End of Year Giving Safety


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The year of 2015 is drawing to a close.  Immigrants and citizens alike receive spam email as well as legitimate email from organizations requesting donations.  I am happy to feature a post written by guest blogger Melba Pearson who gives tips on how to determine if the request for a donation is legitimate or not.

It’s the end of the year, and your inbox is flooded with charities seeking your donation. You may also be getting requests from crowdfunding sources such as GoFundMe. You want to be generous, as well as get the tax credit, but what should you do?

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Asylum denied to North Korean due to firm resettlement in South Korea



Political Asylum from North Korea

Photo by Vlado

May a citizen of North Korea be granted political asylum despite being firmly resettled in South Korea?  The 9th Circuit Court of Appeals recently said, “no.”

In Jang v. Lynch, — F.3d. — (9th Cir. 2015) the applicant, Sung Kil Jang, was born in North Korea and is a citizen of North Korea.  He was persecuted in North Korea and eventually was able to escape by swimming across a river to China.  He spent a year in China and then traveled to Vietnam and Cambodia before eventually landing up in South Korea.  In South Korea, he completed college, worked and lived there for four years.  He eventually became a citizen of South Korea.  He also had family in South Korea – a sister and her family and a brother.  He had all rights available to citizens in South Korea – the right to hold property, receive education, travel, and obtain public relief.  For reasons not discussed in the case, Mr. Jang came to the United States and soon thereafter applied for political asylum.

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5 Things You Need to know About the EB-5 Investor Visa in 2016


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The EB-5 immigrant investor program is complicated and controversial.   Today’s post is from guest blogger Robert Rogers, an experienced business immigration attorney from Miami Florida.    He describes the key elements of the EB-5 program and what we need to know for 2016.

Congress made little if any progress on comprehensive immigration reform in 2015, and is unlikely to accomplish anything significant on this front in the presidential election year of 2016. It does appear, however, that they got one thing done: an extension of the popular EB-5 Immigrant Investor program through September 30, 2016.

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Can I have custody of my children if I am in the United States illegally?


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child custody issues in immigration

Issues concerning child custody are always intense and even more so during the holidays as families and children inevitably struggle with who are the children going to be with on which day. When an immigration component is present, it sometimes is used as a threat by one parent against the other. I have seen threats made in cases where both parents are in the United States as well as in situations when one parent is in the United States and the other is outside. In both situations, an undocumented parent should not be afraid of losing custody only due to immigration status.

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Deadline to Register for Nepal TPS is approaching fast


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TPS for citizens or nationals of Nepal

© Jose Fuente | Dreamstime Stock Photos

The deadline to register for Nepal TPS (“Temporary Protected Status”) is approaching fast – the deadline is December 21, 2015.  TPS is what it sounds like – a status which allows people to remain in the United States temporarily.  “Temporary” can mean a long time in some situations.  For example, TPS for nationals of El Salvador has existed since 2001. Continue reading

“Alien smugglers” cannot establish good moral character for purposes of Cancellation of Removal




I previously published a post on cancellation of removal for permanent residents and indicated that I would discuss “discretion” in a later blog post.  It is sometimes easier to talk about concepts when they do not apply.  In the situation of a person who is an alien smuggler, the 9th Circuit Court of Appeals has established that such a person cannot establish good moral character for purposes of cancellation of removal.  The Judge has no discretion to grant a case with such facts because the applicant is statutorily prevented from obtaining the relief.  I will discuss the case that established this law and the facts surrounding it.

In Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009), the applicant, Mario Sanchez, entered the United States in April 1988 without inspection, and resided here without lawful status.  He returned to Mexico for three weeks in August 1993 to get married.  After the wedding, he paid a “coyote” $1,000.00 to smuggle himself and his new spouse into the United States.

In May 2000, the Immigration and Naturalization Service (“INS”) (the agency that previously existed before the creation of United States Citizenship and Immigration Services and Immigration Customs and Enforcement), charged him with removal and placed him in removal proceedings.  He applied for cancellation of removal on the ground that removal would result in exceptional and extremely unusual hardship to his U.S. citizen children and lawful permanent resident father.  After a hearing, the Immigration Judge (“IJ”)  found that Mr. Sanchez had met the statutory qualifications for cancellation of removal in all but one respect: he was barred from establishing good moral character because he helped his wife enter the country illegally in 1993. The IJ reasoned that Sanchez’s conduct made him “a member of one or more of the classes of persons”—in this case, a smuggler who by statute cannot be found to have good moral character.

The Court first analyzed the definition of good moral character as contained in 8 U.S.C. 1101(f).  Under the provisions of that statute as well as under another – 8 U.S.C. Section 1182(a)(6)(E)(i) a person is precluded from establishing good moral character who has at any time “knowingly…encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law.”

The Court determined that Mr. Sanchez could not establish good moral character because he admitted to aiding his wife to enter the United States illegally by paying a coyote to smuggle her across the border.

There are other statutes which waive “alien smuggling” in the context of admissibility and adjustment of status but the Court determined that they were inapplicable to applicants for cancellation of removal.

There were two dissenting opinions in the case and one of them would have reversed the decision.  Nevertheless, Sanchez, remains good law and has been upheld in cases decided after it.  The best advice to an individual in this situation would be to argue that the alien smuggling provisions should not apply or to apply for another form of relief other than cancellation of removal, if there is something else available.  Cancellation of removal is not available to persons who have been found to be alien smugglers.


Why haven’t I been scheduled for my political asylum interview?


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political asylum applicants


I recently saw a woman in my San Francisco office who came to see me because her political asylum case has been pending for two years and she has not been scheduled for an interview.  This is not unusual and I have clients in my own caseload in the same situation.

The asylum division of United States and Citizenship Services (“USCIS”) recently published Asylum Office Statistics which, when viewed, explain why there is such a delay.

At the San Francisco Asylum Office, alone, there are currently 11,542 cases pending.  I guess my clients should be happy that we are not at the Los Angeles Asylum Office, which at 21,878, has the highest number of cases pending nationwide.

In September 2015, the San Francisco Asylum Office scheduled 505 interviews and conducted 307 of them.   Some of the scheduled interviews did not occur because either the applicant rescheduled it or USCIS rescheduled it.  Nevertheless, given that small number of people interviewed and the number of pending cases, it is understandable that it is going to take a long time for the asylum office to work through their backlog.

The report contains other interesting statistics.  For example, it lists the top ten leading nationalities for asylum applications filed with USCIS.  As of September 2015, these nationalities are (from most to least):

  1. China
  2. Mexico
  3. Guatemala
  4. Venezuela
  5. El Salvador
  6. Honduras
  7. Ecuador
  8. India
  9. Haiti
  10. Ukraine

If you would like to know when your interview may be scheduled, you may check the Affirmative Asylum Scheduling Bulletin.  USCIS claims that they update this monthly.  The most recent bulletin is current as of December 8, 2015 and shows that in San Francisco, for all cases (not filed by children), they are currently scheduling cases that were filed in August – September of 2013.

Since it is taking approximately two years to be scheduled for an interview, you will need to be sure to update the information in your case as the basis upon which you may have filed for asylum no longer may be as strong as when you filed and/or you may need to update supporting documents on the conditions in the home country.



An Anthropologist Unravels the Mysteries of Mexican Migration


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The Land of Open Graves

I read an interesting article in the online version of National Geographic, first reported in Bender’s Daily Immigration Bulletin.  The article is an interview with Jason De León, an anthropologist and the author of a book, The Land of Open GravesLiving and Dying on the Migrant Trail.   The author grew up in the Rio Grande Valley in Texas. His father is Mexican, his mother is from the Philippines, and he spent his childhood speaking Spanish.  He is currently an assistant professor at the University of Michigan.   In the interview, he speaks about why U.S. border crossing deaths go largely unrecorded while European migrant deaths are headline news; why American economic and drugs policies helped create the crisis; and why he calls the Prevention Through Deterrence program, which funnels migrants towards the Sonora Desert, a “killing machine.”

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Immigration Blog Round-up, week ending December 13, 2015


Every week I feature blogs published by solo practitioners or small law firms from across the United States that have been written in the previous week.   If you would like to be included, please contact me.







Gift ideas for the holidays – What to give to a new U.S. citizen?


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gifts for citizens

© Jinyoung Lee | Dreamstime Stock Photos

As I was driving through Walnut Creek, on the way to BART, I was passing by a lot of stores and thinking about how crowded they looked.  Then I began thinking about my blog.  While I do not know what to give as gifts to the people closest to me, I have a few ideas of what a new citizen to the United States might like.  Given the numbers of people naturalizing, there are a lot of new citizens in our country.   United States and Citizenship Services’ (“USCIS”) citizenship statistics show that in this last quarter alone, they have approved 212, 498 applications.  Comparing all cities in California for the same time period, the greatest number of naturalization applicants,  is from San Francisco – 6,162 applicants, total.  So, it is my guess that we all know someone who has recently naturalized or who is going through the process.  If you do not know what to give that person, I have a few ideas.  As my blog is not a shopping blog, I cannot tell you where to get these items, but I am sure that you may be able to find them around.

1.  American Flag

This is my top idea.  While it may sound corny to someone born in the United States, immigrants are proud to become U.S. Citizens.  They do not take citizenship for granted.  They receive flags at the naturalization ceremony, but they are too small.  I am thinking of one that is bigger, that can be hung outside.  They may be hard to find this time of year in a store, but I am sure they can be ordered.

2.  Cookbook

By the time a person becomes a naturalized citizen, he or she may have figured out how to cook in the United States, but a good cook book is always good to have.  I lived abroad for a year when I was a student and a cookbook was the best gift I received.  We do not use the metric system here and we still talk in pounds and ounces.  People from other countries come here, perhaps with their recipes and soon find out that they have to convert kilos to pounds and they cannot get the oven temperature the same for their favorite cake.  A cook book using weights and measures and temperatures that are used in America would be very useful.

3.  A case to hold the U.S. Passport

Most new naturalized citizens apply for U.S. passports as soon as possible.  A nice case or wallet to hold it in would be a great idea.

4.  A frame or case for the naturalization certificate

A person who is naturalized here goes through a lot of work -the immigration process and then the studying for the naturalization exam.  The certificate is an important document and it looks nice.  It should be framed or placed in a case so that it is protected.

5.  DVDs of a top television show or movie from sometime within the last 20 years

Naturalized citizens know a lot of American history after having studied for their exam.  In fact they know more than most people born here.  What is difficult to learn is American culture.  We have a shared culture from television and movies.  We tend to make references from movies and television when we speak.  An immigrant will not know what we are talking about.  While you cannot give someone all movies from the last 20 years, if you pick out something that you think is important and tell the recipient how it was important to you, the gift will be meaningful.