The denial of many types of immigration applications carry the risk of a referral to Immigration Court (IC) Removal Proceedings if the alien is out of status at the time of the denial. For example, the denial of the asylum application of an out of status alien by the USCIS Asylum office, requires that the alien's matter be forwarded to to the IC. The denial of an adjustment of status (green-card application) based upon the out of status alien's marriage to a US Citizen will also often result in referral to IC.
This transition from USCIS to IC is critical, though aliens do not always understand the significance or importance of it. When an alien is referred to IC, the Government prepares a Notice to Appear (NTA), which makes certain allegations against the alien and charges the alien under one or more sections of the Immigration and Nationality Act, of being "removable" from the United States. The NTA also sets a date, time and place of a "Master Calendar Hearing" (which is like an arraignment in criminal court), or notifies the alien that he or she will be informed of the date time and place of the master hearing at a later time. The NTA can be served on the alien in person by an immigration employee, or forwarded to the alien's last known address of record from the alien's file. Should the alien fail to attend the master hearing, the Immigration Judge (IJ) will typically enter an order of deportation against the alien in the alien's absence. The failure to appear in IC and an in absentia deportation/removal order has certain negative consequences to the alien and will strip the alien of eligibility for certain forms of immigration benefits and render the alien inadmissible to the United States for 10 years, should the alien depart the United States.
Hence, an alien who is careless in monitoring his or her mail after the denial of their case by USCIS, or who ignores an NTA, may find him or herself in an extremely weakened position in terms of their ability to receive immigration benefits at a later time. Some aliens decide, after their application has been denied by USCIS, that they will not consult with their attorney again, and will not read their attorney's advisory letters. They will sometimes instead, discuss their circumstances with friends in their community, who advise them, not based upon law, but upon their own speculation. Such aliens will sometimes leave the United States without attending their court proceedings, imagining that the Government will be happy with their departure, and will allow their return to the US once the alien has reason to return. Aliens also sometimes do not appreciate or remember (in spite of the attorney's very careful discussion of the limitations of his services in his fee agreement) that immigration attorneys do not typically commit to representing an alien through all stages of their potential immigration journey, since that journey can often take years and in some cases over a decade to completion. Thus, an attorney who represents an alien in a marriage case, usually has not committed in his fee agreement with the alien, to represent the alien in the IC. Some such attorneys have never appeared in IC and would not be prepared to represent aliens in that forum. Other immigration attorneys with IC experience (such as myself) would require the alien to enter into a new agreement to cover that forum. Hence, if the alien has not re-hired his attorney, or retained some other attorney for court, and fails to appear for the master hearing, there will be no one in court on the alien's behalf at the time of the master hearing to speak for the alien. Where the alien shows up to the master hearing without an attorney, most, if not all IJs will allow the alien some amount of time to retain a lawyer for court. It is always better for the alien to attend court in the company of his or her attorney.
I have had the displeasure of having had to advise some aliens, years after their departures from the United States and after having not heard from them following a denial of their applications by USCIS, that their failure to attend court and request voluntary departure from the IJ would likely prevent them from, or pose serious obstacles to their reentry into the US for many years to come. Some of these aliens would have been eligible for relief in IC which they almost certainly would have been granted, had they simply stuck that process out with proper legal representation.
Aliens must not ignore an NTA and must appear in court. Aliens should also always discuss thoroughly the meaning of a denial of an immigration application and its potential to result in an NTA with an immigration attorney. Aliens must monitor their mail for follow up communications or NTAs from the Government after the denial of an application. Aliens should have an attorney review all such follow up communications or NTAs. Aliens referred to court should hire a qualified and experienced attorney to represent them in court prior to the first hearing in court. Again, regardless of whether the alien hires an attorney or not, he or she must appear in court at all scheduled court hearings, unless the court specifically exempts their appearance.
Duane M. Hamilton, Esq.
Thursday, November 26, 2009
Saturday, September 19, 2009
IMMIGRATION MARRIAGE FRAUD
In almost every community of foreigners in the United States there is some guy (a non-lawyer) who will do your taxes, give you financial advice, sell you some real estate, notarize some documents, fill out immigration forms, and even arrange a marriage or two between US citizens and aliens. Often, as has happened in Los Angeles, rings of hustlers and con-men join forces to form interstate criminal enterprises in which they recruit US Citizens who are down on their luck to marry aliens (in exchange for a fee paid by the alien) so as to apply for and acquire from the Government Lawful Permanent Resident (LPR) status. Sometimes aliens who are limited in their options for immigration due to their overstays and unlawful employment, become desperate and particularly vulnerable to these schemes. They are further emboldened in their resolve to commit marriage fraud by testimonials from community members who have successfully taken the marriage fraud route and been rewarded by the issuance of LPR status.
In such communities there is a great deal of discussion of the benefits of marriage fraud, but very little discussion of its downside. I will not engage here in a lengthy discussion regarding the legal prohibition and legalistic consequences of marriage fraud, since most aliens recognize that paying someone to arrange a marriage and misrepresenting the nature of that marriage to the Government in order to receive immigration status, is highly illegal and may result in serious consequences if discovered. Aliens should know however, that if a finding of marriage fraud is made against them, they may be barred from ever adjusting their status in this country in the future, deported from the United States, refused visas or entry into the US in the future, and might even be prosecuted under criminal statutes for fraud. What I wish to discuss in this article is how marriage fraud compromises the integrity of the alien and may cause the alien to be victimized in so many ways.
THE US CITIZEN SPOUSE IN A MARRIAGE FRAUD SCHEME: In a marriage fraud scheme, the US Citizen spouse is usually someone who is very much down on his or her luck. These people often have drug and alcohol habits, past due back taxes, broken down cars in need of repair, multiple children for whom back child support is owed, etc.. The alien should understand instinctively that a reputable, upstanding, and gainfully employed US Citizen does not need to marry and petition for an alien in exchange for a few thousand dollars. The very fact that the US Citizen is willing to do this should trigger great apprehension within the alien and speak volumes about the particular US Citizen's own integrity.
THE ALIEN AS WELFARE INSTITUTION: One should expect that if the US Citizen is willing to engage in fraud against the US Government, he or she may quite likely be more than willing to become and extortionist against, and an abuser of the alien once it is clear that the alien is dependent upon him or her for the successful completion of the case. Suddenly the alien spouse becomes a welfare institution for the benefit of the US Citizen spouse - a veritable treasury from which the US Citizen may extract all manner of bounty. The alien suddenly finds herself in the position of fixing the US Citizens car every time it is in need of repair, babysitting his brood of unruly children, sending the US Citizen on vacation, paying the US Citizen's back taxes and child support, etc. The US Citizen might go as far as to demand sexual favors in exchange for his cooperation. The alien need not complain, since such complaints are met with the ever-present threat that the US Citizen will merely abandon the case which would then necessarily fail for the Citizen's lack of participation.
INVESTIGATION: Many USCIS Field Offices investigate a small number of marriage cases randomly. This means that there need not be any red-flag found in the case for the case to be handed over to enforcement officers who will visit the address which the aliens have listed as their joint residence. They often visit in the pre-dawn hours of the morning and will be able to detect through the alien's reaction to the visit and what they find if allowed into the home, whether the marriage is fraudulent or not. They may also speak to the couple's neighbors and show photographs of each spouse to the neighbors to determine whether the neighbors are aware of each spouse's residence at the particular address. The fraud is generally easily discovered in such an investigation. Aliens filing fraudulent marriage cases should understand that there is no guarantee that they will not be the subject of such a visit. Investigators will generally not stop with the pre-dawn visit when they have sniffed out marriage fraud. They will delve into aspects of the alien's taxes, employment, insurance arrangements, relationships, etc., to build a solid marriage fraud case, before the alien is referred to Immigration Court for deportation, or to a criminal prosecutor.
LAWYERS: Aliens sometimes believe that it is the attorney's role to assist them in the furtherance of their marriage fraud adjustment of status cases. Where an attorney has good reason to believe that a marriage is fraudulent, the attorney cannot assist the alien in that particular adjustment of status. The attorney should advise the alien in no uncertain terms that marriage fraud is unlawful and may result in serious consequences to the alien. The attorney should additionally do nothing to assist the alien in the furtherance of such fraud. Aliens should know that the attorney is performing his or her duty both to them and to their own ethical obligations when this advice is given. An attorney can represent an alien accused of marriage fraud to explain why in spite of an appearance of marriage fraud to the Government, the conduct did not legally rise to the level of marriage fraud.
Lawyers will generally accept a client's word that they are in a bonafide marriage, if there is no reason to suspect marriage fraud. Most of us advise our clients not to commit marriage fraud for the reasons listed in this article, regardless of how valid the marriage appears to be. Where the lawyer discovers fraud in the marriage after the petition is filed, the lawyer will advise the client to withdraw or abandon the case, in spite of the fact that there is a high probability that the alien may be referred to immigration court. It is better to be referred to immigration court, where the alien may be able to seek other forms of relief and at a minimum, perhaps, voluntary departure, than encourage the alien to compromise him or herself by lying under oath.
THE ADJUSTMENT OF STATUS INTERVIEW: An adjustment of status interview is conducted by a trained USCIS Adjudications Officer. The US Citizen and the alien must be present at the interview and must be prepared to present documentation and answer questions related to the bonafides of the marriage. In a case in which the marriage is in good faith with the representation of an experienced lawyer who has prepared the case thoroughly, this interview can appear to be more of a formality than anything else, lasting mere minutes. Where the marriage is fraudulent, the couple's documentation or lack thereof often raises red-flags in the mind of the interviewer which can turn the interview into a nightmare for the alien. Some field offices, will detain aliens at the adjustment interview where they have sufficient reason to believe that marriage fraud has been perpetrated.
It is also very common in marriage cases for the fraudulent US Citizen spouse not to show up on the day of the interview. It is equally common for such US Citizen to completely turn on the alien at the interview and admit to the fraud in exchange for the Government's lenient treatment. This, after the US Citizen has extracted in some instances as much as $10,000 to $15,000 from the alien.
It is equally common for the couple in a marriage fraud scenario to give conflicting answers to the officer regarding their relationship and joint lives, resulting in denial of the case, and sometimes a finding of marriage fraud.
REFERRAL TO IMMIGRATION REMOVAL PROCEEDINGS: It is common these days, for USCIS to refer an out of status alien who has been denied adjustment of status based on a US Citizen marriage, to Immigration Court Removal Proceedings. Officers can opt to simply deny and close the case where the case is denied without any real incriminating factors being exposed. However, even in the most benign circumstances of denial, applicants are often referred to immigration court.
VICTIMS OF ABUSIVE US CITIZEN SPOUSES: Merely because a US Citizen spouse is disreputable or abusive does not mean that the alien entered into the marriage solely for the purpose of acquiring lawful residence by defrauding the Government. Aliens like anyone else, sometimes fall in love with and marry troubled and abusive US Citizens. Sometimes, the mere poor character of the US Citizen creates the erroneous determination in the mind of the adjudications officer that the marriage must have been fraudulent. Here the alien has married in good faith with the pure intent which is required in marriage cases; often she has been beaten and abused by her US Citizen spouse, who she has remained with out of love (as is typical in many abusive relationships); and now her case has been denied, not because she has committed fraud, but because of the flawed perception of the interviewing officer. Such aliens have not committed marriage fraud and can potentially be viewed as victims by the Government.
These aliens can sometimes find relief through the Violence Against Womens Act (VAWA), both with USCIS or in Immigration Court. The Court procedure differs from the procedure with USCIS in some notable ways, and aliens in such circumstances should be assisted by an experienced lawyer.
THE LESSON HERE: Do not commit marriage fraud. It is illegal and is not worth it. The compromises to integrity which may have to be made along the way, might affect the alien's very soul for a lifetime. Do not be angry with the lawyer when he sternly advises against this approach, and understand that it is sometimes better to do nothing and maintain your status quo than commit fraud. Further, simply because your marriage case has been denied does not mean you have committed marriage fraud. There can be any number of innocent reasons why a marriage case might be denied. Talk to a lawyer before you make any decisions with regard to filing a marriage case and you will most likely receive the proper advice.
Duane M. Hamilton
In such communities there is a great deal of discussion of the benefits of marriage fraud, but very little discussion of its downside. I will not engage here in a lengthy discussion regarding the legal prohibition and legalistic consequences of marriage fraud, since most aliens recognize that paying someone to arrange a marriage and misrepresenting the nature of that marriage to the Government in order to receive immigration status, is highly illegal and may result in serious consequences if discovered. Aliens should know however, that if a finding of marriage fraud is made against them, they may be barred from ever adjusting their status in this country in the future, deported from the United States, refused visas or entry into the US in the future, and might even be prosecuted under criminal statutes for fraud. What I wish to discuss in this article is how marriage fraud compromises the integrity of the alien and may cause the alien to be victimized in so many ways.
THE US CITIZEN SPOUSE IN A MARRIAGE FRAUD SCHEME: In a marriage fraud scheme, the US Citizen spouse is usually someone who is very much down on his or her luck. These people often have drug and alcohol habits, past due back taxes, broken down cars in need of repair, multiple children for whom back child support is owed, etc.. The alien should understand instinctively that a reputable, upstanding, and gainfully employed US Citizen does not need to marry and petition for an alien in exchange for a few thousand dollars. The very fact that the US Citizen is willing to do this should trigger great apprehension within the alien and speak volumes about the particular US Citizen's own integrity.
THE ALIEN AS WELFARE INSTITUTION: One should expect that if the US Citizen is willing to engage in fraud against the US Government, he or she may quite likely be more than willing to become and extortionist against, and an abuser of the alien once it is clear that the alien is dependent upon him or her for the successful completion of the case. Suddenly the alien spouse becomes a welfare institution for the benefit of the US Citizen spouse - a veritable treasury from which the US Citizen may extract all manner of bounty. The alien suddenly finds herself in the position of fixing the US Citizens car every time it is in need of repair, babysitting his brood of unruly children, sending the US Citizen on vacation, paying the US Citizen's back taxes and child support, etc. The US Citizen might go as far as to demand sexual favors in exchange for his cooperation. The alien need not complain, since such complaints are met with the ever-present threat that the US Citizen will merely abandon the case which would then necessarily fail for the Citizen's lack of participation.
INVESTIGATION: Many USCIS Field Offices investigate a small number of marriage cases randomly. This means that there need not be any red-flag found in the case for the case to be handed over to enforcement officers who will visit the address which the aliens have listed as their joint residence. They often visit in the pre-dawn hours of the morning and will be able to detect through the alien's reaction to the visit and what they find if allowed into the home, whether the marriage is fraudulent or not. They may also speak to the couple's neighbors and show photographs of each spouse to the neighbors to determine whether the neighbors are aware of each spouse's residence at the particular address. The fraud is generally easily discovered in such an investigation. Aliens filing fraudulent marriage cases should understand that there is no guarantee that they will not be the subject of such a visit. Investigators will generally not stop with the pre-dawn visit when they have sniffed out marriage fraud. They will delve into aspects of the alien's taxes, employment, insurance arrangements, relationships, etc., to build a solid marriage fraud case, before the alien is referred to Immigration Court for deportation, or to a criminal prosecutor.
LAWYERS: Aliens sometimes believe that it is the attorney's role to assist them in the furtherance of their marriage fraud adjustment of status cases. Where an attorney has good reason to believe that a marriage is fraudulent, the attorney cannot assist the alien in that particular adjustment of status. The attorney should advise the alien in no uncertain terms that marriage fraud is unlawful and may result in serious consequences to the alien. The attorney should additionally do nothing to assist the alien in the furtherance of such fraud. Aliens should know that the attorney is performing his or her duty both to them and to their own ethical obligations when this advice is given. An attorney can represent an alien accused of marriage fraud to explain why in spite of an appearance of marriage fraud to the Government, the conduct did not legally rise to the level of marriage fraud.
Lawyers will generally accept a client's word that they are in a bonafide marriage, if there is no reason to suspect marriage fraud. Most of us advise our clients not to commit marriage fraud for the reasons listed in this article, regardless of how valid the marriage appears to be. Where the lawyer discovers fraud in the marriage after the petition is filed, the lawyer will advise the client to withdraw or abandon the case, in spite of the fact that there is a high probability that the alien may be referred to immigration court. It is better to be referred to immigration court, where the alien may be able to seek other forms of relief and at a minimum, perhaps, voluntary departure, than encourage the alien to compromise him or herself by lying under oath.
THE ADJUSTMENT OF STATUS INTERVIEW: An adjustment of status interview is conducted by a trained USCIS Adjudications Officer. The US Citizen and the alien must be present at the interview and must be prepared to present documentation and answer questions related to the bonafides of the marriage. In a case in which the marriage is in good faith with the representation of an experienced lawyer who has prepared the case thoroughly, this interview can appear to be more of a formality than anything else, lasting mere minutes. Where the marriage is fraudulent, the couple's documentation or lack thereof often raises red-flags in the mind of the interviewer which can turn the interview into a nightmare for the alien. Some field offices, will detain aliens at the adjustment interview where they have sufficient reason to believe that marriage fraud has been perpetrated.
It is also very common in marriage cases for the fraudulent US Citizen spouse not to show up on the day of the interview. It is equally common for such US Citizen to completely turn on the alien at the interview and admit to the fraud in exchange for the Government's lenient treatment. This, after the US Citizen has extracted in some instances as much as $10,000 to $15,000 from the alien.
It is equally common for the couple in a marriage fraud scenario to give conflicting answers to the officer regarding their relationship and joint lives, resulting in denial of the case, and sometimes a finding of marriage fraud.
REFERRAL TO IMMIGRATION REMOVAL PROCEEDINGS: It is common these days, for USCIS to refer an out of status alien who has been denied adjustment of status based on a US Citizen marriage, to Immigration Court Removal Proceedings. Officers can opt to simply deny and close the case where the case is denied without any real incriminating factors being exposed. However, even in the most benign circumstances of denial, applicants are often referred to immigration court.
VICTIMS OF ABUSIVE US CITIZEN SPOUSES: Merely because a US Citizen spouse is disreputable or abusive does not mean that the alien entered into the marriage solely for the purpose of acquiring lawful residence by defrauding the Government. Aliens like anyone else, sometimes fall in love with and marry troubled and abusive US Citizens. Sometimes, the mere poor character of the US Citizen creates the erroneous determination in the mind of the adjudications officer that the marriage must have been fraudulent. Here the alien has married in good faith with the pure intent which is required in marriage cases; often she has been beaten and abused by her US Citizen spouse, who she has remained with out of love (as is typical in many abusive relationships); and now her case has been denied, not because she has committed fraud, but because of the flawed perception of the interviewing officer. Such aliens have not committed marriage fraud and can potentially be viewed as victims by the Government.
These aliens can sometimes find relief through the Violence Against Womens Act (VAWA), both with USCIS or in Immigration Court. The Court procedure differs from the procedure with USCIS in some notable ways, and aliens in such circumstances should be assisted by an experienced lawyer.
THE LESSON HERE: Do not commit marriage fraud. It is illegal and is not worth it. The compromises to integrity which may have to be made along the way, might affect the alien's very soul for a lifetime. Do not be angry with the lawyer when he sternly advises against this approach, and understand that it is sometimes better to do nothing and maintain your status quo than commit fraud. Further, simply because your marriage case has been denied does not mean you have committed marriage fraud. There can be any number of innocent reasons why a marriage case might be denied. Talk to a lawyer before you make any decisions with regard to filing a marriage case and you will most likely receive the proper advice.
Duane M. Hamilton
Friday, September 11, 2009
KENYAN ASYLUM AND OTHER FORMS IMMIGRATION RELIEF
Kenyans often present difficult immigration cases. A large segment of the community are good people who have overstayed their visas in the United States. They have no qualifying relatives or employers who might file immigration petitions on their behalf, and their overstays and unlawful employment in the United States often frustrates most forms of adjustment of status (the application for lawful permanent residency while the alien remains in the U.S.). Further compounding their troubles is the fact that they often become the victims of unscrupulous non-lawyers who mislead and take advantage of them.
However, beneath the surface of Kenyan society, boils a cauldron of political and social unrest, corruption and violence which drive a great number of Kenyans from their country. Many become the victims of domestic violence, both in Kenya and often at the hands of abusive U.S. Citizens or permanent resident spouses, who promise them the world, then hold them hostage, using their immigration vulnerability to enslave and coerce them. Some have lived in the United States for extremely long periods of time with immediate family members who are either US Citizens or Lawful Permanent Residents . Many Kenyans unfortunately, never come to an understanding that such circumstances, with very careful legal representation, could lead to a resolution of their lack of immigration status, without compromising their integrity. These aliens might qualify for asylum, withholding of removal, relief under the Torture Convention, Cancellation of Removal, protection under the Violence Against Women's Act (VAWA), adjustment of status, or other forms of immigration relief.
Chow & Hamilton's work with Kenyan asylum seekers and immigration court litigants is believed to be the gold standard in the United States. Hamilton's understanding of Kenya and techniques for winning Kenyan immigration cases has been crafted over the last 15 years. Hamilton is thought to be the longest standing attorney in the United States representing Kenyans in asylum claims on a consistent basis and over the last three years all of his Kenyan Immigration Court clients have been granted either asylum, withholding of removal, relief under the torture convention, adjustment of status, or cancellation of removal. This is quite remarkable since over 90% of the firm's immigration caseload are Kenyans.
Maria Rangel.
However, beneath the surface of Kenyan society, boils a cauldron of political and social unrest, corruption and violence which drive a great number of Kenyans from their country. Many become the victims of domestic violence, both in Kenya and often at the hands of abusive U.S. Citizens or permanent resident spouses, who promise them the world, then hold them hostage, using their immigration vulnerability to enslave and coerce them. Some have lived in the United States for extremely long periods of time with immediate family members who are either US Citizens or Lawful Permanent Residents . Many Kenyans unfortunately, never come to an understanding that such circumstances, with very careful legal representation, could lead to a resolution of their lack of immigration status, without compromising their integrity. These aliens might qualify for asylum, withholding of removal, relief under the Torture Convention, Cancellation of Removal, protection under the Violence Against Women's Act (VAWA), adjustment of status, or other forms of immigration relief.
Chow & Hamilton's work with Kenyan asylum seekers and immigration court litigants is believed to be the gold standard in the United States. Hamilton's understanding of Kenya and techniques for winning Kenyan immigration cases has been crafted over the last 15 years. Hamilton is thought to be the longest standing attorney in the United States representing Kenyans in asylum claims on a consistent basis and over the last three years all of his Kenyan Immigration Court clients have been granted either asylum, withholding of removal, relief under the torture convention, adjustment of status, or cancellation of removal. This is quite remarkable since over 90% of the firm's immigration caseload are Kenyans.
Maria Rangel.
Friday, August 21, 2009
MY PRO-BONO FAMILY LAW CASE
This week I won some major victories in my pro-bono (free) family law (child custody and support) case. My client is a dad who was the victim of two of the most malicious and litigious divorce lawyers in the bay area, and a completely wicked and delusional ex-wife. Though I am not a family law lawyer, I have managed to succeed where some of the most prominent family law attorneys on behalf of my client have failed. The judge has agreed to dismiss a supposedly "neutral" vocational expert, who was completely biased against my client, and apparently exclusively serving the interests of the ex-wife. I also succeeded in modifying my client's support obligations. But most importantly, after four years of unsubstantiated lies being told in court about my client, I feel based upon the words of the judge in this case, that she is finally beginning to understand the injustice and the complete alienation of my client's children that my client has suffered over the past four years.
If you are a man who has no career, financial resources or potential, you may ignore this article. Some such men often father multiple children with multiple women without ever supporting those children. Because the women understand that they will never work or earn in a meaningful way, they are not pursued aggressively for support. However, if you are wealthy, successful, or have the potential to amass wealth, you may be pursued relentlessly by an unreasonable spouse, her lawyers, the Court and government agencies, for support far above and beyond that which any reasonable right thinking person would expect. So has it been with my client. After raising and providing for the child of his wife from her first marriage, (with that child receiving no support from her biological father - a former drug addict and petty criminal), the wife, who never pursued the first husband, now relentlessly and ruthlessly fabricates all manner of misrepresentations of domestic and financial abuse, in order to isolate my client from his children so that she might maximize her child support and gain other advantages in the case.
This article is written from a man's perspective since my client is a man. Some of this would apply equally to women. However, men have become fodder in family court for much injustice. Many in the Court system are much too quick to accept that the woman is automatically the victim and the man a villain. If the woman is petite or frail in appearance, the stronger the presumption. If the man is black and the woman white, Asian, or light skinned Hispanic...well, you may use your imagination.
I promised myself that I would never practice family law. I despised the family law course in law school and the pretense of a "no fault" divorce system, which becomes extremely adversarial and conflict driven between the parties once the issues of child custody and child and spousal support are raised. Some law students, keen on establishing family law practices, are inspired by their own messy divorces, and thus would potentially be bringing a great deal of personal baggage to their practices. There are certain family law lawyers who (as I once heard a colleague eloquently state), have never met a woman who was not raped, or a child who was not molested. Their own personal issues poison their cases and their clients are driven to tell the most outrageous and unsubstantiated lies. If your spouse falls into the hands of such a lawyer during your divorce/custody and support proceedings, you will be in deep trouble, and will need an extremely dedicated lawyer to save you. Further, do not be so naive as to believe that the Court will see through the lies. If the lies are repeated loudly and frequently enough to the judge, regardless of whether or not those lies are even the subject of a particular hearing, or are supported by any evidence, and your lawyer is not aggressively rebutting those lies, there may develop a tacit acceptance of the lies by the Court, who may then come to despise you. This was done effectively to my client with the first judge in the case, prior to my entry into the matter. This judge was willing to believe anything he was fed about my client and acted in a manner towards my client that has baffled and confounded me.
Yet, in spite of all of these systemic ills and my own personal distaste, I could not ignore the complete and total injustice which was repeatedly being dealt to this particular man prior to my tenure on the case. For example, while he was not working, and while in the process of looking for a job, the Court "imputed" $300,000.00 per year to him in child and spousal support. He had just completed about a year of paying (out of community funds which he earned exclusively) $20,000.00 per month, until the community finances were spent. Thereafter, pursuant to the imputation, he was ordered to pay $10,000.00 per month in support to his former spouse and children. So whats the big deal? If he's not working, he can't pay right? Wrong! In California, he may pay dearly. Child and spousal support arrearages quickly accumulate to the point that the Department of Child Support Services (DCSS) gets involved as a collector. DCSS does not care about your financial difficulties or about injustices which you, the debtor have suffered. Their job is to GET THE MONEY, and if you do not have the money, to make your life a living hell. How do they make your life a living hell? Well, for one, they get the DMV to suspend your license; they get the US Department of State to suspend your passport; they garnish 50% of your wages. After taxes, payment of your spouse's attorneys and experts' fees and debt accumulated by your spouse's wanton use of community credit cards, you end up with a pittance. This is how very eminent and formerly wealthy men end up in studio apartments, while making six figure salaries. You can even be jailed for contempt, if opposing counsel succeeds in persuading the Court that your failure to find work is as a result of your own refusal to work (you need not have actually refused to work, the judge simply needs to be convinced that you have). You can literally be made a slave to another person in this State and in this free country, while that person sits around and refuses to work or retrain herself.
Surely, you say, the Court would not allow a person to collect spousal support indefinitely from her spouse while she refuses to retrain herself and/or find work. What you should understand however, is that the Court often does not listen to the parties themselves but rather, relies upon certain court appointed experts to make decisions about what should be done. Thus, as in my client's case, the spouse goes to psychologists and tells the psychologists that she was abused, and is having nightmares and flashbacks as a result of the abuse. The psychologists are paid by my client's spouse, and do not perform any independent investigation or evaluation as to whether what she is saying is the truth. They simply accept her incredible stories as true and in fact create a myth in their own minds of the other spouse as a monster based on the stories they have been told. If she claims she is having nightmares and flashbacks because of the alleged abuse, she is promptly diagnosed with Post Traumatic Stress Disorder (PTSD). The Court appointed expert reads these partisan psychologists' reports and accepts this PTSD diagnosis as sound science, then confirms to the Court that the subject has PTSD and thus, cannot be expected to work. She takes the PTSD diagnosis to the government and receives SSI, since she is now "disabled." Once the court appointed expert declares her unfit to work, the Court will refrain from requiring her from showing the Court any work efforts. She has thus effectively created an entirely fictitious disability which is accepted as real by all. The question then becomes; if she does in fact have PTSD, who caused it? She will stress that the husband (someone like my client) must be a horribly abusive person who has terrorized his poor, frail wife into the same disorder soldiers suffer as a result of their participation in combat. However, it is the easiest thing in the world for a woman to game this PTSD strategy, if she is wilful and hateful enough to do it. There further, are an army of professionals with respectable credentials who would stand before the Court and assert (without any evidence but the word of their patient) that the wife was abused by her husband. These people pay no attention to the consequences of their pronouncements to the Court and do not really care to know the truth.
Further, if she can pump the children up enough, prior to a screening process called an emergency screening by a court appointed psychologist, to tell the screener that they are afraid of their father, or that their father beats them, the emergency screener may massively overreact and place the father under supervised visitation. Supervised visitation means that every time the father is to interact in any way with his children, it must be in the presence of a paid court appointed "visitation supervisor." Who pays this professional? You guessed it - the husband since the wife has no marketable skills and suffers from "PTSD." If the community still has money, it is paid from community funds, however, we all know who actually earned that money. Now bear in mind that the emergency screening process might take less than an hour, and in some cases could last minutes. After supervision is imposed against the father, the mother remains unsupervised and every day, tells the children what a horrible person their father is. Her family assists her in filling them full of hatred, while the father under supervision, can say nothing to the children related to the case, or to refute the brainwashing which is being done by the spouse and her family. Eventually the children become so filled with unreasonable hatred towards their father that supervised visitation becomes impossible since the supervisor herself declares it impossible to secure the cooperation of the children. At this point the father's parental rights are practically (though not legally) terminated with regard to his children. Remember, he is under a restraining order with regard to his wife and children, and so, cannot even contact the children's school to determine how they are progressing academically.
All of these things and more happened to my client before I was his lawyer. He paid his lawyers well over $200,000.00 for his legal representation (while simultaneously providing money to his spouse from his earnings, characterized as community funds, to pay a team of law firms and experts on his wife's side of the case). Yes, if you are wealthy, or were once wealthy, you can essentially be forced to pay for expensive lawyers to bash your own skull in on your wife's behalf. My client's former lawyers were a puzzling group. One was a very skilled and well meaning criminal attorney who effectively shot down a number of criminal allegations my client's spouse tried to make against my client in an effort to hang a criminal record around his neck. However, he did not fully appreciate the dysfunction or willfulness of my client's spouse, nor the greed and manipulativeness of her attorneys. The next lawyer was a family law lawyer, who is reasonably well known in the county where my client resides. This lawyer however, was grotesquely under prepared at certain critical hearings in the case, and was unprepared for the onslaught and willfulness of opposing counsel. The final lawyers before I took over were a prestigious and venerable family law firm, brought in because this man was being so badly mauled. This firm, pushed a fair amount of paper (for indeed I inherited over 20 boxes of litigation materials). However, for over $200,000.00, my client had not bought a deposition of the his former spouse, nor of the vocational evaluator who, while posing as a "neutral" evaluator, was apparently working exclusively on behalf of the ex spouse and her lawyers. I had to intervene in the case while these lawyers were still on the case to extract the necessary depositions. With these deposition transcripts, I have finally been able to expose the vocational evaluator's bias and the ridiculousness and falsity of all of the ex spouse's allegations against my client. By the way, when my client was out of money, these lawyers on both sides of the case bailed.
I have represented immigration clients from the administrative asylum office, to the trial court (where I have conducted the actual trial), all the way through the 9th Circuit Court of appeals, for under $30,000.00, sometimes over as much as a ten year period. Yet these lawyers, for fees in the six figures have been unable to achieve the results I am getting working for absolutely no compensation. Please understand, I am not complaining about not being compensated, since every dedicated lawyer has to go on a crusade for justice every now and then. I am simply complaining about lawyers who charge exorbitant fees, but do not conduct the critical depositions or cross examine vigorously when they have a wealth of impeachment evidence and when the chips are down.
I have learned the following, which I would like to pass on to you based on this, my one and only family law case:
1. If early in the relationship you detect that your fiance is unstable and/or dishonest, do not marry her. If you discover the dishonesty or instability in the course of the relationship, GET OUT IMMEDIATELY.
2. If your spouse constantly encourages your children to disregard your authority and is constantly negative towards you in the presence of the children GET OUT. Particularly if you are a hard working dad who spends less time with the children than your spouse. The children will hate you and will be used against you in divorce and custody proceedings.
3. If you are an educated and gainfully employed person, contemplating marriage to someone without marketable skills or education and without the motivation to ever acquire those skills DO NOT MARRY THIS PERSON. Alternatively, if you must marry such a person, make sure that you have an IRON-CLAD PRENUPTIAL AGREEMENT, drafted by a very good lawyer. Men should not romanticize this issue of "prenuptial agreements." In other words, do not be guilt-tripped into the notion that you are expressing a lack of love or trust by insisting on a prenup. You have a lot to lose in California if you err and marry the wrong person. Be pragmatic. There are countless men in California paying spousal support for indefinite periods of time, to women who hate and vilify them; who alienate their children against them and who view the man as a welfare institution for their own benefit.
4. Do not stay in a bad marriage for the sake of the children. You will simply prolong your suffering and your children's suffering, and with each passing year, will become more and more intertwined with that person, in a manner which may render your extrication from her affairs and support increasingly difficult or impossible.
There are very few places men who have suffered as my client has suffered can go for assistance or support. Society is simply reluctant to discuss these injustices to men. It is as if our culture has decided that men are only important to their families insofar as they can provide financial support. The man's desire to nurture his children and his very right to his own liberty and happiness, are overshadowed by that which would extinguish such nurture and happiness, and therefore his very motivation in life.
You will be happy to know that this client is a particularly optimistic individual, who in spite of all of this, has found ways to find happiness and fulfillment in life.
This article was written with the permission of the client.
Duane M Hamilton, Esq.
If you are a man who has no career, financial resources or potential, you may ignore this article. Some such men often father multiple children with multiple women without ever supporting those children. Because the women understand that they will never work or earn in a meaningful way, they are not pursued aggressively for support. However, if you are wealthy, successful, or have the potential to amass wealth, you may be pursued relentlessly by an unreasonable spouse, her lawyers, the Court and government agencies, for support far above and beyond that which any reasonable right thinking person would expect. So has it been with my client. After raising and providing for the child of his wife from her first marriage, (with that child receiving no support from her biological father - a former drug addict and petty criminal), the wife, who never pursued the first husband, now relentlessly and ruthlessly fabricates all manner of misrepresentations of domestic and financial abuse, in order to isolate my client from his children so that she might maximize her child support and gain other advantages in the case.
This article is written from a man's perspective since my client is a man. Some of this would apply equally to women. However, men have become fodder in family court for much injustice. Many in the Court system are much too quick to accept that the woman is automatically the victim and the man a villain. If the woman is petite or frail in appearance, the stronger the presumption. If the man is black and the woman white, Asian, or light skinned Hispanic...well, you may use your imagination.
I promised myself that I would never practice family law. I despised the family law course in law school and the pretense of a "no fault" divorce system, which becomes extremely adversarial and conflict driven between the parties once the issues of child custody and child and spousal support are raised. Some law students, keen on establishing family law practices, are inspired by their own messy divorces, and thus would potentially be bringing a great deal of personal baggage to their practices. There are certain family law lawyers who (as I once heard a colleague eloquently state), have never met a woman who was not raped, or a child who was not molested. Their own personal issues poison their cases and their clients are driven to tell the most outrageous and unsubstantiated lies. If your spouse falls into the hands of such a lawyer during your divorce/custody and support proceedings, you will be in deep trouble, and will need an extremely dedicated lawyer to save you. Further, do not be so naive as to believe that the Court will see through the lies. If the lies are repeated loudly and frequently enough to the judge, regardless of whether or not those lies are even the subject of a particular hearing, or are supported by any evidence, and your lawyer is not aggressively rebutting those lies, there may develop a tacit acceptance of the lies by the Court, who may then come to despise you. This was done effectively to my client with the first judge in the case, prior to my entry into the matter. This judge was willing to believe anything he was fed about my client and acted in a manner towards my client that has baffled and confounded me.
Yet, in spite of all of these systemic ills and my own personal distaste, I could not ignore the complete and total injustice which was repeatedly being dealt to this particular man prior to my tenure on the case. For example, while he was not working, and while in the process of looking for a job, the Court "imputed" $300,000.00 per year to him in child and spousal support. He had just completed about a year of paying (out of community funds which he earned exclusively) $20,000.00 per month, until the community finances were spent. Thereafter, pursuant to the imputation, he was ordered to pay $10,000.00 per month in support to his former spouse and children. So whats the big deal? If he's not working, he can't pay right? Wrong! In California, he may pay dearly. Child and spousal support arrearages quickly accumulate to the point that the Department of Child Support Services (DCSS) gets involved as a collector. DCSS does not care about your financial difficulties or about injustices which you, the debtor have suffered. Their job is to GET THE MONEY, and if you do not have the money, to make your life a living hell. How do they make your life a living hell? Well, for one, they get the DMV to suspend your license; they get the US Department of State to suspend your passport; they garnish 50% of your wages. After taxes, payment of your spouse's attorneys and experts' fees and debt accumulated by your spouse's wanton use of community credit cards, you end up with a pittance. This is how very eminent and formerly wealthy men end up in studio apartments, while making six figure salaries. You can even be jailed for contempt, if opposing counsel succeeds in persuading the Court that your failure to find work is as a result of your own refusal to work (you need not have actually refused to work, the judge simply needs to be convinced that you have). You can literally be made a slave to another person in this State and in this free country, while that person sits around and refuses to work or retrain herself.
Surely, you say, the Court would not allow a person to collect spousal support indefinitely from her spouse while she refuses to retrain herself and/or find work. What you should understand however, is that the Court often does not listen to the parties themselves but rather, relies upon certain court appointed experts to make decisions about what should be done. Thus, as in my client's case, the spouse goes to psychologists and tells the psychologists that she was abused, and is having nightmares and flashbacks as a result of the abuse. The psychologists are paid by my client's spouse, and do not perform any independent investigation or evaluation as to whether what she is saying is the truth. They simply accept her incredible stories as true and in fact create a myth in their own minds of the other spouse as a monster based on the stories they have been told. If she claims she is having nightmares and flashbacks because of the alleged abuse, she is promptly diagnosed with Post Traumatic Stress Disorder (PTSD). The Court appointed expert reads these partisan psychologists' reports and accepts this PTSD diagnosis as sound science, then confirms to the Court that the subject has PTSD and thus, cannot be expected to work. She takes the PTSD diagnosis to the government and receives SSI, since she is now "disabled." Once the court appointed expert declares her unfit to work, the Court will refrain from requiring her from showing the Court any work efforts. She has thus effectively created an entirely fictitious disability which is accepted as real by all. The question then becomes; if she does in fact have PTSD, who caused it? She will stress that the husband (someone like my client) must be a horribly abusive person who has terrorized his poor, frail wife into the same disorder soldiers suffer as a result of their participation in combat. However, it is the easiest thing in the world for a woman to game this PTSD strategy, if she is wilful and hateful enough to do it. There further, are an army of professionals with respectable credentials who would stand before the Court and assert (without any evidence but the word of their patient) that the wife was abused by her husband. These people pay no attention to the consequences of their pronouncements to the Court and do not really care to know the truth.
Further, if she can pump the children up enough, prior to a screening process called an emergency screening by a court appointed psychologist, to tell the screener that they are afraid of their father, or that their father beats them, the emergency screener may massively overreact and place the father under supervised visitation. Supervised visitation means that every time the father is to interact in any way with his children, it must be in the presence of a paid court appointed "visitation supervisor." Who pays this professional? You guessed it - the husband since the wife has no marketable skills and suffers from "PTSD." If the community still has money, it is paid from community funds, however, we all know who actually earned that money. Now bear in mind that the emergency screening process might take less than an hour, and in some cases could last minutes. After supervision is imposed against the father, the mother remains unsupervised and every day, tells the children what a horrible person their father is. Her family assists her in filling them full of hatred, while the father under supervision, can say nothing to the children related to the case, or to refute the brainwashing which is being done by the spouse and her family. Eventually the children become so filled with unreasonable hatred towards their father that supervised visitation becomes impossible since the supervisor herself declares it impossible to secure the cooperation of the children. At this point the father's parental rights are practically (though not legally) terminated with regard to his children. Remember, he is under a restraining order with regard to his wife and children, and so, cannot even contact the children's school to determine how they are progressing academically.
All of these things and more happened to my client before I was his lawyer. He paid his lawyers well over $200,000.00 for his legal representation (while simultaneously providing money to his spouse from his earnings, characterized as community funds, to pay a team of law firms and experts on his wife's side of the case). Yes, if you are wealthy, or were once wealthy, you can essentially be forced to pay for expensive lawyers to bash your own skull in on your wife's behalf. My client's former lawyers were a puzzling group. One was a very skilled and well meaning criminal attorney who effectively shot down a number of criminal allegations my client's spouse tried to make against my client in an effort to hang a criminal record around his neck. However, he did not fully appreciate the dysfunction or willfulness of my client's spouse, nor the greed and manipulativeness of her attorneys. The next lawyer was a family law lawyer, who is reasonably well known in the county where my client resides. This lawyer however, was grotesquely under prepared at certain critical hearings in the case, and was unprepared for the onslaught and willfulness of opposing counsel. The final lawyers before I took over were a prestigious and venerable family law firm, brought in because this man was being so badly mauled. This firm, pushed a fair amount of paper (for indeed I inherited over 20 boxes of litigation materials). However, for over $200,000.00, my client had not bought a deposition of the his former spouse, nor of the vocational evaluator who, while posing as a "neutral" evaluator, was apparently working exclusively on behalf of the ex spouse and her lawyers. I had to intervene in the case while these lawyers were still on the case to extract the necessary depositions. With these deposition transcripts, I have finally been able to expose the vocational evaluator's bias and the ridiculousness and falsity of all of the ex spouse's allegations against my client. By the way, when my client was out of money, these lawyers on both sides of the case bailed.
I have represented immigration clients from the administrative asylum office, to the trial court (where I have conducted the actual trial), all the way through the 9th Circuit Court of appeals, for under $30,000.00, sometimes over as much as a ten year period. Yet these lawyers, for fees in the six figures have been unable to achieve the results I am getting working for absolutely no compensation. Please understand, I am not complaining about not being compensated, since every dedicated lawyer has to go on a crusade for justice every now and then. I am simply complaining about lawyers who charge exorbitant fees, but do not conduct the critical depositions or cross examine vigorously when they have a wealth of impeachment evidence and when the chips are down.
I have learned the following, which I would like to pass on to you based on this, my one and only family law case:
1. If early in the relationship you detect that your fiance is unstable and/or dishonest, do not marry her. If you discover the dishonesty or instability in the course of the relationship, GET OUT IMMEDIATELY.
2. If your spouse constantly encourages your children to disregard your authority and is constantly negative towards you in the presence of the children GET OUT. Particularly if you are a hard working dad who spends less time with the children than your spouse. The children will hate you and will be used against you in divorce and custody proceedings.
3. If you are an educated and gainfully employed person, contemplating marriage to someone without marketable skills or education and without the motivation to ever acquire those skills DO NOT MARRY THIS PERSON. Alternatively, if you must marry such a person, make sure that you have an IRON-CLAD PRENUPTIAL AGREEMENT, drafted by a very good lawyer. Men should not romanticize this issue of "prenuptial agreements." In other words, do not be guilt-tripped into the notion that you are expressing a lack of love or trust by insisting on a prenup. You have a lot to lose in California if you err and marry the wrong person. Be pragmatic. There are countless men in California paying spousal support for indefinite periods of time, to women who hate and vilify them; who alienate their children against them and who view the man as a welfare institution for their own benefit.
4. Do not stay in a bad marriage for the sake of the children. You will simply prolong your suffering and your children's suffering, and with each passing year, will become more and more intertwined with that person, in a manner which may render your extrication from her affairs and support increasingly difficult or impossible.
There are very few places men who have suffered as my client has suffered can go for assistance or support. Society is simply reluctant to discuss these injustices to men. It is as if our culture has decided that men are only important to their families insofar as they can provide financial support. The man's desire to nurture his children and his very right to his own liberty and happiness, are overshadowed by that which would extinguish such nurture and happiness, and therefore his very motivation in life.
You will be happy to know that this client is a particularly optimistic individual, who in spite of all of this, has found ways to find happiness and fulfillment in life.
This article was written with the permission of the client.
Duane M Hamilton, Esq.
Saturday, August 8, 2009
Friday, August 7, 2009
VETERAN IMMIGRATION LITIGATION ATTORNEY HAMILTON DISCUSSES HIS EXPERIENCE
After I was licensed to practice law in 1994, I almost immediately started representing Kenyans in asylum cases. In those days, asylum for Kenyans was almost unheard of, and for that matter, an advisory opinion from the State Department published in the 1980s was typically introduced in all of my early cases, which recommended against asylum for Kenyans. In my first asylum case before the Immigration Court, Judge Roy Daniel scoffed, "Kenya Mr. Hamilton? You have got to be kidding." I retorted "No Your Honor, I am not kidding and I will demonstrate that asylum is possible from Kenya."
I was introduced to the Kenyan community while I was in law school in the early 90s. in those days, the Kenyan community in California was relatively small and it seemed as if almost all of the Kenyans either knew each other, or were at least one person removed from any other Kenyan. What was clear to me, was that the community was not being properly represented, and their perception of the availability of asylum to them (in spite of a mini ethnic cleansing called the Rift Valley Conflict which took place in Kenya in 1992) was that asylum was unavailable to them. I struggled to understand why this would be so towards the end of my law school education, and determined that there was no valid reason why the United States should deny Kenyans asylum as a matter of policy (as was the perception in the community at the time).
Interestingly, even many Kenyans scoffed at the notion that the United States would grant Kenyans asylum. To them I was a young lawyer, who was out of his mind. Yet, I was encountering so many honorable Kenyan families with horrific stories of persecution in Kenya and fears of return to that country, which I found impossible to ignore. I repeatedly challenged government attorneys and asylum officers' objections and roadblocks to the approval of Kenyan asylum cases, until it became routine for asylum officers and immigration judges to grant Kenyan cases.
Today, if you ask most experienced immigration judges and asylum officers in Los Angeles, California to associate one lawyer with the Kenyan community, they will uniformly give my name. Mostly, however, the Kenyan community, which has exploded since my early days practicing law, is oblivious to the intense lawyering which had to be done to establish Kenya in the hearts and minds of asylum adjudicators as a country from which asylum could be consistently granted.
I still hold the only published winning Kenyan asylum precedent in the 9th Circuit [Njuguna v. Ashcroft, 374 F.3d 765 (9th Cir. 2004)] in which the alien's eligibility for aylum and withholding or removal are directly adjudicated. There are a few other published cases in the 9th Circuit in which Kenya is mentioned, however, they either do not address applicants who are nationals of Kenya, or they address ancillary matters such as motions to reopen, as opposed to the merits of the underlying asylum claim presented in immigration court by the applicant. Njuguna is one of only a handful of Kenyan asylum precedents nationwide and may be the only winning asylum Circuit Court of Appeals precedents in the country. Njuguna is also the most frequently cited Kenyan asylum case by the 9th Circuit and other circuit courts in the country. Precedents from the Circuit Courts of Appeal are important since they instruct lower court judges and asylum officers as to how the law of asylum should be applied to individual issues which arise in asylum claims.
My experience ranges from the representation of aliens at the asylum office level, through Immigration Court and the Board of Immigration Appeals (BIA), to the Circuit Courts of Appeal (which are just below the Supreme Court of the United States). In addition to the 9th Circuit, I have represented aliens in several other Circuit Courts of Appeal around the country. Aliens who receive the benefit of being represented by a seasoned appellate attorney at the earliest stage of their asylum cases, can be assured that the attorney has not only been sensitive to how the case might unfold in the AO, but also how it might play out at trial and in appeals. This is important because no lawyer, regardless of his or her skill level or experience, can ever guarantee an asylum applicant that he or she will be granted asylum. Hence, it is advantageous for the legal representative to understand the trial and appellate value of the case before it is filed with the asylum office.
I have represented asylum applicants from all of the major tribes of Kenya and many of the smaller tribes such as, but not limited to Kisii, Pokot, and Taita. I have also represented Chinesee, Sri Lankan, Mexican, Guatemalan, East Indian, Iranian, Indonesian, Nigerian, Rwandan, Ugandan, Tanzanian, and Zimbabwean asylum applicants. (There may be countries I have forgotten). However, the great bulk of my cases throughout my career have been from Kenya. In our non-Kenyan cases, my office and I spend a great deal of time emersing ourselves in the country conditions of the target country before filing the case. We further consume the relevant case-law with respect to those countries prior to the asylum hearing, trial or appeal.
My record in asylum hearings, trials and appeals is impecable. Over 90 percent of my clients are granted asylum at some level of proceedings, and most are approved either in the asylum office or immigration court. Having said that, there must be a percentage of cases for any lawyer who litigates asylum claims, which are not approved. This is a hard reality, but is the truth. My article below on the Risks and Benefits of Asylum will explain why asylum can never be guaranteed, and how factors beyond the attorney's control can affect the outcome of any such case. The path to winning an asylum claim can be relatively swift, or incredibly slow, emotionally challenging, and costly over a period of many years.
We are the primier law firm in the United States representing Kenyans and our record and reputation in the Kenyan community speaks for itself. I have enjoyed the process of representing my Kenyan clients and clients from other parts of the world. They have taught me so much as they have benefited from my considerable experience.
Duane M. Hamilton, Esq.
I was introduced to the Kenyan community while I was in law school in the early 90s. in those days, the Kenyan community in California was relatively small and it seemed as if almost all of the Kenyans either knew each other, or were at least one person removed from any other Kenyan. What was clear to me, was that the community was not being properly represented, and their perception of the availability of asylum to them (in spite of a mini ethnic cleansing called the Rift Valley Conflict which took place in Kenya in 1992) was that asylum was unavailable to them. I struggled to understand why this would be so towards the end of my law school education, and determined that there was no valid reason why the United States should deny Kenyans asylum as a matter of policy (as was the perception in the community at the time).
Interestingly, even many Kenyans scoffed at the notion that the United States would grant Kenyans asylum. To them I was a young lawyer, who was out of his mind. Yet, I was encountering so many honorable Kenyan families with horrific stories of persecution in Kenya and fears of return to that country, which I found impossible to ignore. I repeatedly challenged government attorneys and asylum officers' objections and roadblocks to the approval of Kenyan asylum cases, until it became routine for asylum officers and immigration judges to grant Kenyan cases.
Today, if you ask most experienced immigration judges and asylum officers in Los Angeles, California to associate one lawyer with the Kenyan community, they will uniformly give my name. Mostly, however, the Kenyan community, which has exploded since my early days practicing law, is oblivious to the intense lawyering which had to be done to establish Kenya in the hearts and minds of asylum adjudicators as a country from which asylum could be consistently granted.
I still hold the only published winning Kenyan asylum precedent in the 9th Circuit [Njuguna v. Ashcroft, 374 F.3d 765 (9th Cir. 2004)] in which the alien's eligibility for aylum and withholding or removal are directly adjudicated. There are a few other published cases in the 9th Circuit in which Kenya is mentioned, however, they either do not address applicants who are nationals of Kenya, or they address ancillary matters such as motions to reopen, as opposed to the merits of the underlying asylum claim presented in immigration court by the applicant. Njuguna is one of only a handful of Kenyan asylum precedents nationwide and may be the only winning asylum Circuit Court of Appeals precedents in the country. Njuguna is also the most frequently cited Kenyan asylum case by the 9th Circuit and other circuit courts in the country. Precedents from the Circuit Courts of Appeal are important since they instruct lower court judges and asylum officers as to how the law of asylum should be applied to individual issues which arise in asylum claims.
My experience ranges from the representation of aliens at the asylum office level, through Immigration Court and the Board of Immigration Appeals (BIA), to the Circuit Courts of Appeal (which are just below the Supreme Court of the United States). In addition to the 9th Circuit, I have represented aliens in several other Circuit Courts of Appeal around the country. Aliens who receive the benefit of being represented by a seasoned appellate attorney at the earliest stage of their asylum cases, can be assured that the attorney has not only been sensitive to how the case might unfold in the AO, but also how it might play out at trial and in appeals. This is important because no lawyer, regardless of his or her skill level or experience, can ever guarantee an asylum applicant that he or she will be granted asylum. Hence, it is advantageous for the legal representative to understand the trial and appellate value of the case before it is filed with the asylum office.
I have represented asylum applicants from all of the major tribes of Kenya and many of the smaller tribes such as, but not limited to Kisii, Pokot, and Taita. I have also represented Chinesee, Sri Lankan, Mexican, Guatemalan, East Indian, Iranian, Indonesian, Nigerian, Rwandan, Ugandan, Tanzanian, and Zimbabwean asylum applicants. (There may be countries I have forgotten). However, the great bulk of my cases throughout my career have been from Kenya. In our non-Kenyan cases, my office and I spend a great deal of time emersing ourselves in the country conditions of the target country before filing the case. We further consume the relevant case-law with respect to those countries prior to the asylum hearing, trial or appeal.
My record in asylum hearings, trials and appeals is impecable. Over 90 percent of my clients are granted asylum at some level of proceedings, and most are approved either in the asylum office or immigration court. Having said that, there must be a percentage of cases for any lawyer who litigates asylum claims, which are not approved. This is a hard reality, but is the truth. My article below on the Risks and Benefits of Asylum will explain why asylum can never be guaranteed, and how factors beyond the attorney's control can affect the outcome of any such case. The path to winning an asylum claim can be relatively swift, or incredibly slow, emotionally challenging, and costly over a period of many years.
We are the primier law firm in the United States representing Kenyans and our record and reputation in the Kenyan community speaks for itself. I have enjoyed the process of representing my Kenyan clients and clients from other parts of the world. They have taught me so much as they have benefited from my considerable experience.
Duane M. Hamilton, Esq.
ASYLUM OFFICE BLUES
Today I completed another one of my numerous Kenyan cases at the Anaheim Asylum Office (AO) in Anaheim California. However, I felt terrible for my clients, a wonderful father and daughter, who waited for their interview from 7:00 a.m. until almost noon, when the lead applicant was finally called. The interview then lasted until almost 2:00 p.m.. Unfortunately, this is not unusual for asylum cases in Anaheim (which is the AO for the Los Angeles District).
Applicants attending the AO in the Los Angeles District should be prepared for long waits prior to their asylum and NACARA hearings. They should bring with them reading materials or other diversions (except for i-pods, since they have to listen for their numbers to be called) to help them pass the time and relax prior to their interviews. Otherwise, the nervousness which naturally accompanies such an important and life-changing event can be excruciating. Applicants should also understand that their attorneys have no power over how long the wait will be and must be patient and disciplined in waiting (as my clients were today).
Officers receive their interview files on the morning of the interview, and must prepare for the interview by reviewing the file prior to the interview. If supplementary documents are submitted on the day of the interview, as they often are, the officer would have to review those materials also. Additionally, numerous cases are scheduled by the AO for the same time slot. Hence, where an asylum officer will be interviewing two applicants with 6:30 a.m. appointments, and the first of those interviews takes all morning, the second 6:30 interview would have to be called in the afternoon, or rescheduled for another day. Remember, some officers can take several hours conducting a single interview.
In spite of those blues, I am always honored to serve these very deserving clients and grateful that there is a forum by which they can be heard.
Duane M. Hamilton, Esq.
Applicants attending the AO in the Los Angeles District should be prepared for long waits prior to their asylum and NACARA hearings. They should bring with them reading materials or other diversions (except for i-pods, since they have to listen for their numbers to be called) to help them pass the time and relax prior to their interviews. Otherwise, the nervousness which naturally accompanies such an important and life-changing event can be excruciating. Applicants should also understand that their attorneys have no power over how long the wait will be and must be patient and disciplined in waiting (as my clients were today).
Officers receive their interview files on the morning of the interview, and must prepare for the interview by reviewing the file prior to the interview. If supplementary documents are submitted on the day of the interview, as they often are, the officer would have to review those materials also. Additionally, numerous cases are scheduled by the AO for the same time slot. Hence, where an asylum officer will be interviewing two applicants with 6:30 a.m. appointments, and the first of those interviews takes all morning, the second 6:30 interview would have to be called in the afternoon, or rescheduled for another day. Remember, some officers can take several hours conducting a single interview.
In spite of those blues, I am always honored to serve these very deserving clients and grateful that there is a forum by which they can be heard.
Duane M. Hamilton, Esq.
Wednesday, August 5, 2009
Monday, August 3, 2009
THE RISKS AND BENEFITS OF ASYLUM CONTINUED
In my last post regarding the risks and benefits of asylum, it would appear that I was a bit heavy on the risks and much too light on the benefits. Thus, the following are some of the wonderful benefits to be realized by alien asylees in the United States:
1. ONGOING STATUS IN THE UNITED STATES
Individuals granted asylum are termed "asylees" and are allowed to remain in the U.S. indefinitely. While it is possible that an asylum grant may be reversed where country conditions in the country from which the alien applies for asylum change, it is unlikely that a change in such conditions would send the Government on a quest to actively reverse this particular status. Certain criminal convictions or certain subsequent findings of fraud in the asylum process may result ultimately in the loss of asylee status. The alien's return to the country from which he or she is granted asylum while an asylee may also result in the loss of asylee status.
2. TRAVEL TO ANY PART OF THE WORLD (EXCEPT THE COUNTRY OF PERSECUTION) ON A REFUGEE TRAVEL DOCUMENT
Asylees are entitled to apply for and receive refugee travel documents from the US Government which they may use to travel anywhere in the world during the validity period of the document, except to the country in which they were persecuted or fear persecution. The asylum approval itself however is not a travel document and may not be used as such. Applying for the travel document is relatively simple process, which should be undertaken by the alien's attorney to best protect her interests.
3. SPONSORSHIP OF SPOUSES AND UNMARRIED CHILDREN.
Asylees, upon approval of their asylum claims become eligible to petition for their spouses and unmarried children under 21 to come to the United States as asylees. The petition process involves the filing of a relative petition with USCIS and, subsequent to approval, the relative(s)processing with the US Embassy overseas for a travel document to enter the US in derivative asylee status. This process sometimes appears simple to applicants, but can quickly become extremely complicated, where the relationships are not clearly defined, or are created by tribal or customary law as opposed to civil process. There are also certain advisories which a careful lawyer should give to asylee relative petitioners prior to the consular processing phase of the case.
4. ELIGIBILITY TO APPLY FOR LAWFUL PERMANENT RESIDENCE
Asylees may apply for lawful permanent residence one year after their asylum claim is finally and fully approved. The green-card is not dispatched automatically and the alien must apply for what is known as an adjustment of status. Though the adjustment process may appear simple on the surface, there is some fairly important legal analysis with respect to the alien's "admissibility" and criminal background, among other things, which should be conducted prior to the filing of the adjustment application. Further, there are aspects of the adjustment application which, if filled out carelessly, could lead to a reopening and investigation of the underlying asylum claim.
5. ELIGIBILITY FOR CERTAIN SOCIAL SERVICE BENEFITS
Asylees are immediately eligible for certain social service benefits, including but not limited to, cash assistance and other programs designed to allow the asylee to adjust to and establish his or her life in the new country. These programs are available through the Office of Refugee Resettlement (ORR).
6. INDEFINITE WORK AUTHORIZATION IN THE UNITED STATES
Asylees are entitled to work in the United States indefinitely and are not required to provide employment authorization documents (EADs) to employers. The problem however, is that most employers are not familiar with this exception to the EAD requirement and will demand EADs from asylees. Immigration lawyers knowledgable in this area are often able, if employed to do so by their clients, to demonstrate to employers how and why asylees are exempt from the EAD requirement. I however, urge all of my asylees to apply for and receive their EADs so as to simplify their lives and the lives of their employers or prospective employers.
7. FREEDOM AND DELIVERANCE FROM PERSECUTION
Above all else, the asylee is free to start a new life, without the burden of contemplating the return to a country in which she may have suffered severe past persecution or in which her life or liberty may be threatened.
Every asylee should cherish the benevolence and discretion of the US Government and its asylum officers and immigration judges who dispense the asylum program. Asylum is truly in some significant aspects, the gift of life for many who have been fortunate enough to make it to these shores from countries and experiences which hold for them only misery and persecution.
Duane M. Hamilton, Esq.
1. ONGOING STATUS IN THE UNITED STATES
Individuals granted asylum are termed "asylees" and are allowed to remain in the U.S. indefinitely. While it is possible that an asylum grant may be reversed where country conditions in the country from which the alien applies for asylum change, it is unlikely that a change in such conditions would send the Government on a quest to actively reverse this particular status. Certain criminal convictions or certain subsequent findings of fraud in the asylum process may result ultimately in the loss of asylee status. The alien's return to the country from which he or she is granted asylum while an asylee may also result in the loss of asylee status.
2. TRAVEL TO ANY PART OF THE WORLD (EXCEPT THE COUNTRY OF PERSECUTION) ON A REFUGEE TRAVEL DOCUMENT
Asylees are entitled to apply for and receive refugee travel documents from the US Government which they may use to travel anywhere in the world during the validity period of the document, except to the country in which they were persecuted or fear persecution. The asylum approval itself however is not a travel document and may not be used as such. Applying for the travel document is relatively simple process, which should be undertaken by the alien's attorney to best protect her interests.
3. SPONSORSHIP OF SPOUSES AND UNMARRIED CHILDREN.
Asylees, upon approval of their asylum claims become eligible to petition for their spouses and unmarried children under 21 to come to the United States as asylees. The petition process involves the filing of a relative petition with USCIS and, subsequent to approval, the relative(s)processing with the US Embassy overseas for a travel document to enter the US in derivative asylee status. This process sometimes appears simple to applicants, but can quickly become extremely complicated, where the relationships are not clearly defined, or are created by tribal or customary law as opposed to civil process. There are also certain advisories which a careful lawyer should give to asylee relative petitioners prior to the consular processing phase of the case.
4. ELIGIBILITY TO APPLY FOR LAWFUL PERMANENT RESIDENCE
Asylees may apply for lawful permanent residence one year after their asylum claim is finally and fully approved. The green-card is not dispatched automatically and the alien must apply for what is known as an adjustment of status. Though the adjustment process may appear simple on the surface, there is some fairly important legal analysis with respect to the alien's "admissibility" and criminal background, among other things, which should be conducted prior to the filing of the adjustment application. Further, there are aspects of the adjustment application which, if filled out carelessly, could lead to a reopening and investigation of the underlying asylum claim.
5. ELIGIBILITY FOR CERTAIN SOCIAL SERVICE BENEFITS
Asylees are immediately eligible for certain social service benefits, including but not limited to, cash assistance and other programs designed to allow the asylee to adjust to and establish his or her life in the new country. These programs are available through the Office of Refugee Resettlement (ORR).
6. INDEFINITE WORK AUTHORIZATION IN THE UNITED STATES
Asylees are entitled to work in the United States indefinitely and are not required to provide employment authorization documents (EADs) to employers. The problem however, is that most employers are not familiar with this exception to the EAD requirement and will demand EADs from asylees. Immigration lawyers knowledgable in this area are often able, if employed to do so by their clients, to demonstrate to employers how and why asylees are exempt from the EAD requirement. I however, urge all of my asylees to apply for and receive their EADs so as to simplify their lives and the lives of their employers or prospective employers.
7. FREEDOM AND DELIVERANCE FROM PERSECUTION
Above all else, the asylee is free to start a new life, without the burden of contemplating the return to a country in which she may have suffered severe past persecution or in which her life or liberty may be threatened.
Every asylee should cherish the benevolence and discretion of the US Government and its asylum officers and immigration judges who dispense the asylum program. Asylum is truly in some significant aspects, the gift of life for many who have been fortunate enough to make it to these shores from countries and experiences which hold for them only misery and persecution.
Duane M. Hamilton, Esq.
Friday, July 31, 2009
The Risks and Benefits of Asylum in the United States
I once asked a woman why she applied for asylum without the assistance of attorney, to which she answered that she knew someone who had done it and she had heard that you simply go to the asylum office, tell a story, cry, and you are granted asylum. Of course this woman was misled, as are so many others, when it comes to the preparation and presentation of asylum claims. Here are some pointers you will need to consider when assessing whether or not to apply for asylum.
1. AVOID THE HERD MENTALITY
Simply because asylum was right for one alien does not mean it will be appropriate for another. Consult with a qualified attorney with expertise in representing aliens from your country in asylum cases. Understand also that asylum officers (to whom the case is presented at the first level) differ in temperament, tolerance, aptitude, training, education, and even empathy. Some asylum officers will go out of their way to deny an asylum claim. They will interrogate the alien as if he or she is a criminal and devote an extraordinary amount of effort towards poking holes in the alien's story to find that the alien is not credible or consistent in his or her testimony. Even the best of cases are denied by such officers. Other officers are more generous and will give the alien the benefit of the doubt in an effort to find some way if possible and legal, to approve the asylum claim. A majority of asylum officers conform to no extreme. They will dispassionately question the applicant in great detail in an attempt to gather the facts. In that process however, if a pattern of inconsistency or poor credibility emerges, the asylum claim will be denied. Where the alien's asylum claim is denied at a time when the alien is no longer in valid immigration status, the alien will be referred to Immigration Court for "Removal Proceedings," where asylum and other immigration relief may be considered by the judge. Make no mistake however, that this court process is a formal and confrontational one in which a government prosecutor enters the case, and in most instances agitates for the alien's deportation.
There are individuals from an alien's native country whom I would refer to as natural asylum applicants. These are applicants whose circumstances are well known nationally and/or internationally, or their circumstances have been significantly publicized in newspapers, other media or official documentation. Many such persons can, on occasion, prevail in an asylum claim without representation. However, many such individuals are denied asylum, not because their cases failed to be persuasive, but because of their failure to understand very subtle legalities and technicalities in the process which can legitimately lead to a denial of the claim.
Individuals who are not well known and whose cases have not been publicized or memorialized in any official manner must proceed with extreme caution and with the best lawyering possible to prevail in an asylum claim. Such persons should never have the mentality that the US Government owes them an asylum approval simply because their friend or colleague's claim was approved. The friend or colleague may have presented much stronger evidence persuasive of asylum, or as is more often the case, that friend or colleague was simply lucky. In my long experience as a lawyer, I have reviewed many cases of asylum, granted at the asylum office level, which could not possibly have been granted in the more legalistic setting of immigration court. Hence, an experienced lawyer preparing an affirmative asylum claim (one which is being filed before the applicant is referred to immigration court) should plan for the contingency that the case could (even with the best of lawyering) be referred to immigration court, and prepare the application so that, within the limitations of the facts provided by the alien, and the laws and regulations relevant to asylum, it is as stong as it possibly can be in the event that it must be presented in court. The lawyer must also consider and analyze forms of relief such as "withholding of removal" and relief under the "Convention Against Torture" which are not available in the asylum office, but are available in Court. The legal requirements for those forms of relief are different than for asylum. The legal interplay between a clear and articulate presentation of the facts and the application of those facts to a complex body of statutes, regulations, case law, and agency policies is the difference between an asylum claim in which the client can "legally" qualify for asylum, and a claim of asylum in which an applicant is merely hoping that his or her truthful story, as he or she presents it, will qualify him or her for asylum. The alien must be prepared also to accept that they might not qualify for asylum or related humanitarian relief based upon the facts they have presented to the attorney. The alien should listen to the attorney, not for what he or she (the alien) wants to hear, but rather, for the truth and sometimes, the very harsh reality that they should not apply for asylum and that there is no immediate immigration relief available.
Thus, asylm is certainly not a benefit an alien should apply for simply because others are doing so. Many have discovered this truth at the receiving end of a deportation, or voluntary departure order from an immigration judge. Certainly however, if the alien fears persecution in his native country or country of last residence based upon race, religion, national origin, membership in a particular social group, or political opinion; that person should certainly be consulting with an attorney and seriously considering asylum if there are no other less complex forms of relief available.
2. PRESENT THE TRUTH
Asylum applicants are expected to tell the truth in their asylum claims. Their testimony is given under an oath which carries with it serious penalties if it can be found that the alien has knowingly fabricated aspects of the asylum claim. Where an immigration judge finds an asylum claim "frivolous" (willfully fabricated to some extent), the alien can be debarred from any further immigration benefits in the US for life. Obviously, the alien would also eventually be deported. Along the way however, the alien can face criminal penalties and fines also for having fabricated some aspect of the application.
3. CONFIDENTIALITY
The alien should feel confident in telling the truth however, since the government will not reveal any aspect of the asylum claim (or even the fact that the alien has applied for asylum) to the alien's government or community.
4. NON-LAWYERS
An alien should never hire a non-lawyer, in this attorney's opinion, to even assist in the preparation of an asylum claim, or any other immigration case. Non-lawyers are generally not allowed to give legal advice and can only type up forms for clients. In California, it is a crime for non-lawyers to give legal advice. I cannot conceive how a non-lawyer would be able to type up an asylum application competently without intimately understanding the law of asylum and advising the client as to the meaning of the various complex questions which are asked on that form. For example, there is a part of the application which asks whether the form is being filed within one year of the alien's entry. Though this is a fairly simple question, it is one with potentially severe consequences to the asylum claim, since an asylum applicant is required by law to file for asylum within one year of entry. Hence if the applicant admits he is filing beyond the one year deadline, he or she will wish to understand what the consequences of that admission are. Who will explain these consequences to the alien? Certainly not the non-lawyer, since he or she commits a crime by giving any legal advice and since he or she is not trained in this sort of legal analysis. Further, who will explain the complex and legalistic exceptions to the one year requirement. Certainly not the non-lawyer, since beyond being barred from offering legal advice, the non-lawyer cannot perform the requisite legal analysis in these matters. It really does take a lawyer to do this properly.
Aliens should be aware that notarios, notaries, law and consulting services, offices entitled "legal services," paralegals and legal secretaries are non-lawyers who, in this attorney's opinion, are not properly qualified to prepare or represent others in asylum claims. An attorney will be licensed by some State Bar Association or court of the state in which they are licensed. The alien can look the attorney's certification up on the internet at the relevant bar association to verify that they are an attorney. Aliens should also refrain from having their "friend" or "relative" fill out their asylum claim (even if that friend or relative was able to represent himself successfully in their own asylum claim). Aliens will sometimes give or sell to other aliens their asylum materials, naively believing that the US Government is so inept that all they need do is change the name and dates on the application, to prevail in the asylum claim. Though it is likely that this very corrupt approach may occassionally work for a small minority of claimants, it generally fails in the most spectacular and damaging ways for the applicant.
Most aliens would not ask a nurse to perform their heart surgery, even when the nurse has observed the surgeon's technique for a number of years. Think of law in the same terms as medicine and you will hire the right professional to represent you every time.
5. AVOID CHEAPNESS
Many aliens make fatal mistakes in their immigration efforts as a result of not wishing to pay attorneys fees. At the end of the day, when the alien is sitting in an immigration detention facility awaiting deportation without bond because of naive missteps along the way, which could have been avoided by simply hiring competent legal counsel, the alien always laments that they should have sacrificed financially for the sake of good legal representation. Aliens should appreciate that their immigration status is paramount in the US. It comes before buying real estate or acquiring the trappings of success, since there can be no real or lasting success in the US without status. In most foriegn countries there exists some legal system and process. Such aliens, in their own countries would generally not contemplate going forward with a complex legal process in the absence of legal representation. They understand well that top legal representation in their countries requires financial sacrifice on their part. Yet aliens sometimes believe that once they arrive in the US, these common sense realities must be abandoned. Aliens should never forget that the application for permanent or long term immigration status is the most important thing that they will do in this country. Do not short-change the process.
6. CATEGORIZATION
The initial analysis and categorization of the asylum claim may be one of the most important and technical aspects of preparing an asylum claim. Categorization is the complex and often highly creative process in which the lawyer crafts arguments as to how and why the case falls within one of the five enumerated categories of asylum (race, religion, national origin, membership in a particular social group, or political opinion). These categories are not what the alien would wish them to be, but are rather, legally defined designations into which a case might or might not fit. Where an asylum claim does not fit within one or more of these categories, it must legally fail. Categorization is one of many aspects of the work that a good lawyer does automatically in an asylum case of which the client is generally completely oblivious. Non-lawyers are not equipped to perform this delicate analysis.
7. THE LAYWER'S TRIAL AND APPELLATE EXPERIENCE
The best lawyer to prepare an asylum claim is one who has not only asylum office experience, but one who also has trial and appellate experience. The lawyer has to be able to anticipate how the case might play out in a trial setting under the examination of a judge and a prosecutor. The lawyer must also have a sense of how the legal merits of the case might hold up in an appeal where the alien testifies credibly at trial. The alien does not hire an attorney to guarantee that the case will be approved, since the decision of the asylum officer or immigration judge is somewhat subjective and since at the end of the day, the performance of the alien on interview or trial day will determine the outcome. The lawyer is hired to prepare the case carefully with sound analysis and foresight. The lawyer must also be committed enough to sufficiently prep the client for the realities of the interview and immigration trial settings. Aliens are often astonished at the aggressiveness and hostility of some asylum officers, and do not think deeply enough about their truthful circumstances to survive asylum interviews and trials. They are often heartbroken when their lack of depth or sophistication in their presentation results in a denial, knowing at the same time, in their hearts, that their fear is genuine and the circumstances of their claims truthful.
THE LAWYER MUST UNDERSTAND UNIQUE ASPECTS OF THE ALIEN'S COUNTRY AS THOSE ASPECTS MIGHT IMPACT THE ASYLUM CLAIM
Do not underestimate the power and benefit of the lawyer's experience in an asylum claim. A lawyer who does not have a sufficiet grasp of the alien's country, its history, culture, politics and traditions, will often not have sufficient instincts to prevail in a closely contested asylum claim. Such a lawyer might also miss important factors which could be brought to the case to strengthen it.
A good lawyer with limited experience related to a specific country can get him or herself up to speed on that country's particulars sufficient to competently represent the alien. However, the lawyer must be willing to put in the time to learn what he must to represent the client.
I hope this article has given our readers some insights into the asylum process and into some of the errors and pitfalls which await them in that process.
1. AVOID THE HERD MENTALITY
Simply because asylum was right for one alien does not mean it will be appropriate for another. Consult with a qualified attorney with expertise in representing aliens from your country in asylum cases. Understand also that asylum officers (to whom the case is presented at the first level) differ in temperament, tolerance, aptitude, training, education, and even empathy. Some asylum officers will go out of their way to deny an asylum claim. They will interrogate the alien as if he or she is a criminal and devote an extraordinary amount of effort towards poking holes in the alien's story to find that the alien is not credible or consistent in his or her testimony. Even the best of cases are denied by such officers. Other officers are more generous and will give the alien the benefit of the doubt in an effort to find some way if possible and legal, to approve the asylum claim. A majority of asylum officers conform to no extreme. They will dispassionately question the applicant in great detail in an attempt to gather the facts. In that process however, if a pattern of inconsistency or poor credibility emerges, the asylum claim will be denied. Where the alien's asylum claim is denied at a time when the alien is no longer in valid immigration status, the alien will be referred to Immigration Court for "Removal Proceedings," where asylum and other immigration relief may be considered by the judge. Make no mistake however, that this court process is a formal and confrontational one in which a government prosecutor enters the case, and in most instances agitates for the alien's deportation.
There are individuals from an alien's native country whom I would refer to as natural asylum applicants. These are applicants whose circumstances are well known nationally and/or internationally, or their circumstances have been significantly publicized in newspapers, other media or official documentation. Many such persons can, on occasion, prevail in an asylum claim without representation. However, many such individuals are denied asylum, not because their cases failed to be persuasive, but because of their failure to understand very subtle legalities and technicalities in the process which can legitimately lead to a denial of the claim.
Individuals who are not well known and whose cases have not been publicized or memorialized in any official manner must proceed with extreme caution and with the best lawyering possible to prevail in an asylum claim. Such persons should never have the mentality that the US Government owes them an asylum approval simply because their friend or colleague's claim was approved. The friend or colleague may have presented much stronger evidence persuasive of asylum, or as is more often the case, that friend or colleague was simply lucky. In my long experience as a lawyer, I have reviewed many cases of asylum, granted at the asylum office level, which could not possibly have been granted in the more legalistic setting of immigration court. Hence, an experienced lawyer preparing an affirmative asylum claim (one which is being filed before the applicant is referred to immigration court) should plan for the contingency that the case could (even with the best of lawyering) be referred to immigration court, and prepare the application so that, within the limitations of the facts provided by the alien, and the laws and regulations relevant to asylum, it is as stong as it possibly can be in the event that it must be presented in court. The lawyer must also consider and analyze forms of relief such as "withholding of removal" and relief under the "Convention Against Torture" which are not available in the asylum office, but are available in Court. The legal requirements for those forms of relief are different than for asylum. The legal interplay between a clear and articulate presentation of the facts and the application of those facts to a complex body of statutes, regulations, case law, and agency policies is the difference between an asylum claim in which the client can "legally" qualify for asylum, and a claim of asylum in which an applicant is merely hoping that his or her truthful story, as he or she presents it, will qualify him or her for asylum. The alien must be prepared also to accept that they might not qualify for asylum or related humanitarian relief based upon the facts they have presented to the attorney. The alien should listen to the attorney, not for what he or she (the alien) wants to hear, but rather, for the truth and sometimes, the very harsh reality that they should not apply for asylum and that there is no immediate immigration relief available.
Thus, asylm is certainly not a benefit an alien should apply for simply because others are doing so. Many have discovered this truth at the receiving end of a deportation, or voluntary departure order from an immigration judge. Certainly however, if the alien fears persecution in his native country or country of last residence based upon race, religion, national origin, membership in a particular social group, or political opinion; that person should certainly be consulting with an attorney and seriously considering asylum if there are no other less complex forms of relief available.
2. PRESENT THE TRUTH
Asylum applicants are expected to tell the truth in their asylum claims. Their testimony is given under an oath which carries with it serious penalties if it can be found that the alien has knowingly fabricated aspects of the asylum claim. Where an immigration judge finds an asylum claim "frivolous" (willfully fabricated to some extent), the alien can be debarred from any further immigration benefits in the US for life. Obviously, the alien would also eventually be deported. Along the way however, the alien can face criminal penalties and fines also for having fabricated some aspect of the application.
3. CONFIDENTIALITY
The alien should feel confident in telling the truth however, since the government will not reveal any aspect of the asylum claim (or even the fact that the alien has applied for asylum) to the alien's government or community.
4. NON-LAWYERS
An alien should never hire a non-lawyer, in this attorney's opinion, to even assist in the preparation of an asylum claim, or any other immigration case. Non-lawyers are generally not allowed to give legal advice and can only type up forms for clients. In California, it is a crime for non-lawyers to give legal advice. I cannot conceive how a non-lawyer would be able to type up an asylum application competently without intimately understanding the law of asylum and advising the client as to the meaning of the various complex questions which are asked on that form. For example, there is a part of the application which asks whether the form is being filed within one year of the alien's entry. Though this is a fairly simple question, it is one with potentially severe consequences to the asylum claim, since an asylum applicant is required by law to file for asylum within one year of entry. Hence if the applicant admits he is filing beyond the one year deadline, he or she will wish to understand what the consequences of that admission are. Who will explain these consequences to the alien? Certainly not the non-lawyer, since he or she commits a crime by giving any legal advice and since he or she is not trained in this sort of legal analysis. Further, who will explain the complex and legalistic exceptions to the one year requirement. Certainly not the non-lawyer, since beyond being barred from offering legal advice, the non-lawyer cannot perform the requisite legal analysis in these matters. It really does take a lawyer to do this properly.
Aliens should be aware that notarios, notaries, law and consulting services, offices entitled "legal services," paralegals and legal secretaries are non-lawyers who, in this attorney's opinion, are not properly qualified to prepare or represent others in asylum claims. An attorney will be licensed by some State Bar Association or court of the state in which they are licensed. The alien can look the attorney's certification up on the internet at the relevant bar association to verify that they are an attorney. Aliens should also refrain from having their "friend" or "relative" fill out their asylum claim (even if that friend or relative was able to represent himself successfully in their own asylum claim). Aliens will sometimes give or sell to other aliens their asylum materials, naively believing that the US Government is so inept that all they need do is change the name and dates on the application, to prevail in the asylum claim. Though it is likely that this very corrupt approach may occassionally work for a small minority of claimants, it generally fails in the most spectacular and damaging ways for the applicant.
Most aliens would not ask a nurse to perform their heart surgery, even when the nurse has observed the surgeon's technique for a number of years. Think of law in the same terms as medicine and you will hire the right professional to represent you every time.
5. AVOID CHEAPNESS
Many aliens make fatal mistakes in their immigration efforts as a result of not wishing to pay attorneys fees. At the end of the day, when the alien is sitting in an immigration detention facility awaiting deportation without bond because of naive missteps along the way, which could have been avoided by simply hiring competent legal counsel, the alien always laments that they should have sacrificed financially for the sake of good legal representation. Aliens should appreciate that their immigration status is paramount in the US. It comes before buying real estate or acquiring the trappings of success, since there can be no real or lasting success in the US without status. In most foriegn countries there exists some legal system and process. Such aliens, in their own countries would generally not contemplate going forward with a complex legal process in the absence of legal representation. They understand well that top legal representation in their countries requires financial sacrifice on their part. Yet aliens sometimes believe that once they arrive in the US, these common sense realities must be abandoned. Aliens should never forget that the application for permanent or long term immigration status is the most important thing that they will do in this country. Do not short-change the process.
6. CATEGORIZATION
The initial analysis and categorization of the asylum claim may be one of the most important and technical aspects of preparing an asylum claim. Categorization is the complex and often highly creative process in which the lawyer crafts arguments as to how and why the case falls within one of the five enumerated categories of asylum (race, religion, national origin, membership in a particular social group, or political opinion). These categories are not what the alien would wish them to be, but are rather, legally defined designations into which a case might or might not fit. Where an asylum claim does not fit within one or more of these categories, it must legally fail. Categorization is one of many aspects of the work that a good lawyer does automatically in an asylum case of which the client is generally completely oblivious. Non-lawyers are not equipped to perform this delicate analysis.
7. THE LAYWER'S TRIAL AND APPELLATE EXPERIENCE
The best lawyer to prepare an asylum claim is one who has not only asylum office experience, but one who also has trial and appellate experience. The lawyer has to be able to anticipate how the case might play out in a trial setting under the examination of a judge and a prosecutor. The lawyer must also have a sense of how the legal merits of the case might hold up in an appeal where the alien testifies credibly at trial. The alien does not hire an attorney to guarantee that the case will be approved, since the decision of the asylum officer or immigration judge is somewhat subjective and since at the end of the day, the performance of the alien on interview or trial day will determine the outcome. The lawyer is hired to prepare the case carefully with sound analysis and foresight. The lawyer must also be committed enough to sufficiently prep the client for the realities of the interview and immigration trial settings. Aliens are often astonished at the aggressiveness and hostility of some asylum officers, and do not think deeply enough about their truthful circumstances to survive asylum interviews and trials. They are often heartbroken when their lack of depth or sophistication in their presentation results in a denial, knowing at the same time, in their hearts, that their fear is genuine and the circumstances of their claims truthful.
THE LAWYER MUST UNDERSTAND UNIQUE ASPECTS OF THE ALIEN'S COUNTRY AS THOSE ASPECTS MIGHT IMPACT THE ASYLUM CLAIM
Do not underestimate the power and benefit of the lawyer's experience in an asylum claim. A lawyer who does not have a sufficiet grasp of the alien's country, its history, culture, politics and traditions, will often not have sufficient instincts to prevail in a closely contested asylum claim. Such a lawyer might also miss important factors which could be brought to the case to strengthen it.
A good lawyer with limited experience related to a specific country can get him or herself up to speed on that country's particulars sufficient to competently represent the alien. However, the lawyer must be willing to put in the time to learn what he must to represent the client.
I hope this article has given our readers some insights into the asylum process and into some of the errors and pitfalls which await them in that process.
Saturday, July 25, 2009
Friday, July 24, 2009
INTRODUCING THE NEW CHOW & HAMILTON BLOG
Welcome to the new Chow & Hamilton blog. This site is not intended to impart legal advice or counsel, but rather, is intended to allow our clients, prospective clients and the public, to keep up with the firm's headlines and some of the musings of its Attorneys.
The firm's address is: 5681 Beach Blvd., Ste. 201, Buena Park, CA 90621
Phone: (714)521-1437
Fax: (714)521-4692
chwhmltn@aol.com
We will be adding content to this blog in the next weeks. Please be patient as we endeavor to make this blog an interesting destination for all.
The firm's address is: 5681 Beach Blvd., Ste. 201, Buena Park, CA 90621
Phone: (714)521-1437
Fax: (714)521-4692
chwhmltn@aol.com
We will be adding content to this blog in the next weeks. Please be patient as we endeavor to make this blog an interesting destination for all.
Subscribe to:
Posts (Atom)