J's story began when he he entered the country unlawfully seeking a better future in 2005. In 2007 he was detained by ICE when ICE went looking for someone else but instead found J who was quickly placed in removal proceedings and accepted VD that same year. However, he never departed the country. In 2012 J observed a police officer in his rearview mirror. A routine traffic stop caused him to be placed under an Order of Supervision with ERO for removal processing as he never departed the country. Since 2012 he had been trying to resolve his immigration status with no luck. When J sought our help we explained that because he was married to a US citizen we would be able to file two special waivers and eventually consular process. However, we needed to convince ERO to give him the time to get these waiver processed.
At the time J had an approved family petition which had been filed by his wife but they were unaware that the law would allow him to file waivers given his unlawful entry and the overstay of the Voluntary Departure Order. The first waiver the YMF team filed is known as an I-212, Application to Reapply for Admission after Deportation or Removal. Once we explained this to ERO they allowed J additional time to file. Less than two months after applying the immigration service approved his application. At that point J became eligible to file the I-601A Provisional Waiver for unlawful presence. As we had been successful in our first waiver, ERO agreed to extend his time to file the second waiver. The second waiver required us to show that J's wife would suffer extreme and unusual hardship should the waiver be denied. While J's wife would certainly suffer extreme hardship, it was their three US citizen children who also became our focus as they all receive special education. While the law requires that we show J's US citizen wife would suffer the extreme hardship, we were also able to argue that given the children's special needs and the many responsibilities associated with raising three young children J was clearly eligible for the I-601A waiver.
Waivers require attention to detail, careful argument and consideration. The YMF team prepared a thorough application for J which was approved within eight months of filing. At this point J was now eligible to consular process. Given the fact that J had accepted VD but never departed all those years ago, he would still need to depart and interview at his home country's consulate. However, J was armed with an approved family petition, two waiver approvals and the ERO's officers' consent for departure. After almost fifteen years in this country J successfully consular processed in his home country and reentered the United States of America as a Lawful Permanent Resident. All told, J was outside the U.S. for less than four weeks. While many have faced the same challenges and difficulties, J expressed that he considers himself lucky because many are ignorant or told they have no relief options due prior orders. J can now live a dignified life with his wife and children no longer needing to look in his rear view mirror.
]]>Recently, "M" came to the office of Youman, Madeo & Fasano terrified that she would be one of those women because if she is forced to return to her native country of Mexico, her abusive ex-husband will kill her. M suffered a life of abuse and horrible violence. When she was only 14 years old, M was raped by her brother-in-law. When that was reported to the police, the officers just laughed at her. Before coming to the United States, she was abused by an ex-partner, and again, the police did nothing to protect her. Then while in this country, she married a man who also physically, sexually, and verbally abused her; however, the police in the United States took steps to protect her. Eventually he was deported to Mexico.
Yet she was still in danger because she too could have been deported to Mexico where he was waiting to take revenge on her for divorcing him and for working with the police in the United States. The divorce did not matter to him - he was still going to rape and beat her because he believed she would always be his. He knew where family in Mexico lived, and he was merely waiting for her to return. Her only chance was to hope for asylum here in the United States, yet that proved challenging because of Matter of A-B-. When she came to us, we had a little less than two weeks to prepare for her asylum interview, and Mr. Fasano took her case pro bono.
We worked tirelessly for a week and a half to gather evidence and to prepare M's detailed Affidavit in which she explained all the abuse she has suffered and why she is terrified that she will be killed if she returns to Mexico. In addition, we had to counter Matter of A-B-, and thus, the associate on the case wrote a memorandum of law explaining why the AG's decision in A-B- did not preclude M's application for asylum.
The first step in doing that was to explain that the AG's decision was fundamentally flawed, legally erroneous, and expressly contrary to decades of asylum jurisprudence. Asylum applicants must meet several elements in order to receive protection here in this country. They must establish that they either have been harmed or will be harmed on account of a protected ground such as membership in a particular social group. They must also establish that if the harm feared is inflicted by private actors, that the government is either unable or unwilling to control the perpetrator. The AG's decision attacked all those elements yet did so in a legally incorrect manner; thus, we first pointed out each fallacy. The second step was to apply decades of asylum law to M's case and argue why under the law, she is still eligible for asylum even though we as advocates can no longer rely on Matter of A-R-C-G-.
We submitted evidence from M corroborating the abuse she suffered, and we submitted country condition evidence demonstrating that Mexico is a patriarchal society; thus, domestic violence occurs at alarmingly high rates, yet victims rarely receive any protection from the government because even police officers believe that women are subordinate to men and that domestic violence is therefore permissible. That objective evidence corroborated what M already suffered in Mexico. Although M was also abused here in the United States, her abuser carried that machismo attitude to this country.
We then fully prepared M for the asylum interview as if we were preparing for court. That is, we made sure she understood the types of questions she would be asked and why those questions would be asked. We helped her understand the legally significant facts that the asylum officer needed to know. In addition, we worked with her on the trauma aspect because we knew that the psychological suffering would impact her ability to relay relevant yet difficult details to the asylum officer.
All of the hard work paid off because M pushed through the asylum interview and answered questions in detail about why she is afraid to return to Mexico. Ms. Rook was able to attend the interview as M's attorney and was allowed to give a closing statement making the necessary legal arguments in support of M's application for asylum. It all came together, and today, we were able to tell M that she has been granted asylum in the United States.
]]>Jane entered the country unlawfully having crossed the US/Mexico border without permission in 2013. She was immediately detained and even issued an expedited order of removal while at a detention center. As she was being processed an officer asked her about why she came here and while she was reluctant, she decided to tell her story. The officer then referred her to an asylum officer who specializes in interviewing applicants who are fearful of returning to their home country. It was after being interviewed by an asylum officer that Jane's story was found to be credible. Her case was referred to the immigration Judge and she was released from the detention center.
Shortly after being released from detention, Jane contacted the offices of Youman, Madeo & Fasano (YMF) in New Jersey. YMF was able to change venue of her case from Texas to New Jersey where she now resides. Her asylum application was filed timely, meaning that it was filed within the first year she arrived into the country. Asylum laws require that an applicant file within a year of first arriving or lose asylum eligibility unless one can prove an exceptional circumstance. Jane had left two children back in Ecuador but her husband was already in the United States when she arrived. As her case was properly pending before the Immigration Court, YMF was able to get Jane a work authorization.
It would not be until early 2016 that YMF began presenting the case before the Immigration Judge in New Jersey who found the application to be in order. After some additional evidence was filed, a final hearing was set in early 2017. At the final hearing, the Department of Homeland Security took the position that Jane did not qualify for asylum and asserted that an appeal would be filed should the Judge rule in Jane's favor. The government offered to close Jane's removal proceedings through the prosecutorial discretion (PD) program or risk losing and be ordered removed. Jane did not take the offer; instead she placed all her faith in YMF's ability to effectively present her case.
The case was rescheduled for another hearing where Jane would finally present her case. Jane grew up in the mountains of Ecuador where access to hospitals are hours away. Her mother could not speak or hear. Her elderly grandparents helped raised her. At eight years of age Jane was brutally raped by her cousin. The cousin took advantage of Jane's mother's incapacity as she never realized what happened. Once her grandparents found her obviously hurt and bloodied, no action was taken to protect Jane.
In fear for her safety and in light of the continued rape attempts, Jane fled at the tender age of eight. She found work in another village. Once she was in her teens she was forced to go back home after her grandmother passed and her mother became ill. At sixteen, her cousin raped her again only this time she became pregnant. At seven months pregnant her cousin beat her so badly she miscarried. There were no hospitals or clinics nearby. Somehow Jane recovered and later on bore a child with her husband. Out of fear, Jane never reported anything to the police. Her cousin had a good position as the lead ranch hand at a local farm and she knew he could pay off the police who routinely looked the other way on such incidents.
Even after Jane married, her cousin continued his persecution. Once Jane's husband departed Ecuador in search of employment, the situation worsened, the persecution intensified and fears that she would be raped or even killed by her cousin forced Jane to flee in fear for her life.
YMF argued that Jane, much like in the well-established domestic violence case of Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) was a member of a particular social group. In this case, "Ecuadorean women who are unable to leave domestic relationships." At the conclusion of the hearing the government no longer threatened to appeal and deferred to the court.
The Judge found that while Jane's case can be differentiated from matter of A-R-C-G-, Jane had established that she was a member of the particular social group offered. The Judge found that her testimony was consistent with her interviews at the border and subsequent statements offered into evidence. The Judge found that the evidence proffered from the psychologist and country conditions reports established Jane's claim of persecution. The Court found that given Jane's young age at the time the persecution began and the fact that it was a family member who others feared made it that much more difficult for Jane to escape her circumstances. The Court went on to note that domestic abuse/rape is often ignored and even tacitly consented to by countries such as Ecuador. Through the effective assistance of the team of attorneys and legal assistants at YMF, Jane had met her burden and was granted asylum.
YMF is now helping Jane file petitions for her husband and children who remain in Ecuador. Soon she will be reunited with her family and she can leave her ordeal in the past.
]]>Good Moral Character is a requirement for a hopeful applicant to be successful in their Cancellation of Removal for Nonimmigrants application. The law is less than clear for many applicants as to what they are required to show. The statute that defines Good Moral Character simply contains a non-exhaustive list of situations that preclude a cancellation applicant from being found to meet the requirement.
What does this mean for people that have been convicted of driving under the influence? Youman, Madeo, and Fasano have successfully represented clients with past DUI convictions in their Cancellation of Removal cases.
Recently our client, a father of five children, received a positive decision during his hearing despite a DUI conviction from a mere 4 years ago. Our client's evidence of rehabilitation and genuine remorse aided him in his effort to remain in the United States. Our client now has the opportunity to continue supporting his young son who suffers from many congenital issues affecting his mental and physical development. Our client's DUI conviction did not foreclose him from the opportunity to raise his children in a country where his son has ready access to the five specialist doctors he regularly visits.
Driving under the influence is a very serious crime. However, if a cancellation applicant can show genuine remorse and rehabilitation they may still be able to pursue their American dream for themselves and their children.
]]>Such was the case for our client, "Z," who fled Ecuador under the most horrendous of circumstances. As a child in Ecuador, Z was sexually assaulted by three different men. After spending some time in the United States, she returned to Ecuador to reunite with her children and met a man she thought would be the father figure her children needed and the devoted partner she deserved. Tragically, and quickly after she moved her children into his home, he revealed his abusive nature through unfounded jealousy, verbal lashings, rape, and physical assaults. At one point, he even locked her in the home during the day when he was at work to prevent her from going anywhere. After a brutal assault, Z made the painful choice to flee Ecuador and seek protection in the United States.
Her nightmare, unfortunately, was not over because during the journey to the border with coyotes, the coyotes not only starved her but also drugged and raped her. Therefore, when she arrived at the border and was apprehended by immigration authorities, she was terrified, tired, starving, and psychologically scared from her horrendous life experiences. She then made false statements to border patrol agents: she gave a false name, said she was from Guatemala, and said she had no fear but wanted to live and work in New York for two years. She admitted the truth shortly thereafter and received a credible fear interview (CFI), yet during the CFI she said that her abuser was physically violent only once.
We therefore knew that the case would have a significant challenge in addition to all the legal elements one must meet for asylum: Z had a credibility concern. In asylum cases, a judge is to make a threshold determination of credibility. In reaching that determination, he is to examine the record as a whole, and statements made at the border are documented and part of the record. Accordingly, false statements made at the border often lead a judge to question an applicant's credibility. Likewise, inconsistencies in Affidavits and testimony regularly lead to a judge making an adverse credibility determination, thereby discounting the applicant's fear and killing her asylum application.
The YMF team knew it was our responsibility to establish that a survivor of trauma does not react to situations in the same ways as someone who has never fled their own country to save their life. They also do not convey accounts of abuse in chronological order or even in logical order due to the realities of traumatic memories. We therefore dove deep into Z's psychological issues, and she started working with a therapist who diagnosed her with PTSD and depression. She exhibited many symptoms of those conditions and even attempted suicide. For that, she took medication and saw her therapist every week. We gathered voluminous records confirming her conditions and the treatment she receives here in the United States. We also fully prepared Z for the types of questions she would be asked, and we encouraged her to not hide her emotions but rather to let them show and even admit during testimony to how the trauma impacted her mental condition and how talking about it made her feel.
Before we began testimony at her final hearing, the Judge and the attorney for the Department of Homeland Security (DHS) made it clear that they had issues with Z's credibility. Our response was that while they were looking at Z's false statements at the border as an indicator of dishonesty, the false statements were actually indicative of both her trauma and her fear. It was her mental condition that led to the false statements, and it was the past abuse she endured that led to such a tragic mental condition.
Z demonstrated great strength as she testified through tears about her life in Ecuador. Her suffering was clearly visible. She also answered questions from YMF counsel, counsel for DHS, and even from the Judge about her false statements at the border and during her CFI. Z explained that she did not assert a fear because she did not trust that she would be protected; that she claimed to be Guatemalan because if she was going to be forced to leave the United States, she wanted to go anywhere but Ecuador; and that she asserted there was only one instance of physical abuse because it was difficult relaying the extent of her ordeal to a stranger. Yet even during testimony, Z's account of harm contained inconsistencies between direct and cross-examination, and she struggled to answer the question being asked because the memories came flooding back.
After the attorney for DHS completed his cross-examination, he informed the Judge that credibility was a concern for him because of the inconsistencies during testimony and because of her false statements at the border. Yet the Judge made it clear that although in most similar cases, he would make an adverse credibility determination and deny the asylum application, he was convinced that Z was severely traumatized. That trauma, the Judge stated, was the explanation for her inconsistencies and false statements. He found her credible. The issue then became whether we met the burden of establishing all the elements for asylum, and DHS deferred to the Court and accepted the Judge's grant.
The most significant takeaway from this case is that false statements and inconsistencies can be fatal to an asylum claim; however, it is crucial for attorneys to look outside the box and develop reasoned arguments to pre-empt that potential fatality. The way to do that is to work with clients and reinforce within them that there is no shame in the psychological suffering they endure after surviving persecution. In fact, receiving help for that suffering and documenting that help are necessary in cases like Z's.
Traumatic experiences impact a person's mental and even physical well-being. Memories of the trauma do not play in a survivor's head like a recording; rather, memories are often fragmented and distorted. Memories of trauma are akin to puzzle pieces dumped out of a box, and a victim of trauma is able to put them together over time through trial and error, which is a painful process. The victim might remember one specific detail of abuse while other details of the same event blend together to form inconsistencies. That naturally impacts the way in which an asylum applicant testifies about the accounts of abuse and even talks about it at the border with immigration authorities. Another well-documented consequence of trauma is that the survivor has a skewed sense of safety and therefore lacks trust in many situations; thus, the trauma impacts their ability to immediately convey a fear to immigration authorities. Those consequences are exactly what can lead to an adverse credibility determination yet the explanation for them is what can save credibility. Z was willing to work with us as we probed into her mental health, and as a result, the Judge found her to be credible and granted her asylum application.
]]>There are DACA holders now in their twenties who are pursuing successful careers in the fields of architecture and real estate. YMF clients have declined to allow the details of their cases to be profiled in this correspondence, for fear of being targeted by the U.S. government in retribution for advocating in favor of a certain immigration policy. DACA-holding professionals in the fields of architecture and real estate worry about the future of DACA, and have recently applied for renewal of their DACA approvals. They are sure that they will lose their jobs with her current employers if DACA is revoked. These are college graduates who have received honors for their outstanding achievements in architecture and real estate. They have no arrest history anywhere in the world and no history of immigration fraud. As the correspondence sent to U.S. officials asked, "Would the U.S. Department of Homeland Security be serving the interests of the U.S. by repealing DACA and rendering professionals such as these unemployed?"
The submission included a New York Times article profiling a DACA recipient who currently works as an architect; a study calculating that ending DACA would wipe away at least $433.4 billion from the U.S. gross domestic product, or GDP, cumulatively over a decade; and a similar study of the Center for American Progress stating, "At a time when the U.S. economy is finally emerging from the Great Recession, a loss of this magnitude is something the nation cannot afford."
]]>On August 26, 2016 we had the opportunity to attend the American Immigration Lawyers Association (AILA) Conference on Waivers which took place in Chicago, Illinois. The Conference brought together Immigration Attorneys from all over the United States to discuss and gain knowledge on a variety of topics. It was all together a very educational and successful day in which we had the opportunity to meet attorneys from varying jurisdictions and honor YMF's commitment to always continue learning and keeping up with the latest trends in Immigration Law.
The conference was broken down into two main sessions- a morning session and afternoon session. There were several discussion panels within each session on different areas involving waivers. During the morning session one of the main topics discussed was ways a person can become inadmissible to the United States which included some of the most common grounds of inadmissibility such as being in the United States unlawfully or having a criminal conviction as well as some of the less common grounds such as an incomplete application or failing to attend a hearing in immigration court. The I-601 Waiver, which can waive the majority of the grounds of inadmissibility as long as the person has a Legal Permanent Resident (LPR) or United States Citizen (USC) parent or spouse to whom they can demonstrate extreme hardship was discussed in detail in the second panel of the morning. Another topic of discussion was the I-601A Waiver which allows a person with an LPR or USC spouse or parent and an approved family-based or employment-based petition file a waiver in the United States if they are inadmissible only for being present unlawfully in the United States. The person must then attend a consular interview in their home country in order to receive their green card but only after their waiver is approved in the United States. The panelists were able to discuss a variety of ideas on how to prepare the strongest Waiver possible and differing methods on how to collect documents, prepare a brief and what documents to collect and submit were demonstrated. In the final panel of the morning titled "Hot Topics" the continuing litigation on Deferred Action for Parental Accountability (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA) were discussed. The panelist stressed that although the recent Supreme Court decision was disappointing, it is still very much alive. The recent expansion to the I-601A, which was previously only available to spouses and minor children of United States Citizens, was also discussed and the impact it now has.
The afternoon session was broken down into two different tracks- one on Criminal Waivers which Attorney Dominguez had the opportunity to attend and one on Advanced Strategies for Waivers which Attorney Rook had the opportunity to attend. Attorney Dominguez's track had three different panels which discussed various ideas on how to present a waiver case before an immigration judge as well as the most common waivers for persons with criminal convictions that make them inadmissible- known as the 212(h) and 212(c) waivers. The final panel of the day for this track focused on what is known as "the permanent bar" or 212(a)(9)(c) and possible ways to overcome it. Ms. Rook's track focused on advanced strategies in waiver cases and on fraud waivers. Attorney Rook's track had panels that discussed advanced strategies in how to prepare evidence in a waiver case, how to address negative evidence, and how to know which fraud waiver might apply to your particular case. That is because two types of fraud waivers are available and how to prevail on each type.
As a conclusion to the conference day, we also had the opportunity to attend a dinner at a local restaurant in which we met with twelve other immigration attorneys to discuss additional strategies for preparing I-601 and I-601A Waivers. It was a very informative and educational evening in which we were able to put our various knowledge and experience to good use. It was also an opportunity to network with attorneys from all over the country in a smaller setting.
All-in-all, we both were able to learn a lot from the experience of attending the 2016 AILA Waivers Conference. We are grateful for the opportunity and the materials and knowledge we brought back with us are tools that will allow YMF to continue to learn and grow. This will help us to better serve our clients with their waiver cases.
]]>Since its inception in 2013, the Provisional Waiver has allowed certain Immediate Relatives of U.S. Citizens to return to their home country and process their residency through the Consulate despite having accrued unlawful presence in the United States. The Provisional Waiver - - based upon the extreme hardship a Qualifying Relative Spouse or Parent would face - - would excuse the 3 or 10 year bar to reentry prior to an applicant departing the United States to complete Consular Processing. This program has been extremely successful and tens of thousands of previously undocumented individuals have been able to acquire their residency without facing extensive separations from their families.
This morning USCIS released the 119 page Final Rule for the Expanded Provisional Waiver. Many may recall that the proposal for this rule change was initially announced in July 2015. In response to the proposed rule change USCIS received over 600 public comments, several of which were incorporated into what has become the final rule. Now with publication in the Federal Register, the Expansion of the Provisional Waiver will become effective August 29, 2016.
Some highlights of the Expanded Provisional Waiver include:
Most importantly, this new rule expands the class of individuals who may be eligible for a Provisional Waiver of inadmissibility based solely on their unlawful presence in the United States. While the original 2013 version of the Provisional Waiver was limited to Immediate Relatives of U.S. Citizens, now every Family Based preference category maybe eligible for the Provisional Waiver provided that they have a Qualifying Relative.
Whereas the original Provisional Waiver limited the Qualifying Relative to U.S. Citizens, the Expanded waiver is available to those who have a Qualifying Relative Spouse or Parent who is a U.S. Citizen or Lawful Permanent Resident. It is important to understand that the applicant must have a Qualifying Relative Spouse or Parent - - a child still does not constitute a Qualifying Relative.
This Expanded Provisional Waiver is not limited to Family Based petitions! Accordingly, applicants who are otherwise eligible to acquire residency via an approved Employment Based petition and who have a Qualifying Relative Spouse or Parent will be eligible for the Expanded Provisional Waiver. This is the best thing to happen to them since the sunset of the 245-i waiver in April 2001!
USCIS will no longer deny a Provisional Waiver based upon them having a reason to believe another ground of inadmissibility exists. While this sounds positive, applicants must still be very cautious as the Consulate will still make the ultimate admissibility determination. If there are other grounds of inadmissibility such as fraud/misrepresentation or criminal related, an applicant would be facing a visa denial at the Consulate even if they are holding an approved Provisional Waiver.
Unlike the original version of Provisional Waiver, applicants will now be eligible for the Expanded Provisional Waiver even if they are subject to a final order of removal, exclusion or deportation. This is a huge change as the original Waiver precluded eligibility for anyone with such an Order and previously the general policy of the Office of Chief Counsel had been not to join in a motion to reopen proceedings where the only relief was the Provisional Waiver. Now, there will be no need to reopen proceedings! However, applicants will first need to apply for and have approved an Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212). With an approved I-212, an applicant can then seek the Expanded Provisional Waiver.
Applicants who might be subject to reinstatement of an old order of removal, deportation or exclusion, may now be eligible for the Expanded Provisional Waiver provided that the Department of Homeland Security has not actually reinstated the order as of yet.
It is important to note that the applicant will still need to establish that their Qualifying Relative will suffer Extreme Hardship if the waiver were not granted and this new rule did not alter the definition of hardship. However, in perhaps a harbinger of things to come, there is reference to the proposed guidance memorandum issued by USCIS on October 7, 2015, related to Extreme Hardship. This proposed memorandum is very much expected to bring consistency to the hardship adjudications and, hopefully, an increase in approvals.
The Expansion of the Provisional Waiver will open the door to residency for thousands of deserving individuals. While this is great news, the public must still understand that not everyone will be eligible to benefit from this change in policy. Every case turns on its own set of facts and it is essential to seek out competent, qualified and ethical legal counsel. And on that note, we look forward to see you at [nap_names id="FIRM-NAME-1"].