IMMIGRATION LAW - What defines a brief, casual, and innocent departure from the US? Or, how to avoid being deported for breaking continuous residency.

We just filed a response brief for a client that had left the country when he was under TPS (temporary protected status). His original country of origin was El Salvador. The problem, of course, is that when you are in the US under TPS, you are not permitted to depart without first completing an I-131 (advanced parole). The term of art in immigration parlance is, "continuous residency." Like many "specialty status" situations, departure without prior permission results in termination of status and deportation. However, there is an out. Those absences that are, "brief", "casual", and "innocent" may be excluded from consideration of a break in continuous residency.

Definitions: (from 8 CFR §244.1)

Continually Physically Present means actual physical presence in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences as defined within this section.

Continuously Resided means residing in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence as defined within this section or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.

What constitutes a defense to a violation of the continuous residency requirement? This is true of both TPS and other residency requirements for various applications through USCIS (for example, citizenship applications, etc.). Under a ruling by the AAO (Administrative Appeals Office - the office responsible for adjudicating appeals related to most forms and USCIS based decisions), the following definition is the answer:

[T]he phrase brief, casual, and innocent absence, as defined in 8 C.F.R. 3 244.1, means a departure from the United States that satisfies the following criteria: (1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence; (2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and (3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.

(AAO Decision, December 14, 2005, EAC-03-30-51246)

When writing a brief in support of an individual who has traveled outside of the United States during a period of required "continuous residency," be sure to cite to the AAO's factors, one-by-one, and how they relate to your client. Additionally, provide evidence of the short duration of the trip, the nature of the trip, and individuals who can confirm that the travel was indeed, brief, casual, and innocent. Mere testimony or sworn statements of your client will not be enough.

Do you have an immigration question? Let us help! Call us at 703-402-2723 or email admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.

Ukraine and Asylum - what if you are already here?

Ah -- the Ukrainian pains of asylum.

A couple of pointers about applying for asylum when you are already in the US. First, affirmative asylum (that's the kind you apply for when you aren't in the hot seat, i.e. in front of the immigration court!) must be done in the first year you are in the country. Sadly, the government does not want nor approve opportunistic "squatting" in the US -- hanging out here in the States until something bad happens at home, and then...poof! Asylum time! So, as for affirmative asylum, you have a great shot if you're in the first year of your presence a la United States. Otherwise...nada. See 8 U.S. Code § 1158 for information on asylum and the process of applying.

TPS for late filers -- Asylum and a new approach that might work...

We were recently approached by a charming fellow from El Salvador. He had been here illegally from 2008, and was not eligible for most forms of relief under standard INA outside-of-court options. Although, he did not have a phenomenal claim for asylum, he had been badly abused in El Salvador, which gave rise to his "escape" to America. I do believe we have some traction with a late asylum filing, but it will be tough. However, I wanted to see if there was some way to get him Temporary Protected Status -- or TPS. TPS is the golden grail for El Salvadorians without other means of adjusting.

The problem with TPS is this: it requires you were here initially when El Salvador (or whatever country in question) was designated TPS eligible, and you did indeed apply at that time (ye olde "initial registration period" as defined by 8 CFR 244.2(f)(1)). Uh oh. The initial period was quite some time ago for El Salvador. But a glimmer of oddly reflected hope gave pause to our despondent state -- namely, El Salvador has been continuously re-designated, and the current extension of TPS status has been pushed to September of 2013.

Turns out, this "push" of extension to September is key. Taking the extension in mind, and reading about "late filing" we came up with an idea -- (and NOTE! This is just an idea...this is not by any means settled law -- we are experimenting with an otherwise stagnant case). 8 CFR 244.2(f)(2) states:

(2) During any subsequent extension of such designation if at the time of the initial registration period:
(i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal;
(ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;

Of special interest to us was the provision at 8 CFR 244.2(f)(2)(ii) which seems to suggest that a late filed TPS will be accepted if there is a pending asylum application in the works.

To be clear, our test case is not in removal proceedings -- this is an affirmative asylum application filed with a request to waive the 1 year filing requirement due to extreme hardship.

We plan to file the initial asylum case within a month or so, then take said filing receipt and immediately apply for TPS.

The question is -- will USCIS accept the notice of filing of the asylum case as proof of "in asylum application status" for TPS purposes? We are prepared to argue, "yes" -- as the regulations do not clearly stipulate otherwise.

Do you have a tricky immigration problem? Hanover Law specializes in working with tough cases and clients with special immigration needs. We approach your immigration issue from all angles, and seek to explore every avenue of relief.

Give us a call or visit our website today!

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.