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Ricky Malik, Esq.

The Board of Immigration Appeals (BIA) clarified that a foreign national does not need to rescind a prior removal order if a foreign national seeks to file for asylum based on changed country conditions in the foreign national's home country.

Normally, an individual who has an outstanding order of removal (deportation) first files a motion to reopen with the Immigration Court that ordered deportation before pursuing the immigration matter. This is because there are very few immigration options available to someone who has been ordered deported and the rescission of the prior removal order will open up avenues.

There are several types of motions to reopen with different time limits and requirements:

1. Factual: Must be filed within 90 days of the decision ordering removal;
2. In absentia orders: If the person was not in court, a motion to reopen may be filed within 180 days if the foreign national demonstrates exceptional circumstance for failing to appear;
3. Joint Motions: If the Department of Homeland Security (DHS) agrees and joins in reopening the case there is no time limit;
4. No Notice: There is no time limit if the foreign national did not receive proper notice or was in Federal or State custody;
5. Battered Spouses, Children, Parents: If the person(s) were subject to abuse and meets the requirements, there no time limit;
6. Asylum: If based on Changed Country Conditions there is no time limit.

In Matter of J-G-, 26 I&N Dec. 11 (BIA 2013), the Board clarified that the reopening does not have to seek to rescind the prior removal order first, if the purpose for seeking reopening is to apply for asylum or withholding of removal based on changed country conditions. This is significant because rescinding or erasing a prior removal order is oftentimes very difficult. Now an applicant can first concentrate and limit the case to meeting the requirements of filing for asylum based on changed country conditions instead of having the Court address both recision and reopening at the same time. Decision Below.

Ricky Malik, Esq.

For those of us familiar with Asylum cases, there is much grumbling and moaning when you mention "The Clock." It can ruin a person's ability to support themselves and it is unclear when it gets stopped and started or does not run. The "Asylum Clock" (or KLOK as it is also known) is basically the concept that a foreign national who files for asylum must wait 150 days after filing an asylum application (I-589) before applying for an Employment Authorization Document (EAD). The counter or timer operation is the problem.

Its a hair-pulling issue but on November 4, 2013 a nationwide class action settlement was reached that will hopefully allow so many people who have suffered persecution in their past to actually obtain their work permits within the lawful time lines.

One of the parts of the settlement that we are most excited about is that asylum seekers will soon be able to file their asylum applications with the Immigration Court immediately, instead of waiting for months, sometimes close to a year before the initial Master Calendar Hearing (No more motions to advance hearing date. Wohoo!)

The Settlement agreement is below.

United States Citizenship & Immigration Services (USCIS) issued a memo on November 7, 2011 providing guidelines to officers describing when a Notice to Appear (NTA) is to be issued. An NTA is the document that starts removal (deportation) proceedings against a non-citizen. It is sometimes referred to as the charging document and recieving one of these is usually bad news because it means the United States is trying to deport you. If you get an NTA which generally looks like the document below, it is best to quickly consult with a qualified immigration attorney.

The November 7, 2011 Memo below generally seems to indicate tha anytime USCIS can deny an application, they will place that person in deportation court.

Ricky Malik, Esq.

www.rmlegal.com

The Board of Immigration Appeals in Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007) held physical harm is not neccessary. Threats or severe economic deprivation can rise to the level of persecution.

"(1) An abortion is forced by threats of harm when a reasonable person would objectively view the threats for refusing the abortion to be genuine, and the threatened harm, if carried out, would rise to the level of persecution.

(3) When an Immigration Judge denies asylum solely in the exercise of discretion and then grants withholding of removal, 8 C.F.R. § 1208.16(e) (2006) requires the Immigration Judge to reconsider the denial of asylum to take into account factors relevant to family unification."

Matter of T-Z-

Ricky Malik, Esq.

www.rmlegal.com

In a case argued and briefed by Attorney Ricky Malik, the U.S. Fourth Circuit Court of Appeals issued a published decision on January 19, 2011 denying the asylum, withholding and Convention against Torture (CAT) claims of one of our clients.  Our client was seeking asylum and related protection in the United States based on his fear of returning to El Salvador based on the fact he would be persecuted by ruthless gangs in El Salvador.  Gang violence in El Salvador is a major problem that has existed and increased in severity in recent years.  These multi-national gangs have been known to torture, maim, victimize and kill many people throughout the Central American region and Mexico. Some of the more infamous gangs are Mara Salvatrucha 13 (MS-13), M-18 and Los Zetas, to name a few. 

We were disappointed in the decision from the Fourth Circuit and understand this is a difficult issue for the Court because U.S. Asylum law only allows for a grant of Asylum or Withholding of removal IF a person can prove that the harm is motivated by the person's race, religion, nationality, political opinion, or membership in a particular social group.   Our client's claim was based upon his "membership in a particular social group," a group that is difficult to define and limited by years of caselaw.   Full decision below:



Ricky Malik, Esq.
Law Offices of Ricky Malik, P.C.

The Administrative Appeals Office published a postive case that addressed burden of proof. Hopefully, USCIS adjudicators will use this case as their guide when deciding cases.  In Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) it was held that:

"In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.

Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "more likely than not" or "probably" true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r  1989), followed.

If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition."

The June 2010 Immigration Law Advisor (a publication by the Immigration Court System) focused heavily on gang based asylum cases.  The publication, whose target audience is Immigration Judges across the U.S., tries to convince the reader of the non-availability of a social group in gang related asylum cases.   It does however end with the belief that there is nonetheless an opening for such cases, lest we would have automatic denials of all cases.

"As explained above, Matter of S-E-G- and Matter of E-A-G- likely foreclose many asylum claims based on purported particular social groups related to gangs. The circuit courts have generally accorded deference to these decisions. Yet, as Benitez Ramos v. Holder and Urbina-Mejia v. Holder both illustrate, not all gang-related asylum claims based on membership in a particular social group will necessarily fail."

ICE press release: "SACRAMENTO, Calif. - Three attorneys for a northern California law firm and their contract interpreter were sentenced to lengthy prison terms Friday following their conviction on charges stemming from an investigation by U.S. Immigration and Customs Enforcement's (ICE) Office of Homeland Security Investigations (HSI) that revealed they orchestrated a scheme to file hundreds of false asylum claims.

Jagprit Singh Sekhon, 39, of Westminster, Calif., formerly of Sacramento, was sentenced to 108 months in prison. His brother and former partner in the Sekhon & Sekhon law firm, Jagdip Singh Sekhon, 42, of Salida, Calif., was sentenced to 60 months in prison. Their former law firm associate, Manjit Kaur Rai, 33, of Discovery Bay, Calif., was sentenced to 30 months in prison. The sentencing hearing for interpreter Iosif Caza, 43, of Sacramento has not yet concluded. Interpreter Luciana Harmath, 29, of Glendale, Ariz., formerly of Sacramento, was sentenced to four months in prison last month."

There are too many attorneys, immigration consultants, notarios and fraudsters active in the U.S. Immigration system, stronger enforcement of those who perpetuate fraud will increase the integrity of the system.

For more, click here.

Ricky Malik, Esq.