Policy

Consequences for Filing a Frivolous Asylum Application

Published on: July 30, 2014 | by Lasnetski Gihon Law

In 1996 the U.S. Congress changed the law regarding asylum by imposing a new potential penalty for all asylum applicants who filed applications after April 1, 1997. This new penalty would bar any applicant, who filed a frivolous application, from receiving any benefit under the Immigration and Nationality Act (INA). This means, if the Immigration Judge finds that you filed a frivolous application, you will be permanently barred from receiving benefits like, asylum, adjustment of status, and temporary protected status, etc. However, even a frivolous finding will not bar you from receiving withholding of removal under INA § 241 or protection under Article III of the United Nations Convention Against Torture (CAT).

There is a big difference between filing a frivolous asylum application and simply being found not credible by an asylum officer or an Immigration Judge. To be considered frivolous, the Board of Immigration Appeals has required satisfaction of these four elements: (1) the respondent must receive notice of the consequences of filing a frivolous application; (2) the Immigration Judge must make a specific finding that the alien knowingly filed a frivolous application; (3) there must be sufficient evidence that a material element was deliberately fabricated; and (4) there must be an indication that the respondent has been afforded a sufficient opportunity to account for any discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 IN Dec. 151 (BIA 2007).

Once you sign and file a form I-589 Application for Asylum that contains false statements that are material to your claim or false documents to support the application, there is no putting the toothpaste back in the tube. Withdrawing your asylum application or going forward on another form of relief is not a defense to filing the frivolous application in the first place. Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010).

House Bill H.R. 5137 – Asylum Reform and Border Protection Act—The Biggest change in immigration law since 1996?

Published on: July 24, 2014 | by Lasnetski Gihon Law

Republicans in the U.S. House of Representatives recently proposed a bill aimed at dealing with the crisis currently taking place on the Southwest Border. House Judiciary Chairman, Rep. Bob Goodlatte introduced the bill and provided the following support for it:

“Since President Obama won’t take actions to quell this activity, the Asylum Reform and Border Protection Act stops many of the Administration’s policies that have caused this crisis, such as exploiting weak asylum standards to approve baseless claims and stringent environmental policies that prevent Border Patrol agents from doing their job of securing the border. Additionally, the bill reforms current law to make sure we get these unaccompanied minors home safely and quickly. We must swiftly take action to end this crisis-children’s lives are at stake, and so is the integrity of our immigration system.”

If anyone reads this bill, you can see that the scope of the bill is extremely broad, its effects are tremendous, and the change that it will make to our existing immigration laws will dwarf every action the President has ever taken regarding immigration.

Federal Court Gives Hope to Immigrants Fleeing from Violence and Corruption in Central America

Published on: July 22, 2014 | by Lasnetski Gihon Law

The U.S. Court of Appeals for the Fifth Circuit recently issued a decision that gives hope to immigrants around the world fleeing violence and corruption in their home countries. In a decision styled, Garcia v. Holder (case number 13-60381) the federal court rejected a decision by the Immigration Judge and the Board of Immigration Appeals (BIA) that potentially corrupt police officers were not acting “under the color of law,” when they threatened Mr. Garcia with violence and death. The federal court determined that Mr. Garcia may be eligible for protection under Article III of the United Nations Convention Against Torture (CAT).

The Immigration Judge found Mr. Garcia credible when he testified that after he was deported to El Salvador, men dressed as police officers threatened him with death if he did not pay extortion money. During the weeks and months that followed, Mr. Garcia moved his residence in an attempt to avoid harm. However, groups of men continued to follow him and physically abuse him, telling him that he owed them money and needed to pay. Mr. Garcia eventually fled El Salvador, re-entering the U.S. without admission or parole. Immigration officers arrested him and attempted to remove him by reinstating his prior order of removal. Mr. Garcia claimed fear of harm if he was deported again, and his case was sent to the Immigration Court. The Immigration Judge and the BIA rejected his claim for withholding of removal and protection under the CAT. The federal court agreed that Mr. Garcia did not qualify for withholding of removal, but disagreed that he failed to establish a claim for protection under the CAT.

The Immigration Judge and the BIA found that Mr. Garcia could not say for sure that the men who threatened him and were dressed as Salvadoran police were actually police officers. Rather, Mr. Garcia thought they could have been just criminals dressed as police officers. The federal court decided that this distinction did not matter, and Mr. Garcia may still be eligible for protection under CAT. The court focused on the “color of law” analysis and used it to decide that because actual public officials may have been involved in the harm or threatened harm to Mr. Garcia, he could make a legitimate claim under CAT.

New York City Council approves law to grant ID cards to undocumented immigrants

Published on: July 15, 2014 | by Lasnetski Gihon Law

The New York City Council recently announced that it approved the Mayor’s plan to give photo identification cards to all New York City residents, regardless of their immigration status. The Council and the Mayor heralded this effort as a victory for residents, many of whom do not have a current lawful immigration status and cannot obtain state or federal photo identifications.

The cards will be accepted by city agencies, will let parents enter school buildings and provide proof of identity for people stopped by police – which could mean the difference between spending a night in jail and being released.

Private institutions will not be legally required to accept the ID, but the city hopes banks and landlords will take it from people trying to open bank accounts or sign leases. (New York Post Article)

What do you mean I am a Terrorist?

Published on: July 14, 2014 | by Lasnetski Gihon Law

It is something that most non-citizens do not even think of when they apply for asylum here in the United States. However, it happens on a not-so-infrequent basis. A non-citizen, who was persecuted in their home country, comes to the U.S. for help, for protection, for asylum, and then out of nowhere, they are denied assistance because the U.S. government says they are a terrorist. The reactions are very often ones of confusion, befuddlement and bewilderment. What do you mean I am a terrorist, I have never been arrested or convicted of a crime, I have never done anything wrong, I am the victim!?

This is the position that many non-citizens find themselves in after an asylum office interview gone wrong. But what does the U.S. government mean when they say that you area terrorist, when you’ve never done anything wrong? Beginning in the late 1990’s, the U.S. government began designating organization around the word as terrorist organizations. Congress passed laws saying that if you are a member of one of these organizations, or help them raise money, or help them plan their terrorist attacks, then you are not allowed into the United States and if you are already here, they will try to deport you.

However, most people who are accused of engaging in terrorist activities have never been a terrorist or willingly helped any known terrorists. Many times the government accuses people of providing material support to terrorist organizations. If the government has evidence that you provided material support to a terrorist organization, they can deny you adjustment of status, asylum, withholding of removal and many other immigration benefits.

Refusing to Honor Immigration Detainers will put Residents at Risk, not Protect Them

Published on: July 11, 2014 | by Lasnetski Gihon Law

Recent news articles across the country highlight the growing trend where cities have begun refusing to honor detainers issued by Federal immigration officers to local jails. These small towns and large metropoli are known as “sanctuary cities.” In these approximately 200 municipalities nationwide, when a person is arrested and put into the local jail, local law enforcement officers will release the person from jail even when Federal immigration officers have sent a written request to the jail to hold the person for a brief time. This written request, know as an ICE (Immigration and Customs Enforcement) detainer or hold, is a request to the local jail to keep the person in custody for no more than 48 hours after they are ready for release. The purpose of this hold is to allow immigration officers time to decide whether or not the person is a non-citizen and in the country in violation of the criminal or civil immigration laws.

The articles largely focus on isolated cases where the detainers where issued against people who turned out to be U.S. citizens, or who were held for more than 48 hours after they should have been released. The articles pinpoint the handful of cases where mistakes were made-not the tens of thousands of cases over the years where the use of these detainers helped to protect the communities where they were honored. In the years that ICE has used these detainers, the cooperation between local law enforcement and Federal immigration officers has led to the identification and removal of tens of thousands of convicted murders, child molesters, violent felons, and drug traffickers.

When local law enforcement or immigration officers make mistakes, and violate a person’s constitutional rights, there should be justice for those harmed. Officers should be disciplined, re-assigned, re-trained or fired. Cities and the Federal government should be held responsible when their officers violate people’s rights. However, to completely refuse to honor immigration detainers, and to release convicted violent criminals, who admit they are in the country illegal, back into a vulnerable and unsuspecting community, doesn’t protect anyone, it puts everyone, including other immigrants, at risk.

Why the President’s Pledge to Send More Resources to the Southwest Border is Good for the Migrant Children and Families Coming to the U.S.

Published on: July 2, 2014 | by Lasnetski Gihon Law

Last Monday, President Obama announced that he was sending additional resources to the Southwest Border to help with the growing humanitarian crisis involving tens of thousands of unaccompanied minors and families migrating from Central American. The President vowed these resources in part, to more quickly return “unlawful migrants” to their home countries and discourage additional children and families from following in their same dangerous path to the U.S.

The President said regarding these expanded resources: the Department of Justice (DOJ) and DHS [Department of Homeland Security] are deploying additional enforcement resources — including immigration judges, Immigration and Customs Enforcement attorneys, and asylum officers — to focus on individuals and adults traveling with children from Central America and entering without authorization across the Southwest border. The DHS is working to secure additional space that satisfies applicable legal and humanitarian standards for detention of adults with children. This surge of resources will mean that cases are processed fairly and as quickly as possible, ensuring the protection of asylum seekers and refugees while enabling the prompt removal of individuals who do not qualify for asylum or other forms of relief from removal.

Many pro-immigration advocates have criticized the President’s decision. They argue that returning migrant children and families to their home countries is inhumane and in many cases we would be sending these migrants back to the crime and poverty that are the very reasons they fled to the U.S. However, this promise of expanded resources will actually help ensure that those migrants, many of whom are eligible for immigration benefits in this country, will receive a full and fair determination of their eligibility, rather than face lengthy detention and summary denials of benefits.

Sequestration Results in Release of Detained Immigrants

Published on: March 11, 2013 | by Lasnetski Gihon Law

The budget crisis in the Federal Government has led to a process known as sequestration. The government has furloughed government employees and otherwise reduced spending on governmental entities. One area where sequestration has been felt is in immigration proceedings. Many immigrants who were previously detained during their immigration proceedings have been and will be released from custody to save the Federal Government money.

The released individuals will still be subject to conditions of release and will have to check in with DHS (Department of Homeland Security) as a condition of their release. From a cost effective standpoint, it costs the federal government $186 per day to detain an immigrant. In comparison, it costs between 30 cents to $14 per day to release them on bond.

It remains to be seen how many more immigrants will be released from custody on conditions of bond. It also remains to be seen how sequestration will affect the backlog of cases in other immigration areas.

President’s Speech Calls For Immigration Reform, But Provides No Specifics

Published on: February 13, 2013 | by Lasnetski Gihon Law

In the State of the Union Address, President Obama called for immigration reform. Unfortunately, the term “immigration reform” has only served as a generic term thrown around on the Congress floor. Proposed reform could have both positive and negative implications on non U.S. citizens. The President called for added security at the border, specifically at the Mexican border. The President has also called for a streamlining of the immigration process to alleviate the burdensome and inexcusable delay in processing visas, which has kept U.S. citizens away from their non U.S. citizen families for extended periods of time. It can take years for an immediate relative to get to the U.S. to live with his or her U.S. citizen spouse.

As President’s often do in State of the Union speeches, the President left out specifics or any policies that he plans on supporting that would the people that are already in the United States with no lawful status. The President’s policy related to the Dream Act seems to suggest that there is some hope for children that were brought to the United State’s without legal status, however, the current policy is simply a band aid on a bullet wound. DACA recipients are not provided legal status and are merely given a temporary reprieve from deportation.

The long and short of the President’s speech leaves us with as many questions as we had before the speech. And that probably won’t change any time soon.

Change in Immigration Processing Allows Some Immigrants to Apply For Status While in the United States

Published on: January 7, 2013 | by Lasnetski Gihon Law

The Obama Administration announced plans to change a long standing policy in immigration processing. As of March, immigrants who are here without lawful status will be able to apply for a waiver of their unlawful status while here in the United States. Previously, those individuals would have to leave the United States, which would activate a 3 or 10 year bar to reentry, and then would have to apply at the embassy for a waiver of that bar. This process could take many years and keep families apart for long periods of time.

Now, immigrants that have accrued unlawful status will be able to apply for a waiver here in the United States, which will dramatically reduce the amount of time they will have to spend outside the country.

As with most immigration applications, there will be a processing fee charged by the government of $585. The waiver does not change the requirements of the waiver, which requires the applicant to establish that their removal from this country would cause extreme hardship to their United States Citizen immediate relative. This has historically been a difficult, although not insurmountable, task.