About: Ilona Bray

The U.S. doesn’t, apparently, want asylum applicants to pick and choose among countries when deciding where to seek protection from persecution.  U.S. asylum law thus contains various mechanisms by which to prevent people from shopping around – but oddly enough, is silent on the matter of dual citizens, thus leading to a recent decision from the Board of Immigration Appeals (B.I.A.).

Let’s start with what is in the law, specifically in Section 208 of the Immigration and Nationality Act or I.N.A.) It forbids people from receiving U.S. asylum protection if they have already firmly resettled in another country – even if they otherwise meet the definition of a refugee.

The law similarly says that the U.S. government has the power to send an applicant to a country  that offers a legitimate opportunity to apply for asylum or similar relief in cases where the U.S. has signed an agreement with that country. So far, the U.S. has signed such an agreement only with Canada, and it applies only to applicants who arrive at a U.S. land border, however.

Now, for what’s new: A recent B.I.A. decision called Matter of B-R concerns a Venezualan journalist who applied for asylum claiming persecution by pro-Chavez groups. However, his father was born in Spain, a country where the applicant has no fear of persecution. Although the journalist had seemingly never lived in or laid claim to his Spanish citizenship, the immigration judge (IJ) hearing his asylum case, and the B.I.A. on appeal, seemed convinced that it was an option for him – and denied asylum accordingly.

The IJ and B.I.A. decided this not based on either the firm resettlement or the safe third country provision, but on the argument that  “he is a citizen or national of a country to which he does not fear returning.” This was despite the applicant’s arguments that “the statutory definition of a ‘refugee’ does not require that an alien claim persecution in every country to which he may be  returned . . . [but only in] one of the countries in which he has nationality or citizenship.”

This is one of those decisions that sounds reasonable in part based on individual facts. The Venezualan applicant presumably speaks Spanish, the same language as is spoken in Spain, his country of dual citizenship. And one could do worse than move to Spain. But the same logic is going to look a lot harsher in cases where asylum applicants are forced to continue their flight from persecution and relocate once again to third-world nations where they’ve perhaps never lived and don’t understand a word of the language being spoken.

In a country where we’re used to the idea that criminal defendants who can’t afford a lawyer are entitled to one at government expense, people are often surprised to hear that noncitizens placed into deportation (removal) proceedings don’t have the same basic due process rights. The Immigration and Nationality Act says that noncitizens in removal proceedings may be represented by counsel, but at no expense to the government.

It’s  certainly not that noncitizens don’t need representation — Department of Justice statistics show that an average of half the people in removal proceedings don’t have a lawyer. The exact figure was 56% for the year 2012.

And given that even a spokesperson for the immigration bureaucracy once said, “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold,” (Immigration (INS) spokeswoman Karen Kraushaar, quoted by the Washington Post on April 24, 2001), it would be absurd to presume that these immigrants don’t need legal help.

For anyone who might argue that people in removal proceedings deserves to leave the U.S. anyway, take note of studies such as that done in March, 2012 by the Vera Institute of Justice, a nonprofit group, showing that 40% of unaccompanied noncitizen children might qualify for statuses that would exempt them from deportation.

The law on representation for noncitizens  is at last, however, evolving. In a federal court decision called Franco-Gonzalez v. Holder, the judge ordered Immigration and Customs Enforcement (ICE), the U.S. Attorney General, and the Executive Office of Immigration Review (EOIR) to provide legal representation to immigrant detainees with mental disabilities who are facing deportation.

The case concerned a green card applicant who had an I.Q. below 55 and the cognitive abilities of a young child, but who had been arrested after getting into the middle of a fight between rival gangs. While the immigration judge found him incompetent to face proceedings, the lack of a right to free representation put him into legal limbo, and he sat in detention for nearly five years.

This right to counsel is obviously quite limited, and will take some time to fully implement. However, if you know someone facing deportation, or in detention, who has limited mental abilities, get in touch with an immigration lawyer or a nonprofit charitable organization serving immigrants.

The results of the “DV-2014″ Diversity Visa Lottery (also called the “Green Card Lottery”) are now available, as of May 1, 2013, from the U.S. State Department. Winners will not receive any calls, emails, or other communications advising them — they need to go online and check the results themselves. (In fact, if you’ve received any calls or emails claiming you’ve won, it’s probably a scam, so watch out!)

For detailed instructions on finding out whether you have won, see the “How Will You Know If You Have Been Selected for the DV Lottery?” article on Nolo’s website. And if you have won, you’ll need to act quickly, so be sure to read, “How to Read the Diversity Visa Lottery Cutoff Numbers on the DOS Visa Bulletin” and other articles on the “Diversity Visa Lottery Green Cards” page of the Nolo website.

If you didn’t win this time around, I’d like to wish you better luck next year — except that there may not be a next year. The current, Senate version of proposed comprehensive immigration reform would eliminate the DV lottery in favor of other grounds of immigration eligibility.

A couple of people who read my recent blog called “Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted” wanted more information on whether and under what circumstances an immigrant can be removed from the U.S. (deported) for committing domestic violence. (As you’ll see in that blog, the alleged older Boston Marathon bomber was apparently arrested in 2009 arrest for assaulting his girlfriend, though the charges were ultimately dismissed.)

The short answer is that, so long as the person was actually convicted, U.S. immigration laws come down hard on domestic violence crimes. The person may be deported under any of a number of sections of the federal immigration statutes, and likely barred from returning to the U.S. for a good long time, perhaps permanently. For more information, see this new article on the Nolo website: “Is an Immigrant Convicted of Domestic Violence Deportable?“

The New York Times, in the grand tradition of exploring the psychological drama behind criminal behavior, recently tried to make hay out of alleged Boston Marathon bomber Tamerlan Tsarnaev’s “stalled” application for U.S. citizenship.

In “A Battered Dream, Then a Violent Path,” writers Deborah Sontag, David M. Herszenhorn, and Serge F. Kovaleski assert that being barred from the 2010 national Tournament of Champions because the 23-year-old Tsarnaev was not a U.S. citizen was “a blow the immigrant boxer could not withstand.”

Okay, let’s back up here. Why wasn’t Tsarnaev a U.S. citizen already? A green card holder (which Tsarnaev was) can apply to naturalize at age 18, after spending at least five years in the United States. According to a CNN timeline, Tsarnaev entered the U.S. in 2003. So if he’d wanted to apply for citizenship before 2010 — a prudent thing to do for anyone pursuing opportunities within the U.S. — one would think he could have.

The NYT article says that Tsarnaev still had a year to wait (until 2011) before being eligible to apply to naturalize, though it unfortunately doesn’t explain why. Meanwhile, the L.A. Times suggests that Tsarnaev may have made a 2009  bid for citizenship. It states that Toronto-based photographer and scientist Johannes Hirn published a photo essay called ‘Will Box for Passport’ showing the young man training for the U.S. Olympic team and stating that he “hoped to become a naturalized U.S. citizen by earning a place on the team.”

True, that’s not exactly conclusive evidence of an application. If boxing his way to citizenship was Tsarnaev’s hope, he probably should have spoken to a lawyer first. Joining the Olympic team is not a prerequisite for citizenship. Submitting an application on Form N-400 and passing a test and interview, as well as showing good moral character, is.

But if Tsarnaev had submitted an N-400 in 2009, it could easily have been denied; perhaps for lack of good moral character. Tsarnaev had a 2009 arrest on his record, for — speaking of battered dreams — domestic abuse and battery, after allegedly assaulting his girlfriend. The charges were ultimately dismissed, so they wouldn’t have had any direct legal affect on his application for citizenship. But Tsarnaev would have had to disclose the arrest on his N-400 application, and it wouldn’t exactly have bolstered the “good moral character” that was his obligation to show.

The New York Times article goes on to state that Tsarnaev submitted a citizenship application a couple of years later, in September of 2012. It refers to that application as having been “stalled” — though the seven months he’d waited by the time of his death is hardly out of the ordinary. Many immigrants wait a year or more after submitting Form N-400 to be called in for their citizenship interview. The average time in the Boston office is five months, as anyone can check on the following website:
https://egov.uscis.gov/cris/Dashboard/ProcTimes.do

The New York Times and other reports state, however, that Tsarnaev’s N-400 filing led to investigations in 2013 by federal law enforcement agencies, curious about his travels to Russia and warnings about him that came straight from Russian security agencies. So if his activities in Russia were as suspicious as they seem to have been, a “stalled” application for citizenship was the least of his worries — Tsarnaev should have been worried about deportation from the U.S. on criminal grounds. (See the “Crimes and U.S. Immigration” page of Nolo’s website.)

All in all, the facts surrounding Tsarnaev’s bid for U.S. citizenship are a bit thin. But the one thing that seems clear is that this is, at best, a minor case of an immigrant being stymied by the system. The worst hurdles Tsarnaev apparently faced were a boxing tournament that was only open to U.S. citizens and an opportunity for citizenship that was only a matter of months away — if he hadn’t messed things up.