This post, as is true in general of posts on this blog and other law related blogs, are informational only and not intended as legal advice. Individuals persuing any immigration benefit, including the one discussed below are advised to consult individually with a qualified immigration attorney.
Yesterday, the Department of Homeland Security's USCIS released its new Form I-821D application for "Consideration of Deferred Action for Childhood Arrivals" and related instructions. The agency will begin its acceptance and processing of these applications today.
This is a landmark event for certain young people who were brought to the United States as undocumented aliens, or who overstayed lawful periods of presence in the United States. If you have been following this blog you may have read previous prosts with regard to this new process and some discussion as to what the requirements of said process might be. Those requirements are now set forth in I-821D's instructions as follows:
An individual may be considered for deferred action for childhood arrivals if he or she:
1. Was under the age of 31 as of June 15, 2012 (this is a change from the originally contemplated requirement that the the alien should not be above the age of 30);
2. Came to the United States before reaching his or her 16th birthday;
3. Has continuously resided in the United States since June 15, 2007, up to the present time;
4. Was present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;
6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
The instructions go on to present slightly varying requirements for "Childhood Arrivals Who Have Never Been in Removal Proceedings," "Childhood Arrivals Whose Removal Proceedings Were Terminated," and "Childhood Arrivals In Removal Proceedings, With a Final Order, or With Voluntary Departure." For the first two of these categories, the alien must be 15 years or older at the time of filing and meet the 7 guidelines listed above to be considered for this benefit. With respect to the last category, it appears that providing all of the 7 criteria are met, the alien may apply for the benefit even if he or she is under the age of 15.
Additionally, the benefit is not indefinite and at this juncture is only intended to last two years. Further, it should be clear that this benefit does not confer "immigration status" on the alien, but merely places the alien in a class of aliens for whom deportation is deferred, and who therefore are allowed lawful employment in the United States. Acquiring status for an undocumented or out of status alien is an entirely complex and challenging endevour, requiring careful consultation with an immigration attorney.
The I-821D is filed in conjunction with the I-765 application for employment authorization which requires a filing fee of $465.00 (including biometrics processing). There is no separate filing fee for the I-821D itself.
The burden of proof in these matters of course, are on the alien, and thus, the alien is expected to prove each element or requirement with documentation (evidence), and should fully understand the legal and documentary requirements before filing. Aliens applying for this benefit should also remember that they will be submitting to biometrics processing to verify their identity and the existence of any criminal background, among other things. Thus, applicants with criminal arrest and/or conviction histories must take great care to ensure that a) any criminal conviction does not render them ineligible for the benefit, and b) that such criminal conviction background might not trigger removal proceedings against them if discovered by USCIS.
Aliens should also be reminded that non-lawyers are generally not permitted to give legal advice, and may only fill out forms. Hence, to the extent an alien pursuing this benefit wishes to be advised as to the process in general and/or any risks involved in applying for said benefit, only lawyers (and a limited number of non-lawyers, under the supervision of lawyers and certified to provide assistance by the government) may provide such counsel. It would indeed be a wise decision for the alien to be represented by a qualified immigration lawyer in such an important and life-changing process.
We look forward to consulting with and assisting any prospective candidate for this new and significant benefit.
By: Duane M. Hamilton, Esq.
Wednesday, August 15, 2012
Saturday, August 4, 2012
WITHHOLDING OF REMOVAL SECURED BY ATTORNEY HAMILTON FOR KIKUYU TORTURE VICTIM
Sometimes, in spite of an attorney's best efforts, the alien in removal proceedings, is simply ineligible, for any number of technical reasons, for asylum. It is at this point that contemporaneous applications such as Withholding of Removal and relief under the Convention Against Torture (CAT) rise to a level of critical importance, since failure to secure either of those two forms of relief (where no other relief applications are pending) could result in deportation or voluntary departure orders against the alien, which would have to be appealed in lengthy and often expensive administrative and/or judicial processes for the alien to remain in the US.
So it was in my case on July 31, 2012 before Judge Naeslow-Nahas of Los Angeles, California. At the end of a second half-day of trial, I had convinced the government's attorney that the alien, a Kenyan of the Kikuyu Tribe, met a technical legal exception to the one year filing rule for asylum cases, and that the alien had been tortured based on political opinion and hence did legally qualify for asylum. Yet asylum claims do not have to be granted by the Immigration Judge, even after the applicant has met all of the legal requirements. The judge retains discretion which allows her to deny asylum where she is simply unwilling to exercise such discretion favorably. It is also sometimes the wise and prudent course in some very special cases, for all parties in this circumstance to accept and be grateful for the judge's approval of withholding or CAT relief which are mandatory forms of relief that do not allow for an exercise of discretion, but carry a higher burden of proof than asylum. Hence, when an applicant wins withholding or CAT, he or she has presented a much more compelling case for that relief than would have been necessary for asylum.
Withholding and CAT are significant victories in Immigration Court because they prevent the government from deporting the alien to the country in which they were persecuted or fear persecution, and permit aliens to continue to renew their employment authorizations and remain in the United States indefinitely in most cases. The downside is that the alien is not classified as a "refugee" under the law as he or she would have been with a grant of asylum and therefore is not entitled to the "refugee travel document" which would ensure the alien's reentry to the United States should the alien wish to travel outside of the US. Withholding further does not have derivative benefits, hence spouses and children do not automatically receive withholding (or for that matter CAT) when the principal alien is granted such relief. Each applicant must qualify for withholding and/or CAT on their own strength. Further, where the spouse and children are outside of the US, withholding and CAT do not provide for a direct petition for those relatives. Additionally, withholding and CAT do not provide a direct path to Lawful Permanent Residence and/or later US Citizenship.
We have thus far succeeded to win relief for all clients whose cases we have taken to trial in immigration court, this year. Our clients are assured that no stone is left unturned in their cases.
By: Duane M. Hamilton
So it was in my case on July 31, 2012 before Judge Naeslow-Nahas of Los Angeles, California. At the end of a second half-day of trial, I had convinced the government's attorney that the alien, a Kenyan of the Kikuyu Tribe, met a technical legal exception to the one year filing rule for asylum cases, and that the alien had been tortured based on political opinion and hence did legally qualify for asylum. Yet asylum claims do not have to be granted by the Immigration Judge, even after the applicant has met all of the legal requirements. The judge retains discretion which allows her to deny asylum where she is simply unwilling to exercise such discretion favorably. It is also sometimes the wise and prudent course in some very special cases, for all parties in this circumstance to accept and be grateful for the judge's approval of withholding or CAT relief which are mandatory forms of relief that do not allow for an exercise of discretion, but carry a higher burden of proof than asylum. Hence, when an applicant wins withholding or CAT, he or she has presented a much more compelling case for that relief than would have been necessary for asylum.
Withholding and CAT are significant victories in Immigration Court because they prevent the government from deporting the alien to the country in which they were persecuted or fear persecution, and permit aliens to continue to renew their employment authorizations and remain in the United States indefinitely in most cases. The downside is that the alien is not classified as a "refugee" under the law as he or she would have been with a grant of asylum and therefore is not entitled to the "refugee travel document" which would ensure the alien's reentry to the United States should the alien wish to travel outside of the US. Withholding further does not have derivative benefits, hence spouses and children do not automatically receive withholding (or for that matter CAT) when the principal alien is granted such relief. Each applicant must qualify for withholding and/or CAT on their own strength. Further, where the spouse and children are outside of the US, withholding and CAT do not provide for a direct petition for those relatives. Additionally, withholding and CAT do not provide a direct path to Lawful Permanent Residence and/or later US Citizenship.
We have thus far succeeded to win relief for all clients whose cases we have taken to trial in immigration court, this year. Our clients are assured that no stone is left unturned in their cases.
By: Duane M. Hamilton
DHS TO ROLL OUT NEW "CHILDHOOD ARRIVALS PROCESS" AUGUST 15, 2012
The Department of Homeland Security (DHS) announced on August 3, 2012, that it expects to have forms and instructions available for the new and much anticipated "Childhood Arrivals Process," which is intended to confer "Deferred Action" and employment authorization upon certain aliens for a period of two years.
Our understanding of the eligibility requirements thus far for this program is that aliens must demonstrate the following on a case by case basis:
1. Came to the United States under the age of sixteen;
2. Have continuously resided in the United States for at least five years preceding June 15, 2012;
3. Are currently in school, have graduated from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the Coastt Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Are not above the age of thirty.
Applicants may apply for their employment authorization documents (EADs) simultaneously with the application for deferred action. It appears that there will be a filing fee to DHS for this application and the accompanying EAD application, and that fee waivers will not be available for the EAD portion of the process.
This process will be available for aliens in removal proceedings, those with final orders of removal, and those who have never been in removal proceedings.
It appears that USCIS expects to be prepared to receive applications for this benefit from August 15, 2012, however prospective applicants would be wise to have their eligibility carefully assessed by immigration lawyers on a case by case basis before applying. This is because all applicants will be required to submit to "biometrics" so that their backgrounds, including criminal history can be checked. Hence, USCIS will likely discover any arrest and conviction records for such applicants. Aliens with criminal histories are often vulnerable to denial of applications for relief and deportation, hence, such cases must be handled with the utmost of care. Further, this relief is "discretionary," which means there are other non-criminal factors which could possibly cause denial of these applications.
Articles and posts on the internet, including this post are not intended as legal advise and aliens can only be certain or confident about their individual circumstances and processes through consultation and analysis by a qualified attorney.
We understand that there are non-lawyers who have started to accept fees and are making promises about the outcome of this process. It should be understood that the process has not yet commenced and without instructions and a concrete understanding of the actual process, it is this lawyer's opinion that it may be premature to actually hire a professional for assistance in these matters until at least August 15, 2012.
We are excited about these developments and looking forward to advising and assisting candidates for this new form of relief.
By: Duane M. Hamilton
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