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Appealing a denied visa

If you have been denied a visa or are about to be deported, you can appeal the decision.

Carl Michael Shusterman | Jun 20, 2019

Lopez V. Barr Decision Could Save Thousands From Deportation

Cancellation of Removal and the Stop-Time Rule Persons whose cases are in the Immigration Court may be able to apply for cancellation of removal if either (1) they have resided continuously in the U.S. for 7 years, 5 years as a green card holder, or (2) if they are not a green card holder, they have been continuously physically present in the U.S. for 10 years. Once removal proceedings are instituted by the service of an NTA, the stop-time rule provides these periods of time required to apply for cancellation of removal come to a halt. For example, if an undocumented person is NTA’d after they had been in the U.S. for 9 years and 11 months, they can never reach the 10 years required to apply for cancellation of removal even if their removal proceedings drag on for years. Pereira v. Sessions and the Stop-Time Rule In Pereira v. Sessions, the U.S. Supreme Court ruled that because Mr. Pereira was served with an NTA which did not state the date and time of his hearing before the Judge as required by law, the issuance of a defective NTA did not trigger the stop-time rule. Hence, when he had 10 years of continuous physical presence in the U.S. and was the father of U.S. citizen children, he could apply for cancellation of removal. This worried the U.S. Department of Justice because the government had neglected to state the date and time of the hearing on over 90% of NTAs during the past 20 years, in violation of federal law. With a backlog of over 800,000 cases in the Immigration Cases, this error had the potential to bring the government’s deportation machine to a grinding halt. So, less than 3 months after the ruling in Pereira, the Board of Immigration Appeals (BIA), a part of the U.S. Department of Justice, issued a ruling in Matter of Bermudez-Cota stating that Pereira v. Sessions should be interpreted narrowly. It should apply only to people like Mr. Pereira who were subject to the stop-time rule. Several U.S. Courts of Appeals have since deferred to the BIA’s interpretation of Pereira. Can a Notice of Hearing “Perfect” a Defective NTA? On May 1, 2019, the BIA issued a ruling in Matter of Mendoza-Hernandez which could all but negate the effect of the Supreme Court’s holding in Pereira. The majority of the Board held that even if the NTA was defective, a subsequent Notice of Hearing which stated the date and time of the hearing “perfected” the NTA and triggered the stop-time rule. However, this time, 6 members of the BIA issued a strong dissent which stated as follows: “the plain language of the Act leaves no room for the majority’s conclusion that a subsequent notice of hearing can cure a notice to appear that fails to specify the time and place of the initial removal hearing.” Lopez v. Barr – A Defective NTA Cannot be Perfected Just 3 weeks later, the U.S. Court of Appeals for the 9th Circuit ruled in Lopez v. Barr that the law provides that the NTA must contain the date and time of the hearing, otherwise it is defective and, therefore, does not trigger the stop-time rule. A subsequent Notice of Hearing cannot perfect a defective NTA. The government has the authority to issue a valid NTA, and only a valid NTA can invoke the stop-time rule. The majority decision noted that the BIA reached a conclusion in Matter of Mendoza-Hernandez where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the 9th Circuit declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira. What You Should Do Now If you are currently under removal proceedings, take a close look at your Notice to Appear (NTA). If it fails to state the date and time of your hearing, it is clearly defective. If you have been in the U.S. for over 10 years, you may be eligible to apply for cancellation of removal. If you have a green card, you only need 7 years in the U.S. and 5 years with a green card. Remember, a defective NTA does not trigger the stop-time rule. So if you were placed under removal proceedings before you accumulated 10 years of physical presence in the U.S. and now you have been in the U.S. for 10 years, or if you will soon have 10 years presence in the U.S., speak with an immigration attorney to determine whether this is the right time to apply for cancellation of removal or if the Immigration Judge has already ruled in your case, whether you are eligible to file a Motion to Reopen or Reconsider your case. The same may be true if you have already been ordered deported. Remember, just as you may be deported if you fail to follow the law, the government also has an obligation to follow the law.

Nicklaus James Misiti | Apr 2, 2019

Is immigration finally loosening the requirements for Adam Walsh Act cases?

Recent AWA Approvals Our firm has filed countless AWA appeals in the Federal District and Circuit Courts. We have also successfully challenged denials before the Administrative Appeals Office (“AAO”). There is no doubt obtaining an approval for an AWA case is one of the most difficult objectives in immigration law. However, the tide on this may finally be turning as it seems in the last two weeks immigration has approved at least four AWA cases that we know of. Our Cases In one of the cases the client received an initial denial. We challenged this in Federal District court and ultimately in the Circuit Court of Appeals. We than refiled and were finally able to push immigration to approve his case. We were able to bolster the evidence in his case but besides that nothing extraordinary was done. He was still the same person with the same wife and same conviction. In another case the client had several arrests and convictions, including one involving a gun. Yet we were able to put together a very strong case for approval and after multiple Notices of Intent to Deny an interview was scheduled. The client was interviewed by a supervising officer and she pulled no punches. She asked several questions about his criminal record. Luckily our firm had prepared him for these questions and was at the interview to make sure things worked out. Of course each case is different and there is no guarantee of success with any AWA case. They are notoriously difficult cases but this is why a flurry of approvals is so promising, particularly given the facts of the cases. It may mean that the current administration is easing AWA restrictions so now would definitely be the time to file. Likewise, if you have had a case denied it may be a good time to plan on refiling. As already discussed one of the cases approved was a case which was refiled and specifically address the reasoning in the previous denial.

Kristin D Figueroa-Contreras | Apr 4, 2018

FAQs ABOUT ASYLUM IN THE UNITED STATES

What is the difference between an affirmative asylum application and a defensive asylum application? An affirmative asylum application is one that is filed by an applicant who is present in the United States but has not been placed in removal (deportation) proceedings. A defensive asylum application applies to persons in removal proceedings, who are requesting asylum from an immigration judge. Affirmative asylum applications are processed and decided by U.S. Citizenship and Immigration Services (USCIS)* Asylum Office. Following the filing of your asylum application, the Asylum Office will interview and determine if you are eligible for relief. If the Asylum Office does not approve your application, your case will be referred to the immigration court for removal proceedings, where you will have the opportunity to renew your asylum claim before the immigration judge. The court will set a merits hearing, where you will testify about your fear of returning home, and where you will have the opportunity to call witnesses. If approved, you are considered an *asylee* and can seek lawful permanent U.S. resident (*green card*) status after one year and, ultimately, U.S. citizenship. How are Asylum, Withholding of Removal, and protection under the Convention Against Torture (*CAT*) In addition to asylum, there are two additional forms of relief available to persons who fear harm in their country of origin: withholding of removal and protection under the United States Convention Against Torture (*CAT*). You may seek withholding of removal and CAT protection at the same time you file for asylum. Withholding of removal and protection under CAT are available to persons who did not apply for asylum within the one-year filing deadline, as well as to those who are barred from asylum due to a previous deportation order, previous firm resettlement in a third country, or based on certain criminal convictions. One very important distinction is that the standard for proving a withholding of removal or CAT claim is much more stringent than the standard applied to an asylum claim. However, if this higher standard is met, approval is mandatory. Unlike with asylum, asylum officers and immigration judges cannot deny eligible withholding of removal or CAT applications on discretionary grounds. For relief under CAT, the feared persecution need not be on account of one of the five protected grounds (political opinion, race, religion, nationality, or membership in a particular social group). Rather, you must prove that, should you be returned to your country of origin, there is at least a 51% chance that your home country*s government will torture or kill you, or that the government will consent to, or ignore, another person*s attempt to torture or kill you. Unlike asylum, which entitles a successful case to later seek permanent resident (*green card*) status based on an approved asylum application, a withholding or CAT grant does not automatically entitle the applicant to file for a green card. Also, a person granted withholding of removal or relief under CAT can still be sent to a third country where no threat of persecution exists. Another difference is that while your spouse and minor children can receive asylum protection automatically if you qualify for it, there are no derivative benefits for your spouse or children with withholding or CAT relief. What are the Credible Fear and Reasonable Fear Reviews? Under U.S. immigration law, foreign nationals who arrive at the border or a U.S. Port of Entry without proper entry documents, as well as those who enter illegally and are apprehended near the border shortly after arrival, are detained and placed in expedited removal proceedings. Expedited removal allows persons to be removed without ever seeing an immigration judge. During the expedited removal process, persons who express a fear of persecution or torture are referred to a credible fear screening, which consists of an interview with a USCIS asylum officer. Persons previously removed from the United States who express a fear of persecution or torture are referred to a reasonable fear screening with a USCIS asylum officer. When the USCIS asylum officer finds that the person does not have a credible fear or reasonable fear of persecution or torture, the person can request that an immigration judge review that finding. I submitted an affirmative asylum application last week with USCIS, how soon will I get my interview In the past, persons would arrive in the United States, file for asylum, file for their work permit after five months, obtain employment authorization, and wait several years before being called to the interview on their asylum application. This is no longer the case. As of January 2018, USCIS* Asylum Division implemented a new set of priorities for the scheduling of interviews on affirmative asylum applications. High on this set of priorities are persons whose applications have been pending 21 days or less since filing. The Asylum Office is setting the newer filings for interview first, working backwards towards the cases that have been pending for months or even years. I am in the United States illegally, may I still apply for asylum? Yes, you may apply for asylum even if you are out of status or you entered this country illegally. If you are not applying within one (1) year of your most recent arrival in the United States, you will need to demonstrate that you qualify for an exception to the 1-year filing rule. You may also apply for withholding of removal or protection under CAT without regard to the 1-year bar. If you are present in this country illegally and choose to seek asylum, it is important that you understand that the filing of your asylum application may alert ICE to your presence in the United States and may subject to you to detention and placement in removal proceedings. I have been convicted of a crime. Can I still apply for asylum? It depends. Some criminal offenses, such as those considered to be *aggravated felonies,* are an absolute bar to asylum. There are other crimes that do not bar you from applying for asylum, but which might cause your application to be denied on discretionary grounds. Even if you have been convicted of an aggravated felony, you are not barred from seeking relief under the Convention Against Torture. If your aggravated felony does not qualify as a *particularly serious crime* for withholding purposes, you are similarly not barred from seeking withholding of removal. May I work while my asylum application is pending? You are entitled to submit an application for an employment authorization document (work permit) after your asylum application has been pending for 150 days. I am outside the United States but fear harm in my home country, may I still apply for asylum? If you are outside the United States and outside your country of origin, but you fear violence, torture or other persecution in their country of origin on account of one of the five (5) protected grounds, you may seek refugee status from abroad. I obtained my green card based on asylum, may I travel to my country of origin? Should you, as an asylee or a permanent resident who received your green card status through asylum, voluntarily return to your country of claimed prosecution, you place yourself at serious risk of denial of re-entry to the United States and termination of your asylee or green card status. If you absolutely have to return to your home country for some reason, it is imperative that you consult with an attorney and take steps to minimize the likelihood that the trip will impact your status in the United States. My asylum application was denied by the immigration judge, can I appeal? If the immigration judge denies your asylum application and you wish to appeal the decision, you must file your appeal within thirty (30) calendar days with the Board of Immigration Appeals (BIA) in Falls Church, VA. The viability of your appeal really depends on the facts of your particular case and the reasons for the immigration judge's denial. If the BIA denies (dismisses) your appeal, you may request review of this decision by filing a Petition for Review with the U.S. Circuit Court of Appeals with jurisdiction over your case. If your case is again denied by the Circuit Court, your last avenue of relief is the U.S. Supreme Court via a petition for writ of certiorari. The Supreme Court is not obligated to hear your case and can (and most often does) deny certiorari.

Namita Agarwal | Jun 5, 2017

Immigration Appeals

Requests for Evidence USCIS may issue an RFE to request more information to corroborate, confirm, or update facts regarding an immigration petition. When providing this evidence to USCIS, one must remain cognizant of the deadline, as if the RFE is not received by the requested date, it will be denied. Appealing the Denial of an Immigration Petition to the Administrative Appeals Office (AAO) If USCIS ultimately denies one's case, there is still remedy - An appeal can be filed with the Administrative Appeals Office (AAO), which deals with as many as 40 categories of immigration petitions. Similar to an RFE, such appeals must be timely filed. If an appeal is not filed by the deadline, the option and right to appeal is exhausted. Appealing the Decision of an Immigration Judge to the Board of Immigration Appeals (BIA) If an Immigration Judge denies one's case after s/he has been in Removal Proceedings, the final order can be appealed to the Board of Immigration Appeals (BIA) within 30 days of the Immigration Judge's decision. Under certain circumstances, a Motion to Reopen or Reconsider (in light of new law) may be requested given the following factors: New facts or evidence Changed country conditions Lack of notice Exceptional circumstances Ineffective assistance of counsel Appealing Immigration Cases to a Federal Appeals Court If the BIA rules in favor of the government, it may be possible to appeal your immigration case to a federal appeals court by filing a petition for review. This petition must be filed in the Federal Court of Appeals in the circuit in which the case was tried before the Immigration Judge. Petitions for review must be filed in the federal court of appeals in the circuit in which your case was tried before the Immigration Judge. Such reviews must be filed within 30 days of the issuance of the BIA decision.