GUATEMALAN 245(i) ADJUSTMENT APPLICANT GRANTED LAWFUL PERMANENT RESIDENCE BY IMMIGRATION JUDGE COUGHLON

On December 2, 2013, I completed an adjustment of status matter I have been pursuing for a Guatemalan client for the past 6 years, receiving an order by Immigration Judge Coughlon of the Los Angeles Immigration Court, awarding my client lawful permanent residence and finding that there was sufficient circumstantial evidence to establish that my client's brother had indeed grandfathered my client under INA §245(i) by filing the brother's Petition for Alien Relative (I-130) on April 30, 2001.

I took on this case on in 2007, filing an I-130 petition and I-485 adjustment application for the alien, with his United States Citizen (USC) spouse as the Petitioner, using the the alien's assertion that an I-130 had been filed on April 30, 2013 by the alien's USC brother, to permit grandfathering under 245(i).  Without such grandfathering, the alien would have faced the prospect of having had to return to Guatemala to complete his immigration to the US via the American Embassy in Guatemala.  He was faced however, with a 10 year bar to admissibility in the event he left the United States, since he had entered the US without inspection and remained here unlawfully for many years.  Whether or not he would have qualified for a waiver of inadmissibility should he have left the country (or the more recent 601-A Provisional Waiver) is uncertain. What is certain, is that I was not going to permit him to depart the United States to find out whether the then available 601 waiver would be approved or not, since he may have found himself locked out of the US if the waiver was denied. The relative petition, filed on his behalf in 2001 would allow him to pay a $1,000.00 penalty and complete his immigration through adjustment of status here in the US.

The problem was that the alien had no direct proof that the grandfathering petition was filed on the sunset date of April 30, 2001, since the petition, once filed, had been erroneously rejected by USCIS and returned to his brother upon filing.  The returned petition was discarded by the brother and a new petition filed after the sunset date.  Thus, at the adjustment of status interview in November of 2008, USCIS took the position that the adjustment could not be granted because we could not prove with direct evidence (such as a formal receipt notice) that the petition was filed on or before April 30, 2001.  Yet we had presented a wealth of circumstantial evidence, including postal receipts and even the checklist from the USCIS mailroom which was returned to the alien's brother, indicating that a form I-130 had indeed been received by that mailroom timely.  This however, did not satisfy the USCIS District Office, or later, their Service Center to whom we applied for adjudication of the matter after the interview.  At length the Service Center denied the adjustment, and I took the alien into removal proceedings before the Immigration Judge to resolve this matter and other forms of relief which I believed were available to the alien.

After several years of negotiation with ICE and hearings before the Immigration Judge, ICE's counsel, Ms. DeFranc, myself and the Judge came to a consensus that indeed the alien had proven filing of the requisite petition on the sunset date, and after a short examination by the Government's attorney, Judge Coughlon granted the alien's adjustment to LPR status.  Because the alien was adjusted through his wife (a USC) and technically not the brother, the alien will be eligible to apply for USC status in 3 years.

My client has expressed his gratitude to the Immigration Judge and Nancy DeFranc of ICE for their efforts in this life-changing event.

By Duane Hamilton

HAMILTON SECURES ASYLEE STATUS FOR 4 KENYANS IN THE MONTH OF AUGUST

It is our pleasure to announce 4 new Kenyan asylum approvals in the month of August.

The first of these cases was filed with the Los Angeles Asylum Office (AO) in July of 2012.  This case was placed in the recent "backlog" of cases at the AO, but we were finally notified of the case's approval (after two separate interviews by different asylum officers) on August 13, 2013.

In another backlogged case at the AO, our filing was perfected in August of 2012, and it was not until August 8, 2013, that we were notified of its approval.  Hence, it is clear that asylum claims in the Los Angeles District are now pending for much longer durations than they have in a very long time.  Applicants are advised to be patient, and having preserved their filing of the case within one year of arrival as they are required to do, they must simply await an interview and ultimately a decision at some later point.  Since the AO backlog, we continue to be unwilling to predict the approximate duration of any potential asylum claim at the AO.  In time, we hope to get a better sense of how long on average we should expect such cases to pend with that office.  The silver lining however, of the long wait for adjudication, is that it is now more likely that the so-called "150 day clock" for the filing of asylum related applications for employment authorization, and the so-called "180 day clock" for approval of those same applications, are now more likely to expire, increasing the chances of the applicant to actually receive their work permits while awaiting adjudication of their cases at the AO.  Applicants should remember however, that if they have requested a continuance before the expiration of the 150 day clock, the running of that clock will toll (stop) on the day the continuance is requested, and re-start on the day of their interview.

Lastly, I completed trial before Judge Parchert of the Los Angeles Immigration Court, yesterday, in the asylum claim of a Kenyan married couple.  This claim was one in which we by-passed an interview at the AO and requested referral to Immigration Court, since the applicants were applying for asylum many years after they had both arrived in the US and after their non-immigrant statuses had expired.  It has been our experience that unless the applicant is maintaining status, or filing quickly after the expiration of status, the AO has not typically respected or fairly adjudicated the applicants' exceptions to the one year filing requirement.  Thus, applicants face the prospects of hiring an attorney for the AO with little or no hope of approval at the AO level, only to find themselves referred to the more stressful and formal forum of immigration court, perhaps unable to afford counsel where they need representation the most.  In this case, we successfully overcame the one year filing requirement and both spouses were granted asylum.  The result in this case however, could not have been achieved without the graciousness and compassion of the both the Immigration Judge and the Government's (ICE's) prosecuting attorney.

We have placed all four of these clients now, on a pathway to the US Citizenship and spared them from the potentially hazardous consequences of returning to Kenya.

By:  Duane Hamilton

HAMILTON OVERCOMES ONE-YEAR FILING BAR IN KENYAN ASYLUM TRIAL

On July 10, 2013, I completed my trial of a Kenyan asylum claim which I have been litigating over the past three years.  One of the critical complexities of the case was whether or not the applicant, who had arrived in the United States many years before filing the asylum claim, would be barred by INA §208(a)(2)(B)'s one year limitation on the filing of such claims.  In this claim, though there was some history which might have suggested a possibility of an asylum claim within one year of the alien's arrival years earlier, we were able to demonstrate such "changed circumstances" as to warrant approval of the asylum claim.

This applicant will become eligible to apply for Lawful Permanent Residence ("green-card") in one year, and Naturalization (U.S. Citizenship) five years after approval of the green card.

The ever thoughtful Immigration Judge, Ignacio Fernandez of San Diego, California presided, with DHS counsel, Adams, also of San Diego, prosecuting.  Because Mr. Adams graciously waived appeal, my client's approval is final.

By:  Duane Hamilton

HAMILTON FILES PETITION FOR REHEARING EN BANC IN LAWRENCE V. HOLDER

On May 22, 2013, I reported on the 9th Circuit's publication of their "Opinion" in Lawrence v. Holder (07-74829) in which a lawful permanent resident (LPR) aggravated felon was determined not to be eligible for INA 212(c) relief because because of the BIA's interpretation (and the Court's deference to that interpretation) of the word "admissions" in IMMACT 511(b).  The interpretation of an "admission" as the 212(c) application itself, rather than the alien's earlier entry after inspection and authorization by an immigration officer" [as the word is defined by 8 U.S.C. §1101(a)(13)(A)] is vexing and in our opinion, worthy of further review.

Hence, on July 3, 2013, we filed a petition for rehearing en banc, seeking a fresh look at the issues in this this matter by at least 11 of the Court's judges.

The current petition  addresses whether IMMACT 511(b) was "unambiguously prospective" pursuant to Ledezma-Galicia v. Holder, 599 F.3d 1055(9th Cir. 2010) to such an extent there was no ambiguity in the statute for the agency to resolve, and whether in applying what is called "Chevron deference" to the agency's interpretation, the panel missed a more subtle traditional requirement in immigration cases that ambiguous statutes be read in the light most favorable to the alien [see INS v. Errico, 385 U.S. 214, 225 (1966) and INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987)].

By:  Duane Hamilton

KENYAN COUPLE GRANTED WITHHOLDING OF REMOVAL AND ADMIN. CLOSURE RESPECTIVELY

On June 19, 2013, a Kenyan couple whom I represented in a removal trial, was granted mixed relief by Immigration Judge Renner of the San Diego, California Immigration Court, following trial of their humanitarian immigration claims.  One spouse was granted withholding of removal, which does not carry automatic derivative status to the other spouse as an asylum approval would, while the other spouse was granted an administrative closure of removal proceedings in the interest of Prosecutorial Discretion (PD).  The humanitarian claims were filed literally decades after the applicants first arrived in the US, and hence their asylum claims were burdened by INA 208(a)(2)(B)'s one-year filing requirement.  Both spouses will now be allowed to remain in the US indefinitely without fear of removal to Kenya.

We are gratified at this very just result and express the clients' gratitude to the Court and DHS counsel, Ms. Mubarakee, for their thoughtulness and humanity in this matter.

By:  Duane Hamilton

KENYAN APPLICANT'S PATIENCE REWARDED BY LOS ANGELES IMMIGRATION JUDGE

Yesterday, Judge Neumeister of the Los Angeles Immigration Court granted the asylum claim of of one of my Kenyan clients who has been litigating an asylum claim, with my assistance, for the last five and a half years.  One extraordinary aspect of this case is the number of times the applicant and I appeared for trial, ready to proceed, only to be rescheduled, for reasons beyond our control, to a much later trial date.

I am happy to say that so many years and two judges later, the client was afforded a hearing on the compelling merits of the asylum claim, with the most favorable of outcomes.

On behalf of the applicant, we thank Judge Neumeister, and DHS counsel, Ms. Woods, for their participation in this matter.

By: Duane Hamilton

MORE KENYAN HUMANITARIAN APPROVALS

On May 23, and May 30, 2013, I received a recommended approval and final approval of two of my Kenyan asylum cases which had been backlogged with the Asylum Office (AO) in Anaheim since last year.  Cases in Anaheim (which is the Los Angeles district AO), have been pending for much longer periods than usual, due to a backlog of cases which has developed in that particular office.  We believe that in spite of the frustrations associated with the unusual delay, the wait was well worth it for these applicants.

Yesterday, June 5, 2013, in trial, Judge Bartolomei of the San Diego Immigration Court, granted withholding of removal to another of my Kenyan clients who was applying for humanitarian relief well after the requisite asylum one year deadline, which requires applicants to file their asylum claims within one year after their last arrival into the United States.  Withholding which does not require filing in one year, but carries a higher burden of proof, nevertheless, protects the applicant from being returned to a country in which they have been harmed or fear harm, with renewable authorization to work in the US indefinitely.

By:  Duane Hamilton

16 YEAR IMMIGRATION CASE DECIDED IN PUBLISHED 9TH CIRCUIT LAWRENCE V. HOLDER

My oldest case, a matter which I have been litigating in immigration court, the BIA and the 9th Circuit Court of Appeals, for the past 16 years (since 1997), was decided by the 9th Circuit yesterday in a "For Publication" opinion -Lawrence v. Holder, Attorney General, No 07-74829.  The representation of aliens determined by the immigration court to be "aggravated felons" (Ag Felons) is among the most difficult and nuanced endeavors for an immigration attorney.  Ag felons are stripped of many forms of immigration relief and often find themselves with an extremely narrow set of options (and sometimes no option at all) for remaining in the United States.

In this case, I attempted on behalf of the alien, a native and citizen of Panama, to bring immigration law back to its own accepted and time-tested definition of the term "admission" or "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer" as set forth in 8 U.S.C. §1101(a)(13)(A).  This concept was important since the alien had served more than a 5 year sentence and 212(c) relief, which was the sole relief being requested by the alien, is generally unavailable "to an alien who has been convicted of one or more aggravated felonies and has srved for such felony or felonies a term of imprisonment of at least five years." INA §212(c). 

However, this 5 year imprisonment bar did not go into effect until November 29, 1990 with the passage of IMMACT, on November 29, 1990.  IMMACT 511(b) specifically provided that the 5 year imprisonment bar "shall apply to admissions occurring after the date of the enactment of this Act" Id, which was Nov. 29, 1990.  Since the alien in this particular case had last been "admitted" by lawfully entering the United States after inspection and authorization by an immigration officer, on June 16, 1987 as a Lawful Permanent Resident (LPR), I argued that the 5 year imprisonment bar did not apply to the alien, and he was in fact eligible for what we call "retroactive 212(c) relief" under INS v. St. Cyr, 533 U.S. 289(2001).

The Government's and BIA's position was that the word "admission" in this particular regard, meant the aliens actual application for 212(c) relief (not his authorized entry), and since the alien had applied for 212(c) relief on March 2, 2004, his "admission" for the purpose of 212(c) relief was an admission after November 29, 1990.  This was not argued in an absence of some legal authority, including In Re A-A-, 20 I&N Dec. 492 (BIA 1992) which held as much.  Yet, in spite of this, it was clear to me that the government's and BIA's argument and even A-A- flew in the face of the accepted and well settled definition of the term "admission."  This new concept of "admission" appeared to me to have been a hastily crafted and opportunistic maneuver to reduce the class of ag felons who might qualify for 212(c).  Only lawyers, could change as easily understood a word as "admission" from its regular ussage of essentially being allowed entrance, to "an application for entrance or admission."  Clearly the 212(c) application is not an admission but rather an application for admission wherein such admission might in fact be denied.  Essentially, the term "admission" appears to be whatever the government wishes it to be at any given time, to suit any given agenda it may have at the time.  In my view this appeared tantamount to changing the rules in the middle of the game to favor a particular agenda.

It should be clear that in Lawrence v. Holder, the Court, in siding with the government's definition of "admission," simply finds that their determination is "based on a permissible construction of the statute." citing Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).  The court further pointed to the fact that other sister Circuit Courts of Appeal had taken the government's side with regard to this particular issue.

And so our role in this matter comes to an end.  The case may be of use to attorneys and judges in the future who are faced with these particular issues.

By:  Duane Hamilton

SECOND IMMIGRATION TRIAL OF 2013 YIELDS GRANT OF WITHHOLDING OF REMOVAL

On April 10, 2013, I completed an immigration trial in a Kenyan matter in which the applicants were applying for asylum many years after their arrival in violation of INA 208(a)(2)(B) which requires aliens to apply for asylum within one year of their arrival in the United States.  Mercifully, in these circumstances, where the alien has not convinced the Immigration Judge that they qualify for an exception to the one year filing bar, the Immigration Judge may consider Withholding of Removal and Convention Against Torture (CAT) relief, which do not require filing within one year of arrival.  Though these forms of relief do not convey as many benefits to the alien as asylum, they protect the alien from being returned to the country of persecution and convey the right to renew the alien's employment authorization indefinitely.  Aliens applying for asylum more than one year after their arrivals, must be prepared to entertain the very real possibility that they might not qualify for asylum, and might more realistically qualify for withholding or CAT relief.  The job of the attorney and alien is to convince the court that the alien should not be returned to the country of persecution.  In this sense, a court which listens to the alien, finds him or her credible, and grants, withholding or CAT, has taken, in most instances, life saving measures for which the alien or aliens should be grateful.

We thank Judge Naselow of the Los Angeles Immigration Court, for granting this relief to our clients.

By:  Duane M. Hamilton

PRESIDENT OBAMA'S PROVISIONAL WAIVER PROCESS SET TO TAKE EFFECT MARCH 4, 2013

Many of you, no doubt have heard that a new process, which will allow some aliens who have remained in the United States unlawfully to complete their legal immigration to the United States, will begin on Monday, March 4, 2013.  This process involves the adjudication and approval or denial of a Provisional waiver on inadmissibility for the alien's unlawful presence, here in the United States, and then ultimately, the alien's departure to be interviewed for an immigrant visa abroad.  I am certain there will be much confusion regarding this particular program, thus, I am providing verbatim below, the State Department's release in this regard, along with some of my own thoughts.

Here is what the State Dept. is saying:

About the Provisional Unlawful Presence Waiver

On January 2nd, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that certain immediate relatives of U.S. citizens present in the United States, who are in the process of seeking immigrant visas with the Department of State to become lawful U.S. permanent residents, may apply and be approved for provisional unlawful presence waivers before departing the United States to attend their immigrant visa interviews. Refer to the Provisional Unlawful Presence Waiver News Release and Instructions on the USCIS Website for eligibility information and instructions. Learn more. USCIS will begin accepting provisional unlawful presence waiver, Form I-601A applications on March 4th, 2013.

The National Visa Center (NVC) Process – Frequently Asked Questions (FAQs)

If you have applied/are applying for the I-601A provisional waiver, listed below is important information regarding the National Visa Center pre-processing of your immigrant case and your interview at the U.S. embassy or consulate you designated.

If the Department of State has already scheduled my immigrant visa appointment, how do I determine if I am eligible to submit the I-601A to USCIS?

Applicants with an interview appointment letter from the National Visa Center dated before January 3rd, 2013 are not eligible to file the Form I-601A. Only applicants scheduled by the National Visa Center on or after January 3rd, 2013 for an upcoming initial immigrant visa interview are eligible to apply for the I-601A. “Scheduled” means the date on which NVC took the action to schedule the case – not the date of the visa interview appointment. NVC dates interview appointment letters on the day it schedules a case, so refer to the appointment notification letter to see when NVC took the scheduling action.

How do I get a copy of my immigrant visa (IV) application processing fee payment receipt?

You must submit proof of payment of your IV fee with your I-601A provisional waiver application to USCIS, attaching a copy of the receipt. Follow the instructions below to obtain a fee receipt copy:

If the Immigrant Visa Application Fee was:	Then do the following:
Paid Online: If you paid the IV fee online through the Consular Electronic Application Center (CEAC)	Return to the CEAC site and print a copy of your receipt
Paid by Mail: If you paid the fee by mail to the NVC	You must request a copy of your receipt from NVC. To request a copy of your IV fee payment receipt, send an email to NVCI601A@state.gov with the subject line: "Fee Payment Receipt Request” and also include your NVC case number.

Will NVC schedule my IV interview appointment even if I submit an I-601A provisional waiver to USCIS?

No, after you submit your I-601A Provisional Unlawful Presence Waiver Application, USCIS will notify the National Visa Center (NVC) that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application.

What should I do once USCIS approves my I-601A provisional unlawful presence waiver?

Once USCIS approves your Form I-601A, it will inform NVC of its decision. If NVC has received all required forms and documents for your immigrant visa case, NVC will schedule your immigrant visa interview at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the United States to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.

What will happen during the visa interview at the U.S. embassy or consulate if the consular officer determines that I have other visa ineligibilities?

If the consular officer determines at your immigrant visa interview that you have other ineligibilities (grounds of inadmissibility or are otherwise not eligible for the visa) beyond unlawful presence, the USCIS approved provisional waiver is automatically revoked. Learn more on the USCIS Website, provisional waiver.

END OF STATE DEPARTMENT RELEASE.

Aliens however should not simply file form I-601A with the presumption that because a relative petition such as I-130, or employment based petition such as I-140, has been approved on their behalf, the provisional waiver will be granted.  This waiver appears only to apply to aliens who are spouses or parents of US Citizens.  Hence, if the alien is a "preference alien," such as for example, an engineer with an approved I-140, or the spouse of a Lawful Permanent Resident (LPR) whose priority date is current, this process will not be available to them, unless the administration elects to significantly broaden the program.

Further, if the alien entered the United States with inspection, and is married to a US Citizen, or entered the US with inspection and is an unmarried child under 21 of a US Citizen, or entered the US with inspection and is the parent of a US Citizen, this provisional waiver process is likely not for such alien either, since with good legal counsel, said alien may find the laws related to adjustment to LPR status without leaving the US, to be more favorable and expeditious for them.

Aliens with criminal records and other grounds of inadmissibility should also be extremely careful in pursuing the provisional waiver process.  The wise approach, as always, is to consult an immigration attorney prior to filing this (or any other) immigration application, to determine eligibility (or for that matter, whether the process is even required, given the alien's particular circumstances), and to anticipate unintended consequences which might result from such application.

By Duane M. Hamilton

FIRST IMMIGRATION TRIAL OF THE YEAR RESULTS IN WITHHOLDING OF REMOVAL

On February 7, 2013, after a full half day trial, Judge Ipema of the San Diego Immigration Court granted withholding of removal in the matter of a Kenyan torture victim who had resided in the United States for many years before applying for humanitarian immigration relief.

Withholding is a form of relief which protects aliens from being returned to a country in which they fear persecution and/or have been persecuted in the past as a result of their race, religion, nationality, membership in a particular social group or political opinion.  Though withholding does not provide a direct path to Lawful Permanent Residence or US Citizenship, it is often a life-saving benefit to those upon which it is conferred.

The case took roughly a year to bring to trial, in San Diego, which is quite a bit faster than the two to three year average time-frames we experience in Los Angeles.

Incidentally, I was back in San Diego court the very next day, to receive an order of Termination of Removal Proceedings for an alien who will now be allowed to adjust status to lawful permanent residence through USCIS.

By: Duane M. Hamilton

AMNESTY RELATED CAUTION

I am aware that there has been much confusing talk in the community about an amnesty law being passed which will provide "green-cards" for the undocumented and those of who have overstayed.  Some in the community are even suggesting that aliens with existing cases who have hired attorneys and have filed their cases, should drop their cases, and wait for this so-called amnesty.  It is my understanding that there may be hustlers in various immigrant communities who are already accepting money to provide so-called "amnesty services."

Please understand that amnesty legislation is always a very contentious and difficult undertaking for the US government to pass, since such legislation must be approved by the House of Representatives, and the Senate, and then signed by the President.  The House is dominated by Republicans, who have very different ideas about immigration than  Democrats, and though it is true that the last election has convinced the Republican Party leadership that something must be done for the undocumented, it is not clear how, when, or if ever, this will be accomplished.

We are all hoping that an amnesty law will be passed as soon as possible, but we must also be wise in determining what forms of immigration relief are available to us now, and in pursuing such relief in a timely manner.  To the extent an amnesty is passed into law, immigration lawyers will have to review such law and its requirements and determine to what extent each of their clients might or might not qualify for such relief.  Existing clients would then be notified, and would instruct the attorney how they wish to proceed. 

Further, cases that are pending in Immigration Court cannot simply be dropped, without potentially dramatic negative consequences.  Clients who fail to appear in Immigration Court are ordered removed in their absence.  This would be unwise since an amnesty law could be written in such a way as to exclude people with existing removal orders (we simply do not know what such legislation might look like until it is written and we read and digest it). 

Further, aliens who have certain types of asylum claims, are required to file for asylum within a reasonable time of a change in their circumstances.  Those who wait 6 months or more to file such claims are generally barred from asylum.  Thus, an asylum seeker who has such a claim is required to file for asylum in a timely manner or risk losing that claim forever.  The wise approach is to file for whatever immigration relief is available to the alien now, and apply any new amnesty legislation to the alien later, if and when such amnesty becomes law..

It is a very good basic rubric, to consult with an immigration lawyer (not community elders or notarios) about these sorts of immigration matters, before making hasty decisions which could have undesirable consequences.