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