Asylum Granted

This week I had the honor of representing a client in the Immigration Court in Detroit.  My client had entered the United States in the early 1990s.  Although she is from a country that has a history of persecuting persons like herself, she did not apply for asylum.  She ended up with a removal order from the Board of Immigration Appeals (BIA).  When I met the client in 2012, we decided to ask the BIA to reopen her case so that she could apply for asylum.  The BIA agreed to reopen the case, and sent the case to Detroit for a new hearing.

According to U.S. immigration law, in order to be granted asylum, a person must apply within 1 year of entering the United States, unless the person can demonstrate either extraordinary circumstances (which my client did not have), or changed circumstances (which we argued that my client did have).

At the hearing, at first, the attorney representing the Department of Homeland Security (DHS) indicated to me that he did not think that my client should get asylum, because we had not met any of the exceptions to the one-year filing deadline.  I stated that I thought that my client was eligible for asylum because the conditions in her country had worsened in recent years, including from 2012 up through to today.  Moreover, I had presented documents indicating that several of my client’s siblings had recently obtained refugee status.  Several had recently entered the United States as refugees, and others were in the process of obtaining refugee status and later will settle as refugees in the United States.

The thing that really changed the prosecutor’s mind, though, was a Sixth Circuit case called Mandebvu v. Holder that I brought to his attention.  In Mandebvu, the petitioners applied for asylum many years after they had entered the United States.  The Sixth Circuit overturned the decisions of an Immigration Judge and the BIA and concluded that the petitioners in that case had met the requirement of showing changed circumstances.  The Court reasoned that the petitioners could qualify for the “changed circumstances” exception to the one-year filing deadline by showing additional evidence of the type of persecution that they had already suffered, or that they would be likely to suffer upon return to their country.

Mandebvu was directly relevant to my client’s case.  Although my client could have applied for asylum prior to 2012, when we submitted her asylum application, we showed that conditions in my client’s country have deteriorated in recent years, and we also showed that several of my client’s relatives left the country as refugees in recent years.  Under Mandebvu, that is sufficient to show “changed circumstances.”  After reading the case, the prosecutor agreed with us, and we explained the situation to the Immigration Judge, who then granted asylum to my client.

My client is now an asylee, and in one year she will be eligible to apply for permanent resident (green card) status.  Later, she will be eligible to apply for U.S. citizenship.  It’s great that my client has status in the United States now, after decades of uncertainty.

BIA decision affects immigrants’ rights during interrogations

The Board of Immigration Appeals (BIA) recently issued a decision that has important consequences for non-citizens who are questioned by immigration officials.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA ruled that immigration officials who are questioning non-citizens are not required to advise them that they have the right to be represented by a lawyer, and are not required to advise non-citizens that any statements they make during the questioning may be used against them, until they begin formal court proceedings against them.  Formal court proceedings begin only when immigration officials file a charging document called a Notice to Appear, Form I-862, in Immigration Court.

Matter of E-R-M-F- & A-S-M- stands for the proposition that immigration officials do not have to advise non-citizens of their rights until the officials have filed the Notice to Appear in Immigration Court.

In this case, immigration officials questioned a non-citizen who was a Lawful Permanent Resident (green-card holder).  The person told the officials he had tried to help another person enter the United States illegally.  Later that day, officials presented the non-citizen with the Notice to Appear, Form I-862.  The officials filed the Notice to Appear in Immigration Court more than a month later.  According to the BIA, the formal proceedings against the alien did not begin until immigration officials filed the Notice to Appear in Immigration Court, more than a month after they questioned the non-citizen.

As a result of this case, it appears clear that in a large majority of situations where immigration officials question non-citizens, the officials will not be required to notify non-citizens that they have a right to a lawyer and that their statements may be used against them.

For more information, see:

Recent DHS Memos on Prosecutorial Discretion

The U.S. Department of Homeland Security (DHS) has published a few memos in recent months on the topic of “Prosecutorial Discretion.”  Some confusion may exist in your communities about what these memos mean.

On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), which is a part of DHS, issued a memo in which he provided guidance to ICE officials about how to exercise Prosecutorial Discretion.

But first, what exactly is “Prosecutorial Discretion”?  As John Morton writes in his June 17 memo, “prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual.”  Basically, Prosecutorial Discretion is the choice that DHS officials have in each individual case to make a decision that will result in a better result for an immigrant.

For example, an ICE official might decide to not arrest a non-citizen who appears to be in the United States without permission.  An ICE attorney might decide to not put a non-citizen into Removal Proceedings in Immigration Court.  DHS might decide not to deport an individual who is subject to a final order of removal from the United States.

It is important to understand that the recent memos are NOT offering an amnesty program.  They do NOT provide an automatic path for a person to obtain a green card or employment authorization.  It is also important to understand that there might be some dishonest people in your communities who offer to get you a green card or an employment authorization card for a substantial cost.  Beware of people offering you green cards or employment cards as a result of the recent memos.  They may be trying to take your money and trick you.  The recent memos do NOT offer any kind of program that you can sign up for.

On August 18, 2011, Janet Napolitano, Secretary of DHS, issued a letter stating that government officials will review the cases of the approximately 300,000 people who are in removal proceedings in Immigration Courts across the country.  Secretary Napolitano stated that the officials will identify certain cases that might be appropriate for Prosecutorial Discretion.

If you have questions about the legal effects of the recent memos on Prosecutorial Discretion, or about any legal aspects of your immigration case, you should contact a qualified immigration lawyer.  You should NOT seek legal advice from a notario or an immigration consultant.

For more information, please view the following documents:

June 17, 2011 memo regarding Prosecutorial Discretion from John Morton, Director, ICE (English)

August 18, 2011 letter from Janet Napolitano, Secretary, DHS (English)

August 20, 2011 Consumer Advisory from the American Immigration Lawyers Association (AILA) (English and Spanish)

California moves to opt out of “Secure Communities” program

The Los Angeles Times reports that California officials are taking steps to possibly opt out of the U.S. government’s “Secure Communities” program, a controversial scheme whose stated purpose is to remove dangerous criminal aliens from the United States, but which has been criticized heavily for deporting many aliens who have clean criminal records.

Please click here to read the article.

Abandonment of Lawful Permanent Residence

Some Lawful Permanent Residents encounter problems with U.S. immigration officials at the border or at the airport when returning to the United States after a trip abroad. Perhaps you took a long trip outside the United States – perhaps one year or more. Or maybe you have spent the majority of your time outside the United States over the past several years.

Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.

Cancellation of Removal

If you are required to appear in Immigration Court, there are several options that might be available to you, depending on your specific situation.  One option for some people is a form of relief called “Cancellation of Removal.”

Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.

We have provided some basic information about cancellation of removal.  Please take a look.

Some States Resist Obama’s “Secure Communities” Program

The New York Times has reported that an increasing number of states are expressing dissatisfaction with President Obama’s “Secure Communities” Program, in which the fingerprints of every person arrested by police are checked against databases of the Department of Homeland Security for immigration violations.

Some state officials have criticized the program, stating that, instead of deporting convicted criminals, the program appears to be focusing mainly on removing people with no criminal records.

Last week, Gov. Pat Quinn of Illinois stated that he was pulling the state out of the program. Concerns have also been raised in other states, including Maryland, Massachusetts, and California.

The American Immigration Lawyers Association has called on President Obama to suspend the program.

To read the New York Times article, please click here.

Removal Proceedings in Immigration Court

If you have received a document from the U.S. Department of Homeland Security titled “Notice to Appear,” then you have probably been placed, or will likely soon be placed, in Removal Proceedings in Immigration Court.

Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.

We include a brief document regarding Immigration Court proceedings. Please take a look.

Detailed report on the many costs of detaining immigrants

The National Immigration Forum has published a detailed report on governmental policies regarding the detention of immigrants.

Titled “Immigrants Behind Bars:  How, Why, and How Much?” the report documents the high costs to local communities of incarcerating immigrants in county jails, costs that often are not reimbursed by the federal government.

Because of the recent focus on enforcement and detention, persons who have legal status in the United States are unlawfully detained due to errors or lack of knowledge of immigration laws.

To read the full report, please click here.

“Secure Communities” program often targets immigrants with no criminal records

Critics argue that the federal government’s “Secure Communities” program, which was designed to target immigrants who have committed serious crimes,  is being used to deport some immigrants with clean records.

“We’re not talking about people who are truly dangerous criminals,” said Gary Daniels, Ohio associate director for the American Civil Liberties Union. “These are people who are getting caught in the dragnet of law enforcement.”

“We’re talking about people who want to work, who want to pay taxes, who just want to be left alone to live.”

Click here to read the full article.