Types of Asylum and how to claim them

A fellow practitioner asked me a question today, and I think it merits explaining in the blog:

Do you know what the process is for seeking relief at a USCIS asylum hearing for relief under the Convention Against Torture? We have a hearing on December 29 at Arlington.

This is a great opportunity to discuss the different "tiers" of asylum relief. The following is taken from the IJ Bench Guide referencing asylum (Benchbook)

1. The first is straight-up asylum. That requires only a showing of a “well founded fear” of future persecution – not a very stringent showing. The fear is based on being part of a protected group, having suffered some kind of persecution or loss (or a well founded fear of future prosecution), and now the fear. An asylum applicant may demonstrate that he is a “refugee” in either of two ways. First, he may demonstrate that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A). Second, he may demonstrate a well- founded fear of future persecution on account of a protected ground through credible testimony that he subjectively fears persecution and that his fear is objectively reasonable. In mixed motive asylum cases, the REAL ID Act of 2005, requires an applicant to prove that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for the claimed persecution. Section 103(a)(3) of the REAL ID Act of 2005 , Div. B of Pub. L. 109-13, 119 Stat. 302,303; In J-B-N & S-M-, 24 I&N Dec. 208 (BIA 2007).

2. “Withholding” is the next rung. That requires a showing of a “clear probability” that the applicant will suffer severe harm if returned home. Where asylum (rung 1) can be somewhat objective, withholding and CAT are both objective and are based on the actions of the home country. As with asylum, a threshold determination must be made as to the credibility of the applicant for withholding of removal. INA § 241(b)(3)(C); see also INA §§ 1208(b)(1)(B)(ii) and (iii). A claim for withholding of removal is factually related to an asylum claim, but the applicant bears a heavier burden of proof to merit relief. For withholding, the applicant must demonstrate that, if returned to his country, his life or freedom would be threatened on account of one of the protected grounds. INA § 241(b)(3). To make this showing, the applicant must establish a “clear probability” of persecution, meaning that it is “more likely than not” that he will be subject to persecution on account of a protected ground if returned to the country from which he seeks withholding of removal. Cardoza-Fonseca, 480 U.S. 421. The applicant’s credible testimony alone may be sufficient to sustain this burden of proof. 8 C.F.R. § 1208.16(b). If an alien demonstrates that s/he suffered past persecution in the proposed country of removal, the burden shifts to the Department to demonstrate that a fundamental change in circumstances has occurred in that country or that the applicant could safely relocate to another area in the proposed country of removal. 8 C.F.R. § 1208.16(b)(1). There is no discretionary element. Therefore, if the applicant establishes eligibility, withholding of removal must be granted. INA § 241(b)(3). Additionally, there is no statutory time limit for bringing a withholding of removal claim.

3. The final rung is “CAT”. Here, the applicant must show that the government will kill them, or members of society that the government cannot control, will kill them, if they return. There must be a showing of protected group, usually some form of proof as to past prosecution, and the clear likelihood that death or severe harm will follow. The applicant for CAT relief bears the burden of proof. 8 C.F.R. §1208.16(c)(2). As with asylum adjudications, the applicant’s testimony, if credible, may be sufficient to sustain the burden of proof without corroboration. Id., see also Matter of Y-B-, 21 I&N Dec. at 1139. However, if the applicant’s testimony is the primary basis for the CAT claim and it is found not to be credible, that adverse credibility finding may provide a sufficient basis for denial of CAT relief. In assessing whether the applicant has satisfied the burden of proof, the Court must consider all evidence relevant to the possibility of future torture, including evidence that the applicant has suffered torture in the past; evidence that the applicant could relocate to a part of the country of removal where he is not likely to be tortured; evidence of gross, flagrant or mass violations of human rights within the country of removal; and other relevant information on country conditions. 8 C.F.R. § 1208.16(c)(3)

In answer to your direct question – because your fella qualifies for asylum, and that claim is the easiest of the three to prove, and further, because the protected classes in CAT (rung 3) are the same as in asylum (rung 1), an application for asylum necessarily covers the CAT claim. The major difference is this – asylum is discretionary. However, if your fella can prove he will be killed or severely harmed (tortured) if he returns, USCIS cannot return him. Note, though, that a grant of CAT is only a deferral of deportation. It grants no rights, and you cannot adjust out of it. Asylum is a much better option.

Do you have an asylum question? Call us! We can help! 703-402-2723 or 1-800-579-9864.

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

What happens at a credible fear hearing before an immigration judge?

Credible fear hearings refer to the process of an immigration officer or judge reviewing the statements of an individual who is seeking asylum in the United States. Generally, these hearings are first conducted at the port of entry by a custom and border protection (CBP) agent, or an immigration and custom enforcement officer (ICE). Based on the determination of the CBP/ICE officer, an initial credible fear determination is made. If a credible fear of return to the asylum seekers who country is established with the officers, generally the individual is permitted to enter the United States and remain at large until their hearing is conducted before a judge on the merits of the asylum application.

However, if the CBP/ICE officer determines that there is no credible fear of returning to the asylum seekers who country, the asylum seeker is detained. At this point he/she may request a judge to review the CBP/ICS determination. This review process is called a "credible fear hearing" and is conducting before an immigration judge. A couple of pointers to remember:

• A credible fear hearing must be requested, it is not automatic.
• Your client will be detained for the entire pendency of the credible fear hearing process, and likely thereafter.
• Only ICE has jurisdiction to release your client during or after a credible fear hearing, not the immigration court or judge.

The law on the matter is contained in 8 CFR:

Credible fear standard: A Credible fear of persecution means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (restriction on removal) under INA § 241(b)(3). The credibility of the alien statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e)(2), 1003.42(d).

Credible fear of torture: means there is a significant possibility that the alien is eligible for withholding of removal (restriction on removal) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17. 8 C.F.R. §§ 208.30(e)(3), 1003.42(d).

[taken from the "EOIR Immigration Judges Handbook"]

How does a credible fear hearing work?

First, you don’t submit evidence at a credible fear hearing – in fact, the judge may not even speak to you as the attorney on the case. You are an observer of the process only – this is a conversation between the judge and your client. On a practical note, usually the judge will speak to you and ask you what is going on. It’s faster and easier that way. But don’t be alarmed if the judge completely ignores you. Take good notes!

Representation: Prior to the credible fear review, the alien may consult with a person or persons of the alien's choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien's behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

[taken from the "EOIR Immigration Judges Handbook"; See generally INA 235(b)(1)(B), 8 CFR 1003.42]

You need to prepare your client thoroughly. The client will be able to speak to the judge and will be able to testify. The discussion will be about the credible fear interview itself. The judge will ask things like: why are there inconsistent answers, etc. He/She will be using all the CBP/ICE forms, so be sure that you have a copy of the credible fear interview and each step of what your client did and said. Your client should have been given a copy of that. If there are translation issues (as there often are; most translation for the initial credible fear at the port of entry is done over the phone), be sure to brief your client on bringing that up to the judge.

Conduct of hearing: A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings. Rather, a credible fear review is simply a review of the DHS asylum officer's decision. Either the alien or DHS may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.

[taken from the "EOIR Immigration Judges Handbook"]

If the judge finds credible fear, that he/she will set a next status date (called a master calendar hearing) at which point you will turn in the I-589 and supporting initial docs. Thereafter, it proceeds according to a regular defensive asylum process.

Technically, the judge cannot release your client, as she is deemed an arriving alien, not subject to parole from the court. There are two general rules here… in some jurisdictions, such as York, and sometimes Arlington, the judge will give bond anyway, and DHS rarely objects. That is technically a violation of the code. If the judge does not (and do not be alarmed if that happens…he/she should NOT do so), you can file to have ICE give a bond. In many jurisdictions, ICE will release your client once a credible fear determination I positive. Bond usually runs about $5K. Be sure to submit a bond package, showing where your client will live and with whom, when asking ICE for a bond. It is entirely up to the DO (deportation officer) in charge of your client.

No jurisdiction by regulation: By regulation, an Immigration Judge does not have jurisdiction to conduct bond hearings involving:

• aliens in exclusion proceedings
• arriving aliens in removal proceedings
• aliens ineligible for release on security or related grounds
• aliens ineligible for release on certain criminal grounds

An asylum seeker who requests asylum at a port of entry is an arriving alien.

See: 8 CFR 1003.19(h)(2)(i)

Is there an appeal if the credible fear is denied by the judge?

No right to appeal, however, generally, you can bring a request for DHS to give one final review before deporting your client. See 8 CFR 1208.30(g)(2)(iv)(A).

Do you have a question regarding immigration law or detention hearings? Give us a call! We can help --- 1-800-579-9864 or 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.

How to prepare an immigration relief matrix

This is a brief post today -- but I had a great question from a fellow practitioner, and I know it was a problem for me, too, when I first started practicing. This advice applies to immigration court relief, but oddly, is the same (largely) tactic taken for sentencing defense and allocution.

How It's Done

St. Jude is our patron over here at Hanover Law, so I know the pain you are experiencing. First thing first…you need to make a criminal chart. We do these all the time for sentencing (determining the “point score” for penalty purposes) – but you need them in immigration, too. You mentioned a passel of possible problems (criminal).

• Begin with a list of the charges he has had on the left side of the chart, one after the other.
  Across the top, place the following columns: date charged, date of disposition, max penalty, actual disposition, completed? , Immigration consequence (aggravated felony, CIMT, other)
• Create a second chart entitled “Immigration Engagements”.
  On the left, place the name of each Court, or events (for example, “Immigration Court, York”, or “EWI – entry Texas”). Across the top, place a column each for “Event Date (NTA served, EWI’ed, etc.)”, “Date Resolved (dispotion, admitted legally, ect.)”

When you have both of these charts, then you can plan the appropriate defense. Appropriate defenses include cancellation of removal, 212(c) relief, prosecutorial discretion, DAP/DACA and other deferments, and various types of asylum, to name just a few.

If you have gotten this far, and your charts are assembled, give me a ring! I can help work out what relief is appropriate.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, 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.

Immigration Asylum -- the 1 year clock (and other questions)

Recent questions posted on AILA about the one year clock and exceptional circumstances.

I recently answered two questions on thee AILA member board, and thought I would share both the questions and the answers here. Although these were aimed at practitioners, the answers may also be helpful to folks desiring more information on the law and how to find answers.

1) Can anyone recommend a resource for learning about standards or cases involving changed circumstances or extraordinary circumstances for late filing of asylum applications?

Answer:

Your best friend is Google and the AILA document repository. If you don’t belong to the AILA-NET/LINK whatever that is (alludes me at the moment), ask another member to run a search for you and see if there is a hit. Regardless, anything worth knowing lives on Google, and as you get more experience, you’ll post information on Google, too. Regardless, in answer to your 1st question, is it depends. Haha. Right, it depends on the circuit in which you find yourself. Your question is one of last resort – meaning that the controlling doctrine will be issued by the appeals court in the area you practice. In mine, for example, it’s the 4th circuit. Go to Lexis and look up 4th circuit cases dealing with asylum and changed country conditions. Ditto for Google. Do not be fooled by BIA – BIA is not controlling in cases of last resort. They are bound by the appeals court, too. If and only if you can find no controlling holding on an appeals case, then you go to search BIA decisions. Fortunately, BIA decisions are also on Lexis (and West, too), and many are on Google. Moral of the story --- search for controlling cases in your jurisdiction (federal appeals level).

2) If a person is in lawful immigration status when they apply for asylum then does the one year filing deadline still apply?

Answer:

Yup. One year deadline is not predicated on status. It is predicated on the clock. The asylum clock is a nasty beast, and there is extensive literature on when the clock starts and stops. You may have heard of the term “lodging an asylum application.” This refers to sneaking a package into the clerk when a defensive asylum is at risk of crossing the 1 year mark. Worse still, if the matter is not heard before the judge before the 1 year mark, it is considered late when the trial occurs (i.e. outside the filing window), and the judge will have to permit it to move forward and waive the 1 year window. Be prepared to file a motion too advance your hearing, on grounds of the 1 year window, before that happens. If you do, and the judge does not so advance, you have an excellent argument for waiving the 1 year window requirement when you are finally heard. I realize that was not the genesis of your question – but if you’ve not faced that before (1 year window while in court), file it away for a rainy day. Can save a lot of embarrassment. Back to your original question – the clock starts the moment you arrive, and only stops on certain specific events (usually delineated in the code, or placed on the record by the judge). These reasons are far between (for example, an appeal of a specific action in the asylum matter will often “stop the clock”), so you can pretty much assume, if you’ve passed the 1 year mark from the date of arrival, you’re out of the window.

For additional information on the one year clock (there was some debate on this within the AILA group), see: http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf. This is a training manual for DHS/ICE and the immigration court staff on how to handle asylum applications. Specifically, the discussion on page 4 is instructive:

From the Asylum Training Manual:
Any asylum applicant who applied for asylum on or after April 1,1998 (or April 16, 1998, for those applying affirmatively), must establish that he or she filed for asylum within one year from the date of last arrival or establish that he or she is eligible for an exception to the one-year filing requirement. If an applicant fails to establish either timely filing of the application or that an exception applies, the application must be referred to the Immigration Court. Only an asylum officer, immigration judge or the Board of Immigration Appeals (BIA) is authorized to make this determination. The determination may be made only after an interview with an asylum officer or hearing before an Immigration Judge.

Do you need help with an asylum question (either affirmative or defense) or attempting to prove exceptional circumstances for a late asylum filing? Contact us! We can help and have had great success. 703-402-2723.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 580 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.

So you're going to immigration court...what should your lawyer do?

Ah...the fun of the court room! Gotta love it!

Think "cattle call" -- do you do state or federal cases? The initial hearing equates roughly to a preliminary hearing in state/federal. The burden of moving forward is with the state, and if the respondent does not admit to the charges of removability, it is the burden of the state to prove them up. Once the state has convinced the judge that the charges are legit, the judge asks what relief the respondent seeks. Note that care must be used is admitting to the state's allegations as to removability...usually it's pretty "cold turkey" gotchas, but occasionally, they'll try to pull a quickie. Keep an eye on the regs, and the charges -- especially when a charge (state or federal criminal charge) can be viewed in different ways depending on the eye of the beholder. You can all sorts of fun stomping your feet and demanding a hearing as to the applicability or legitimacy of a particular allegation. On the same note -- don't be a jerk. If the allegation is valid, don't get a reputation of wasting court time on goofy meaningless foot dragging. This is especially true if your fella (or lass, as the case may be) is detained.

As to relief, that's where you pull out your trusty tool box and ponder the possible options. Generally, you want to do this prior to the hearing -- however, if you had not chance to see the NTA afore the hearing, take a moment to consider. Besides, you look good staring out the window rubbing your chin as you ponder how to save your client. You go, attorney! Typical relief options are Cancellation of Removal (COR 42A or 42B), some assortment of asylums (A-W-C), family adjustment (when appropriate), stalling with a plea for Prosecutorial Discretion (truly a waste), continuance for post-conviction relief (right....usually a stall tactic for some out of court magic date when bubba suddenly becomes eligible for relief), voluntary departure (one of the least understood and quite helpful tools for folks that can later adjust and don't already have EWI's etc.), and the old favorite -- a request for peonage (rarely granted, but often illicits a grin for those that know you have just asked to violate a host of immigration laws and the US constitution...but hey, if you have nothing else...)

When you really have hit the "duh...why am I here?" problem, and this is the first MCH...punt! Ask for a continuance to consider your options. Usually, you get one pass. Use it wisely.

Also, prior to requesting relief, but after a reading of the allegations (and any challenges thereunto), you'll have a chance to plead for bond, if your alleged evil alien monster is not already detained. Now, save yourself some grief, and the expectation crushing blow to your client's dying mother who just happened to attend your first MCH -- if your client has an aggravated felony (affectionately known as AgFel's). Don't know what constitutes an AgFel? Ping the law firm, and I'll send you a nifty cheat sheet (although as I have posted this prior -- I warn you that some of my more learned colleagues challenge some of the agfel definitions included on my sheet of cheating...but I'll leave that for your free time to hunt my alleged errors :). Regardless, with an AgFel, guess what? Your guest alien will not be getting out of the pokie. Don't even ask. Your client has "detained" stamped on his forehead. If you want to see if you can avoid that...TALK TO ICE BEFORE BEFORE BEFORE BEFORE (ahem...did I mention, um, "before"?) the judge has your case. The judge is compelled to keep your client detained if she has an AgFel. However, ICE can do whatever they want before EOIR takes the case. This is really important for CBP (custom and border patrol) ops (that would be LPR's that are snagged at the border for having a nefarious AgFel past that, for some reason, was allowed to be ignored for years and only now makes the evil heathens). If someone contacts you about a CBP "deferred inspection" grab them vigorously, and make SURE he or she takes you to the interview. You can beg and plead with the CBP officer to ask ICE to let your client walk -- even with AgFels. Once your client is non-detained -- judge can't revoke that, so it is possible to have a doomed, er..client out even with an AgFel. So...see if you can cajole ICE to play nice. Good luck with that, by the way :)

Let's see.. oh, and what about other MCH's? Well...they are just status hearings (a federal term for a continued case on the criminal docket). Usually you'll have one more after you plead relief so that you might have a glorious opportunity to, before all the assembled sad faced immigrants who, in court do find themselves, present a completed application of whatever relief thou hast otherwise requested in this, you first MCH.

The real fun is trying to prepare your client for their actual hearing on the merits (called an "individual calendar hearing" in immigration court parlance -- and by the way, if you are a client reading this LEARN AND DO NOT DO THESE THINGS). It is quite common to get hearing dates that are quite literally years out from the MCH (for non-detained). Your honest hard working client(s) will wander away...move to different states...go back to their home country, get DUI's (unbelievably...this is the number one charge for most of the folks that come to our office...an endemic problem in the Hispanic community of Northern VA...is there an ADA claim there somewhere? I'm game if anyone wants to help)...or, their story will change, the facts will be all wrong, and when trial comes, they'll not have provided anything you need. Remember! You are now a stunning paragon of justice and imminent speaker on all matters immigration -- so no worries (laughing)...you will persevere. On at least one in ten. (laughing again).

Court is a lot of fun, and the challenges of immigration court are really the same for all court cases -- facts and foundation. Get'um right and the relief you seek is indeed a pearl of great worth within your grasp.

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.

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.

A Curious Trial: U Visas, Rape, M-A-M hearing, and CAT relief

I was recently faced with a very difficult trial. A client of mine was suffering from torture and rape in prison, and the trial to have him released had been 10 months in the making. Additionally, I was barred from seeking Federal relief because the agency that held him was neither the state, nor even a prison -- rather it was a Federal Agency: ICE. Getting reports from that agency on anything is like pulling teeth.

After a grueling 5 hour trial, I managed to secure CAT relief for my client. In a different discussion forum, I mentioned different avenues for presenting the prison rape problem. Investigations were still underway when we went to trial on the 10th of December, 2012.

I decided to write up a motion with attendant supporting documentation showing the abuse, the investigation, and various responses from state and federal agencies. Instead of serving it in open court, I discussed it with the DHS attorney before court. To say the DHS attorney was surprised would be an understatement! She scurried off upstairs, as DHS did not know what was going on with the client and ICE had put nothing into the file. Nice.

When the judge came in, I explained the situation to him. He then took the motion packet and a stack of law books and reviewed it all in his office.

The tactic I decided on was not presentation on the record, per se – rather a soft demonstration prior to commencing operations. Gave everyone time to review and help come up with a solution. Very collaborative. I got one hell of a payback for that at the beginning of the trial, but at least at this point, my “sandbagging” the court and DHS was received with only a modest amount of grumbling. I will tell you, though, that I came prepared. The motion was properly formatted, and even hole-punched at the top! (I forget that all the time on emergency motions). I digress.

The awesome aspect of this was the ability to discuss with the judge and DHS counsel the prison conditions and rape (including medical problems, and document theft/protection money payments being required from my client) prior to any hearing on my CAT claim.

The judge proceeded with the trial, but it was obvious that he wanted to find some relief for my client just to get the guy out of prison (he had been detained by ICE for 10 months).

DHS had it’s own unexpected whammy. After the trial started, we immediately went into a M-A-M hearing – which I was entirely unprepared for. I was not even clear if I should be arguing my client was competent to stand trial (he had a couple of “not-guilty” findings due to insanity defense) or if I should try to ditch the case on grounds he could never comprehend the criminal nature of his conduct. That was a tad awkward. As a foot note – for those of you who have not done M-A-M hearings, these are generally fairly straight forward question/answer sessions based on medical reports and other corroborating evidence that speaks to your clients mental capacity. As a rule of thumb, a client represented by an attorney, and who can answer questions about the nature of the NTA, allegations, and why he/she is present at the trial, will be found competent to move forward. If the client is not found competent, the court has leave to suspend the hearing until competency can be established, appoint a guardian, or even remove the case and terminate proceedings. In the instant case, it was strange because I did not know how to argue it – especially given the prison rape, the psych background, and the need to get my client out ASAP. I hate not being prepared. For those who take the class on 18 Dec – you will have that hammered into you quite well.

Regardless, the judge found the client competent to stand trial and we had very interesting trial for many hours on homosexuals and transgenders in Venezuela.

It was a great hearing – but the take away is the tactic for handling prison situations prior to an IC wholly unrelated to the matter.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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I-94 and -Humanitarian- Notation in Immigration Law

I was recently answering questions on AVVO, an attorney inquriy board that, in part, specializes in immigration questions. An interesting question about I-94 forms and humaitarian/refugee parole was asked.

First, you need to understand the purpose of an I-94. The I-94 is often (but not always) given when an immigrant enters the country through a boarder crossing or inspection point. The actual name of the form is "arrival/departure record". It should be noted that many immigrants do NOT get this, and its absence does not per se cause a denial of any benefit (although it does shift the burden of proving legal entry onto the immigrant). Most commonly, folks come to the United States under a B2 visa. This visa, known as a visitor visa, entitles the bearer to remain up to 6 months in the country. The actual amount of time the visa holder may stay is -- you got it! - marked on the I-94. There are also certain codes entered on the I-94 that tell CBP (custom and board patrol officers) the nature of your entry, whether you are being watched or tracked, if you are permitted multiple entry/re-entry on the same I-94, etc.). In the instant case, the question is: what does the indication "indefinite" mean on the I-94? It means that instead of a 6-mos or other time window for this arriving alien, CBP granted "parole" to remain in the country without ever having to depart. This is in effect a pseudo-deferral, allowing the immigrant to remain in the country, but providing no benefits (work permit, for example). It is an excellent defense to a removal charge (assuming no criminal charges), but does little to provide a future for the immigrant.

In this instance, the proper next step would be application for asylum. Asylum is, defacto, a request for humanitarian/refugee relief. It means that you have a credible, meaningful fear of returning from where-ever you came from. More importantly, because CBP already paroled you in under humanitarian grounds, the credible fear determination is all but automatic. I don't know the specifics of your case, but one can imagine it must be compelling, as CBP paroles are not that common.

Once you apply for asylum, and you have established your credible fear during that process, you are eligible for EAD (employment authorization documents). This in turn allows you to work legally in the US.

The trick here is to ensure your asylum application process is done properly and timely, so you do not lose out on the potential benefit of a CBP humanitarian parole.

Hanover Law specializes in immigration defense -- specifically in court for removal, deportation, and asylum claims. We would be glad to take a look at your situation and help you get the best possible outcome. Call us at 703-402-2723 to discuss your case and begin the process getting you both legal, and working, in the US.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Gang Asylum-Withholding Cases (second post)

In my previous posting, I shared relevant case law governing BIA decisions in gang related asylum/withholding I-589 cases. I now turn to a discussion on how to argue the actual case. For security and privacy purposes, the name of the petitioner is removed. However, this material can be used as a tool for organizing a logical appeal brief. For brevity sake, footnotes have been excluded. Contact me for case information located in the footnotes.

A. CRITERIA 1: Immutable characteristic In the December 2007 Executive Office for Immigration Review, Immigration Law Advisor, the article, Gang Violence and Asylum: The Problem of Defining a Particular Social Group by Ms. Katherine A. Smith, discusses the immutable aspect of gang membership. She argues: ...[O]ne view is that a group consisting of former gang members meets the immutable characteristic test because former membership is a characteristic of the past that cannot be changed. For example, in Sepulveda v. Gonzales, 464 F. 3d 770 (7th Cir. 2006), the Seventh Circuit found that former employees of the Columbian Attorney General’s office belonged to a particular social group….The Court found that the status of being a former employee distinguished the case from the claimed social group of uncorrupt prosecutors who were subject to persecution….Former gang members are also a clearly defined discrete group of people. (Id., page 3)

In Valdiviezo-Galdamez v. U.S. Atty. Gen., 502 F.3d 285 (3d Cir. 2007), the Third Circuit sites to In re Fauziya Kasinga, 21 I. & N. Dec. 357 (BIA 1996) suggesting that individuals who deny their membership in a group (in this instance, a tribe) and oppose prevailing organizations or practices can be considered a social class .

Mr. Anonymous was a member of a known and clearly defined gang, the Hot Skulls (Oral Decision, transcript, page 4). In turn, the gang was part of a larger organization, with ties to the government, called “Beast of the Southern World” (Testimony, transcript, page 52, 56). Petitioner “turned his back” on the gang as a requisite for coming to the United States. He was required to renounce gang affiliation, despite knowing what happened to those that did so, and despite receiving demands for money and payment to be allowed to leave. (Testimony, transcript, pages 53-55) The Immigration Judge found Mr. Anonymous ’s testimony to be credible (Oral Decision, transcript, page 9). Petitioner has demonstrated he was part of an immutable group in two capacities: (a) he was a former gang members, and (b) he was part of a specific, clearly defined group that renounced gang membership in favor of leading a normal productive life, and received death threats and promises of violence as a result (“I mean they will hurt you. They will kill you, definitely”, Testimony, transcript, page 55) .

The 9th Circuit case, Artega v. Mukasey, 511 F.3d 940 (9th Cir., 2007), stated that gang membership, in and of itself, does not constitute a cognizable group for immigration purposes. However, the present appeal is distinguished from that holding in that membership in a gang is only the precursor to the requirement that the gang be renounced (you cannot be part of a socially recognized group that renouncing gang membership unless you are, de facto, a member of a gang). Additionally, in Guyana, gang membership is a form of social unit whether appealing to our culture or not. To discount a social unit, regardless of their function, is an anathema to immigration and refugee law. Whether the immutable aspect of gang membership alone is sufficient to create a social group in and of itself is debatable (as Artega suggests it is not). That it satisfies the requirement for the first criteria of the Board’s social group definition is not.

B. CRITERIA 2: Visibility According to Smith (EOIR Immigration Law Advisor), “[t]he issue is whether members of society perceive those with the characteristic in question as members of a group. Factors in this analysis include whether there are additional indentifying characteristics…” (Id., at 4). The “Hot Skulls” and the “Beast of the Southern World” are well known, active gangs in the Georgetown area of Guyana. Gang violence, and recognition of gang activity is well known, and common place in Georgetown, Guyana . While it is generally accepted these gangs exist, and Guyanese society as a whole recognizes the public, visible nature of the gangs in question, the question remains whether Mr. Anonymous ’s involvement with the gangs needs to be public and visible such that he should be included in the gangs themselves. In this instance, petitioner argues this is not necessary. Mr. Anonymous does not attempt to identify with the gangs any further. It his opposition to a well known, public gang, that gives rise to the social group he wishes to claim. Petitioner’s public admission that he was “out of the gang” and his renunciation of gang activity , is itself a public declaration, and immediately places him in direct and firm opposition to a recognized drug gang. Further, his public implementation of that declaration, by leaving the gang and never coming back, demonstrates an act which gives substance to his statements. It is not necessary that Mr. Anonymous be harmed in order for his public declaration of gang disaffiliation to be operative . Operative for visibility is: (a) that the petitioner was a member of a discreet, known gang; (b) that a clear statement was made, publically and visibly, against gang membership; (c) that substantive action was taken to implement the public declaration. Mr. Anonymous meets these elements.

C. CRITERIA 3: Particularity Particularity requires more than just common danger, or gross generalization. To specify a group with particular characteristics requires clearly defined, articulable, characteristics that when viewed as a whole, clearly delineate a subset of society (see generally, Immigration Law Review, 2007, page 4 citing to Ochoa v. Gonzales, 406 F.3d 1166, 1169 (9th Cir., 2005)). (a) Clearly Defined: Mr. Anonymous belongs to a unique, defined sub-group – individuals who were once gang members and who have now renounced their membership, openly, publically, and have taken material, substantive steps to enact their renunciation; further, they have suffered some harm or have been threatened as a result of that renunciation and the steps so taken . (b) Articulable: In contrast to Escobar v. Gonzales, 417 F.3d 363 (3rd Cir., 2005), Mr. Anonymous ’s social group characteristics are not “amorphous” or vague. Guyanese and even United Nation reports of events in the region, news and public literature supports and recognizes this group (former gang members who renounce their affiliation and take substantive steps to implement the renunciation) as a valuable contribution to civil society, and key to fixing the gang problems in the Caribbean, and Guyana in specific . In this case the very social group in question is recognized by the Guyanese government as key to fixing the gang problem in the country .

D. CRITERIA 4: Harm The likelihood of gang members who renounce their gang affiliation being harmed by the gang they left if they return is significant . Matter of Enamorado, unpublished Immigration Court decision, November 22, 1999, A#77530541, at page 26. “[I]n this particular case, members of “MS”, in fact see persons such as Edwin, i.e., individuals who are former gang members, as having characteristics that warrants suppression or the infliction of harm….As a result, the court finds that Edwin’s status as a past member of the “MS” does entitle him to be treated as a member of a particular social group.” ) See also Matter of -, CGRS Case #4158, IJ Decision, Eloy, AZ (February 17, 2005) stating that a gang member who attempted to leave his gang and remove his tattoos could be considered a refugee. Under oath, Mr. Anonymous gave credible testimony that he would serious, even fatal harm, if he were to return to Guyana having turned his back on his former gang. Q: Did anybody in your gang ever try to quit? A: Well, yes. We had one guy that, that I remember. He try to quit and it didn’t work out so nice for him, when he – they beat him real badly, you know. They almost killed the young man, and he didn’t quit anyway. (Transcript, page 50).

… Q: Do you know anything about the Beast of the Southern World? Do ou know anything about that group, at all?
A: Well, I know that if you try to steal from them, and you try to disobey them, you know, it’s nothing nice about it. They will, you know, they will terrorize your family. They will kill you, torture you. I mean, the guys was rough. They, I mean, they were no joke. (Transcript, pages 52-53)
…
Q: Before you left Guyana, to come to the United States, in December of 1989, did you tell your gang anything?
A: Well, yes. I told a few guys, that I was very close, but I couldn’t tell all of them, because, you know, they, they don’t like when you departure. I told a few of my friends, the ones that was close, that you know guys, I’m leaving, you know, and I got to go, and they, they, you know, they wasn’t too happy with the situation, because, you know one of the members leaving, so they asked me to, when I get there, when I get to America, and I get situated, if I should, I mean, I should support them, you know, with some funds, but you know, when I got here, I didn’t do such thing. I just, I just forget all about them. I turn my back on them, as we speak. (Transcript, page 54)
…
Q: Would you describe what would happened to you if you returned to Guyana now after what you told the gang when you left?
A: Well, they will, they will kill me, because simple fact I, I ain’t send them a penny. I didn’t support them in nothing. I just turned my back and they don’t like that. I mean, if you disobey orders from your crew members, it’s, it’s something terrible. I mean, they will hurt you. They will kill you, definitely. (Transcript, page 55)
The testimony supports a serious and credible fear of harm if petitioner returns. It should be noted that the Immigration Judge felt that they likelihood of the individuals with whom Mr. Anonymous was associated when he was in the gang, hurting him now was remote (Oral Decision, Transcript, page 9). However, this mistakenly assumes that gang memory is localized to merely the individuals who were “friends” or associates of Mr. Anonymous . We argue that the gang, as an organization, remembers and would persecute Mr. Anonymous even if the original individual members of the gang are no longer active.
E. CRITERIA 5: Cultural Perspective Country based perspective is a matter of fact and research. Arguably, each culture has its own view of what constitutes a group, and what constitutes persecution. While not controlling on whether any one alleged social group should indeed be considered a group, cultural “opinion” can help explain “norms” that define acceptable conduct, or behavior that defines group activities. Gangs are a known social element in Guyana and they are not welcome. Gang violence is not just perception – it is reality. Guyana has an epidemic of gang related problems, and more than 70% of the population feels that the government is unable, or unwilling, to change the criminal effect gangs have on communities, institutions, and corruption within the state . Approximately 29% of Guyanese feel that gangs are problem in their neighborhood . Over 50% feel less than secure or very unsafe . 13% of youth report being involved in serious criminal activity (more than any other Caribbean country) .
Those former gang members that break-out of the gangs and renounce violence are viewed as a cognizable, acceptable group that is contributes to the stabilization and betterment of the Guyanese society. Petitioner argues they have same status as ex-convicts who have completed their sentence and are rehabilitated.

Do you have an appeal (BIA or Federal case) that would benefit from a thorough review? Asylum/Withholding/CAT claims are tricky, and require experience to properly argue -- and even more so to win on appeal. While no appeal is guaranteed, there are key writing styles/approaches that can make a significant different. Contact us! We can help you ensure the highest possibility of success. When deportation or jail/detention is at stake -- it pays to have an expert help.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723

Gang Asylum-Withholding Cases

Our firm recently submitted an I-589 asylum/withholding appeal for a client that was involved in gangs while living in Guyana. Our BIA appeal centered on what is considered a "social group" for purposes of withholding. We argued that, "former gang members who have publically renounced their gang affiliation and taken substantive steps to effect the renunciation" are a discreet social group warranting protection.

This is the first of a two part posting on the topic. This first post covers current cases (we are located in the 4th (Federal) Circuit -- The 4th Circuit has upheld BIA’s definition process for social groups. Citing to the same cases outlined in the text below, the Court stated: “Neither the relevant statute nor its associated regulations specifically define the term "particular social group." We therefore defer to the BIA’s reasonable interpretation of the term.” (citing to Hui Zheng v. Holder, 562 F.3d 647, 654 (4th Cir. 2009)). Lizama v. Holder, 629 F.3d 440 at 446-447 (4th Cir. 2011))

Summary:

1. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) constitutes the over-arching case which controls the premise upon which “social groups” are defined. This case has not been overturned by any Federal Court, and BIA continues to refer to Matter of Acosta when considering matters pertaining to social groups.

2. To qualify for inclusion in a protected group, an individual must be a member of a group of persons all of whom share a common, immutable characteristic. (supra, at 233).

3. In Matter of C-A-, 23 I&N Dec. 951 (BIA, 2006), the Board updated its approach to defining social groups by expressing that one factor to be considered is the extent to which members of a society perceive those with the characteristics in question as members of a group. (supra, at 957, stating: “we have considered as a relevant factor the extent to which members of a society perceive those with the characteristic in question as members of a social group.”). This was strongly re-affirmed in 2008, when the Board summarized the “society perception” concept into one word: visibility. Matter of S-E-G-, 24 I&N Dec. 579, 586 (BIA, 2008).

4. Yet another key characteristic of defining a viable, social group acceptable for purposes of refugee, asylum, and withholding purposes is whether the group can be defined with sufficient particularity to delimit its membership. Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA, 2007). For the purposes of particularity, this case discusses whether “wealth”, “affluence”, or more generally monetary standing constitutes a sufficient discriminator for group definition; the Board held it did not, and discussed the need for specificity as a core characteristic of social group definition.

The respondents’ proposed social group is indeterminate, and not just at the margins, as will often be the case in describing group membership. Rather, when “wealth” is the sole criterion, group membership is difficult to delimit for a large swath of potential members. The characteristic of wealth or affluence is simply too subjective, inchoate, and variable to provide the sole basis for membership in a particular social group. (supra, at 76)

The essence of the “particularity” requirement, therefore, is whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized in the society in question, as a discrete person. Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA, 2008).

5. Two additional characteristics of social groups were teased out of the Matter of A-M-E & J-G-U case when the Board issued its decision in 2007. Specifically, that the level of harm incurred is relevant to group definition, and that all other factors must be taken in the context of the country in question (from which refugee, asylum or withholding is sought), and the type/nature of persecution alleged. Referring to the 2002 Guidelines of the United Nations High Commissioner for Refugees, the Board wrote: Although a social group cannot be defined exclusively by the fact that its members have been subjected to harm, we noted that this may be a relevant factor in considering the group’s visibility in society. Id. at 960 [reference to UNHCR report] (supra, 74).

Further clarifying the “social visibility” doctrine enunciated in Matter of C-A-, the Board explained: Whether a proposed group has a shared characteristic with the requisite “social visibility” must be considered in the context of the country of concern and the persecution feared. (Matter of A-M-E & J-G-U, at 74, Social Visibility).

6. In summary, over the period of 1985 – 2008, the Board has established the following criteria for defining social groups :

Do you have an appeal (BIA or Federal case) that would benefit from a thorough review? Asylum/Withholding/CAT claims are tricky, and require experience to properly argue -- and even more so to win on appeal. While no appeal is guaranteed, there are key writing styles/approaches that can make a significant different. Contact us! We can help you ensure the highest possibility of success. When deportation or jail/detention is at stake -- it pays to have an expert help.

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
703-402-2723