Category Archives: Uncategorized

Dual Citizens Can’t Claim Asylum Unless They Fear Persecution in Both Countries

sp-lgflagThe 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.

Proposed Immigration Bill Still Needs Provision for Gay and Lesbian Couples

double_rainbowThe current Senate draft of a comprehensive immigration reform bill contains provisions to help undocumented farmworkers and students, as well as would-be immigrants whose merits earn them a significant number of points — but nothing for gay and lesbians.

In particular, the draft doesn’t address the problem of gay and lesbian couples who are legally married under the laws of the particular U.S. state or foreign country where they registered or held a  ceremony, but nevertheless continue to be denied a marriage-based green card for the noncitizen spouse under U.S. immigration law. (The legal reason for that is the federal Defense of Marriage Act, or DOMA, which is awaiting an opinion from the U.S. Supreme Court.)

What’s the harm in this? According to testimony to the Senate Committee by Laura Lichter, President of the American Immigration Lawyers Association (AILA), “more than 36,000 couples are affected by this form of discrimination, and nearly half of them are households raising children.” Lichter added that, “Many gay and lesbian Americans in binational relationships have aging parents and must make difficult decisions between managing their parents’ health or remaining with their partners. . . Many Fortune 500 companies have lost skilled Americans to foreign competitors because of this issue . . . For many, the limited options mean having to choose between unconscionable separation, a life without lawful immigration status, or relocating the entire family outside the U.S.”

The bill may may yet address such issues, however, according to reports from CQ Roll Call, via San Francisco’s Immigrant Legal Resource Center. The draft Senate bill is currently being scrutinized and marked up by the Senate Judiciary Committee. Several Democrats on the committee have stated that they intend to introduce amendments allowing U.S. citizens to petition for (sponsor) same-sex partners for visas in the same manner that they are legally allowed to utilize for opposite-sex spouses under existing law.

Whether those amendments will survive the entire process of turning the bill into law, however, is in doubt. Some experts believe that they will be removed again in the course of negotiations, in order to ensure the passage of the bill as a whole. Stay tuned . . . .

And by the way, the legal situation is a bit different for couples in which one has undergone sex reassignment surgery, as described in Nolo’s Q&A, “Can a transgender spouse obtain a green card based on marriage to a U.S. citizen?

Applause for the AP’s Decision to Drop the Term “Illegal Immigrant”

The L.A. Times and New York Times are considering changes to their use of the sweeping and imprecise term “illegal immigrant” in light of the recent Associated Press (AP) style decision to drop it.

Fox News, on the other hand, has reacted to AP’s move with suspicion and an article stating that AP is “under scrutiny” for its choice and “being accused of trying to influence the immigration debate.” (Accused by whom, exactly? Clever use of passive tense there, Fox people.)

For my two cents on the matter, see this earlier blog on “Should the Media Use the Term Illegal Alien?

Small Businesses Face USCIS Suspicion When Petitioning for H-1B Workers

If your business’s gross annual income is less than $10 million, your workforce numbers fewer than 25, and your business has been in operation for fewer than ten years, guess what: You match the “fraud indicators” outlined by U.S. Citizenship and Immigration Services in a recently released document, putting any petitions that your business files to hire H-1B specialty temporary workers under suspicion. They’ve even got a catchy name for it: the “10/25/10″ formula.

Supposedly this formula was developed after analysis of where the largest volume of fraudulent applications was coming from. Small comfort if you’re a small business owner or manager trying to hire someone from another country! The situation isn’t hopeless, but you can expect lots of requests for documents, and quite possibly a site visit.

For more information, see the press release, “LAC Wins Release of H-1B Fraud Documents for AILAfrom the American Immigration Council. And if you’re worried about these and other hassles associated with the H-1B visa, check out this recent article by San Francisco attorney Deborah Dyson: “When the H-1Bs Run Out: Alternative Visas and Strategies.”

 

Citizens of Taiwan Can Now Enter U.S. Without a Visa, on the VWP

The American Institute in Taiwan may see start seeing fewer requests for B-1 and B-2 tourist visas, thanks to a new policy announced by the U.S. Department of Homeland Security (DHS). Citizens of Taiwan are now eligible to participate in the Visa Waiver Program (VWP), starting on November 1, 2012.

The VWP allows citizens of 37 countries to travel to the U.S. for up to 90 days at a time for purposes of business or tourism. Instead of applying for a visa in advance, which requires showing up for a personal interview and providing extensive documents, VWP travelers simply apply for authorization through what’s known as the Electronic System for Travel Authorization (ESTA).

The VWP is not without its disadvantages, however. For example, you cannot apply to extend your VWP stay, but must leave the U.S. within the allotted 90-day period. For further details, see Nolo’s article, “Who Can Visit the U.S. Under the Visa Waiver Program (VWP).”

Today’s the Day! USCIS Accepting DREAM-Act Deferred Action Applications

It’s August 15th, the forms have been created and the procedures announced.

Now all U.S. Citizenship and Immigration Services (USCIS)  has to do is deal with the anticipated flood of applications for “deferred action” from young undocumented immigrant students and graduates in the United States. This temporary status will give them protection against deportation and a work permit. Up to 1.7 million people may qualify for the program, and news reports describe excitement as many prepare to apply.

Given USCIS’s history of slow action on applications, however, I wouldn’t advise these students to look for an immediate job — maybe not even a holiday temp job. For one thing, all applicants must undergo background checks, in which they’re called in for fingerprinting and the results are run through an FBI database. That alone typically adds weeks to any immigration application process. (But let’s hope I’ll be pleasantly surprised.)

For more information on the deferred action eligibility and application procedures, see Nolo’s articles, “Who Qualifies for Deferred Action as an Immigrant Student or Graduate,” and  “Deferred Action for Young Immigrants: Application Process.”

Frustrations of Dealing With the Immigration Bureaucracy

When I first started writing about immigration law matters for Nolo, my editor was always after me for overusing the word “should.” You “should” get a receipt notice from the Immigration Service Center, I would say; the immigration authorities “should” process your application within several weeks; you “should” be called in for an interview.

The trouble was, telling readers that any of these things “will” happen flies in the face of reality, both then and now. A recent “success story” by California attorney Carl Shusterman provides a great illustration of why. As you can see from the article (“Success Story: Appeal Granted After Misplaced File and Misinformation” — scroll down to item five), some of the bureaucratic craziness that this applicant had to put up with included:

  • USCIS denying a waiver request with no mention of, and therefore no evidence that the agency had considered, the facts of the case and the evidence submitted
  • a denial letter that said on one side that the applicant could appeal — while saying on the other side that she could not
  • USCIS misplacing her case file after she had submitted an appeal, and
  • a year-long wait for transfer of the file to the appropriate office.

Fortunately, the story has a happy ending: The file was finally located and the waiver granted. But the frustration, and long hours of legal work that must have gone into this were no doubt intense — and well known to anyone who practices immigration law. It’s part of why I got out of active law practice. And it’s a big part of why any immigration applicant should think seriously about hiring an experienced attorney.

Next Best Thing to the DREAM Act: Prosecutorial Discretion for Undocumented Students

It’s not an amnesty, and it’s not a law: But the announcement today by Secretary of Homeland Security Janet Napolitano is big news nonetheless.

Effective immediately, undocumented immigrants under age 30 who were brought to the U.S. as young children, present no risk to national security or public safety, and meet various educational and other criteria will be considered for relief from removal and protected from placement in removal proceedings.

What’s more, they will be eligible for what’s known as “deferred action” — a sort of limbo status that comes with benefits — for two years, subject to renewal. One of the benefits of deferred action is, in this case, eligibility to apply for employment authorization (a work permit).

This dovetails with DHS efforts to focus its enforcement resources away from people who are a low priority — and toward the removal of people who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders.

The specific criteria for deferred action eligibility include that the person:

  1. came to the United States under the age of 16
  2. has continuously resided in the United States for at least the preceding five years and are present in the United States on the date of the Napolitano memorandum
  3. is currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States
  4. has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety, and
  5. is not above the age of 30.

To apply, you will need to prove through verifiable documentation that you meet these criteria for deferred action. Better not rush to apply right away, however.  U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforement (ICE) say they will begin implementation of the application processes within 60 days. In the meantime, consult an attorney or see USCIS’s website (www.uscis.gov), ICE’s website (www.ice.gov), or DHS’s website (www.dhs.gov).

If you are already in removal (deportation) proceedings and have been identified as meeting the eligibility criteria and offered an exercise of discretion as part of ICE’s ongoing case-by-case review, ICE may immediately offer you deferred action.

U.S. Immigration Officials Protecing Us From Bollywood Stars!?

I suppose we should be glad that no one gets a free pass from U.S. Customs and Border Protection (CBP) officials, no matter how great their fame or following. Yet something seems out of whack when international celebrities, whose regular world travels are practically part of their job description, routinely report major trouble entering the United States.

The latest such account comes from mega-Bollywood star Shah Rukh Khan. Khan was reportedly detained and held for over two hours by U.S. immigration officials upon a recent arrival in New York. He had come from India by private jet in order to address students at Yale University — and ended up late for his talk.

The  reports did not indicate the basis upon which Khan was detained. The rest of his group was cleared for entry immediately.

Khan is quoted as commenting, “Whenever I start feeling too arrogant about myself I always take a trip to America. The immigration guys kicked the star out of stardom.”

For more such tales, see “International Celebrities Denied U.S. Entry Visas.”

GOP Candidates’ Stands on Immigration

The Iowa Republican presidential caucus is mere hours away — and the various candidates have all expressed views on (if not always practical solutions to) immigration matters.

Some choice quotes range from Mitt Romney’s “As President, [I] will also work to establish a policy that staples a green card to the diploma of every eligible student visa holder who graduates from one of our universities with an advanced degree in math, science, or engineering,” to Michelle Bachmann’s “I can’t speak highly enough for Arizona.”

By the way, I’m sure Romney was speaking metaphorically, but I can’t help note that the idea of having a green card automatically “stapled” to anyone’s diploma would make this the easiest application process in the whole immigration system. More likely the actual process would involve stacks of forms, and weeks or months of waiting for the bureaucratic gears to move.

And Michelle, a grammar tip: That should be “highly enough of.” Not “for,” but “of.”

For a detailed rundown of these various candidates’ views and statements on immigration, see the 2012 GOP Presidential Candidates page of the Think Progress website.