New Asylum Case on Family as Social Group

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family as social group for political asylum

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The 9th Circuit Court of Appeals in the case of Rios v. Lynch, — F.3d — (9th Cir. 2015)  recently held that the Board of Immigration Appeals (“BIA”) erred in not considering an applicant’s claim that he would be persecuted on account of his family connections and thus did not fully consider the family as a social group.

In Rios v. Lynch, the applicant, Felix Flores Rios, is a citizen of Guatemala.  After he was already in the United States, members of a Guatemalan gang killed his father outside of his father’s Evangelical Church.  His cousin had witnessed the murder and had agreed to testify against the perpetrators.  She was killed the day before the hearing.  Mr. Flores-Rios’ sister began receiving death threats even though she did not witness the murder and did not agree to testify.  She fled to the United States.

Mr. Flores Rios applied for asylum claiming that he feared persecution on the basis of his Evangelical religion because family members had been killed on that basis.  He also claimed that he would be harmed based on familial affiliation.

The 9th Circuit upheld the decision made by the Immigration Judge (“IJ”) and the BIA that his asylum claim was time-barred because he failed to apply for asylum within one year of his date of entry into the United States.  Nevertheless, the Court concluded that he could still apply for withholding of removal and considered the merits of his case for that form of relief.

The 9th Circuit upheld the decisions of the IJ and BIA that Mr. Rios-Flores had not established a nexus between the murders of his family members to their religious beliefs.  The Court also upheld the conclusion of the IJ and BIA that, because Flores-Rios had never been threatened or harmed due to his religious affiliation and did not engage in proselytizing efforts, there was little likelihood that he would be persecuted as a result of his religious beliefs.  Nevertheless, the analysis did not end there because the IJ and BIA had failed to consider whether Mr. Flores Rios had a fear of persecution based on his family ties.

Mr. Flores-Rios asserted that he is a member of a social group made up of his family and that he risks persecution by the gang because of its vendetta against his family. The Court found that the BIA did not address this social group claim and held that this failure constituted error and required remand.

The Court reviewed the law on how social group claims are analyzed and discussed one of the newest BIA cases on Social Group, Matter of M-E-V-G- 26 I &N Dec. 227 (BIA 2014).  In that case the BIA held that recognition of a particular social group “is determined by the perception of the society in question, rather than by the perception of the persecutor.” Id. at 242. The BIA in E-M-V-G, created a new rubric for social group analysis.  An applicant for withholding on the basis of membership in a particular social group must now show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Id. at 237.

Comparing Matter of E-M-V-G to 9th Circuit cases on social group, the Court noted in Mr. Flores-Rios’ case that “family” is still the quintessential particular social group.  Citing to one of their earlier cases, the Court mentioned that in Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc), vacated on other grounds, Gonzales v. Thomas, 547 U.S. 183 (2006), they held “that family membership may constitute membership in a `particular social group,’ and thus confer refugee status on a family member who has been persecuted or who has a well-founded fear of future persecution on account of that familial relationship.” They also recognized that persecutors are more likely to identify individual family members as part of a particular social group when familial ties are “linked to race, religion, or political affiliation.” Id. at 1188.

Turning again to the facts in Mr. Flores-Rios’ case the Court determined that due to the evidence that gang members killed Flores-Rios’s father, murdered his cousin and threatened his sister, the BIA erred in not addressing the family aspect of Flores-Rios’s social group claim.

This is an important case because it firmly establishes that the IJ must consider how the social group is perceived by society, not by the persecutor and reminds IJs that family as social group must be considered as a separate basis for asylum eligibility.  It also affirms that, at least in the 9th Circuit, a family social group claim does not need to be intertwined with another protected asylum ground in order to be considered as a basis for claiming asylum, although it is certainly helpful.

 

Immigration Blog Round-Up, Week ending December 6, 2015

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I have decided to change the days of blog round up from Fridays to Sundays.  It seems more natural to have a “round-up” at the end of the week.  So, every Sunday I will feature blogs published by solo practitioners or small law firms from across the United States.   If you would like to be included, please contact me.

 

 

 

 

Five Tips to Prepare for your Asylum Interview

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With delays of two years, at a minimum, from the date of filing to the date of the asylum interview, at least in San Francisco, it is important to be well prepared for the interview.  In most cases, this will mean updating the supporting documents to show that country conditions are still the same if not worse, as they were at the time you filed.  In this post, I will offer some tips on how you can best prepare for your asylum interview.

1.  Know your case

Due to the long delay from the time of filing to the date of the interview, you may have forgotten what you stated in your application and in your declaration.  You have been focusing your time in the United States on working or learning English.  You are far removed from the events that took place in your home country.  Now you must take the time to review your case and supplement the documentation if necessary, if events have occurred since the date of filing.  You need to prepare for your interview as if you were studying for an exam.  You need to remember names, dates, and places – all details of your application.

2. Remember how you felt when you first arrived in the United States and convey that feeling

Again, it has been awhile since you filed your application.  You have been accustomed to life in America.  You may be feeling more at ease than when you first arrived.  Unfortunately a peaceful feeling is not what you want to convey at your interview.  You want to remember how you felt the day you arrived and be able to convey that feeling to the asylum officer.  In order to win asylum, you must prove that there is an objective basis and a subjective basis to your fear of persecution.  You have to show that you are scared and frightened to return.  Talk to people who are still in your home country and find out what is happening there.  Read up on current events and submit some of that documentation to the asylum office.  Think back on the events that caused you to leave and how you felt, and then walk into the asylum office with those feelings.

3. Practice interviewing

Hopefully your attorney will prepare you for the interview and will review the questions with you.   After your preparation session with your attorney, you should still practice.  Have a friend ask you some of the questions that your attorney asked you.  Try to create the conditions that will be present at the asylum office.  Thus, you should have someone pretend to be the asylum officer and someone be the interpreter.

4.  Understand American culture

In addition to determining whether or not you are afraid to return to your country, the officer is also making a decision as to whether or not you are telling the truth. You are at a disadvantage because the interview is held in the United States, not in your home country.  The officer conducting the interview is American.  You are expected to conform to American norms even though you may not know what they are.   In American culture, we can tell if someone is telling the truth when someone looks into our eyes when talking.  Thus, even though it may not be the norm in your culture to look into the eyes of someone in a position of authority when speaking, it is the norm in American culture.  You must look directly into the officer’s eyes when answering questions.  This is true even if the officer is not looking at you the entire time.  You must not fidget, or squirm.  If you do not understand a question, it is perfecting fine to ask the officer to repeat or rephrase the question.  Do not answer any question that you do not understand.

5.  Go to the Asylum Office a couple of days before your interview so you know where it is

You will be nervous enough on the day of your interview and you do not need additional stress.  Go to the asylum office a few days before so you know how you get there.  You will not be able to go inside the office itself but you can at least find the building.  Locate the closest bus stop or parking garage so that you do not have to worry about it on the day of your interview.

I wish you the best at your interview.  If you have any additional suggestions, feel free to comment to this post.

How do I clear my immigration record so I don’t get stopped at the airport?

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immigration inspection at airport

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I recently had a client returning from a trip abroad through the San Francisco International Airport.  He was stopped and referred to secondary inspection where he had to wait for a Customs and Border Patrol (“CBP”) officer to question him.  He is a lawful permanent resident and thus was mystified as to why he was being stopped.   He was not told what the problem was but it turned out to be fine and he was admitted into the United States.

I believe that the problem probably relates to his prior immigration history.  He previously had a minor immigration violation which was subsequently cleared up through the filing of a waiver (I-601) but although it has been cleared with United States Citizenship and Immigration Services (“USCIS”), CBP is apparently still flagging it as a problem.

In order to prevent him from being stopped again when he travels abroad, we are going  to clear his record with CBP.  CBP has a process by which a traveler can submit an inquiry to CBP to clear a record.  The process is called DHS Traveler Redress Inquiry Program (DHS Trip).  By going to their website, an applicant may fill out a form, explain the situation and submit it to CBP.  Once the form is submitted, CBP will ask for additional supporting documentation in support of the application.  CBP will then review it and hopefully correct the problem.  It is advisable to follow this process if you think you know what the issue is.

If you do not know what the problem is in your situation, it may be best to do a FOIA (Freedom of Information Act) request with CBP.  By filing a FOIA with CBP, you will eventually obtain a copy of your file and you may be able to figure out what the problem is.  Unfortunately it takes a long time for CBP to process FOIA requests, usually at least a year.

Another method to obtain a copy of your file is to file a FOIA with the Office of Biometric Identity Management (OBIM).  By submitting a FOIA request to this office, you will receive a copy of any file relating to interactions with border officials.  OBIM requests may be made via e‐mail, mail, or fax and must include an original fingerprint card (available at police stations or at a place that does fingerprinting) or A‐number.
OBIM requests may be made using Form G-639 or the Department of Homeland Security (“DHS”) Online Request Form.  Filing a FOIA with DHS is usually faster than filing with CBP but you should expect to wait at least six months for a response.

By requesting FOIAs figuring out what the problem is and then submitting an inquiry to CBP, you should be able to correct the issue, assuming it can be corrected, and travel without a problem in the future.

USCIS changes policy on approval of visa petitions for widow(er)s

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Widow(er)

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A few days ago, USCIS released a new policy memo on the approval of visa petitions for widows/widowers.  The new policy allows a spouse of a deceased petitioner to continue with the immigration process even if the surviving spouse has remarried.  (Under prior interpretation of the law, a surviving spouse could not immigrate if he or she remarried after the death of the petitioner.)

The reason for the new policy is due to a decision in a case called Williams V. Secretary, US Dept. of Homeland Security, 471 F.3d 1228 (11th Cir. 2014).  In Williams, a foreign born spouse, Raquel Pascoal, married a U.S. Citizen, Derek Williams, and he filed a Form I-130 (Petition for Alien Relative) on her behalf.  Mr. Williams died before USCIS adjudicated the petition.  Ms. Pascoal then filed a Form I-160, Petition for a Widow(er).  USCIS denied that petition because she had not been married to Mr. Williams for two years.  (At that time the law required that a marriage must have had lasted two years.)  She then remarried and divorced a short time thereafter.  Upon her divorce, she sought to reopen the relative petition that Mr. Williams had filed on her behalf, but USCIS denied that as well indicating that she was prevented from reopening the I-130 because she had remarried.

The Court held that the statute did not prevent Ms. Pascoal from doing exactly as she planned on doing – she could seek to reopen her prior immigrant visa petition despite her remarriage.  USCIS has now decided to adopt Williams as policy in all cases in the United States.

The new policy plays out like this:

If the U.S. Citizen spouse filed a petition for alien relative (Form I-130) before the U.S. Citizen spouse died and the surviving spouse has not remarried:

The I-130 will automatically convert into a Form I-160, petition for a widow(er).  The surviving spouse can seek to immigrate as a widow(er).

If the U.S. Citizen spouse filed a petition for alien relative (Form I-130) before the U.S. Citizen spouse died and the surviving spouse has remarried:

The I-130 will remain an I-130.  The surviving spouse may continue with the immigration process provided that he or she was residing and still resides in the United States at the time the petitioner died.

In either situation, it does not matter whether USCIS had approved the petition prior to the petitioner’s death.  Nevertheless, a petition may still be denied on the merits if it would have been subject to denial if the petitioner had not died.

The policy memo does not change the law for widow(er)s of U.S. Citizens who are in the United States on K-1 visas.  As long as the K-1 married the U.S. Citizen within 90 days of admission, the K-1 (and any children on K-2 visas) may continue the immigration process by applying for adjustment of status.  It is not necessary for the widow(er) to file a Form I-360, just as it would not have been necessary to file a new Form I-130, had the petitioner not died.  For non-immigrants on K-3 or K-4 visas (foreign citizen spouse and children of U.S. Citizens), their Forms I-130 would convert into Forms I-160 and they would continue the immigration process as widow(er)s and children of widow(er)s.

It is important to note that the policy of permitting widow(er)s to immigrate on a petition even if they have remarried only applies to those surviving spouses who were married to U.S. Citizens.  It does not apply to spouses who were married to lawful permanent residents.

Requirements for Cancellation of Removal for Permanent Residents

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gavelI am currently working on a cancellation case for an individual from San Francisco. As I work on the case, I am going to write posts on different aspects of this form of relief. This post will discuss the basic statutory requirements for cancellation of removal for permanent residents. (There is another form of relief of cancellation of removal for non-permanent residents but I will not be discussing it in this post.)

Cancellation of Removal is a discretionary form of relief that is available to individuals who are placed into removal proceedings due to criminal and/or immigration violations. The idea is that if they can show that they have been present in the United States for a certain period of time and meet other requirements discussed further below, their removal will be cancelled. In effect what they receive is a second chance to remain in the United States.

The statute that provides for Cancellation of Removal for permanent residents is Immigration and Nationality Act (“INA”) Section 240A(a). This statute allows an Immigration Judge to cancel the removal of an individual if he or she:

    • has been lawfully admitted for permanent residence for not less than five years,
    • has resided in the United States continuously for 7 years after having been admitted in any status, and
    • has not been convicted of any aggravated felony.

In addition, the applicant has to show that he or she has not

    • been found by a judge to be a spy, terrorist, threat to national security, persecutor, torturer, to have committed genocide or extrajudicial killing, or severe violations of religious freedom, and
    • been previously granted cancellation, or suspension of deportation.

Permanent resident status for five years

The five years starts (is counted from) when the individual has been admitted into the United States as a lawful permanent resident. Time in another status does not count toward this requirement; all five years must be as a permanent resident. If the applicant obtained his or her green card by fraud or mistake, the applicant is not considered to be a permanent resident. Moreover, an applicant generally cannot use his or her parent’s permanent resident status to count toward the five year requirement. However, this interpretation may depend upon the circuit in which the applicant is located. In the 9th Circuit, the Court of Appeals ruled in Mercado-Zazueta v. Holder, 580 F.3d 1102 (2009), that a minor child may rely on his or her parent’s lawful permanent resident status to meet the five year requirement.

Seven years of continuous residence

The time when an individual begins to accrue continuous residence begins when an individual is admitted to the United States in any status. Thus, an admission as a tourist or with a temporary business visa may count. The seven year period must be continuous. There is a great deal of case law on what continuous means but basically it means that an individual must be present in the United States without frequent interruptions.

The seven year period may end if one of the following events occurs:

1. The Department of Homeland Security serves the individual with a “Notice to Appear.” This is the document which lists the charges rendering an applicant removable and is filed in the Immigration Court.

2. The individual commits an offense that renders him or her removable or inadmissible.

If either of these events occur, the individual stops accruing the seven years of continuous residence necessary to apply for cancellation of removal.

No conviction for an aggravated felony

If an individual has been convicted of an aggravated felony, he or she is ineligible for cancellation. A list of crimes that constitute aggravated felonies is found in INA Section 101(a)(43). There is a great deal of case law about what constitutes an aggravated felony. An individual should consult with an immigration attorney and seek post-conviction relief if necessary in order to avoid having a conviction constitute the definition of an aggravated felony.

Cancellation of removal is discretionary

Even if an applicant meets the statutory requirements discussed above, the applicant still needs to show that he or she merits the relief. The Immigration Judge will weigh both the favorable and unfavorable factors in making a decision. My next blog post on cancellation of removal will discuss discretion in more detail.

Immigration Blog Round-Up, Week Ending November 27, 2015

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Every Friday I include a round-up of blog posts from the past week related to Immigration law.   I feature blogs published by solo practitioners or small law firms from across the United States.   If you would like to be included, please contact me.

 

Although I want to focus on small firms or solo practitioners in the round-ups, I could not resist this blog post:

 

What immigrants can be thankful for this Thanksgiving

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ThanksgivingIt seems the news is all bad in terms of immigration – stories about closing our borders, or denying the admission of Syrian refugees, or talk of eliminating birthright citizenship.  With this kind of news, it seems that the situation is hopeless for immigrants. It does seam bleak.  Nevertheless, I decided to focus on the positive this Thanksgiving and have come up with a list of programs/visas/strategies for which we can give thanks.

  • The refugee program continues to exist

I do not know what will happen with the Syrian refugees and I hope it will be resolved so that everyone feels secure but nevertheless we should be glad that we have a refugee program at all.  We have admitted people into the United States from all corners of the world. Right now the topic of the day is Syrian refugees, but in our recent past, we have allowed people to enter as refugees from Viet Nam, the former Soviet Union, and Cuba.  We have a tradition, and indeed a responsibility, to admit people into the United States who have been persecuted abroad.  Although there is controversy with the current situation, we should be thankful that we remain in a position to admit refugees.

  • Immigrants have strong advocates who are involved litigation throughout the country on their behalf

Advocates have tirelessly worked on litigation relating to the Flores v. Reno settlement which regulates the treatment and conditions of unaccompanied minors in federal immigration custody.  Litigation is also pending concerning the visa bulletin and the State Department’s counting of available visas.  People are calling this litigation “Visagate.”  Finally, there is ongoing litigation about DAPA  ( Deferred Action for Parents of Americans and Lawful Permanent Residents) and an expansion of DACA (Deferred Action for Childhood Action).  By Executive Action, President Obama was seeking to the defer the deportation of certain parents of US Citizens and permanent residents.  He also sought to expand the number of children eligible for DACA.  The State of Texas filed and obtained an injunction against the government in implementing these programs.  Currently the government has filed a Petition for a Petition for a Writ of Certiorari asking the U.S. Supreme Court to overturn the injunction blocking DAPA and expanded DACA.  Despite the setbacks, it is nice to know that we have such strong advocates working on these issues.

  • The USCIS website is much improved

I know that it may seem silly to give thanks to a website but it has not always been the case that USCIS had a website that had accurate, current information on it.  In preparation for this blog post, I was able to go to their website and easily find the material I needed.  Over time the website has become easier to use and has been made to include timely and relevant information.  This is not true for all government agencies.  Of course there are still problems with USCIS and the use of electronic technology but at least the website is working well as a place from which to obtain general information.

  • We have visas that are issued for humanitarian cases

Humanitarian visas have not been around that long.  U visas, for victims of certain crimes and who have been helpful to law enforcement, have only been around since 2000.  The same is true for the T visa, issued for victims of Human Trafficking.  We are fortunate that our government has recognized these victims and that the law allows them to apply for temporary status, leading to a permanent status. These visas are used a lot now but there was a time, when we did not have them.  They help people remain safely in the United States who would, in most cases, not otherwise have had a way of legally remaining here.

We have a great deal for which to be thankful.  Have a nice Thanksgiving.

 

Interfaith service in Benicia, Tuesday, November 24, 2015

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Inter- faith

With so much hatred going on in the world right now, it is nice to report on something positive.  For almost 20 years, Congregation B’nai Israel, the synagogue in Vallejo, and St Paul’s Episcopal Church in Benicia, have come together at Thanksgiving to hold an interfaith service.   The location alternates between the two congregations each year.  Tonight, Tuesday, November 24, 2015, at 7:30 p.m.,  the service will take place at St. Paul’s Church.  Over the years, other churches have joined in the service and it is truly an interfaith service.   Tonight’s service will also include members of the Islamic Center of Vallejo-Benicia.

The service is open to everyone and it is not necessary to belong to those congregations or any congregation in order to attend.  There will be a desert reception following the service.  For more information, please download the flyer.

Can I show the USCIS officer my Facebook page at my green card interview?

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Facebook

A common question I receive from my clients when applying for a green card based on their marriage is whether they can bring in their phone to the interview and show the officer their Facebook page.  Or, my clients ask it another way, “Can’t the officer just go online and look at my Facebook page?”   It is a reasonable question.  No one prints out photos any more.  Everything is online.  Unfortunately the answer is “no,” for a couple of reasons.  First, you want to give the officer hard copies of proof of your good faith marriage – you want them to have something they can look at later when reviewing your case.    Second, the officer does not have the time and probably the internet access to go look at your Facebook page.  Also, Facebook pages can be taken down easily.  It is not the best proof of your good faith marriage.  Below are some suggestions of what you should submit as proof of your good faith marriage.

1. Print out pictures, texts, tweets and submit hard copies

You can and should use material from social media as proof of your relationship.  However, you cannot give your twitter name and expect the officer to log onto Twitter and find you.  You must print out all tweets, pictures, texts – whatever you want to use.

2. Submit documents that show proof of shared financial assets and debts

Social media is not the best proof of a good faith marriage and indeed, I would rank it last.  What USCIS wants to see and expects to see is proof that you are living together and sharing a life together.  They expect to see everything in joint name – checking accounts, credit cards, savings accounts, investments, etc.  Now, you do not have to dramatically change your life if you do not want to.  Many people keep separate checking accounts and do not want to commingle their money.  This is fine, but you will need to explain to the officer why you handle your funds the way you do and you should plan on submitting more of the other types of evidence if you do not have much in the way of shared financial documentation.

3. Submit proof that you are residing together and you are sharing a life together

There is a great deal of other proof that you may submit.  If you are renting a place to live, you should submit a lease agreement.  If you own a place, the joint title.  If you have life insurance, renters’ insurance or home insurance together, submit copies of the policies.  If your spouse is a beneficiary on benefit plans that you receive from your employer, you should submit those as well.  You may submit all other proof that goes along with living together – copies of phone bills, utility bills, cable bills.  Ideally you have this documentation in both of your names.   Submit proof that you have taken trips together – copies of itineraries, plane tickets,  and hotel bills.

4. Submit photos, not videos

Again, you cannot refer a USCIS officer to a website to look at your photos.  Also, you cannot bring a video in and expect the officer to watch your wedding.  Everything should be printed out.  Print out your photographs and attach them to standard size paper (so they do not get lost).  Do not give them 100 photos.  Choose 20 or so that show your relationship over a period of time, not just your wedding, but events that have taken place after that.  Photos with other family members are the best.

Be creative with what you submit.  If you submit a variety of items, you will be successful at your interview.