Articles Posted in Family-Based Immigration

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9th-Circuit-Upholds-Order-to-Deport-Immigrant-Child-with-No-Court-Appointed-Lawyer-300x203The 9th U.S. Circuit Court of Appeals in San Francisco ruled unanimously that immigrant children are not entitled to a court-appointed attorney to assist and represent them in their deportation hearings—this after upholding a deportation order against a young Honduran boy who entered the United States to escape gang violence in his home country.

The panel, consisting of three judges of the appellate court, ruled per juriam to uphold the decision of an immigration judge to deny asylum to and deport a Honduran minor. The child, hidden under the pseudonym “CJLG,” was 13 years old when he was forced to leave Honduras with his family to escape gang violence.

The boy and his mother, Maria, appeared before immigration court unable to afford legal representation nor access the country’s roster of service lawyers. The court promptly denied asylum to the child and ordered his deportation.

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Mexican Children27-year-old Azucena Macias was only 1 when she and her family crossed the U.S.-Mexico border into California. Her parents, however, were eventually deported in 2005, forcing Azucena and her siblings to live under the care of their older sister. Although Azucena would reunite with her mother 10 years later, it was under unfortunate circumstances—her mother had developed stage 2 breast cancer. Her mother’s illness, however, would also allow Azucena to apply for a little-used immigration rule, one that would fast track her way to permanent legal resident status, and eventually, full citizenship.

Understanding DACA and Advance Parole

The Obama administration’s Deferred Action for Childhood Arrivals (DACA) contains a little-known provision called Advance Parole, which allows undocumented immigrants to re-enter the U.S. and erase records of their unlawful entry, as well as all penalties associated with it.

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Eligibility for Provisional Waiver ProcessThe U.S. Department of Homeland Security has recently announced its final rule that expands eligibility for provisional waivers of inadmissibility, which affects individuals who have to travel from the U.S. to another country to obtain immigrant visas.

The Provisional Waiver Process

The provisional waiver allows certain individuals who are presently in the U.S. to process a request from the U.S. Citizenship and Immigration Services (USCIS) and receive a decision before departing from the country.

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Advance ParoleThrough a little-known provision in U.S. immigration law, undocumented immigrants like 27-year-old Fresno resident Azucena Macias have left the country and returned legally through a process called “advance parole.”

Macias was only a year old when her family travelled across the border from Mexico to California. In 2005, her parents were deported, leaving her and her sisters to grow up in the U.S. Ten years later, Macias found out her mother had been diagnosed with stage 2 breast cancer. This prompted her to apply for advance parole which allowed her to go to Mexico, return to the country, and speed up her path to legal residency.

Advance Parole and The Deferred Action for Childhood Arrivals (DACA)

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immigration kidIn a ruling earlier this week, a federal appeals court ordered the Department of Homeland Security to immediately release undocumented immigrant children held under detention for crossing the border unlawfully. The 9th Circuit Court of Appeals in San Francisco ruled that detaining migrant children for extended periods violates a 19-year-old legal settlement, which ordered immediate release after processing. Government lawyers responded by arguing that the settlement applied only to immigrant children who had crossed into the United States without being accompanied by adult relatives.

However, the ruling also states that immigration officials are not required to release migrant parents detained with their children, a reversal of an earlier ruling by U.S. District Judge Dolly Gee.

Advocates of tighter immigration policies hailed the decision, and hoped it would discourage adults from crossing into the country unlawfully and using their children to avoid being detained. Mark Krikorian, Executive Director of the Center for Immigration Studies, and a staunch proponent of stricter border controls, believes that allowing parents to escape custody may have encouraged a wave of migrant adults to enter the U.S. with their children. With the ruling, he hopes it makes using children a “less attractive” option.

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As an immigration attorney, I recognize that the justice system may place seemingly unjust burdens upon foreign nationals applying for a visa, permanent residency, or citizenship.

This was highlighted in a recent case, Toro v. Sec. for the Dept. of Homeland Security, et al, in which Aracelys Toro, a Venezuelan national was denied a permanent residency status due to her Cuban husband’s inadmissibility under the Cuban Refugee Act of 1966. Her husband was denied residency as a result of prior criminal violations, which led to Toro’s subsequent denial as well.

Toro later appealed the decision by the U.S. Customs and Immigration Services and asked the agency to grant her residency on the basis of the Violence Against Women Act of 1994 which had been amended to the Cuban Refugee Act. This statute permits battered spouses of Cuban aliens to self-petition for residency status.

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As an immigration attorney it is agonizing to see families horribly damaged by the deportation of one or both parents, leaving the children in the care of family, friends or the U.S. foster care system. These parents must make painful decisions about whether to leave their U.S. born children in the country in hopes that they will take advantage of the many opportunities here or take them to a country with much fewer prospects. Many of these cases involve parents who have broken no major laws and pose no threat to others, but have been caught up in an aggressive anti-immigration system that allows judges no room to be lenient.

The Office of the Inspector General for the Department of Homeland Security estimates that at least 108,000 parents of U.S. citizen children were deported between 1997 and 2007, but these estimates are probably significantly lower than the actual number. In the first half of 2011, 46,486 parents of children born in the United States were deported, according to a DHS report. An estimated 5,100 children of deported parents were in the foster care system in 2011. It is also projected that almost 15,000 more children could enter the child welfare system over the next five years as a result of detained or deported parents.

Many of these parental separations could be eliminated if immigration judges could be permitted to exercise judicial discretion. A 1996 law prohibits judges from considering the impact on children in these cases. Many of the children left in the care of others may suffer from a wide variety of health issues as a result of loss of parent. According to a study by the DHS and the International Human Rights Law Clinic, children left behind have an increased likelihood of developing depression, anxiety and insomnia. Many of these children also experienced declines in academic performance, more behavioral incidents, and a higher likelihood of dropping out of school.

Although these cases mostly involve undocumented aliens, in almost ten percent of these cases the parents are legal residents. Surprisingly, the legal system can be extremely harsh even on those immigrants who are in the country legally. In many cases, these parents are misinformed about the risk of deportation. Many times, parents are not properly informed about when they may be deported, which often leaves them no opportunity to arrange living situations for their children. Sometimes, children of detained parents are shunted into foster care because child welfare authorities make the decision in place of a parent.

These gross injustices have recently come to light and organizations like the American Civil Liberties Union are pressing Congress and the Obama administration to allow judges the use of judicial discretion especially in parental deportations. With almost 10,000 illegal immigrants detained daily for only minor offenses, many immigration advocates urge the federal government to re-examine this huge waste of taxpayer resources.

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As an immigration attorney and an observer of immigration policy, I am pleased to announce that the federal government has modified an onerous rule that has kept apart U.S. citizens from their spouses or parents for years at a time. At the beginning of the year, Secretary of Homeland Security Janet Napolitano announced that undocumented residents who were in the process of obtaining a green card, no longer must exit the country for long periods of time. This new policy would allow applicants to apply and remain within the U.S. throughout the majority of the process and exit the country for shorter periods for their consular interviews. The policy goes into effect on March 4, 2013.

Prior to the policy change, immigrants who were married to U.S. citizens or had children born in the country had to return to their country of origin in order to apply for an immigration visa and seek a waiver if their original entry was undocumented. This process often potentially took years and kept many undocumented aliens from pursuing legal residency or citizenship.

The new policy not only allows immigrants to remain in the United States during most of the application process, it also shortens the separation period to only a few weeks. Applicants still need to return to their home country to attend immigrant visa interviews, but the time of separation required abroad is considerable shorter than prior to the policy change.

If the visa applicant has resided in the United States for longer than six months, they must also apply to the U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security for an immigration waiver. Current U.S. law prohibits undocumented aliens who have lived in the country for more than six months from receiving consideration for visas, but the new process allows some applicants to overcome this legal obstacle.

Applicants for a provisional unlawful presence waiver must have an immediate relative, like a spouse, child or parent that is a U.S. citizen. There must be no other legal hindrances and they must show that a separation from the American relative would produce extreme hardship upon them. Applicants must use the Application for a Provisional Unlawful Presence Waiver, Form I-601A, which will become available in March.

Illegal immigrants pursuing a green card must file Form I-601A prior to leaving the country and notify the Department of State’s National Visa Center that they have applied for a provisional waiver. This ensures that they may re-enter the country expeditiously after the conclusion of their visa interview.

Alejandro Mayorkas, the Director of the USCIS, lauded the government’s move, saying that it will lead to an increase in the number of green card applications. This could affect tens of thousands of families with a member who is not a U.S. citizen or legal resident.

Not all of the details about this program are available at this time, but as an immigration lawyer, I will be eager to learn what caveats may prevent some applicants from receiving a waiver.

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President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (AWA), which amended §§101(a), 204(a)(1)(A) and 204(a)(1)(B)(I) of the Immigration and Nationality Act (“INA”) to prohibit United States citizen or permanent resident petitioners convicted of a “specified offense against a minor” from filing a relative petition for any beneficiary. The only exception is if the Secretary of the Department of Homeland Security (“DHS”) determines in his or her “sole and unreviewable discretion” that there is no risk of harm to the beneficiary or derivative beneficiary.

As an Austin immigration attorney, I am well aware of how challenging these cases can be to win. Often, clients come to my office after their case has been denied by immigration and frequently I am the last stop before they give up trying to get the case approved.

This post is meant to provide general guidance for Adam Walsh immigration cases from the perspective of an Austin immigration attorney. Above all, I encourage you not to give up. The right lawyer makes a huge difference in the approval rates of these cases. Adam Walsh petitions require a legal brief and legal analysis to be written using case law to back up the arguments. These petitions require affidavits and letters of reference from several resources. Adam Walsh petitions are indeed very complex, time-consuming, and lengthy cases. Despite all of that, these cases can be successful if you hire a lawyer who has experience and is willing to dedicate the time and effort to fight for your case. With most clients that come to see me, they have very limited options. Often times, an individual has a sexual assault charge that is 10 + years old, later in life marries, has children, and if the spouse is born abroad, USCIS (immigration) can create considerable obstacles for the family to be able to live within U.S. borders. It is ironic that a law that is meant to protect people can in some cases cause more harm than good. For example, we recently had a client who was charged with sexual assault of a minor because when he was 18, he had consensual sex with his girlfriend, who was 17 at the time. When the girlfriend’s parents found out that their seventeen year old was sexually involved with our client, they called the police and he was charged with sexual assault of a minor. Thirteen years later, when he was thirty-one years old, he met and fell in love with a foreign national. They were married and had three daughters. The Adam Walsh Act prevented this client from being successful in the filing of a relative petition for his wife (without a legal brief and considerable fight). The same law that is meant to protect in this case, failed to protect this family that wanted to be together in the United States.

One of the most difficult tasks in an Adam Walsh case is that the Petitioner must prove that he or she will not pose any harm to the beneficiary. This is oftentimes more difficult to do than what it sounds and requires proof that the Petitioner has been rehabilitated. This can be accomplished by showing and submitting records, such as evaluations by mental health professionals and affidavits from friends, family, and the beneficiary. The standard used by the USCIS adjudicator is “beyond a reasonable doubt” and if this standard is not met, the Adjudicator must deny the case.

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This post is a continuation of my prior post on common reasons for denials of fiancé visas. As an Austin immigration attorney, I believe the reasons listed below cause the most harm in fiancé petitions. The intent is to provide some insight and general overview of this area of immigration law.

As an Austin immigration lawyer, a lot of what I do during the initial consult with the client is to identify “red flags.” Some additional reasons for denials in fiancé visa cases are the following:

Reason 6: Couple has not spent enough time together in person, or in contact (unless a cultural exception applies) — every fiancé visa petition will require proof that the couple has met within the last two years. This includes evidence that you physically met unless there is a cultural exception. There are various ways of proving this and immigration lawyer can offer creative suggestions to help you meet this requirement. This is perhaps the most important aspect of the petition, and the person requesting the fiancé visa has the burden to meet this according to our immigration laws.

Reason 7: Fiancé interviews poorly and fraud is suspected — it may be that you have a perfectly legitimate case, but if your fiancé does not interview well and is unprepared for the types of questions she or he will be asked, they may have trouble getting through the interview abroad. This is another reason why consulting with an immigration attorney can be especially helpful.

Reason 8: Fiancé was previously in the U.S. and overstayed his or her visa — depending on the length of the overstay and the immigration history of the fiancé, there may be inadmissibility issues that arise.

Reason 9: The U.S. citizen has had multiple applications within a specific time-frame for different fiancés, or the U.S. citizen has previously sponsored a foreign national for a green card and the U.S. citizen cannot show or prove that the foreign national maintained lawful status.

Reason 10: Fiancé or U.S. citizen has a criminal record — For the U.S. citizen, not all crimes will cause concern for the fiancé petition, but some crimes that implicate the Adam Walsh Act will.

Reason 11: Fiancé has a serious, contagious illness. People with certain illnesses are not admissible under our immigration laws.

Reason 12: Fiancé is not truthful during the fiancé visa interview — misrepresentation will cause serious problems and will most likely result in denial of your case.

Reason 13: The petition includes a document that is deemed to be fraudulent. The U.S. foreign embassies are well equipped to recognize fraudulent documents. It’s important that you make absolutely sure your documents are accurate and properly authenticated.

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