the number of immigrants coming from Asian and Latin American countries started to rise. The ethnic composition of the United States started to change slightly. Soon immigration again became a racial concern. For political and economic reasons President Nixon did not actually make efforts to curtail the level of legal immigration, but he launched a hard-hitting enforcement campaign aimed at undocumented Mexicans in 1973. Nixon appointed General Leonard Chapman, who created policies in the Vietnam War, as INS commissioner. Mexican communities in the Southwest were targeted for large scale INS raids and deportation. Chapman’s goal was to portray undocumented immigrants as bearing a large responsibility for the economic recession of that time. President Ford took a different approach from Nixon’s. He created a group, called the “Domestic Council Committee on Illegal Aliens” to study the impact of immigrant workers without papers. The group reported that this group of workers is good for the U.S. economy, and that many undocumented workers gave more to the U.S. in taxes than they took through welfare or free health care.

§ 21.9 Refugee Act of 1980 and Act of 1986 Prior to 1980, decisions about refugee and asylum status were made on an ad hoc basis. The Attorney General had the authority to “parole” refugees into the U.S. for emergency reasons or for what he deemed as the public interest. Generally groups fleeing Communist regimes were admitted in this manner: in 1956, Hungarians, in 1949, Chinese, and in 1959, Cubans fleeing after Castro’s coup were admitted. Between 1975 and 1980, 400,000 Southeast Asians were also admitted in “parole” status after the U.S. withdrew military forces from Vietnam. There were many complaints about both the lack of standards in dealing with refugees and about the fact that our laws did not allow for asylum or refugee status for anyone who did not flee a Communist country. In part to bring the U.S. into compliance with the international treaties to which the U.S. is a party, laws on asylum and refugee status were reformed. The enactment of the Refugee Act of 1980 marked the first time that the U.S. laid out refugee policy as a separate entity from general immigration policy. According to this law, persons qualifying for refugee status must have a “well-founded fear of persecution.” Additionally, this law restricts the Attorney General’s power to “parole,” to admit groups on an ad hoc basis. It also removed the limitation on countries of nationality for applying for asylum.

21-12

Almost immediately after its passage, the Refugee Act was tested by the large in-flux of persons from El Salvador, Nicaragua, and Guatemala. In the 1980s, the Refugee Act in practice left much to be desired, at least when the would-be refugees came from countries which were our government’s political allies. The extremely low rates of approval for Salvadoran and Guatemalan asylum applicants (3% and 1.5%, respectively) demonstrated the serious problems with the implementation of the Refugee Act at the time. Likewise, the treatment of Haitian applicants during this time indicated that INS had no intention of granting a sizeable percentage of cases of certain nationalities, no matter how meritorious they were. Some problems with the implementation of the Refugee Act were addressed through litigation. The settlement of the American Baptist Churches v. Thornburgh (“ABC”) case began to redress some of the earlier bias against Salvadorans and Guatemalans. In 1991, with the initiation of an “Asylum Officer Corps” of trained specialists in the field, INS made another important step toward the fair adjudication of asylum applications. The promise of the Refugee Act was tested again in the treatment of the Haitian refugees who fled Haiti in the 1990s. The Clinton administration seemed to be more concerned about public opinion (and re-election) than with the fair enforcement of the Act, as he continued the interdiction of boats of Haitians and their return to Haiti initiated by his Republican predecessors. The pressure in the 1980s to both limit undocumented Mexican immigration and to provide for those who had been here in an undocumented status for a long period of time collided in the Immigration Reform and Control Act of 1986. The Act was a compromise which allowed legalization for both undocumented people who had lived in the U.S. since before 1982 and agricultural workers. It also had legalization provisions for Cubans and Haitians. But, in return for these programs, Congress enacted a new requirement that all employers check the immigration status of all new hires. Employer sanctions became part of federal law. Although this Act was conceived of as ending the problem of undocumented immigration, it did not. Undocumented workers continued to be employed. This led to proposals for a more secure document and a system of verification with the INS. Immigrant’s rights advocates contended that this is just one step away from a national identification card.

§ 21.10 The Anti-Immigrant Crusades of the 1990s Much of the language used by the anti-immigrant forces of the 1990s could almost as easily be that of the Know Nothing Party in the 1870s. The racism was usually more subtle than overt in the 1990s. But the claims sound very familiar: Immigrants come to use our public benefits; they don’t want to learn English and assimilate; they take our jobs. Once again, the most extreme anti-immigrant movement started in California. In the early 1990s California was in a prolonged recession caused in part by the end of the Cold War and the loss of the military-related jobs on which its economy depended so heavily. California is, of course, the state with the largest number of immigrants. The Governor of California, Pete

21-13

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

Wilson, placed the blame for the state budget crisis on immigrants, both legal and undocumented, claiming that the cost of schooling, imprisoning and providing public benefits to immigrants was bankrupting the state. The year 1994 was a gubernatorial election year and the Governor’s entire advertising campaign was dedicated to showing shots of immigrants apparently overrunning the border with Mexico. Also on the ballot was a state proposition—Proposition 187—which sought to bar undocumented children from the public schools and deny them public health services like immunizations and TB care. Governor Wilson won re-election and Proposition 187 passed by a wide margin, encouraging anti-immigrant organizations around the country. The issue of border enforcement with Mexico was at the center of national politics. In 1995 and 1996, the President and Congress concentrated on increasing immigration enforcement and on the issue of receipt of public benefits by immigrants. In those years the budget for immigration enforcement mushroomed. The U.S. tried to demonstrate its control of the border by erecting fences, and setting up intensive staffing at certain high level border crossing points. In the interior, the INS stepped up its deportations and pushed for stronger laws to punish people who re-enter more than once and against criminal aliens. INS also pushed for and implemented measures to deal with the perceived problem of fraudulent asylum applications. As part of border control efforts in 1994, the Clinton administration instituted Operation Gatekeeper to “control through deterrence.” However, this only pushed border crossers to attempt to enter at dangerous places in the deserts and high mountains. This has resulted in unnecessary deaths along the border. On September 30, 1996, Congress passed and President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (IIRIRA) which rendered many immigrants ineligible for benefits under the immigration laws. The IIRIRA was designed to make deportation an easier and quicker process for the government. It also focused on immigrants with criminal convictions, making people with old convictions for minor offenses subject to deportation with no relief. It removed almost all rights and procedures from persons who are seeking to enter the U.S. It also targeted asylum applicants, making the process even more difficult. On the public benefits front, in August 1996, Congress passed and Clinton signed the 1996 Welfare Bill—the Personal Responsibility & Work Opportunity Reconciliation Act, federal legislation that was intended to “reform” the welfare system. A major provision of the bill extended the existing federal barriers to undocumented immigrants’ eligibility for public benefits one step further, by eliminating many federal public benefits from legal permanent residents. This law barred most legal residents from receiving food stamps and, even worse—from receiving Supplemental Security Income (SSI)—a benefit for poor people who are either elderly or have a disability. As it turned out, this was one step too far. It resulted in a massive effort to naturalize immigrants, both so that they could keep their public benefits and so they could make their voices

21-14

heard. The courts had found California’s efforts in Prop.187 illegal because California went too far in trying to strip undocumented children of the right to education. In the 1996 federal election, naturalized immigrants, their friends and families, and their advocates were motivated and went out to vote. Over the next year, as many politicians who voted for the welfare reform bill saw the real life stories of the immigrants and refugees who were being threatened with being penniless and homeless, the mood changed. In 1997, Congress changed its mind and returned SSI to most LPRs, but did not return all public benefits which had been taken away by the 1996 Welfare Act. In 1997 and 1998, Congress did not pass any major anti-immigrant legislation. However, many members of Congress took aim at INS’ naturalization program. INS’ Citizenship USA initiative was attacked because it had adopted a policy of approving some naturalization applications without waiting to get the criminal fingerprint check from the FBI. With already record demand, INS’ adjudication of naturalization cases was bottled up so that only a few immigrants were actually naturalized during that time. At the same time, Congress actually passed some pro-immigrant legislation—the Nicaraguan Adjustment and Central American Relief Act (giving amnesty to Nicaraguans and Cubans and allowing Salvadorans, Guatemalans, and former Soviet Bloc nationals to apply for suspension of deportation), and the Haitian Refugee Immigration Fairness Act. Congress also doubled the numbers for temporary professional workers. The November 1998 gubernatorial election in California resulted in a surprising landslide victory for the Democratic Party challenger, Gray Davis, over Governor Wilson’s handpicked successor, Dan Lundgren. The economy was in an expansion period. Immigration issues themselves were not mentioned by either candidate, except on the issue of who would do more for cross-border economic activity with Mexico. Naturalized immigrants voted in record numbers. Questions raised at the time are questions that continue to be relevant to today’s immigration debate. 1. What do you think are the current feelings about immigration? What are the President’s domestic and international positions on immigration? 2. Is there a specific group of immigrants being targeted? Can you find the history of that group in this essay? How is the current tension different? Is there state or national action against those immigrants? 3. What tensions can a large concentration of immigrants create? What might be done to lessen these problems? 4. What immigration policies do you think are not in the interest of the U.S. as a whole? 5. Are immigrants adding to the environmental problems of the U.S.? 6. Who are the leaders of the anti-immigrant movement? What tactics do they use?

21-15

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

7. How is the U.S. economy doing right now? Is there a recession, or a “boom?” (Usually anger against immigrants is worse during economic hard times, when there are fewer jobs—however, employers may have different interests than other Americans).

§ 21.11 The Effects of September 11 Since 9/11, immigration policy proposals and enforcement procedures have been screened through the lens of national security. For anti-immigrant forces in the United States, 9/11 provided a once-in-a-lifetime opportunity to use the tragic events to draw linkages with virtually every aspect of their nativist agenda. The most notable enactment has been the USA PATRIOT Act,4 which was enacted with near unanimous support and signed into law a mere six weeks after 9/11 to guard against terrorism. The vast powers embodied in the law provide expanded authority to search, monitor, and detain citizens and noncitizens alike, but its implementation since passage has preyed most heavily on noncitizen Arabs, Muslims, and Sikhs. Authority to detain, deport or file criminal charges against noncitizens is specifically broadened. Consider the following noncitizen-related provisions in the law:     

 

Noncitizens are denied admission if they “endorse or espouse terrorist activity,” or “persuade others to support terrorist activity or a terrorist organization,” in ways that the State Department determines impede U.S. efforts to combat terrorism. “Terrorist activity” is defined expansively to include support of otherwise lawful and nonviolent activities of just about any group that has used violence. Noncitizens are deportable for wholly innocent associational activity, excludable for pure speech, and subject to incarceration without a finding that they pose a danger or flight risk. Foreign nationals can be detained for up to seven days while the government decides whether or not to file criminal or immigration charges. The Attorney General has broad preventive detention authority to incarcerate noncitizens, by certifying that there are “reasonable grounds to believe” that a person is “described in” the antiterrorism provisions of the immigration law and that the individual is then subject to potentially indefinite detention. Noncitizens can be detained indefinitely even after prevailing in a removal proceeding “until the Attorney General determines that the noncitizen is no longer a noncitizen who may be certified [as a suspected terrorist.]” Wiretaps and searches are authorized without a showing of probable criminal conduct if the target is an “agent of a foreign power,” including any officer or employee of a foreign-based political organization.

4

The clumsy, complete title is the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act,” voila the USA PATRIOT Act (Pub. L. No. 107-56).

21-16

The Bush administration implemented a number of policies and actions aimed at noncitizens in the name of national security. One of the most serious was “special registration”5 that required nonimmigrant males 16 years or older from dozens of “Muslim” countries to report to immigration officials. Many ended up “disappearing” or getting arrested. Muslim and Arab communities were intimidated by this and other questioning procedures that were implemented throughout the country. In 2002, Congress created the National Commission on Terrorist Attacks Upon the United States (better known as the 9/11 Commission) that was charged with investigating the circumstances surrounding the 9/11 terrorist attacks and recommending responses. Its final report and recommendations were released in July 2004. Soon after the Commission’s report, legislation was drafted to implement its recommendations. During the debates on the legislation, several members of Congress, most notably Representative James Sensenbrenner (R., Wis.), the Chair of the House Judiciary Committee, argued for the inclusion of a number of contentious immigration measures. These measures went beyond the Commission’s specific recommendations, nearly preventing the legislation’s passage. The immigration-related proposals would have expanded the government’s authority to arrest, detain, and deport immigrants, restricted judicial review and oversight, and reduced the number of documents immigrants may use to establish their identity. Sensenbrenner wanted to include a provision barring states issuing drivers licenses to undocumented aliens. But Commission members and 9/11 victims’ relatives spoke out against these provisions, arguing that their debate was delaying legislation and would not make any significant contribution to public safety and security. Sensenbrenner’s proposal and the other anti-immigrant measures were removed from the final version of the legislation, and the Intelligence Reform and Terrorism Prevention Act of 2004 was passed by Congress. However, in early 2005, Rep. Sensenbrenner quickly reintroduced the controversial provisions (dubbed the REAL ID Act) he had removed. And on February 10, the House of Representatives passed Sensenbrenner’s full package. A month later, that same legislation was attached to a huge emergency appropriations bill—a “must sign” piece of legislation—to fund the U.S. military efforts in Iraq and Afghanistan. The House passed this massive funding bill without any public debate or hearings. When the debate shifted to the Senate, the REAL ID Act was not included. But when the bill went to the Conference Committee, House supporters pushed strongly for the provisions to be included. During debates, a few of the most unsavory proposals—such as one that would have created private bounty hunters to enforce immigration law—were removed. But the REAL ID Act provisions remained and were part of the package signed into law.6

5

National Security Entry-Exit Registration System (NSEERS). The REAL ID Act affects everyone in the United States. Beginning in 2008, anyone living or working in the United States must have a federally approved ID card to travel on an airplane, open a bank account, collect Social Security payments, or take advantage of nearly any government service. Practically speaking, every driver’s license likely will have to be reissued to meet federal standards. The Real ID Act hands the Department of Homeland Security the power to set these standards and determine whether state drivers’ licenses and other ID cards pass muster.

6

21-17

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

As this publication goes to press in 2014, debate on immigration continues to rage in the country. In the current session of Congress, the hopes are dim for comprehensive immigration reform (CIR) legislation, which would meet the aspirations of millions for a legalization program or the clearing of backlogs in family and employment categories. Increased calls to enact separate bills, such as the DREAM Act (to legalize and provide educational opportunities for undocumented students) and AgJOBS (to provide for the legalization of farm workers) also go unheeded. At the same time people’s frustration with our broken immigration system has resulting in states like Arizona and Alabama and many local jurisdictions passing anti-immigrant legislation that is of questionable constitutionality. The debate is divisive, and represents a continuation of the forces that have historically divided this nation’s treatment of its new arrivals, and yet there is hope in the future for us to come together as a people to bring about meaningful and fair immigration reform.

§ 21.12 Conclusions The history of immigration law and policy is, indeed, a struggle between forces who favor more open immigration and a more decent treatment of the newcomers among us and those who do not. Although our nation has oftentimes discriminated against people of color or failed at certain critical times, many Americans believe in the nation’s long tradition of welcoming newcomers. That is a tradition that we can all take pride in and that we must strive to maintain.

PART TWO: EMPLOYMENT-BASED IMMIGRANTS § 21.13 A Word to Nonprofit Agency Staff on Employment Visas Why would advocates working for nonprofits want to know about employment based immigrant visas? Nearly all nonprofit agency staff are dedicated to working with low and moderate income immigrants. You may think that for this reason, you don’t need to know much about employment-based immigration. Yet it is important that you know enough about this subject to identify clients who might possibly have a chance to qualify. Example: Maria is from Bogota. She came to the U.S. on a tourist visa to visit her sister, and she wishes to stay. She tells you that other than her sister, she has no relatives here. She has been working at a local hotel washing dishes. Being a very thorough advocate who has read this unit and now knows a little about employment-based immigration, you ask Maria about her education and employment in Colombia. She tells you that she has a college degree in Engineering. You recall that immigrants with university degrees can obtain temporary work visas and are eligible to immigrate under the third employment-based preference. You refer Maria to a competent private attorney who specializes in employment-based immigration. Within a few months, Maria is working legally. A few years later, she is a permanent resident.

21-18

Granted, the number of highly educated professionals who walk into your office will be small. But you may also find people with needed skills who are employed or who can get an offer of employment and fit into skilled categories. The important questions to ask are: What type of employment does the person have now? What type of employment did he or she have in the past (including before coming to the US)? And what education or special training has he or she had? We advise against nonprofit staff actually preparing employment-related visas. First, because this is a highly specialized field, unless one works intensively in the field, it will not be worth the effort to learn the law. Second, most people who qualify for employment-related immigration are employed and have better-paying jobs than other less fortunate immigrants. They therefore are not the most deserving of nonprofit staff time. If they or their employers can afford the cost, they should go to a private attorney to prepare their application. We encourage nonprofit agencies to develop a mutually beneficial relationship with several private attorneys who specialize in employment-based immigration. You do your clients a favor by giving them a list of reputable and more affordable attorneys. Many attorneys in private practice would be happy to talk with you by telephone for a few minutes to determine whether referring a given client for a consultation is worth the effort. Even if you think an employment-based visa is a long shot, it may be worth the client’s effort to pay for a short (half-hour or one-hour) consultation with an attorney who specializes in the area.

§ 21.14 Overview and Relation to Other Immigration Options Most intending immigrants do not have the luxury of close relatives in the U.S. who can petition for them. Most also do not qualify for asylum or many other immigration options. But for some, employment-based [“EB”] immigration is a way into the U.S. Still others, even though they are eligible to immigrate through other channels, may accomplish their goals faster and more efficiently through employment-based immigration. This is the case when the other routes are clogged and backlogged. For example, a petition filed today for the Filipino sibling of a U.S. citizen is not likely to become “current” for over twenty years. But the same brother or sister may be able to immigrate in two to eight years through employment in a “skilled” occupation. In some cases, immigrant workers who qualify to immigrate through employment will also be eligible for a temporary, non-immigrant work visas. Some of these work visas allow the person to work for a U.S. employer while pursuing lawful permanent residence at the same time. This can be extremely useful to the worker while he or she is waiting for the immigrant visa process to be completed. For these reasons, few immigration cases can be analyzed fully without a basic understanding of employment-based possibilities. By expanding our scope to include these options, we become better and more thorough advocates.

21-19

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

Even an advocate who is not inclined or authorized to undertake “employment” cases can help clients immensely by recognizing employment-based options, and referring eligible clients to a competent attorney.

§ 21.15 The Employment-Based Preference System Each year, 140,000 immigrants can enter the U.S. through employment-based visas. Analogous to the family preference system, the employment-based system allows for a pre-set number of immigrants in each of five categories. The first three of these categories are tied to immigrants’ accomplishments, professions or skills. The fourth involves religious workers, while the fifth is an “investment” route. As in family-based immigration, employment categories which are “oversubscribed” for a given country develop a backlog. But one of the great advantages of employment immigration is that all of its categories usually are either “Current” or not as severely backlogged for most countries. In almost all employment-based categories, the employer must petition for, or “sponsor,” the employee who wishes to immigrate. (This is similar to family-based immigration, where a U.S. citizen or lawful permanent resident relative sponsors an immigrant relative). In employment-based immigration, the relationship between the employer and the employee is created by the job offer. When an employer petitions for a worker, both must have the intent to continue working together well into the future. This unit will provide an overview of the employment immigration system. All five of the Preference categories in the system will be covered. Readers should focus special attention on the topics of “Skilled and Unskilled Workers” and “Labor Certification,” as these are likely to arise most frequently in a day-to-day setting. A Note on the Role of “Labor Certification” The immigration laws presume that nearly every occupation in the U.S. already has enough U.S. workers, and that foreign workers are therefore unnecessary. The vast majority of intending employment-based immigrants are required to prove that this presumption does not apply to them. This most often involves a complex process called “Labor Certification.” This procedure plays a central role in employment-based immigration, and is often an immigrant’s only option. For this reason, the topic is dealt with at some length in this unit.

21-20

§ 21.16 The First Preference: Extraordinary Aliens, Outstanding Professors and Researchers, Multi-National Executives and Managers Overview and Numerical Allowances Most immigration advocates never encounter First Preference Employment-Based cases (also known as “EB-1” or “Priority Worker” cases.) This elite immigration category consists of three subcategories: (1) Immigrants who are at the very top of their professions; (2) Outstanding professors and researchers; and (3) Executives and managers of multi-national companies. The EB-1 category is out of reach for all but a few hopeful immigrants. For those who are eligible, immigration can be a relatively easy matter. EB-1 immigrants enjoy several advantages over other employment-based immigrants. Primary among these is the fact that they bypass the arduous Labor Certification process. First Preference immigrants are allotted 40,000 visas annually, plus any unused numbers left over from the Fourth and Fifth Employment-Based Preferences (discussed below). Any numbers left over are in turn passed down to the Second Employment Preference. The First Preference is “Current” for all countries today. This means that once someone has been deemed a “Priority Worker,” he or she can usually immigrate relatively quickly (subject to administrative processing time for adjustment of status or consular processing). In the past, only a fraction of the 40,000 allotted visas were used up annually. However, usage in this preference category has increased greatly in recent years. For example, 39,316 immigrants obtained permanent residence in the First Preference category in 2012. (Annual Flow Report March 2013, DHS Office of Immigration Statistics, AILA Doc. No. 13032151). The three subcategories of the EB-1 Preference are discussed briefly below. “Extraordinary Ability” Immigrants The “Alien of Extraordinary Ability” subcategory is reserved for immigrants who are among the very top in their fields. These include scientists, artists, educators, business people, athletes and others. To be eligible, one needs to have had a sustained level of national or international recognition in one’s field. “Aliens of Extraordinary Ability” can immigrate even if they do not have a job offer, as long as they show that they will continue to work in their profession in the U.S. once they become lawful permanent residents. “Extraordinary Ability” is a term of art: The CIS has specified the types of evidence which can be used to judge whether someone qualifies in this category. These specifications are enumerated in some detail in the regulations. They include: receipt of major awards, authorship of scholarly articles, press coverage about the person’s work, acting as a judge of peers, outstanding contributions to the field, high salary, and others.

21-21

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

The CIS has a very high standard for “extraordinary ability.” Today, even most highlyaccomplished immigrants cannot be assured of success in this category, which is increasingly reserved for internationally-recognized applicants. Outstanding Professors and Researchers Like Extraordinary Ability Immigrants, “Outstanding Professors and Researchers” are exempt from the labor certification requirement. But unlike their “Extraordinary” counterparts, these immigrants must have a job in the U.S. in order to immigrate. This job must be 1) a tenured (or tenure-track) position at an institution of higher learning; 2) a comparable position to perform research in a university; or 3) a research position at a private company (provided that the company employs at least three full-time researchers). As with the term “Extraordinary,” “Outstanding” is a term of art. Persons in this subcategory must enjoy extensive international recognition in their fields of endeavor. They must also have had a minimum of three years’ experience in teaching or research. As with Extraordinary Ability, the CIS has a very high standard for “Outstanding Professors and Researchers.” Today, even most highly-accomplished professors or researchers—including those with several publications to their name—cannot be assured of success in this category. This type of petition must be supported by strong evidence of the person’s qualifications, including supporting letters from others who are well-recognized in that field. Executive and Managerial Intracompany Transferees The last First Preference subcategory is reserved for managers and executives of international companies coming to the U.S. to continue their work. To qualify, an applicant needs to have been employed by the petitioning firm’s branch, affiliate, parent or subsidiary abroad for one year out of the last three years prior to arrival in the U.S. Like other “Priority Workers,” multi-national executives and managers are exempt from the Labor Certification requirement. But they do need a job offer in the U.S. to immigrate. The petitioning U.S. company must show that the applicant’s job duties abroad and in the U.S. have been and will continue to be “executive” or “managerial” in nature. CIS regulations define these terms in great detail. Also, the petitioning U.S. company must have been doing business in the U.S. for at least one year before it can sponsor an executive or manager for an immigrant visa in this category. Recent CIS decisions indicate a hardening attitude in this category, particularly when small companies are involved. This is sometimes accompanied by the rationale that the number of employees at the company or the hierarchical structure of the employer does not justify employment of a manager or executive.

21-22

Filing Procedures A First Employment-Based Preference petition must be submitted on Form I-140, along with all its necessary supporting materials. The petition is filed at the CIS Regional Service Center with jurisdiction over the case. Currently, a decision takes about four to six months after filing, depending on the CIS Service Center involved. The CIS has implemented regulations for “concurrent filing” for I-140 petitions, effective July 31, 2002. Concurrent filing allows the beneficiary to file an application for adjustment of status (I-485) at the same time that the employer files the I-140 petition, rather than after the employer’s petition has been approved. This rule can help immigrants who are out of status or nearing the end of their non-immigrant status by allowing them to obtain lawful status as an adjustment applicant sooner. The applicant should receive a work authorization within 90 days of filing the concurrent applications, unless CIS requests additional evidence from the employer for the I-140 petition. However, if the I-140 petition is denied, the accompanying I-485 application will also be denied. As of June 29, 2009, CIS permits “premium processing” of I-140 petitions all employment based categories except for EB-1 Multinational Executives and Managers and EB-2 Advanced Degree Professionals or Aliens of Exceptional Ability. Premium processing means that these I-140 petitions can be processed in a 15-day period by payment of an additional $1,225 fee.

§ 21.17 The Second Preference: Professionals and Exceptional Ability Immigrants The Second Employment-Based Preference (EB-2), consists of two subcategories: (1) Professionals with Advanced Degrees; and (2) Persons of Exceptional Ability. Together these two subcategories are given an annual allocation of 40,000 visas, plus any numbers left over from the First Employment Preference. EB-2 immigrants must normally have a permanent full-time job offer in the U.S. They usually must also undergo the Labor Certification process. A rare few, who succeed in showing that their immigration would be in the “national interest,” can immigrate without job offers or Labor Certifications. The Dept. of State Visa Bulletin for March 2014 shows that the EB-2 category is “current” for all countries except India and China. The EB-2 cut-off date for China is February 15, 2009. The EB-2 cut-off date for India is November 15, 2004.

21-23

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

Professionals with Advanced Degrees To qualify as a professional with an advanced degree, an applicant must have a Master’s Degree or higher level degree, such as a Doctorate. The degree can be from a U.S. university, or it can be a degree from a foreign university that has been found to be the equivalent of a U.S. degree. Persons who have Bachelor’s degrees only can also qualify in this category, if they can demonstrate that they have at least five years of progressive experience in their professions. (In these cases, the experience combined with the Bachelor’s degree is considered to be the “equivalent” of an advanced degree.) A degree evaluation by a company specializing in evaluation of foreign degrees is the most reliable way to prove to CIS that a foreign degree or a Bachelor’s degree plus experience is equivalent to a U.S. Bachelor’s or advanced degree. Immigrants with Exceptional Ability Applicants without academic degrees can qualify under the Second Employment-Based Preference, if they prove that they have “Exceptional Ability” in their line of work. “Exceptional Ability” is a term of art; the CIS has specified the type of evidence that can be used to prove qualification under this category. (The evidence is similar to but less stringent than that needed by “Extraordinary Ability Immigrants.”) National Interest Waivers As mentioned above, EB-2 applicants who can show that their presence in the U.S. would be in the “National Interest” can immigrate without a job offer or a Labor Certification. This “waiver” can prove invaluable to qualified hopeful immigrants who have not yet found appropriate jobs, or to those who cannot obtain labor certifications. Several factors have been found relevant to whether the work to be performed by a prospective immigrant warrants a waiver. These factors include (but are not limited to): whether the work will improve the U.S. economy or the wages and working conditions of U.S. workers; whether the work will improve education, health care or housing for the underprivileged; and whether it will improve the environment or make better use of natural resources. A letter from an interested government agency can be enormously helpful. In 1998, the National Interest Waiver category was restricted severely. Under the resulting guidelines, an immigrant trying to qualify for the category must show (1) that the interest served is “substantial;” and (2) that it is “national” in scope. Most importantly, (3) the strong equities of the case must be shown to outweigh the need for the Labor Certification process. As s a result, success in this category has declined drastically. To date, CIS has set a high evidentiary bar for immigrants seeking to be classified in this category.

21-24

Filing Procedures A Second Preference Employment-Based petition is filed on Form I-140. The petition, along with all necessary supporting materials (including an approved Labor Certification, except in National Interest Waiver cases), is submitted to the CIS Regional Service Center with jurisdiction over the case. An applicant who seeks a National Interest Waiver also files directly with the CIS Regional Service Center, but must in addition include form ETA 9089. The National Interest Waiver petition packet need not contain an approved Labor Certification. However, it must provide thorough evidence and a complete explanation as to why the Waiver should be granted. Currently, a decision takes four to six months, depending on the CIS Service Center involved. All I-140 petitions are filed with the Nebraska or Texas Service Centers, depending upon the location of the Petitioner.

§ 21.18 The Third Preference: Professionals, Skilled Workers and Other Workers Overview and Numerical Considerations Many of the most challenging employment-related immigration cases are encountered in the Third Preference Employment-Based visa category (“EB-3”). Together, these workers receive 40,000 immigrant numbers annually, plus any unused visas left over from the First and Second Employment-Based preferences. This category is composed of three separate subcategories: The first and the second of these correspond to “Professionals with Bachelor’s degrees” and “Skilled Workers.” As of this writing, visas in these two subcategories are backlogged for all countries. India is the most backlogged, with a cut-off date is September 15, 2003; all other countries are at 2007 (Philippines) or 2012 (all others). The third EB-3 subcategory belongs to “Unskilled Workers.” With a small annual worldwide quota capped at 10,000, this subcategory is usually subject to backlogs. At present, the March 2014 Visa Bulletin shows backlogs similar to the EB-3 Skilled Workers subcategory. After a sustained period of “current” visa availability in all employment-based categories, backlogs have developed over the past several years due to increased demand for employmentbased immigrant visas, and as a result of DHS and DOL finally processing many long-pending labor certification applications and immigrant visa petitions. Requirements All EB-3 immigrants must have a permanent full-time job offer in the U.S. In fact, it is actually the immigrant’s employer, rather than the immigrant, who must file the petition.

21-25

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

The vast majority of immigrants in this category must also successfully complete the Labor Certification process. Only two professions are currently exempt from this requirement. Known as “Schedule A” occupations, these are professional nurses and licensed physical therapists. Formerly, many common occupations (such as porters, guards, janitors, hotel cleaners, and electric truck operators), were presumed to be “oversupplied” with U.S. workers. (The regulations contain a long list of these occupations on Schedule B.) These occupations, formerly known as known as “Schedule B” occupations, made winning the case very difficult or even impossible. In March 2005, a new regulation known as “PERM” (Program Electronic Review Management) went into effect, eliminating Schedule B occupations and making it theoretically possible to apply for a labor certification in any occupation. In practice, however, it remains very difficult to obtain a labor certification for former Schedule B occupations. Skilled vs. Unskilled Workers As the above discussion indicates, due to the long backlogs in the “unskilled” category, the distinction between “skilled” and “unskilled” occupations is a crucial one. If the job is “unskilled,” the potential benefits of filing often do not warrant the risks. Ascertaining whether a given occupation is “skilled” is thus often the central task in a Third Preference Employment-Based case. In immigration law, “skilled” is a term of art. A “skilled” occupation is defined as one which requires at least two years of experience. Thus, regardless how adept one is at a given occupation, if the job can be learned in less than two years, it is considered “unskilled.” Examples of “skilled” occupations include baker, welder inspector, and paralegal. “Unskilled” professions include bartender, welder and typist. Does anything prevent an employer from saying that a job requires two years of experience (thus placing it in the “Skilled” category), when in reality one year’s preparation will do? Yes. The U.S. Department of Labor (DOL), assigns maximum education, experience and training periods to thousands of occupations. Their primary tool of information in this area is the “Standard Occupational Categories” (the SOC), which has replaced the formerly used “Dictionary of Occupational Titles” (DOT). (A full discussion of the roles of the above agencies and the SOC follows in the Labor Certification section below.) Showing that a given job requires a “skilled” applicant is only half the battle. One must also show that the immigrant has the required experience. For this reason, before commencing any EB-3 case, responsible advocates always make sure that they are able to prove their client’s previous job experience. Filing Procedures An EB-3 petition is submitted on CIS form I-140, along with all necessary supporting materials. Except in “Schedule A” occupations, the petition packet must always be accompanied by an approved Labor Certification. The packet is filed with the CIS Regional Service Center with jurisdiction over the place of employment. A decision on the initial petition is currently made within four to six months after filing, depending on the Service Center involved.

21-26

§ 21.19 The Fourth Preference: Special Immigrant Religious Workers Overview Each year, 10,000 persons can immigrate to the U.S. through the Fourth Preference Employment-Based visa category (also known as the “EB-4” or “Special Immigrant” category.) This catch-all category includes ten separate subclasses of immigrants not covered by other categories. Best known among these is the “Religious Workers” subclass. Religious workers enjoy relaxed immigration eligibility requirements. Most notably, they are exempt from the Labor Certification process. They also avoid long waiting periods. At the time of this writing, Religious Worker immigrants are “current” for all countries. That means that even persons from the Philippines, Mexico, mainland China and India, who might have long waits in other employment categories, can immigrate immediately as Religious Workers. Nevertheless, unlike “Extraordinary Ability Aliens” and “National Interest Waiver” immigrants, Religious Immigrants must have prospective employment in the U.S. Application Requirements In order to immigrate as a “Religious Worker,” an applicant must be coming to the U.S. to work for a non-profit religious organization. However, not every denomination which calls itself a “religion” is eligible. To qualify, an organization must be a “group or community of believers having some form of ecclesiastic government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places of religious worship, religious congregations, or comparable indicia of a bona fide religious denomination.” Persons are qualified to immigrate as Religious Workers if they have been a member of and have worked for a qualifying religious denomination continuously for the two years immediately before filing their petitions. They also must be coming to the U.S. to work for an organization which belongs to the same denomination. The AAO (Administrative Appeals Office) has issued close to 700 decisions on Special immigrant Religious Workers since 2000. Most of these decisions involve denials of petitions by the Service Centers. Recently, prominent issues have included the employer’s ability to pay; the employer’s tax exempt status as a qualifying religious organization; fraudulent petitions and the actual existence of the religious organization; and adequately documenting the beneficiary’s prior work experience. Not all types of religious workers are eligible to immigrate in the EB-4 category. Eligibility is limited to: (1) ordained or authorized ministers; (2) religious professionals; and (3) religious vocational and occupational workers. Religious professionals include teachers and others whose jobs require a Bachelor’s degree. Vocational workers include monks and nuns. Religious occupations include liturgical work and religious counseling.

21-27

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

The Religious Worker category for non-ministers expires every three years. On9/28/2012, President Obama signed into law P.L. 112-176, which extended the non-minister religious worker program through September 30, 2015. Importantly, regulations were issued in November 2008 that made several changes to the existing immigrant and non-immigrant religious worker visa classifications. For instance, all religious organizations seeking to petition for a religious worker must now undergo a mandatory onsite inspection of the facility by CIS. The regulations also implemented stricter documentary requirements for proving the organization’s religious and non-profit status with IRS, and designed a new I-360 form which requires the organization to sign a “certification” attesting to its non-profit status and its affiliation with a specific religious denomination. On the positive side, the new regulations allow non-immigrant religious workers (“R-1” visa holders) to renew their nonimmigrant status even after being petitioned for as an immigrant (the “dual intent” doctrine). Also, CIS now allows certain gaps or breaks in the 2-year continuous employment requirement, if the gap was for continuing religious education or sabbatical. Application Procedures Religious Workers apply to immigrate on Form I-360 (“Petition for Amerasian, Widow(er) or Special Immigrant”). The application, along with all supporting documentation, is sent directly to a designated Service Center. Processing times at CIS for this petition is currently approximately five months. For a brief period in 2009-10, CIS accepted concurrent filing of Form I-360 and Form I-485 (Application for Adjustment of Status to Permanent Residence). Other employment-based preference categories are permitted to concurrently file these applications. (See § 21.16, supra). This change was based on a Federal District court ruling in a class-action lawsuit. However, the Ninth Circuit Court of Appeals vacated the lower court’s decision in October 2010.

§ 21.20 The Fifth Preference: Special Immigrant Investors Overview and Background The Fifth Employment (“EB-5”) Preference is not purely “Employment-Based.” Commonly known as the “Millionaire’s Visa,” it is actually an “Employment Creation” category. This visa was intended to encourage new investment in the U.S. and the new jobs which would result. 10,000 annual immigrant slots were reserved for this category. At first, the much-touted program turned out to be somewhat of a flop. There were several reasons for this lack of interest: First, the program was unveiled too late—by the time of its enactment, other countries, including Canada and Australia, had set up their own investment immigration programs with less stringent requirements. Second, because the U.S. imposes taxes on permanent residents based on their worldwide incomes, many wealthy foreigners do not want to become permanent residents at all. Third, persons who can immigrate in this category often have other less cumbersome immigration options at their disposal.

21-28

The program has experienced enforcement problems, administrative foot-dragging and immense delays. However, CIS has seen significant growth in EB-5 applications in recent years. In 2012, a total of 6,628 EB-5 visas were issued, up from 3,340 in 2011 The EB-5 program is in effect until September 30, 2015, and may be extended by Congress. Because of abrupt changes in the rules for the immigrant investor visa category in 1998, several foreign investors sued the U.S. government for trying to apply the new rules to them retroactively. On May 3, 2001, a U.S. district court ruled that the CIS may not automatically apply new rules retroactively to immigrant investors who had already received conditional green cards and were seeking to have the conditions removed. Eligibility Requirements Employment Creation immigrants must meet several core requirements, including: 1. Creating 10 full-time jobs; and 2. Investing $1 Million ($500,000 in areas designated as “high unemployment”). Common Questions Regarding the EB-5 Category Does the business established need to be “Brand New?” Not necessarily. One can qualify by buying an existing business and restructuring or expanding it extensively. The regulations specify in detail the kinds of expansions and restructurings that qualify. On November 2, 2002, Congress eliminated the requirement that the investor establish a new commercial enterprise (Pub. Law 107-273). Now, an investor can purchase an existing commercial enterprise and still qualify for the EB-5 category. However, Congress did not eliminate the requirement that the enterprise be “new.” A CIS memorandum states that “new” means that the enterprise was established after November 29, 1990, or if it was established prior to that date, has been significantly expanded, restructured or reorganized. What kind of jobs need to be created, and for whom? The types of jobs created do not matter. What is important is that ten jobs be created, and that they be full-time. The investor, the investor’s spouse and their children cannot be counted toward the ten employees. But cousins, uncles, aunts, grandparents, nieces, nephews, and other family members can. Only those who are permanently in the U.S. can be counted. That means, for example, that a worker who has been granted asylum can be counted. But one who has work authorization only pending a decision on her asylum case cannot.

21-29

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

Are there any restrictions on the source of the money invested? Yes. The CIS is very concerned that the money invested be “clean.” Applicants for this visa must show that the money they invest was gained by legal means. In effect, one must trace the money to its original source in order to show where it came from. Filing Procedures An EB-5 application is filed on Form I-526 directly with the California Service Center. Current processing times for this petition are approximately over one year. Once an initial Immigrant Investor application is approved, the immigrant (and his or her immediate family) becomes a “Conditional Permanent Resident.” Any time between 21 months and 24 months later, the immigrant must apply to “Remove the Condition.” Once the “removal” application is approved, the immigrant becomes a full-fledged lawful permanent resident. Here too, there have been immense delays in CIS processing of petitions to “Remove the Condition.”

§ 21.21 Labor Certification There is a presumption under the immigration laws that most occupations in the U.S. are already “oversupplied” with workers, and that new immigrants will take jobs away from U.S. workers who need them. Immigrants in the Second and Third Employment Preferences must overcome this presumption: They must prove that the particular job being offered to them is an exception to the general rule, and that their skills are in short supply in the U.S. This is done by showing that U.S. workers either do not have the skills, education, or training to perform the job, or that they do not want the job at the pay offered. This proof is accomplished by way of a process called “Labor Certification.” Thus, for most employment-based immigrants, undergoing “Labor Certification” is a prerequisite to applying for an immigrant visa with CIS. Relation to Employment-Based Immigration Labor Certification is not an alternative to the Employment preference system. Rather, upon successful completion of the labor certification process, the petitioner receives an approval from the U.S. Department of Labor (“DOL”), which is in turn submitted to the CIS with the immigrant visa petition. The Certification Process The labor certification process requires a petitioner (the immigrant’s future employer) to conduct a “recruitment” of potential job applicants, in order to show a shortage of workers qualified for the job in its geographical region. In the past 15 years, the labor certification process has undergone two major revisions. The two previous systems, “traditional” labor certification and “Reduction-in-Recruitment (RIR)” labor

21-30

certification, were superseded by the new PERM (Program Electronic Review Management) system. Implemented in 2005, PERM is an internet-based electronic filing system intended to streamline the process while ensuring that the employer meets all of the recruitment requirements designed to protect U.S. workers. The Traditional Route to Labor Certification: A Thing of the Past The traditional Labor Certification process started with the employer filing an “Application for Alien Employment Certification” with the Alien Certification Unit of the local State Workforce Agency (“SWA”) (formerly known as “State Employment Security Agency” or SESA). The completed application listed all of the skills and training required of potential applicants for the job, as well as the intending immigrant’s job experience. The application packet included a proposed advertisement, to be approved by the SWA. (The advertisement is essentially a boiled-down version of the job requirements listed in the Application for Alien Employment Certification.) In some jurisdictions, proof of the immigrant’s skills was included in this initial packet. Once the SWA gave the go-ahead for the job requirements, the advertisement was placed in a major local newspaper for three consecutive days. The employer also posted a detailed notice of the job opening at the work site. Finally, the SWA itself posted the opening in its computerized job bank. If the job being offered was represented by a union, the union was also notified of the opening. If the search elicited applications and a qualified applicant was found and wanted the job at the wage offered, the employer could not continue with the labor certification process. The employer is not obliged to hire the U.S. worker. But it can also no longer argue that it needs an immigrant’s services for the relevant position, since a qualified U.S. worker is prepared to accept the job. The subsequent “RIR” (Reduction-in-Recruitment) process allowed employers to conduct their own recruitment (without oversight or direction from the SWA), and submit the results of the recruitment along with the labor certification application to the government. This pre-recruitment shortened the overall processing times for labor certifications, since the employer could generally conduct the required recruitment within a few months. With the implementation of the PERM labor certification process (see below), both traditional and RIR processing have ceased to exist; now, all labor certifications are filed using the PERM process. The “PERM” Process7 On December 27, 2004, the DOL published the final rule for the PERM labor certification program in the Federal Register, Volume 69, Number 247. The regulation went into effect on March 28, 2005. This long-awaited rule changes the process for filing labor certification applications for immigrants seeking to obtain lawful permanent residence through 7

The information in this section was obtained from the federal regulations and from The David Stanton Manual on Labor Certification, Gonzalez et al, Eds. AILA (2005).

21-31

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

U.S. employment. The PERM regulations also introduced some modifications to the specific requirements an employer must meet in order to sponsor an immigrant through the labor certification process. Procedural Changes The most significant change that PERM makes in labor certification processing is how the application is submitted and handled. The employer conducts recruitment before filing the application, but does not submit evidence of this recruitment to DOL. Instead, the employer fills out the new labor certification application form (ETA 9089), in which the employer attests that it has completed all required recruitment steps and still has not been able to locate a qualified and willing U.S. worker for the proposed job. Then, Form ETA 9089 is submitted electronically to DOL, where it is supposed to be adjudicated within 60 days. The employer must create a user account on-line in order to file the application. (Attorneys or legal representatives may establish “sub-accounts” in order to use the on-line filing system). Alternatively, the form also may be submitted by mail. To verify compliance with recruitment steps, DOL will randomly audit some applications by requesting that employers submit proof of their recruitment efforts. However, the majority of cases are processed without requests for such documentation. The employer must keep records of all recruitment efforts for five years, and must also complete and sign a recruitment report prior to filing the labor certification application. Substantive Changes The PERM regulations also modified certain requirements and standards for labor certification eligibility and recruitment. For instance, it established specific and distinct recruitment requirements for non-professional vs. professional jobs. For both types of employment, the employer must place a minimum of two print ads in the newspaper on Sundays. All employers must post the job using the State Workforce Agency (SWA) on-line job posting system for 30 days, and must post notice of the job opening on the worksite premises. For professional occupations, the employer must take at least three additional recruitment steps, which may include job fairs, job search websites, the employer’s internet site, employment agencies, trade or professional organizations, an employee referral incentive program, on-campus recruiting, local and ethnic newspapers, and radio or television ads. In conjunction with the PERM regulations, the DOL changed the prevailing wage requirements for labor certification applications as well as non-immigrant H-1B petitions. Now, the DOL official wage survey (known as the OES Online Wage Library and located on-line at www.flcdatacenter.com) has four (rather than two) wage levels. DOL has provided instructions on how each job should be evaluated to determine the appropriate wage level. Furthermore, the employer must pay 100% (or higher) of the prevailing wage. (Previously, the employer could pay 95% or more of the prevailing wage.) Also, DOL now accepts alternative wage surveys that use a median wage (as opposed to an arithmetic mean) in some circumstances.

21-32

The PERM regulations also include a new provision stating that employers may not lawfully reject U.S. workers applying for the job who lack certain skills for the job if those skills can be acquired during a “reasonable period of on-the-job training.” This language does not specify timeframes or other factors, so it needs to be interpreted on a case-by-case basis, specific to the type of employment and the employer’s needs and business demands. However, careful attention should be paid when drafting the job description, so that employers accurately specify the job’s true minimum requirements, as distinct from easily obtained skills that an employee could learn on the job. Pros and Cons of PERM In theory, the benefit of PERM is a significant decrease in processing times, which in the past have stretched into years of waiting time. Also, the application process is simpler and more direct. In practice, PERM seems to be achieving these goals. At the inception of new application process, many applications were incorrectly denied due to glitches in the software used to receive the on-line applications. More recently, attorneys and employers have reported that most applications are being approved, although processing times are rarely within the predicted 60 days. Current processing times are at least four months. One substantial development since the inception of the PERM program has been the Department of Labor’s (DOL) concern with the attorney’s role in the employer’s recruitment process. On June 2, 2008 DOL issued a press release announcing it was auditing all of the PERM labor certification applications filed by the law firm Fragomen, Del Rey, Bernsen & Loewy LLP on behalf of its clients. The basis for the 100% audit was centered on what DOL perceived as “improper attorney involvement” in the consideration of U.S. worker applicants. DOL alleged that attorneys had improperly been involved in the employer’s interviewing of U.S. worker candidates. Fragomen filed a Motion for Preliminary Injunction against DOL challenging the audit. On October 24, 2008, DOL and the Fragomen firm filed a Joint Settlement Stipulation and Order with the U.S. District Court for the District of Columbia, setting forth terms for settlement of the lawsuit and case dismissal. However, attorneys were left with questions as to what extent an attorney may advise the employer on how to conduct its recruitment process, and to what extent DOL may dictate the attorney-client relationship in the context of labor certification.8 Also, DOL has strict rules about payment of attorney fees designed to protect the integrity of the recruitment process for U.S. workers. DOL regulations prohibit the employer from receiving any payment in connection with the filing of a PERM application. Furthermore, if one attorney is representing both the immigrant-employee and the employer, then only the employer is permitted to pay the attorney’s fees. CIS-Immigrant Visa Petition An application “certified” by DOL is next submitted to CIS for in-depth review of the immigrant’s qualifications, including education, job experience and skills. In this step, called the 8

See AILA Infonet Doc. No. 08110330 at www.aila.org/Content/default.aspx?docid=27058.

21-33

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

I-140 or “Immigrant Visa Petition,” the employee must submit letters of reference and other evidence proving his or her relevant job experience. Discussions of the relevant procedures at the CIS phase are found in §§ 21.17 and 21.18 above. In January 2008, the DOL published a new rule that established an expiration date for approved labor certifications. The I-140 petition must be filed within 180 days of the approval of the labor certification. Basic Labor Certification Requirements and Caveats Every potential labor certification must be carefully pre-screened. If some basic elements are not present and success seems unlikely, the application should not be filed. Most important among these are the following: 1. The job offered must be both permanent and full-time; 2. There should be proof that the immigrant has had the necessary job experience and/or education. (Note that experience gained with the petitioning employer often does not count—particularly if it was in the same position being offered to the immigrant); 3. The employer must be willing to pay the “prevailing wage.” (This is the average wage in the location in which the employment is being offered); 4. The employer must demonstrate sufficient income to enable it to pay the “prevailing wage;” 5. There must be a sense that the recruitment process will reveal a credible shortage of U.S. workers; 6. The immigrant must not be otherwise inadmissible under the immigration laws. If he or she is inadmissible, one must ascertain whether a waiver is available, and, if the person is eligible for the waiver, whether that waiver is likely to be granted. Whether the job is permanent and full-time and whether the immigrant has the necessary qualifications, are relatively straightforward matters. But ascertaining the “prevailing wage” can be much more difficult, as it is seldom possible to pinpoint with accuracy a single prevailing wage for an occupation. . DOL requires that the employer obtain a prevailing wage determination for the offered position prior to filing the PERM application. Terms & Tools of the Trade: DOT & SVP In the real world, employers have absolute discretion to decide how much experience to require of job applicants. For example, while one factory may require its machinists to have had at least three years of experience, another may be willing to hire workers with little or no experience. But in the world of immigration law, practicality gives way to standardized rules, and employers are bound by somewhat rigid experience guidelines. Still, how is one to apply a uniform method of evaluating necessary job requirements throughout the U.S.—one which can be used in all Labor Certifications?

21-34

The Department of Labor has attempted to tackle this issue for years. One tool it used for many years was the “Dictionary of Occupational Titles” (“DOT”). The DOT contained detailed descriptions of thousands of standard jobs. Each job entry also contains a numerical value called “Specific Vocational Preparation” (“SVP”). SVP values range from 1 to 9, indicating how much training is normally required of someone undertaking a given job. These values are as follows: SVP 1: SVP 2: SVP 3: SVP 4: SVP 5: SVP 6: SVP 7: SVP 8: SVP 9:

Short demonstration only Short demonstration up to and including 30 days Over 30 days up to and including 3 months Over 3 months up to and including 6 months Over 6 months up to and including 1 year Over 1 year up to and including 2 years Over 2 years up to and including 4 years Over 4 years up to and including 10 years Over 10 years

The DOL has developed and implemented an occupational dictionary called “Standard Occupational Categories” (the SOC), which is now used to identify and categorize occupations for purposes of labor certification. The DOL no longer relies on the SVP (standard vocational preparation) or DOT (Dictionary of Occupational Titles) for purposes of determining the required level of training for a given job. Instead, it has developed the O*NET system (available on-line) to categorize and classify employment. Employers and attorneys should use the O*NET system to determine how DOL will classify a specific job. Let’s take the case of Fanny Farmworker, who is being offered a job driving and operating fruit-harvesting machinery. If you looked up the job of “Fruit Farmworker” in the DOT, you would find that it has an SVP of “5.” That means that someone would need anywhere between six months and one year to learn that job—not very long. This presents two immediate problems. First, there may be many U.S. workers who have that amount of experience, and who would want the job. Second, even assuming that no U.S. workers are willing or available, Fanny would still be classified as an “Unskilled Worker,” because her job requires less than two years of training. (Jobs requiring anything less than two years’ experience are considered “unskilled” by the CIS.) That means that even if Fanny is granted a Labor Certification, she will have to wait to immigrate. (See above discussion of the backlog in the Third Employment Based category.) To improve Fanny’s chances of gaining permanent resident status, you might be tempted to discuss with her employer offering her a job as a “Fruit Farming Supervisor.” That occupation has an SVP of 6, which means the employer can legitimately require up to 2 years of training for it. But this solution would create a whole new set of problems. First, Fanny’s employer may not have a supervisory opening, or may not want to give that job to Fanny. Or perhaps Fanny has not had the required experience. Finally, the employer may not be willing to pay Fanny a supervisor’s

21-35

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

wage. If any of these factors are not in place, it will make no sense to launch the Labor Certification process. As you can see, Labor Certification requires the advocate to juggle a variety of considerations. The Bar against Substituting Petitioners and Beneficiaries An immigrant is always dependent on a potential employer in the labor certification process. This is so because it is the employer (not the immigrant) who must file the application. Similarly, an employer wishing to file a labor certification must do so on behalf of a specific employee. In the current economic climate, employers often change, reorganize, or close down. Similarly, employees find jobs with other employers or disappear. What can be done when someone has waited years for a visa number to become “current,” only to find that the employer or employee is no longer interested or available? Relatively little. But current regulations have alleviated some of the harsh consequences on employees. The rules are summarized below. Substitution of Employers (Petitioners) An employee with an approved Labor Certification cannot substitute a new employer for the original “sponsor.” This means that if the original employer is no longer in business, the employee must find another employer, and must go through the labor certification all over again. There is one saving grace in that the employee can normally keep the original priority date if she or he applies for permanent residence through a different employer (saving the employee from starting all over again on the waiting lists). This is true only if the first employer filed a preference petition with CIS that was approved on the basis of the approved certification, and did not withdraw that petition. There is one narrow exception to the bar against substitutions of employers for professional athletes who “switch teams,” but remain in the same sport. If another company in a merger or acquisition purchases the employer who filed the labor certification, the new company may still be able to use that labor certification to sponsor the immigrant for permanent employment. CIS has stated that if the new employer is a “successorin-interest” to the former employer, then the new employer can submit an I-140 based on an approved labor certification that was submitted by the old employer. The new employer must demonstrate that it is a “successor-in-interest” to the old employer. This is done by showing three factors: 1) the job opportunity for the immigrant is the same; 2) the successor employer can provide all required evidence, including the former employer’s ability to pay the offered wage; and 3) that the successor employer can prove that it has assumed ownership of the previous employer’s business. This test is more liberal than an earlier requirement that the successor employer must demonstrate that it had “assumed the rights, duties, obligations and assets of the original employer and that it continues to operate the same type of business.”

21-36

Substitution of Employees (Beneficiaries) Previously, an employer could substitute a new beneficiary even after approval of the labor certification, as long as the new worker meets all the training, education and experience requirements stated on the original application. However, pursuant to the new regulations published in April 2007, substitution of an alien beneficiary on any application for permanent labor certification “is prohibited for any request to substitute submitted after July 16, 2007.” Recent Changes in Employment-Based Immigration As stated above, it is very important for the employee to work for the sponsoring employer when he or she obtains lawful permanent residence. This is because the petition was based on a job offer of permanent employment that both the employer and the employee intended to honor. The employee places himself at risk if he never works for the employer after obtaining lawful permanent residence, because the CIS may later question whether the lawful permanent residence was obtained in good faith. This situation usually arises when the immigrant applies for U.S. citizenship. However, in December 2000, Congress passed a law which made several helpful changes in this area. The new law states that an employment-based immigrant who has filed for adjustment of status is not required to work for the sponsoring employer when she becomes a lawful permanent resident if the CIS takes more than 180 days to process the application for adjustment of status. This helps immigrants who may want to pursue a better job opportunity. In addition, the new law allows for extensions of certain non-immigrant visas beyond the normal time limitations if the immigrant is in the process of obtaining lawful permanent residence, but must wait for a priority date to become current. To take advantage of the new law, an applicant who has waited more than 180 days for the adjustment of status application to be processed must continue to work in the same or a similar occupation for another employer.

§ 21.22 Special Considerations: Adjustment of Status and Consular Processing for Employment-Based Immigrants For employment-based immigrants, the adjustment of status process is an easy, final step to lawful permanent residence. The immigrant must submit medical examination results, fingerprints, photographs, and CIS forms containing biographical information specific to the sponsored workers and his or her immediate family members. To address the Public Charge issue, an employment-based immigrant submits a job offer letter from the sponsoring employer. An I-864 Affidavit of Support is not required. If the worker has dependent family members immigrating with him or her, then evidence of the worker’s income can be submitted with the family members’ applications. All applicants are issued a travel document and work authorization that remain valid and renewable while the adjustment application is pending.

21-37

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

Immigrant Legal Resource Center April 2014

Applications for adjustment of status must be submitted to the Nebraska or Texas Service Centers, depending on the residence of the beneficiary. Processing times currently range from four to six months. Applicants also have the option of consular processing through the designated U.S. consulate in their country of last residence. Most immigrants choose adjustment of status, since they do not have to travel abroad or undergo a consular interview. Most employment-based immigrants can become lawful permanent residents without even a single interview at the CIS. Employment-based immigrants can even adjust despite having been out of status or worked without authorization. To do so, they must not have worked without authorization or been out of status for more than 180 days in the aggregate. On the other hand, employment-based immigrants whose out-of-status presence has exceeded 180 days in the aggregate, or who have worked without authorization for more than 180 days in the aggregate, can be in serious trouble. This is because as of April 1, 1997, persons who are “unlawfully present” in the U.S. for over 180 consecutive days are barred from re-entering the U.S. and immigrating for three years. Persons who are “unlawfully present” in the U.S. for one year or more are barred from re-entering the U.S. or immigrating for ten years. A waiver of this draconian rule is available only to those who can prove “extreme hardship” to their spouses or parents, who must be LPRs or U.S. Citizens. Since most employment-based immigrants have no close family members who are LPRs or U.S. Citizens, they are ineligible for the waiver. Equally severely, employment-based immigrants who are inadmissible from the U.S. on medical, criminal or similar grounds may not be able to obtain waivers at all. For example, under the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996,” those who commit “Visa Fraud” cannot immigrate unless they can demonstrate extreme hardship to a spouse or parent who is an LPR or U.S. Citizen. Again, since most employment-based immigrants have no close family members who are LPRs or U.S. Citizens, they are not eligible for the “extreme hardship” waiver. This is true even if they possess approved immigrant visa petitions. In order to protect clients and to allow them the full benefit of the law, an advocate should weigh these factors before work on a case is commenced.

FOR MORE INFORMATION ON THIS SUBJECT, see: Employment-Based Immigrant Visas, Generally Immigration & Nationality Law Handbooks (AILA Publications) Selected Fundamentals of Immigration Nationality & Practice (AILA Publications) Professionals: A Matter of Degree, 5th Edition (AILA Publications)

21-38

Labor Certification AILA’s Guide to PERM Labor Certification (AILA Publications, 2011)

21-39

Unit 21

A Guide for Immigration Advocates April 2014

Unit 21

=

Glossary of Immigration Terms “A” Number: This is the number that Department of Homeland Security (DHS), Citizenship and Immigration Service (CIS), Customs and Border Patrol (CBP), and Immigration and Customs Enforcement (ICE) uses and Immigration and Naturalization Service (INS) used to keep track of the file for each alien. Whenever you write to or talk to any of these agencies, you need to have the A Number ready so they can look up their files. When the person immigrates, this is the number that ends up on the alien registration (“green”) card.

Abductors, international child: See “child abductors ground of exclusion.” Abscond: A person who does not appear at his immigration court hearing has absconded. Accredited Representative: These are paralegals who are allowed to represent aliens in dealing with Department of Homeland Security. They can also represent aliens in Immigration Court just like lawyers. They must work for a non-profit agency which has been recognized by the Board of Immigration Appeals (BIA). Act: Another name for a law. Addict, drug: See “drug addicts and abusers.” Adjustment of status: Anytime people change immigration status to become Legal Permanent Residents (LPRs) without leaving the U.S., they go through a process called adjustment of status. This term is sometimes used to refer to a change to permanent resident status through a family visa petition. Administrative Appeals Unit (AAU): The AAU decides appeals from certain decisions made by CIS officers. (See Unit 8 for the list of kinds of cases the AAU can hear.) Administrative court: These are courts set up by a government agency, like Department of Justice or the Department of Labor. They are not as formal as judicial courts, and some paralegals can represent clients in them. See “EOIR,” “IJ,” “Immigration Court.” Administrative review bodies: These are offices within government agencies that decide appeals from decisions of the front-line staff. See “AAU.” Advance Parole: Formal permission granted by a DHS entity to a noncitizen whose application has not yet been decided or who is in some form of temporary status to leave the U.S. temporarily and come back later to resume the application or status the person had before departure.

Glossary-1

Glossary

Abandonment of residence: Lawful Permanent Residence (LPR) status can be lost or abandoned if the person moved out of the United States to live in another country.

Tab Position 1

A Guide for Immigration Advocates April 2014

Advisory Opinion: The Bureau of Human Rights and Humanitarian Affairs (BHRHA) issues advisory opinions in asylum cases, stating whether the Department of State believes that the applicant should be granted asylum.

Glossary

Affidavit: This is a written statement, made under oath, often signed in front of a judge or notary. Aggravated felonies: These are listed in INA § 101(a)(43). They include drug or firearms trafficking, murder, rape, child molesting, or violent crimes for which the person was sentenced to at least one year. A person who is convicted of an aggravated felony and removed is inadmissible for 20 years. (See Unit 3.) Alien: An alien is any person who is not a citizen or national of the United States. The term includes lawful permanent resident aliens, lawful temporary aliens, nonimmigrant students and visitors, refugees, and persons who have entered without documents. Alien registration number: See “A” number. Alien smuggler: A person who helps or encourages a noncitizen to try to cross the border illegally is an alien smuggler. If the smuggler is not a citizen, then he may be inadmissible or deportable and barred from establishing good moral character. This applies both to noncitizens who smuggle in their family members and professional smugglers. Allegiance: This is loyalty to one’s country. When becoming a citizen, it is necessary to swear allegiance to the U.S. Amendment: This means a new law that changes an old one. It also refers to changes in the U.S. Constitution, some of which are very important to our rights. See Fourth, Fifth and Fourteenth Amendments. Alternatives to conviction: Depending on the state, there are various ways to avoid having a criminal offense put on your record: first offender programs, diversion, etc. These programs eliminate convictions for state purposes but generally do not eliminate them for immigration purposes. Appeal: Cases which people think were decided wrongly may sometimes be reviewed by a higher court. This is a direct appeal. If the appeal is granted, the conviction is eliminated for all purposes, but while the appeal is pending it may still be considered a conviction for immigration purposes. Appearance: To “enter an appearance “means to agree to represent someone , before CIS, ICE, the IJ, the BIA, etc. lawyer or accredited representative must fill out a Notice of Entry of Appearance in order to be recognized as the person authorized to represent someone before any of these entities. Applicant: This is a person who is applying for an immigration benefit such as entry into the U.S., asylum, refugee status, permanent residence, or naturalization.

Glossary-2

Tab Position 1

Immigrant Legal Resource Center April 2014

Arrest: To arrest a person for lacking immigration status the ICE official must have probable cause to believe that the person is an undocumented alien.

Tab Position 1

A Guide for Immigration Advocates April 2014

Asylee: This is a person who has been granted Asylum. Asylum: Asylum is the status given to people who have left their country because they have been or may be persecuted for their political beliefs, race, nationality, or membership in a social or religious group, and who apply for protection while they are at the border or physically in the U.S. (Compare with “refugee.”)

Beneficiary: The person who will benefit from the filing of a visa petition. When a U.S. citizen or LPR family member petitions CIS to allow a relative or an employer petitions for an employee to immigrate to the U.S., the relative or the employee is called the primary beneficiary of that petition. The relative or employee’s spouse and minor children may be derivative beneficiaries of that petition, if they also will benefit from approval of the petition. Benefit: This is one of the words used for an immigration solution that legal workers can get for their clients, such as work authorization, asylum, citizenship. Similar to relief, remedy. BHRHA: Bureau of Human Rights and Humanitarian Affairs. This is the office within the Department of State that gives advisory opinions in asylum cases. BIA (Board of Immigration Appeals): This is the group of administrative judges who review decisions of IJs and DDs in many cases. If either an alien or DHS disagrees with a final decision made by an IJ, he or she can appeal to the BIA to review the case and make a new decision. Certain cases can be reviewed above the BIA. Federal District Courts, Courts of Appeal, and finally the U.S. Supreme Court occasionally hear immigration cases. (See Unit 8.) Bona fide: This means real; in good faith. For example, for a marriage to be bona fide, the couple’s goal when they married must have been to create a real marriage, not to marry just to obtain immigration status. Bond: Some aliens who are in custody may be let out while their cases are being decided if the judge or ICE will let them pay a certain amount of money. This money is returned to the alien after the case is finished. The same as bail in criminal proceedings. Bond Equities: These are the reasons which can persuade ICE or the immigration judge that the person will appear at his removal hearing. These equities include the person’s community and family ties, forms of immigration relief, and the person’s character.

Glossary-3

Glossary

Authority: This means power, such as the power an official has to issue a decision in a type of case. It is also used to describe “legal authority,” which means any one of various ways to describe what the law really is on a particular question. There is a hierarchy of legal authority, from the Constitution, to the laws, regulations, cases, and operating instructions. See also “statute,” “Act,” “internal operating instructions,” “cite.”

Bond Hearing: Also called bond redetermination hearing. Aliens can ask the judge to lower the amount of the bond originally set by ICE. Border crossing card: This is a permit which allows a person to visit the U.S. for up to 72 hours. The person must stay within 25 miles of the border.

Glossary

Brief: A formal written statement presenting the facts and arguing a case. Brief, casual and innocent: This describes the kind of visits to other countries that did not disqualify people who applied for “suspension of deportation” prior to April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA replaced “suspension of deportation” with “cancellation of removal.” Now, an alien cannot have any one absence more than 90 days within the ten year period, or absences totaling more than 180 days in order to meet the continuous physical presence requirement. Burden of proof: This refers to who must provide evidence to prove a fact. For example, in a removal hearing in Immigration Court where the person has been “admitted” into the U.S, DHS must demonstrate that the person is deportable; therefore DHS bears the burden of proof. On the other hand an applicant for permanent residence must show DHS that he or she qualifies for permanent residence and is also admissible. The applicant, in other words, bears the burden of proof. Cancellation of Removal: There are three kinds of cancellation of removal, described at INA § 240A. In one kind, an IJ may grant permanent residence to an alien who has lived in the U.S. for at least 10 years, has had good moral character for that time, and can show that certain family members would suffer exceptional and extremely unusual hardship if the alien were deported. See INA § 240A(b)(1). In another kind, an IJ may grant a permanent resident a cancellation of removal if the resident has been a lawful permanent resident for at least 5 years, has lived in the U.S. continuously for 7 years after having been admitted in any status, has not been convicted of an aggravated felony, and has not been granted a cancellation of removal or suspension of deportation before. See INA § 240A(a). A third kind of cancellation of removal is for battered spouses. See INA § 240A(b)(2). Units 11 & 12 describe these remedies in detail.) Cases, case law: The law includes not only the rules written by Congress but also the decisions of judges. Through a system called precedent, the way higher courts in earlier cases interpreted a law controls the way lower courts in later cases decide the meaning of that law in similar situations. See also “authority” above. Case file: This is the file a law office keeps on each person whose case the office handles. Casual questioning: This refers to a police or ICE official asking questions to a person who is free to walk away at any time. CBP: The Customs and Border Protection Agency, or CBP’s, main immigration responsibility is apprehending aliens attempting to enter into the U.S. illegally, and, especially, preventing terrorists from entering the U.S.

Glossary-4

Tab Position 1

Immigrant Legal Resource Center April 2014

Central Office: This is the Washington, DC office of DHS. Sometimes it is called Headquarters. CFR (Code of Federal Regulations): This contains regulations, which clarify the meaning of laws. Title 8 contains the DHS and EOIR regulations that correspond to the INA.

Charged to: In the visa preference system, each time CIS gives someone a visa, it must subtract one from the number of visas set aside for the country where the person was born. The visa is charged to that country. If that country has a backlog, or waiting list, then the person may not get a visa for many years. Child: Under the INA, “child” is defined as an unmarried person under the age of 21, who has a childparent relationship that CIS recognizes. Stepchildren qualify if the marriage which created the relationship took place before the child was 18. Adopted children qualify if adopted before 16 and if they have resided with and been in the legal custody of the adoptive parents for two years, or, for adoptions on or after April 1, 2008, if they comply with the Hague Convention on Adoption.. Adopted orphans qualify if adopted under 16 and the parents meet various requirements. Illegitimate children can qualify as children under certain circumstances as well. Child abductors ground of exclusion: People who abduct children across international borders are inadmissible. CIS: CIS or Citizenship and Immigration Service’s mission is the adjudication of all petitions previously adjudicated by the INS, including asylum and refugee applications. Cite, citation: This means to mention a legal authority in order to show that your point is supported by the law. (See “authority” and Unit 8.) Citizen: A citizen of the United States is a person born in the United States or in certain territories of the U.S., such as Puerto Rico and Guam. Certain persons born abroad are also citizens at birth by acquisition through a citizen parent or parents. Citizens are not subject to the INA. (See Unit 17.) Citizenship: This is a status that gives you all of the rights of a citizen. It is a collection of rights. Citizenship branch: This is the part of the District Office that handles applications for naturalization to U.S. citizenship. It also decides cases in which a person wants to prove that he or she is already a citizen. Class action lawsuit: This is when a group of people who have suffered the same kind of abuse get together and sue the person, company or government agency that has violated their rights.

Glossary-5

Glossary

Chargeability: When a visa is issued to an immigrant, the visa is “charged” to the quota for that person’s country. Country of chargeability is important because some countries have long backlogs, so immigrants will have to wait a long time before the visa is issued. Usually visas are charged to the country in which a person was born, but some people can have their visas cross-charged to a country with a shorter backlog. This is possible when the petitioner is born in a different country.

Tab Position 1

A Guide for Immigration Advocates April 2014

Class of admission: This means how a person immigrated: amnesty, 2nd preference visa, etc. Clear and convincing evidence: This means the amount of evidence required to prove something must be quite strong. It is used when the alien who has been admitted to the US is in removal proceedings.

Glossary

Clear probability of persecution: For restriction on removal it is necessary to show that it is more likely than not that if deported, the applicant would be persecuted on the grounds of race, religion, nationality, social group or political opinion. This is a higher standard than for asylum. See also “asylum.” (See Unit 14 & 15.) Communicable diseases: This is a ground of inadmissibility. People who have a disease which the Department of Health and Human Services decides is communicable must have the condition treated and come back later, or apply for a waiver. Current drug addicts and drug abusers are inadmissible. (See Unit 3.) Commuter alien: This is an alien who may have a green card, but who lives across the United States border in another country. Conditional permanent resident: People who immigrate or adjust status through their spouse within two years of the marriage become conditional residents for two years. After that, they must petition together for the spouse to become an LPR or file for a waiver. The children of a conditional resident are also conditional residents. See Joint petition, IMFA. Consent: This means permission. For example, if a person gives his or her permission, the police may search anything. Constitution: This is the Supreme Law of the Land. All laws in the U.S. must conform to the Constitution. If a law goes against the Constitution, a court can strike it down as unconstitutional. Consulate: This is the U.S. government office in another country which is part of the U.S. Department of State where aliens apply for visas. Continuous physical presence: An alien who is not an LPR must show that she has ten years of continuous physical presence in the U.S in order to qualify for one type of cancellation of removal. An alien cannot have any one absence more than 90 days within the ten year period, or absences totaling more than 180 days in order to meet the continuous physical presence requirement. See INA § 240A(b)(1). CORAP (INS Central Office of Refugee Asylum and Parole): This is the DHS department that decides asylum cases for those persons not in removal proceedings. Coyote: This is a slang term for someone who smuggles a person into the U.S. for money. Crime, particularly serious (in the U.S.): A conviction of a particularly serious crime (“PSC”) is a bar to asylum and to withholding of removal. This bar only applies to asylum applications filed after

Glossary-6

Tab Position 1

Immigrant Legal Resource Center April 2014

October 1, 1990. For asylum purposes, any aggravated felony conviction is a PSC. For withholding purposes, conviction of one or more aggravated felonies with an aggregate sentence of at least five years is automatically considered to be a PSC. Apart from these aggravated felony bars, whether an offense is a PSC is based on factors about the offense, such as the circumstances, whether it was against people or property, the sentence imposed, etc. (See Unit 15.)

Tab Position 1

A Guide for Immigration Advocates April 2014

Crime, serious non-political (outside the U.S.): If there are serious reasons to consider that a person has committed a serious non-political crime before coming to the U.S., the person is barred from receiving both asylum and restriction of removal.

Criminal grounds of inadmissibility and deportability: There are various kinds of problems with crimes. Crimes of moral turpitude, prostitution, problems with drugs or guns, and length of sentence may make an alien inadmissible and/or deportable. (See Unit 3.) Cross-charge: See “chargeability” and “charged to.” Daughter: See “Son or daughter.” DD: See “District Director.” Declaratory Judgment: When a District Director makes an unfair or wrong decision, it is sometimes possible to sue in federal court to have the decision changed. Deferred action: This is an uncommon DHS policy based on an operating instruction. It allows DHS to decide not to deport a person or take other action. It is easier to get deferred action in sympathetic cases. Deferred Action for Child Applicants (DACA): This is a special program to grant a form of deferred action to individuals who came to the U.S. before the age of 16 and meet other requirements. Those granted this form of deferred action will be given status for two years at a time. Deferred inspection: This is when the DHS believes that a person (usually at an airport) may not be entitled to enter the U.S. The DHS (or more specifically, the CBP) lets the person physically enter the U.S. but it does not count it as a legal entry. The CBP then defers the inspection interview to a later time at a CBP office. See also “parole.” Denaturalization proceedings: This is how the courts take away the citizenship of someone who obtained it illegally or fraudulently. See also “revocation of naturalization.”

Glossary-7

Glossary

Crime of Moral Turpitude: This usually means a crime which involves recklessness, intent to commit fraud or theft, intent to do great bodily harm, or lewd intent in some sex crimes. Aliens who have committed such crimes may be inadmissible, deportable, or ineligible for citizenship.

Department of Justice (DOJ): This is the government agency that enforces the federal laws. It oversees the Executive Office for Immigration Review, which consists of the immigration courts and the Board of Immigration Appeals (BIA). The head of the DOJ is the Attorney General.

Glossary

Department of State: The Department of State runs U.S. consulates in other countries. It also gives advisory opinions about whether asylum applicants should receive asylum or not. It also issues the Visa Bulletin which helps us to estimate when visas will be available (when people will be eligible for visas). Deportability, grounds of: This is a list of the reasons that someone who was admitted to the U.S. can be forced to leave (removed from) the United States. If one of these reasons applies to you, we say that you “come within a ground of deportability” and you are removable. (See Unit 3.) Deportable aliens: These are aliens who fall within a ground of deportability, which are found at INA 237(a). Deportation: This was the process of legally removing an alien who had “entered” the United States before the effective date of IIRIRA (April 1, 1997). It is now referred to as “removal.” Deportation hearing: Before passage of the 1996 law, this was a hearing before an Immigration Judge to decide whether an alien was deportable or not. In a deportation hearing DHS bears the burden of proof. Deportation proceedings: See “removal proceedings.” Deportations branch: This branch of the old INS was in charge of people who have been brought under removal proceedings. If the person is going to be removed, this branch will arrange for transportation and travel documents. Now this branch is called ERO (Enforcement and Removal Operations). Derivative beneficiaries: These are the spouse and children of the principle beneficiary of a preference visa petition. Derivative citizenship: When a parent naturalizes, some minor children become citizens automatically. (See Unit 17.) Detentive stop: This is when DHS officials have a reasonable suspicion that the person is an undocumented alien. In that case, they can detain the person for a little while. Discretion: This means DHS or the IJ has the choice whether to approve a certain benefit for a person or not. It means the IJ or DHS balances the positive and negative factors in the case. Non-discretionary benefits are called mandatory. See also “GMC.” Disease, communicable: See “communicable diseases.” District Counsel: This is like the District Attorney in a criminal case: Assistant District Counsels who work in the Office of the District Counsel represent ICE against aliens in Immigration Court in removal hearings. See also “deportations branch.”

Glossary-8

Tab Position 1

Immigrant Legal Resource Center April 2014

District Court: See “United States District Court.” District Director: He or she is the head of the CIS District Office. He or she is responsible for most decisions.

Tab Position 1

A Guide for Immigration Advocates April 2014

District Office: CIS is divided into four Regions and then into Districts, each of which handles CIS functions for that area. Draft dodgers: See “ineligible for citizenship.”

Drug convictions: Any drug conviction is grounds for deportability and inadmissibility (except for simple possession of 30 grams or less of marijuana). Drug trafficking: If DHS has reason to believe that a person has ever been involved in drug trafficking (selling or distributing drugs, not just getting drugs for your own use), then the person is inadmissible. Employment visas: Some people, especially college graduates, can immigrate through their employers. (See Unit 21.) Employer Sanctions: Employers who “knowingly” hire illegal aliens may have to pay fines. The law says that employers must require workers to prove that they are legally able to work in the U.S. Enforcement and Removal Operations (ERO): This branch of ICE is in charge of people who have been brought under removal proceedings. If the person is going to be removed, this branch will arrange for transportation and travel documents. Entry: Whether an alien had “entered” the U.S. was a big question in immigration law before the 1996 law because aliens who had already entered had many more rights than aliens who were just trying to enter. Aliens who were allowed into the U.S. on “deferred inspection” or “parole,” for example, had not “entered” the U.S. even after several years. On the other hand, aliens who came into the country by sneaking past the border patrol would have “entered” even after a few minutes. Entry without inspection (EWI): This means entry without being checked by an immigration officer. It usually applies to those who cross land borders illegally. Enumerated grounds: Enumerated means listed. A ground means a basis for doing something. For example, in asylum, a person must show persecution based on one of five grounds: political opinion, membership in a social group, race, religion or nationality. EOIR: See “Executive Office for Immigration Review.”

Glossary-9

Glossary

Drug addicts and abusers, current: These people are inadmissible.

Equities: Equities are the factors that make a person’s case strong. One might argue that a hardworking mother with nothing to go back to if she is deported has strong equities, while a professional who could go back and easily find a job has weak equities. EWI: See “Entry without inspection.”

Glossary

Examinations branch: This branch of the District Office contains handles the different applications that a person makes. Exceptional and Extremely Unusual Hardship: This is the standard of hardship required for people seeking cancellation of removal under INA § 240A(b)(1). The hardship must be suffered by the applicant’s US citizen or LPR parent, spouse or child, and no one else. It is a very high standard to meet. Excludable Aliens: These are aliens who fall within a ground of inadmissibility, which are found at INA 212(a). The term “excludable” was in common use before IIRIRA. Now the term used is “inadmissible.” Exclusion: Exclusion was, prior to IIRIRA, the process of keeping aliens out of the United States before they get in or when they were just trying to get in. INS officers at the border or other places where people enter the country could exclude aliens if the aliens could not show that they were eligible to enter. (This has been replaced with the “expedited removal.”) Exclusion Hearing: Prior to IIRIRA, an alien who was refused admission to the U.S. had the right to a hearing before an Immigration Judge. At the hearing, the alien had the burden of proving that he or she was admissible rather than excludable. Now, someone who is refused admission can be removed from the U.S. without a hearing before an immigration judge, in a process called “expedited removal.” Executive Office of Immigration Review (EOIR): This is the official name of the Immigration Court system. It includes the local Immigration Courts and the Board of Immigration Appeals. EOIR is not part of DHS. Expedited removal: An alien who has not yet entered the U.S. or who entered the U.S. without inspection and has been living here for two years or less may be put in an expedited removal proceeding. The person must prove he or she is admissible or ask for asylum. This is a fast administrative procedure done by DHS officers, not judges. The only form of relief one can ask for is asylum. (See Unit 10.) Expungements: These are a way of having your criminal record wiped clean. However, it does not work for immigration purposes any longer in most instances. Extreme hardship: This means hardship above and beyond what a person forced to leave the U.S. would normally suffer. This must be shown to receive a waiver of certain grounds of inadmissibility, as well as some other benefits. It is a lower standard of hardship than the exceptional and extremely unusual hardship required for cancellation of removal under INA § 240A(b)(1).

Glossary-10

Tab Position 1

Immigrant Legal Resource Center April 2014

FAM (Foreign Affairs Manual): This tells which U.S. Consulate should handle a visa petition, how to get official documents from other countries, and what regulations and operating instructions consulates follow in handling visa petitions.

Tab Position 1

A Guide for Immigration Advocates April 2014

Family fairness: This is an old INS policy—not a statute or regulation—that allowed some family members of legalized aliens to remain in the U.S. It remained in effect until October 1, 1991, when the Family Unity portion of the Immigration Act of 1990 took effect.

Family visa petition (form I-130): LTRs, LPRs and USCs can file requests to INS to allow certain close family members to immigrate. (See Unit 4.) Fast track: This refers to the fact that removal cases of persons who remain in ICE custody are processed faster than those who are out of custody. Felony: This means a serious crime, usually defined as one which may be punished by a year or more in prison. See also “aggravated felony.” (See Unit 3.) Fiance(e) petition: This allows USCs (but not LPRs) to bring a fiance(e) into the U.S. in order to marry him or her within 90 days. After the marriage, the fiance(e) can apply for adjustment to LPR status. Fifth Amendment: This amendment to the Constitution guarantees the right not to be forced to be a witness against yourself (the right to remain silent). It also guarantees basic fairness to all people under the law (due process). (See Unit 19.) Final Order of Removal: Only an immigration judge (or the BIA) can enter such an order. An immigration judge enters an order of removal if the IJ finds that the person is deportable or inadmissible and is not eligible for any immigration remedy, including voluntary departure. An IJ’s order becomes final if there is no appeal to the BIA. If there is an appeal to the BIA, and the BIA denies relief, the BIA decision becomes the final order of removal. Firm Resettlement: This means that, before you came to the U.S. and applied for asylum, you had been in another country where you received an offer of permanent residence status, citizenship, or some other type of permanent resettlement. (See Units 14 & 15.) Fleuti exception: Brief, casual and innocent absences from the U.S., which were not meaningfully interruptive of an LPR’s residence here, were not considered to be absences at all. Therefore, when the person returned, his return was not “an entry” and so the grounds of exclusion did not apply. Even if he was excludable, he could still return. The Fleuti exception still applies to some LPRs, but in general was replaced by a new definition of admission under IIIRA. See INA § 101(a)(13).

Glossary-11

Glossary

Family unity: This program allowed spouses or children of aliens who were legalized through IRCA to remain in the U.S. if the spouse or children lived in the U.S. since before May 5, 1988. There were also some disqualifying grounds.

Fourteenth Amendment: This guarantees that all people will be treated equally by the law. (See Unit 19.) Fourth Amendment: This forbids the government to search or seize (detain or arrest) anyone unreasonably. The police must have “probable cause” to get a warrant from a judge to do many kinds of searches. (See Unit 19.)

Glossary

G-325A form: This biographical data form is for background checks for spouses who are immigrating and anyone who is adjusting status. The I-130, I-485 and G-325A must have the same information. Good faith waiver: This is a waiver of the requirement to file a joint petition for a conditional resident whose marriage has ended. He or she must demonstrate that the marriage was in good faith. Good Moral Character (GMC): For many immigration remedies, it is necessary to show that a person has good moral character, which is defined at INA § 101(f). This means that they have not done bad things, such as committing certain crimes. GMC incorporates many of the grounds of inadmissibility. Green Card: Alien Registration Card. This card shows that a person is a permanent resident. Ground: A ground means a basis for doing something. Habeas Corpus: When the IJ or BIA issues a removal order, it can sometimes be challenged in federal court by this special legal procedure. Hardship: See “extreme hardship” and “exceptional and extremely unusual hardship.” Hearing: This is the official procedure in Immigration Court presided by an Immigration Judge in which a person’s case is decided. It is like a trial but less formal. Hypo, hypothetical: This means an example of a case, used especially for teaching. I-94 form: This is the white paper card which CBP puts in aliens’ passports when they enter the U.S. It shows that they were inspected by the CBP and what their status was at that time. The DHS also sometimes issues I-94s for other purposes. I-130 form: This is the immigrant visa petition in which a person requests that a family member be allowed to immigrate to the U.S. The official name is “Petition for Alien Relative.” A USC or LPR family member is the petitioner. The person who will immigrate is the beneficiary. I-485 form: Application for adjustment of status. I-601 form: Application for a waiver of inadmissibility.

Glossary-12

Tab Position 1

Immigrant Legal Resource Center April 2014

I-751 form: Application for removal of the conditions on residence, which must be filed by conditional residents in order to avoid termination of their conditional residence. If this application is granted, the person becomes a regular permanent resident.

Tab Position 1

A Guide for Immigration Advocates April 2014

ICE: ICE’s or Immigration and Customs Enforcement Agency’s, mission includes managing investigations of document, identity, visa, and immigration fraud; investigating immigration violations and migrant smuggling; and detaining, prosecuting, and removing undocumented aliens.

IJ: See “Immigration Judge.” Immediate relative: The spouse, unmarried child or parent of a U.S. citizen. Immediate relative family visa petitions are not limited in number. See “Preference System” below. Immigrant visa: This is a visa which allows a person to come to the U.S. as a permanent resident. Immigrant Visa Petition: This is the first step in applying to bring an alien to the U.S. as an immigrant. If the person is immigrating through a family member, it is formally called “Petition for Alien Relative.” See “I-130 Form.” Immigration Act of 1990: This amendment to the INA made many important changes in U.S. immigration law. These changes include reorganization of the immigrant visa system, Temporary Protected Status, Family Unity, new procedures in deportation proceedings, and a reorganization of the grounds of exclusion and deportation. See also “INA.” Immigration Appearance Bond: See “Bond.” Immigration Court: This is the court presided over by the Immigration Judges. It is part of the Executive Office for Immigration Review. It is an administrative court and is not as formal as regular court. Immigration Judge (IJ): These are the people who preside over the Immigration Court. They decide removal cases. Immigration and Nationality Act of 1952 (INA): This is the main law of immigration. When amendments are passed, they are incorporated into the INA. It created the visa preference system.

Glossary-13

Glossary

IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act): This Act, signed on September 31, 1996, significantly revised many immigration laws. The Act changed the rules for certain proceedings; created an expedited removal proceeding; and limited who was eligible for various forms of relief including asylum, cancellation of removal and other waivers. It also limited appeal rights and made income requirements for immigrants. It officially came into effect on April 1, 1997, but some of its provisions apply to events that occurred prior to that date.

Immigration and Naturalization Service (INS): INS was part of the Department of Justice. Until 2003 INS was responsible for carrying out the immigration laws. Now, the INS’ functions have been assumed by three agencies within the DHS (ICE, CIS, and CBP).

Glossary

Immigration Marriage Fraud Amendment Act (IMFA): This law created a new status—conditional permanent resident—for persons who immigrate or adjust status during the first two years of the marriage which allows them to immigrate or adjust. After two years, they must ask CIS to make them LPRs. There are also other provisions in IMFA. Immigration solutions: These are all the various ways by which a person can obtain legal status or avoid removal. Imputed political opinion: This means that a person was persecuted, or fears persecution because a persecutor believed or believes that she has or had a certain political belief. Some courts accept this as a basis for granting asylum. Inadmissibility, grounds of: (Formerly called “grounds of exclusion.”) This is a list of the reasons an alien can be refused admission to and/or removed from the U.S. A person who comes within a ground of inadmissibility is inadmissible. A person who does not come within a ground of inadmissibility is admissible. (See Unit 3.) Ineligible for citizenship: This ground of inadmissibility refers to certain draft dodgers and deserters. INS: INS or the Immigration and Naturalization Service was for many years the main federal government agency that administered U.S. immigration law. However, effective March 1, 2003, Congress dissolved the INS, and all of its functions were assumed by the Department of Homeland Security (DHS). Immigration laws are now administered and enforced by three separate divisions within the DHS: the U.S. Bureau of Customs and Border Protection (CBP), the U.S. Bureau of Citizenship and Immigration Services (CIS), and the U.S. Bureau of Immigration and Customs Enforcement (ICE). The CBP’s main responsibility is apprehending aliens attempting to enter into the U.S. illegally, and, especially, preventing terrorists from entering the U.S. The ICE’s mission includes managing investigations of document, identity, visa, and immigration fraud; investigating immigration violations and migrant smuggling; and detaining, prosecuting, and removing undocumented aliens. The CIS’s mission is the adjudication of all petitions previously adjudicated by the INS, including asylum and refugee applications. Intentional torts: Legal workers who steal money from clients or commit fraud are guilty not only of crimes, but also torts. This means the clients can sue to get their money back and get extra money to punish the legal worker. (See Unit 13.) Interim decisions: These are decisions by the BIA which can be relied on and used in court. They can be accessed online.

Glossary-14

Tab Position 1

Immigrant Legal Resource Center April 2014

Internal operating instructions: These are rules created by CIS to control the way CIS officials do their jobs. They are the lowest level of legal authority. Like all rules, they must conform to the law. They are also called OIs.

Tab Position 1

A Guide for Immigration Advocates April 2014

IRCA (Immigration Reform and Control Act of 1986): IRCA is the law that allowed many undocumented aliens to become legalized, and is often referred to as the “amnesty” law. It also created employer sanctions. IV: This is a common abbreviation for “Immigrant visa.”

Legal standard of proof: See “Standard of proof.” Legalization: This includes programs created by IRCA which allow undocumented aliens to become legal. Two of the major programs allowed persons to legalize if they had been in the U.S. since January 1, 1982 or if they had been agricultural workers during a specified time period. Also known as amnesty. Legitimate Child: A child of married parents is always legitimate. A father can legitimate his children if he satisfies certain requirements such as recognizing his children. Whether DHS recognizes a child as legitimate depends partially on the law of the alien’s country. Certain countries define all children as legitimate. Legitimation: The process by which a father makes a child born out of wedlock legitimate. This process can vary from country to country. Liable: This means legally responsible. Litigate: To fight in court. Long-term option sheet: This is a checklist of immigration solutions which legal workers can use to make sure they have identified all possible solutions. LPR (Lawful Permanent Resident): This is an alien who has the right to live permanently in the U.S. Everyone who has a green card is an LPR. LPRs are also called permanent residents or resident aliens. LTR (Lawful Temporary Resident): This is an alien who has passed the first phase of becoming legalized under the IRCA legalization (amnesty) program. Malpractice: Legal workers can be held liable (legally responsible) for unreasonably careless mistakes. See “negligence.” Mandatory benefits: These are benefits which DHS must grant if the applicant meets the requirements. The opposite is discretionary benefits.

Glossary-15

Glossary

K-1 petition: See “Fiance(e) petition.”

Marriage fraud: See “IMFA.

Glossary

Marriage fraud interview: CIS sometimes interviews couples where one spouse is immigrating to make sure the marriage is real. Master Calendar Hearing: The hearing on the charges brought on the Notice to Appear. The first hearing in removal proceedings is generally a master calendar hearing, unless there has been a previous bond hearing. A person can have more than one master calendar hearing. For example, someone who has not yet secured representation may be granted a continuance (time) to obtain counsel, in which case they will be told to return to court for another master calendar hearing. At the final master calendar hearing, the person must respond to the charges on the Notice to Appear. If the person is eligible for some form of relief, the judge normally sets a later hearing, called an individual or merits hearing, for that purpose. Material fact: This is a fact which is important to the case. For revocation of citizenship, there must be a fact that would have caused the denial of citizenship or might have been useful in an investigation which would lead to a denial. See also “visa fraud.” Membership in a particular social group: One of the enumerated grounds of asylum is persecution based on social group. The characteristics may include location, sex, color, class, family ties, past experience, etc. Mental or physical disorder: People are inadmissible if they have or had certain types of mental or physical disorders. Merits Hearing: This is the part of the removal hearing process in which the immigration judge hears the evidence and decides whether to grant the person’s application. The judge decides the merits of the case. Moral Turpitude: See “Crime of Moral Turpitude.” National: This means almost (but not quite) the same thing as citizen. It only applies to persons from certain U.S. territories, such as America Samoa. Nationals are not subject to the INA. National security ground of exclusion: See “political ground of exclusion.” Nationality: For asylum, one of the grounds of persecution may be nationality, in the sense of national origin or ethnicity. Naturalization: Changing from alien to U.S. Citizen. CIS gives a Naturalization Certificate as proof of U.S. citizenship. Negligence: This means unreasonable mistakes for which a person can be held legally liable. Courts will look at the standard of care which is generally accepted.

Glossary-16

Tab Position 1

Immigrant Legal Resource Center April 2014

NIV: This is an abbreviation for “Non-immigrant visa.” Non-immigrant visa: These are types of visas, such as tourist, student, temporary worker, etc. To get a non-immigrant visa, the person must not intend to immigrate to the U.S. permanently. These are usually for a limited time and for a limited purpose.

Objective test: For refugee status/asylum, applicants must show that their fear of persecution was wellfounded. This means that there was a reasonable possibility that they would be persecuted. See also “subjective test.” Order to Show Cause (OSC): This was the formal legal document issued by INS under the preIIRIRA law that placed people in deportation proceedings. (Now called the “Notice to Appear.”) Out of status: You were legal before, but you have become illegal because, for example, your visa expired (also called “overstay”). Overrule: When higher judges decide that a lower judge was wrong, they overrule the lower decision. Parole: In immigration, this means that DHS physically lets a person come into the U.S. without having legally been “admitted.” Parolees do not have all the same rights of people who have been admitted. Parolee: This is a person who has been allowed into the U.S. by DHS, but who is legally considered to be like a person who has not been admitted. Parolees don’t have all of the rights of people who have been admitted. See “parole.” Particularly serious crimes: See “Crime, particularly serious.” Past persecution: This is one of two ways to qualify for asylum or refugee status. The other is by showing a “well-founded fear” of future persecution. (See Unit 14.) Perjury: Lying under oath. This is a crime. Affidavits (sworn statements to submit to court) are strengthened if they include the phrase, “under penalty of perjury.” Permanent Resident: See “LPR.” Persecution: To receive asylum, people must show that they have been persecuted or that they have a well-founded fear of persecution. Courts do not agree on what type of harm is persecution. It includes, but is not limited to, a threat to a person’s life or freedom. (See Unit 14.)

Glossary-17

Glossary

Notice to appear (NTA): This is the formal legal document that charges the person with being a removable alien. In this Notice, the DHS must state specific facts that show: 1) the conduct that violates the law; 2) the legal authority under which the DHS is conducting the proceedings; and 3) the provision of the law that the person violated.

Tab Position 1

A Guide for Immigration Advocates April 2014

Personal knowledge: When people make an affidavit or testify personally in court, it is important that they know the information from personal knowledge, not simply because they heard it from someone else. If they heard it from someone else, it is hearsay and is considered less reliable. Petition: This is a form asking for a certain benefit. See “Visa petition.”

Glossary

Petitioner: This is the person (or company) who is requesting that a relative (or employee) be permitted to immigrate to the U.S. It also refers to someone who has filed an appeal to the Court of Appeals, for example appeal of the BIA’s denial of the administrative appeal. Petty offense exception: A person who has admitted or been convicted of just one crime of moral turpitude may be inadmissible. But, a person may qualify for an exception, and therefore not be inadmissible, if these three facts are true: 1) This is the first time the person has committed a moral turpitude crime; 2) the maximum possible sentence for the crime is one year or less; and 3) the sentence actually imposed is six months or less. Political asylum: See “Asylum.” Political ground of inadmissibility: DHS can exclude persons such as terrorists, and people whose entrance would have serious adverse foreign policy consequences. Political opinion, imputed: See “imputed political opinion.” Post-conviction relief: These are steps taken with the criminal courts after a person has a conviction on his or her record to either remove it entirely or to eliminate its effect on one’s immigration status or application. Precedent: This is when a higher court has decided in an earlier case that the law must be interpreted in a certain way. Precedent means that later courts must follow the same interpretation. For example, every year the BIA publishes precedent decisions that control the way IJs can interpret the INA. These can be cited in later cases to require DHS or another IJ to interpret the law the same way. (Also called controlling law.) Preference system: This is a list of the categories of immigrant visas available that are limited in number. It does not include “immediate relative” visas, which have no numerical limit. There are four family visa preferences: First Preference, for adult unmarried sons or daughters (including, in some circumstances, adopted and step sons or daughters) of U.S. citizens; Second Preference, for the spouses and unmarried sons or daughters (including, in some circumstances, adopted and step sons or daughters) of permanent residents; Third Preference for the married sons or daughters (including, in some circumstances, adopted and step sons or daughters) of U.S. citizens; and Fourth Preference for the siblings of U.S. citizens. The numbers of visas available vary by the preference category. Every year more people apply for visas than the U.S. gives out, leading to backlogs. (See Unit 4.) Preponderance of the evidence: This is the normal standard of proof in civil cases (including immigration). It means, more likely than not.

Glossary-18

Tab Position 1

Immigrant Legal Resource Center April 2014

Principle beneficiary: This is the person immigrating under a preference petition. See also “derivative beneficiaries.”

Tab Position 1

A Guide for Immigration Advocates April 2014

Priority date: This is the date the I-130 visa petition is filed with CIS. It secures a visa beneficiary’s place in line to get a visa. It is important because of the backlog for visas for most countries and most preferences. See “Visa Bulletin.” Private bill: This is the way a member of Congress can ask the Congress to allow a particular person some immigration remedy that is outside the scope of the INA.

Pro se: This means that a person appears in court without a lawyer or any other representative. Public charge: This means that a person is impoverished and likely will need government assistance to survive. People who are likely to become public charges are inadmissible. (See Unit 3.) Recognized Agency: These are agencies whose employees can be accredited to represent aliens at DHS and before EOIR. Their employees can become accredited representatives if they meet certain requirements. The BIA decides whether an agency should be recognized. Re-entry doctrine: Even LPRs can be refused entry if they leave the U.S. and try to return, if they are inadmissible. At each re-entry, the grounds of inadmissibility apply. IIRIRA has new rules on whether a re-entry by an LPR is an entry for these purposes. However, some LPRs are exempt from these rules. Refugee: Persons who are outside the U.S. and who cannot return to their countries because of fear of persecution are refugees. The requirements are the same as for asylum, except that asylees are already in the U.S., while refugees apply from another country. For example, Bosnians who apply from abroad to come to the U.S. are refugees. Salvadorans who live in Texas who apply to stay in the U.S. are asylees. Refugee Rollback: Refugees can count their first year in the U.S. (before they can apply to be LPRs) toward the five-year residency requirement for naturalization. Asylees can count one year of presence in the U.S. before their application for LPR status was accepted for naturalization purposes. Refugee travel document: This is a document which allows an asylee/refugee to travel outside the U.S. It is like a passport, but issued by the U.S. government for a foreign national who has been granted asylee or refugee status in the U.S. Registry: This is a part of the INA that says that someone who entered the U.S. before January 1, 1972 may be able to become a permanent resident, if they meet certain other requirements. Regulations: (Also called Regs.) These are rules made by government agencies to interpret the laws and set procedures. In immigration, the main regulations are made by DHS and found in Title 8 of the

Glossary-19

Glossary

Privileged information: When a client gives an attorney information, the worker must keep the information private. Neither DHS nor the courts can force legal workers to reveal this information.

Code of Federal Regulations (8 CFR). There is a separate part of Title 8 that contains the EOIR regulations, which to a great extent are exact parallels of the DHS regulations. The Department of State and Labor regulations are also relevant in some immigration cases. Relevant facts: These are facts that are related to the questions which must be decided in a particular case.

Glossary

Relief from removal: This refers to some immigration solution or remedy under the immigration laws which will protect a person against being removed. Represent clients in Immigration Court: This means that you take responsibility for that case. BIAaccredited representatives, supervised law students and law school graduates, “reputable individuals” as well as attorneys can do this. (See Unit 13.) Rescind, Rescission: This means that a certain benefit, such as adjustment of status or naturalization, may be taken away. Respondent: When the government tries to deport aliens in removal proceedings, the aliens are called respondents because they have to respond to ICE’s Notice to Appear. Restriction on Removal: This is similar to asylum because it is granted to those who will more likely than not suffer persecution if returned to their home countries. However, unlike asylum, it is a mandatory benefit, and it has similar, but different, rules. A grant of restriction on removal, unlike asylum, does not give someone the right to apply for permanent residence in the future. Review of Orders of Removal: This is how you appeal to a federal Court of Appeal to overturn a removal decision by the BIA or a lower court. (Formally called a “Petition for Review.”) Revocation of naturalization: If a person naturalized illegally or fraudulently, a federal court can take away that citizenship. If one of the statutory requirements was not met at the time of naturalization, then citizenship was illegally obtained. If the person misrepresented a material fact or made a willful misrepresentation, then she obtained citizenship fraudulently. (See Unit 17.) SAW: See “special agricultural workers.” Serve notice: This refers to the official notification by ICE or immigration court of a hearing or a decision to a person (or his legal representative). Service file: This is the file DHS creates for a person when it opens a case on a person. It is also called the “A file” because of the “A number” that DHS creates for that person. Sham marriage: This means a marriage entered into only for immigration reasons. Sibling: This means brother or sister. They must have one parent in common.

Glossary-20

Tab Position 1

Immigrant Legal Resource Center April 2014

Son or daughter: This is a person who once qualified as a child, but is now over 21 or married. The INA treats “children” differently, so it is important to note whether the person is under 21 or not, or qualifies to remain a child for immigration purposes under the Child Status Protection Act.

Tab Position 1

A Guide for Immigration Advocates April 2014

Special agricultural workers: These are people who did agricultural work in the U.S. for at least 90 days, from 1985 to 1986, who were allowed to legalize their status thanks to IRCA. Application for this program has closed. They are also known as “SAWs” Spouse: This means a person’s current lawful husband or wife.

Statute: Another name for a law. Statutory bar: This means that certain people are disqualified by law from receiving certain benefits. For example, persecutors of others are not allowed to receive asylum. Statutory scheme: This is a fancy way to say, “The way the law is organized.” Stay of deportation: A person who is under a final order of deportation may ask the DHS, IJ or BIA to hold off on carrying out the deportation. Stowaways: People who have sneaked onto a ship without permission are inadmissible, though they are still allowed to apply for asylum. Subjective test, subjective prong: For refugee status/asylum, eligibility requires a person to show that he or she actually fears persecution. See also objective test. Suspension of deportation: Under the law in effect prior to IIRIRA, an IJ could grant permanent residency if an alien who had lived in the U.S. for 7 years, had good moral character, and could show that she or certain family members would suffer extreme hardship if the alien was deported. This has been replaced with “cancellation of removal” for non-permanent residents under INA § 240A(b)(1), which has stricter requirements. Testify personally: This means to come to court and speak under oath. Tickler system: Legal workers must use a system to keep track of deadlines for filing papers with DHS and courts. Also called a pending or calendaring system. TPS (Temporary protected status): The 1990 Immigration Act created this status for people from countries which were going through civil wars, natural disasters, or other dangerous conditions. It has been granted to people from El Salvador and many other countries.

Glossary-21

Glossary

Standard of proof: This means the amount of proof needed by a judge to decide the case one way or the other. Normally the standard for immigration cases is “preponderance of the evidence.” For certain cases, it is “clear and convincing evidence.”

Unauthorized practice of law: Non-lawyers are not allowed to do the following things regularly for money: represent others in court, advise others about legal problems and write legal documents and court papers. (See Unit 13.) Under penalty of perjury: See “perjury.”

Glossary

U.N. Handbook on Procedures and Criteria for Determining Refugee Status: This is a source of international law authority for interpreting U.S. refugee/asylum law. United States District Courts: These are the lowest federal courts. They do not hear appeals from BIA decisions, but may hear appeals from naturalization denials and other special situations. United States Circuit Courts of Appeal: These are federal courts that hear appeals. Their decisions are precedent for all lower federal courts in their area. Cases in removal and deportation proceedings are appealed to these courts from the BIA. United States Supreme Court: This is the highest court. Its decisions are precedent for the whole country. USC (United States citizen): This is someone who is not subject to the immigration law. Unrelinquished domicile: Prior to the IIRIRA, LPRs who became deportable or inadmissible had to show that they had an unrelinquished domicile in the U.S. for at least seven years as a removal defense under § 212(c). IIRIRA replaced 212(c) relief with cancellation of removal for permanent residents, but it still applies in some cases in which the deportable conviction occurred before IIRIRA’s effective date. Uphold: When a case is appealed and the higher court agrees with the lower court’s decision, it upholds the decision. Valid: For one spouse to immigrate the other through a visa petition a marriage must be valid, that is legal in the place where they married. For example, a church marriage in Mexico is not valid for immigration purposes, because Mexican law only recognizes civil marriages as valid. Visa: This is permission to come to the border to enter the U.S. for a particular purpose, such as tourism, immigrating or studying. However, having a visa does not guarantee the alien permission to enter. The CBP at the border can refuse to admit an alien who has a visa if they do not believe the alien is really coming for purposes allowed by that kind of visa. Visa Bulletin: This lists the priority dates for which visas are currently available. Practitioners use this to estimate how long a particular person will have to wait before an alien can come on a relative petition. Visa fraud: Obtaining a visa by lying to the consular officials, for example, when someone indicates that he only intends to stay in the U.S. for six months when in fact he is coming over to marry his fiancée and remain in the U.S. permanently.

Glossary-22

Tab Position 1

Immigrant Legal Resource Center April 2014

Visa office: This office within the State Department “reviews” decisions to deny visas made by consulates.

Tab Position 1

A Guide for Immigration Advocates April 2014

Visa petition: This is how a USC or LPR initially applies for a family member to become a LPR. Employers can also file these petitions for employees. Visa processing at a U.S. consulate: This means that a person will apply for and receive a visa to immigrate to the U.S. in another country. It is also called consular processing. (The other way is to adjust to permanent residence without leaving the U.S.).

Waiver: A waiver is what the CIS or IJ gives you when it decides to forgive a certain ground of deportability or inadmissibility. There are many different kinds of waivers in immigration law. Waiver application: To ask the CIS or IJ to forgive certain grounds of inadmissibility using form I601 or I-212. Warrant: This is a court order giving the police or ICE permission to arrest someone or search a place. Well-founded fear of persecution: This is one of two ways to be eligible for asylum/refugee status. Applicants must show that they are personally afraid of persecution, and that there was a reasonable possibility of persecution. Withdrawal of plea: This is a way of cleaning up someone’s criminal record. Withholding of Deportation: This was what “restriction on removal” was called prior to the IIRIRA. See “restriction on removal.”

Glossary-23

Glossary

Voluntary departure: Voluntary departure means that you agree to leave the U.S. when your case is over. This is a way of avoiding having a removal order on your record, which is important because people who have been removed are inadmissible for five or ten years. There are three different kinds of voluntary departure. See INA § 240B. . (See Unit 16.)

=

 

Attorney of the Day Service  ILRC Technical Assistance  Since 1979, the ILRC has provided a unique, nationwide consultation service called  Attorney of the Day (AOD), in which your immigration case questions are answered by  our expert staff attorneys.  We offer consultations on several aspects of immigration law  to attorneys, employees of nonprofit organizations, public defenders, and other  practitioners that assist immigrants.    There are two options available:   

Contract Service  This option allows you to secure an on‐going contract with us for a lower rate than the  one‐time consultation fee.  You can create an individual or group contract so that  members of your organization have access to this service.  To begin the process, we  obtain a signed contract and collect an initial deposit.  Each time you contact us with a  question, we will deduct the pro‐rated charge from this deposit.  You will be billed when  your account falls below $50.   

One‐Time Consultation   This option allows you to ask questions on a one‐time basis.  Payment must be made by  VISA, MasterCard, or American Express.  Please have your credit card information handy  when you contact us.  There is a minimum charge of 1/10 hour.  All charges will be  prorated.    AOD consultation hours are Monday through Thursday between 10:00 am and 3:00 pm  Pacific time.  Inquiries will be answered within two business days, excluding Fridays.   Questions can be sent to [email protected].    For more information, please visit www.ilrc.org or call 415‐255‐9499.   

 

Reprint Permissions  To reprint any of the information contained in an ILRC publication, please see our  Reprint Permissions Policy available on our website at:    http://www.ilrc.org/publications/reprint‐permissions    The following are guidelines for ILRC materials to appear in printed or electronic*  format:    All materials produced or published by the ILRC are protected by copyright.  By  submitting a request form, you agree to abide by our copyright restrictions and  requirements.    *For access to ILRC materials on intranets or public websites, ILRC will only allow for  hyperlinking to the electronic materials already available on ILRC’s website, and grantee  will specifically state that the ILRC material is available only for internal use and not for  commercial use or mass distribution.    For materials to appear in printed, electronic, or audio format, you may be granted a  one‐time usage license to copy and distribute the materials.  You may not modify,  delete or add any text, images or audio to the materials without express permission  from the ILRC.  All materials must be copied or distributed in whole, not in part.  If the  materials are to appear within another medium, or as a shortened version of the  original, ILRC must review the particular usage before it can grant permission.    All materials must be used in conjunction with the following credit line: Reprinted from  [insert name of the original material] with permission of the Immigrant Legal Resource  Center, San Francisco, CA, 415‐255‐9499; www.ilrc.org.   

 

Subscribe to ILRC Listservs  The ILRC maintains several e‐mail listservs that address developments within specific  areas of immigration law.  We welcome you to join one or all of them.  To do so, follow  these instructions for each hotline, and YOU must self‐subscribe to the ones of your  choosing.    You can join the listservs by visiting http://www.ilrc.org/ilrc‐email‐lists/subscribe‐or‐ unsubscribe, then select “Subscribe” and complete the simple form as instructed.  There  are eight lists to choose from:    Education @ ILRC  Want to stay informed about ILRC training opportunities and recent publication  releases?  This listserv will be dedicated to keeping you updated about our unique and  timely educational resources.    Famvisa  Family immigration topics and updates, including legal developments and practitioner  materials pertaining to accessing and applying the benefits of 245(i) through the LIFE  Act.    SIJS (Special Immigrant Juvenile Status)  Immigrant children’s rights advocacy and policy updates.    NACARA (Nicaraguan Adjustment & Central American Relief Act)  Network of advocates, pro bono attorneys, and nonprofit agencies who are working  directly with clients in the adjustment process. 

ESSENTIAL ILRC PUBLICATIONS

Hardship in Immigration Law How to Prepare a Winning Case in Waiver and Cancellation of Removal Cases.=This uniquely useful manual, designed as a toolbox, is an essential reference tool for immigration practitioners. Practical and informative, it breaks down the elements that the BIA and federal courts have identified as relevant to claims of hardship, and demonstrates how to work with clients to elicit the information that will best present their hardship claims. Remedies and Strategies for Permanent Resident Clients ___________ Designed as a “how to” manual, we provide clear, concise and detailed explanations of the grounds of removal permanent residents are most likely to face; when the grounds of inadmissibility and deportation do and don’t apply; how to argue that they don’t apply, and the immigration remedies available for each. We also discuss our tips for working with clients to elicit the evidence necessary to successfully defend their cases. The VAWA Manual _________________ Immigration Relief for Abused Immigrants.=This is a completely revised edition of our popular, comprehensive guide for advocates working with immigrant survivors of domestic violence. Consisting of 13 chapters, this manual includes in-depth information on VAWA self-petitioning requirements and process, Adjustment of status, Inadmissibility grounds and waivers, Removal proceedings and motions to reopen VAWA, VAWA cancellation of removal, Conditional permanent residency, U nonimmigrant status for victims of crime, Consular processing, and more. Naturalization and U.S. Citizenship: The Essential Legal Guide Consisting of 15 chapters and extensive appendices, the entire process of representing a naturalization applicant from the initial client meeting through the oath of allegiance is thoroughly addressed. Overall the reader will learn detailed eligibility requirements for naturalization and helpful suggestions on both procedural issues and ways to effectively work with naturalization clients. We discuss what to do if a naturalization application is denied and how to determine if a client may already be a U.S. citizen through either acquisition or derivation of citizenship. You will find a thorough discussion of the recent changes in the law concerning citizenship for children. To receive information on new publications: Sign up for our Education Listserve at www.ilrc.org/ilrc-email-lists/subscribe-orunsubscribe