I have been taking calls for the past couple of weeks from clients and prospective clients asking me whether I believe that an "amnesty" is going to be passed into law by the end of 2014. Given all of the discussion which has been taking place in the media recently regarding immigration reform, I will attempt to weigh in for what its worth.
Amnesty is probably not the correct word to describe what President Obama appears to be contemplating in regard to immigration reform. Traditionally, in the U.S., an amnesty has been a vehicle by which undocumented aliens go from their undocumented status to some form of lawful temporary or permanent resident status. Presently, there does not appear to be the political will for such a bold measure, and the Democrats and Republicans (who would have to come to a meeting of the minds on this issue) are very far apart. It is for this reason, that the President is attempting to go it alone, but in doing so, finds himself significantly limited in what he might accomplish.
The President can issue executive orders in carrying out his traditional functions (which include the enforcement and administration of the nation's immigration laws). The Deferred Action for Childhood Arrivals (DACA) program is a prime example of the President acting unilaterally, but lawfully, to ease the burdens and fears of young people who have grown up undocumented in America, by ushering them into some sense of normalcy and security. The President, through his Attorney General (AG) may also interpret or re-interpret immigration case law, which has a tremendous impact on how certain applications for immigration relief are interpreted and adjudicated. He is not overstepping or (Lord Help us) committing any impeachable offenses in carrying out these functions. The Prosecutorial Discretion (PD) which under President Obama has been exercised to re-prioritize the nation's removal priorities (placing criminal aliens at the top of the list for removal and non-criminal aliens with children or other immediate family members born in the US or who are Lawful Permanent Residents at the bottom of that list) has been exercised to some extent by prior presidents.
It looks like the President will attempt to expand PD to perhaps the parents of DACA recipients and/or other non-criminal aliens who have US born children (or other very close family members) and who have resided in the U.S. for the past five years. However, I cannot claim to know precisely what the President has in mind. Even in the event that this sort of benefit is given to undocumented aliens, it is a far cry from lawful status or permanent residence. All the President seems to be proposing is the issuance of employment authorization documents for such eligible aliens. They are not being placed on a pathway to Citizenship by these sorts of limited discretionary actions.
Further, whatever the Presidential action is, it will certainly exclude criminal aliens and other perceived bad actors. For example, DACA is not available to aliens with even one DUI. Hence, there will be a multitude of undocumented aliens who will not qualify. There may also be the risk of triggering Removal proceedings for individuals who apply for such relief, fail to qualify, and remain removable. Aliens will have to ensure that their efforts to benefit from a new Presidential policy does not have the unintended consequence of triggering their removal from the US.
Further, aliens who are seeking immigration status and a pathway to US Citizenship may not have their objectives met in this sort of executive relief and will need to pursue other lawful avenues to meet those objectives. Additionally, aliens in the US for a period or periods short of the qualifying period, would likely be denied relief.
Aliens should continue to vigorously pursue immigration relief that has been identified as available to them at present and conduct an analysis as to how their particular circumstances relate to any executive action taken in the near future by the President.
I will be watching developments closely as we approach the end of the year and will be advising my clients accordingly as concrete announcements are made by the President.
By: Duane M. Hamilton
Monday, November 17, 2014
Thursday, October 30, 2014
TWO MORE KENYAN APPELLATE SUCCESS STORIES
On September 30, 2014, the Board of Immigration Appeals (BIA) remanded a case which we appealed in early 2013 related to the trial judge's refusal to allow an expert witness to testify telephonically, in spite of the fact that the expert had expressed her willingness to appear via phone and our client expressed that an inability to afford to pay for the expert to travel from Orange County to court in San Diego. Our client had been granted another form of relief which would allow the client to remain in the US, however, the more desirable relief application had been denied due to the judge's failure to understand matters which would have been clarified by the expert. Our client's case is now back before the trial judge for another opportunity at the more desirable form of relief.
On October 14, 2014, the BIA remanded to the trial court, a case which we had appealed all the way to the Eighth Circuit Court of Appeals and had been remanded by the Eighth Circuit to the BIA. In that case, we had represented the client in a Motion to Reopen (MTR) trial court Removal Proceedings wherein the client had previously been represented by a prior attorney and all relief applications denied. This client will now have an opportunity to convince the trial judge to grant a new application for relief and perhaps consider other forms of relief which might not have been available at the first trial.
We are gratified by these results and encouraged at the new opportunities these clients have been given by the BIA.
By: Duane M. Hamilton
On October 14, 2014, the BIA remanded to the trial court, a case which we had appealed all the way to the Eighth Circuit Court of Appeals and had been remanded by the Eighth Circuit to the BIA. In that case, we had represented the client in a Motion to Reopen (MTR) trial court Removal Proceedings wherein the client had previously been represented by a prior attorney and all relief applications denied. This client will now have an opportunity to convince the trial judge to grant a new application for relief and perhaps consider other forms of relief which might not have been available at the first trial.
We are gratified by these results and encouraged at the new opportunities these clients have been given by the BIA.
By: Duane M. Hamilton
Thursday, September 18, 2014
CASE OF ASYLUM APPLICANT ACCUSED OF DOCUMENT FRAUD ENDS IN A GRANT OF PROSECUTORIAL DISCRETION
Yesterday, I appeared before the Honorable Immigration Judge, Ignacio Fernandez, of the San Diego, Immigration Court, for what had promised to be an exciting, complex and intriguing showdown with ICE Chief Counsel over their allegation of document fraud against a Kenyan asylum seeker, based upon what both myself and the IJ viewed as an inconclusive Forensic Document Lab (FDL) report on certain documents which the applicant had submitted in support of the asylum claim. A class of law students from Thomas Jefferson Law School had been invited by the IJ to observe the nuanced arguments which would have to be made by both sides in order to promote their competing interests.
Oringinally, this case had been tried by me, and asylum granted by IJ Fernandez, in June of 2009, in spite of the FDL report. ICE then timely appealed, and the applicant was forced to retain me to represent him before the Board of Immigration Appeals (BIA). In November of 2010, the BIA remanded the case to IJ Fernandez for further proceedings, to give ICE another opportunity to attempt to discredit the applicant's supporting documents by presenting the testimony of the FDL document examiner who had prepared the inconclusive report. The Applicant diligently provided a number of rebuttal documents to demonstrate the legitimacy of the documents which were submitted in the case, and I again demanded the CV of the document examiner which had never been provided, arguing that the applicant's due process would be violated where the qualifications of the examiner are not provided prior to trial.
In November of 2013, believing that a compromise had been reached with ICE to grant the applicant withholding of removal (a lesser form of humanitarian relief than asylum) my partner, Peter Chow appeared before the IJ for the simple formality of receiving the grant of withholding. However, at the hearing, ICE counsel stated that she had not received authorization from her superiors to agree to this offer and that she was required to contest all humanitarian relief at trial. This left both IJ Fernandez and Mr. Chow stunned, believing that a deal had been made for withholding (due to absolute emotional exhaustion of the applicant after years of litigation). The matter was thus, reset for trial on September 17, 2014.
In May of 2014, I requested Administrative Closure in an Exercise of Prosecutorial Discretion (PD), which would yield a similar result to withholding of removal and spare my client the strain of yet another trial. I had no doubt as to the merits of my client's claim, but believed that though we would prevail again at trial, we would have to contend with yet a further ICE appeal. ICE almost immediately rejected my offer to compromise the matter with PD, demonstrating their intent to conduct a further trial of the matter.
This is an interesting circumstance for a litigation attorney. On the one hand, you are confident that your preparation is sufficient to contend with the government's allegations. You believe your client's explanations of the circumstances both underlying the case and documentation supporting the case, and the great weight of evidence and law appears to be on the client's side. Yet the client is fatigued and there is the promise of additional years of litigation even if the judge grants the requested relief.
As a pure intellectual pursuit you simply wish to vindicate the client and prevail once again at trial. However, as a practical matter, you believe that this particular human being is simply at the limit. The only option here, however, appeared to be to prepare for an aggressive contested hearing on September 17, 2014, and worry later about the client's emotions and ability to litigate further in the event of a government appeal.
On the morning of September 2014, however, I stopped by my office to pick up the case file and start my long drive to San Diego for trial at 1:00 p.m.. Upon arrival at the office a message from a senior attorney at ICE, Mr. Watts awaited me. I immediately returned his call and he informed me that he had personally reviewed the case and believed that PD would in fact be a reasonable compromise if my client would accept. The client of course had released me to accept PD as an acceptable way to protect the client's life by preventing removal to Kenya, and avoiding the nightmare of perpetual litigation against a government with unlimited resources to keep the matter going indefinitely.
And so, yesterday at 1:00 p.m., the IJ announced to a disappointed gallery of law students, that there would be no showdown, and that the parties had quite unceremoniously resolved the case without need for further trial. The client now has the assurance that the government will not pursue removal unless the client breaks the law, and therefore the client may remain in the United States with removal proceedings closed.
Often in these matters, lawyers on both sides are required to put egos and notions of the righteousness of their clients' positions aside to achieve objectives that are most practical for the immediate needs of the clients. This, I am proud to say, was accomplished for this deserving client.
We are relieved that client safety is preserved and having accomplished that, are well satisfied with the outcome.
By: Duane M. Hamilton
Oringinally, this case had been tried by me, and asylum granted by IJ Fernandez, in June of 2009, in spite of the FDL report. ICE then timely appealed, and the applicant was forced to retain me to represent him before the Board of Immigration Appeals (BIA). In November of 2010, the BIA remanded the case to IJ Fernandez for further proceedings, to give ICE another opportunity to attempt to discredit the applicant's supporting documents by presenting the testimony of the FDL document examiner who had prepared the inconclusive report. The Applicant diligently provided a number of rebuttal documents to demonstrate the legitimacy of the documents which were submitted in the case, and I again demanded the CV of the document examiner which had never been provided, arguing that the applicant's due process would be violated where the qualifications of the examiner are not provided prior to trial.
In November of 2013, believing that a compromise had been reached with ICE to grant the applicant withholding of removal (a lesser form of humanitarian relief than asylum) my partner, Peter Chow appeared before the IJ for the simple formality of receiving the grant of withholding. However, at the hearing, ICE counsel stated that she had not received authorization from her superiors to agree to this offer and that she was required to contest all humanitarian relief at trial. This left both IJ Fernandez and Mr. Chow stunned, believing that a deal had been made for withholding (due to absolute emotional exhaustion of the applicant after years of litigation). The matter was thus, reset for trial on September 17, 2014.
In May of 2014, I requested Administrative Closure in an Exercise of Prosecutorial Discretion (PD), which would yield a similar result to withholding of removal and spare my client the strain of yet another trial. I had no doubt as to the merits of my client's claim, but believed that though we would prevail again at trial, we would have to contend with yet a further ICE appeal. ICE almost immediately rejected my offer to compromise the matter with PD, demonstrating their intent to conduct a further trial of the matter.
This is an interesting circumstance for a litigation attorney. On the one hand, you are confident that your preparation is sufficient to contend with the government's allegations. You believe your client's explanations of the circumstances both underlying the case and documentation supporting the case, and the great weight of evidence and law appears to be on the client's side. Yet the client is fatigued and there is the promise of additional years of litigation even if the judge grants the requested relief.
As a pure intellectual pursuit you simply wish to vindicate the client and prevail once again at trial. However, as a practical matter, you believe that this particular human being is simply at the limit. The only option here, however, appeared to be to prepare for an aggressive contested hearing on September 17, 2014, and worry later about the client's emotions and ability to litigate further in the event of a government appeal.
On the morning of September 2014, however, I stopped by my office to pick up the case file and start my long drive to San Diego for trial at 1:00 p.m.. Upon arrival at the office a message from a senior attorney at ICE, Mr. Watts awaited me. I immediately returned his call and he informed me that he had personally reviewed the case and believed that PD would in fact be a reasonable compromise if my client would accept. The client of course had released me to accept PD as an acceptable way to protect the client's life by preventing removal to Kenya, and avoiding the nightmare of perpetual litigation against a government with unlimited resources to keep the matter going indefinitely.
And so, yesterday at 1:00 p.m., the IJ announced to a disappointed gallery of law students, that there would be no showdown, and that the parties had quite unceremoniously resolved the case without need for further trial. The client now has the assurance that the government will not pursue removal unless the client breaks the law, and therefore the client may remain in the United States with removal proceedings closed.
Often in these matters, lawyers on both sides are required to put egos and notions of the righteousness of their clients' positions aside to achieve objectives that are most practical for the immediate needs of the clients. This, I am proud to say, was accomplished for this deserving client.
We are relieved that client safety is preserved and having accomplished that, are well satisfied with the outcome.
By: Duane M. Hamilton
Thursday, July 17, 2014
8th CIRCUIT COURT OF APPEALS REMANDS TO BIA THE CASE OF A KENYAN ORDERED BY IJ TO VOLUNTARILY DEPART IN 2011
My office was hired in mid 2011 to pursue a motion to reopen (MTR) before the Immigration Court, by a citizen an national of Kenya who had been ordered to voluntarily depart the United States by an Immigration Judge in May of 2011. Our MTR highlighted certain "changed circumstances" and conditions in Kenya which we believed warranted reopening.
Our MTR was denied by the IJ in February of 2012, citing a litany of what we believed were impermissibly speculative and conjectural reasons for the denial. Thus, we timely appealed to the BIA, ultimately briefing all of the reasons why the IJ had erred and why the matter should have been reopened and why it should be remanded to the IJ.
In April of 2014, the BIA denied our appeal, sidestepping most of our contentions of error against the IJ and fashioned a new procedural reason for denial, coupled with its impression that our client had set forth "changed personal circumstances," rather than "changed country conditions," to support the MTR.
We then timely appealed via Petition for Review to the 8th Circuit Court of appeals which is the Circuit Court with jurisdiction over cases arising in the immigration court in which this particular case was litigated. In a 47 page brief before to the 8th Circuit, we carefully parsed the alleged procedural error (showing that the BIA had previously decided a substantially similar issue in another of its cases, Matter of J-G-, 26 I&N Dec. 161 (BIA 2013) in much the way we were arguing and in direct conflict with the manner in which the BIA had decided our clients matter). We further argued that in their "changed personal circumstances" verses "changed country conditions" analysis, the BIA failed to consider all of the factors presented by the alien, and distorted important aspects of the claim(s) in violation of Felke v. INS, 118 F.3d 594, 597-598 (8th Cir. 1997) and Kipkemboi v. Holder, 587 F.3d 885, 891 (8th Cir. 2009) among other cases.
On July 14, 2014, counsel for the Department of Justice's Office of Immigration Litigation (OIL) (the attorneys who represent the interests of the administrative immigration agencies in the Federal Circuit Courts) contacted me and informed me that they were in agreement with points made in my brief and were inclined to seek a remand (return of the case) to the BIA for those reasons. That same day, OIL filed its "Unopposed Motion to Remand" with the 8th Circuit, and on July 16, 2014, I filed my client's "Nonopposition" to their motion.
Later, on July 16, 2014, the 8th Circuit entered its "Judgment" remanding our client's matters to the BIA for further proceedings, along with its "Mandate," which makes the judgment of the Court final.
Thus, we have accomplished that which we sought at the 8th Circuit, a downward referral of the case to the BIA due to factors which we believe rendered its initial decision erroneous. Our client must now retain counsel to continue to represent and uphold those interests before the BIA and to seek actual "reopening" of the case and further remand to the IJ.
Reopening of this sort of case is critical for an alien in this type of situation, since an expiration of a voluntary departure, without an actual departure by the alien from the US, converts to a deportation/removal order automatically upon expiration of the voluntary departure period. All administrative immigration agencies which are able to approve immigration applications (including, but not limited to the Immigration Court), in this circumstance, have no jurisdiction over the alien until the alien's case is formally reopened.
The alien is now in an enhanced position to argue for such reopening, given the analysis of not only myself, but of OIL in the matter.
We are respectful of OIL's thoughtfulness and professionalism in this complex case.
By: Duane M. Hamilton, Esq.
Our MTR was denied by the IJ in February of 2012, citing a litany of what we believed were impermissibly speculative and conjectural reasons for the denial. Thus, we timely appealed to the BIA, ultimately briefing all of the reasons why the IJ had erred and why the matter should have been reopened and why it should be remanded to the IJ.
In April of 2014, the BIA denied our appeal, sidestepping most of our contentions of error against the IJ and fashioned a new procedural reason for denial, coupled with its impression that our client had set forth "changed personal circumstances," rather than "changed country conditions," to support the MTR.
We then timely appealed via Petition for Review to the 8th Circuit Court of appeals which is the Circuit Court with jurisdiction over cases arising in the immigration court in which this particular case was litigated. In a 47 page brief before to the 8th Circuit, we carefully parsed the alleged procedural error (showing that the BIA had previously decided a substantially similar issue in another of its cases, Matter of J-G-, 26 I&N Dec. 161 (BIA 2013) in much the way we were arguing and in direct conflict with the manner in which the BIA had decided our clients matter). We further argued that in their "changed personal circumstances" verses "changed country conditions" analysis, the BIA failed to consider all of the factors presented by the alien, and distorted important aspects of the claim(s) in violation of Felke v. INS, 118 F.3d 594, 597-598 (8th Cir. 1997) and Kipkemboi v. Holder, 587 F.3d 885, 891 (8th Cir. 2009) among other cases.
On July 14, 2014, counsel for the Department of Justice's Office of Immigration Litigation (OIL) (the attorneys who represent the interests of the administrative immigration agencies in the Federal Circuit Courts) contacted me and informed me that they were in agreement with points made in my brief and were inclined to seek a remand (return of the case) to the BIA for those reasons. That same day, OIL filed its "Unopposed Motion to Remand" with the 8th Circuit, and on July 16, 2014, I filed my client's "Nonopposition" to their motion.
Later, on July 16, 2014, the 8th Circuit entered its "Judgment" remanding our client's matters to the BIA for further proceedings, along with its "Mandate," which makes the judgment of the Court final.
Thus, we have accomplished that which we sought at the 8th Circuit, a downward referral of the case to the BIA due to factors which we believe rendered its initial decision erroneous. Our client must now retain counsel to continue to represent and uphold those interests before the BIA and to seek actual "reopening" of the case and further remand to the IJ.
Reopening of this sort of case is critical for an alien in this type of situation, since an expiration of a voluntary departure, without an actual departure by the alien from the US, converts to a deportation/removal order automatically upon expiration of the voluntary departure period. All administrative immigration agencies which are able to approve immigration applications (including, but not limited to the Immigration Court), in this circumstance, have no jurisdiction over the alien until the alien's case is formally reopened.
The alien is now in an enhanced position to argue for such reopening, given the analysis of not only myself, but of OIL in the matter.
We are respectful of OIL's thoughtfulness and professionalism in this complex case.
By: Duane M. Hamilton, Esq.
Wednesday, July 9, 2014
ANOTHER KENYAN I-601 WAIVER SUCCESS STORY AND THE CONCEPT OF "EXTREME HARDSHIP"
Innocent errors or omissions on non-immigrant visa applications to the United States can sometimes lead to incredibly serious consequences later in an alien's attempt to adjust his or her status to Lawful Permanent Residence (LPR) in the United States. So it was for a client of mine from Kenya who I have had the privilege of representing since January 2013.
The case was to be a straightforward adjustment before USCIS where the alien is married to a US Citizen (USC) and is immigrating on that basis. However, a wrinkle developed after the interview wherein we were notified that USCIS believed that the alien had made a fraudulent representation on the visa application. We found however that what was alleged to have been a fraudulent misrepresentation, was nothing more than the alien's innocent failure to update the visa application at the visa interview, with new and relevant information which had come to pass after the visa application had been filed, but before such visa interview.
Nevertheless, we were forced to file an I-601 waiver application and relevant documentation in support of that application in an attempt to waive the alleged visa fraud. In this process we are required to demonstrate that the removal of the alien would cause "extreme hardship" to the USC spouse. The term "extreme hardship" is subject to the discretionary interpretation of the adjudicator on a case by case basis. However, 8 C.F.R. 1240.58 lists 14 factors to examine in the analysis of whether the alien has demonstrated such hardship as follows:
1. The age of the alien, both at the time of entry to the United States and at the time of application;
2. The age, number and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
3. The health condition of the alien or the alien's children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
4. The alien's ability to obtain employment in the country to which the alien would be returned;
5. The alien's length of residence in the United States;
6. The existence of other family members who are or will be legally residing in the United States;
7. The financial impact of the alien's departure;
8. The impact of a disruption to educational opportunities;
9. The psychological impact of the alien's deportation;
10.The current political and economic conditions in the country to which the alien would be returned;
11. Family and other ties to the country to which the alien would be returned;
12. Contributions to and ties to a community in the United States, including the degree of integration into society;
13. Immigration history, including authorized residence in the United States; and
14. The availability of other means of adjusting to permanent residence status.
This list is by no means exhaustive and there may be other factors which are peculiar to a family or couple and their circumstances which might well qualify the alien for the waiver. However, "extreme hardship" is thought to be something beyond the common inconveniences or hardships normally associated with deportation, and economic hardships alone are usually insufficient to qualify the alien for the waiver. A combination of hardships however, in aggregate, could well warrant approval. It is also wise to pay particular attention to what the USC family member would suffer if the alien is deported.
In our case there were unique hardships which were revealed to both the alien and USC spouse, which were able to successfully articulate in the waiver application and its attachments, and which we felt would be persuasive.
On July 7, 2014, my office was advised by e-mail that the 601 waiver and adjustment of status had been approved. The client should be receiving formal approval notices and the green card in a matter of weeks.
Congratulations to this client and gratitude as always, to USCIS.
By: Duane M. Hamilton
The case was to be a straightforward adjustment before USCIS where the alien is married to a US Citizen (USC) and is immigrating on that basis. However, a wrinkle developed after the interview wherein we were notified that USCIS believed that the alien had made a fraudulent representation on the visa application. We found however that what was alleged to have been a fraudulent misrepresentation, was nothing more than the alien's innocent failure to update the visa application at the visa interview, with new and relevant information which had come to pass after the visa application had been filed, but before such visa interview.
Nevertheless, we were forced to file an I-601 waiver application and relevant documentation in support of that application in an attempt to waive the alleged visa fraud. In this process we are required to demonstrate that the removal of the alien would cause "extreme hardship" to the USC spouse. The term "extreme hardship" is subject to the discretionary interpretation of the adjudicator on a case by case basis. However, 8 C.F.R. 1240.58 lists 14 factors to examine in the analysis of whether the alien has demonstrated such hardship as follows:
1. The age of the alien, both at the time of entry to the United States and at the time of application;
2. The age, number and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
3. The health condition of the alien or the alien's children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned;
4. The alien's ability to obtain employment in the country to which the alien would be returned;
5. The alien's length of residence in the United States;
6. The existence of other family members who are or will be legally residing in the United States;
7. The financial impact of the alien's departure;
8. The impact of a disruption to educational opportunities;
9. The psychological impact of the alien's deportation;
10.The current political and economic conditions in the country to which the alien would be returned;
11. Family and other ties to the country to which the alien would be returned;
12. Contributions to and ties to a community in the United States, including the degree of integration into society;
13. Immigration history, including authorized residence in the United States; and
14. The availability of other means of adjusting to permanent residence status.
This list is by no means exhaustive and there may be other factors which are peculiar to a family or couple and their circumstances which might well qualify the alien for the waiver. However, "extreme hardship" is thought to be something beyond the common inconveniences or hardships normally associated with deportation, and economic hardships alone are usually insufficient to qualify the alien for the waiver. A combination of hardships however, in aggregate, could well warrant approval. It is also wise to pay particular attention to what the USC family member would suffer if the alien is deported.
In our case there were unique hardships which were revealed to both the alien and USC spouse, which were able to successfully articulate in the waiver application and its attachments, and which we felt would be persuasive.
On July 7, 2014, my office was advised by e-mail that the 601 waiver and adjustment of status had been approved. The client should be receiving formal approval notices and the green card in a matter of weeks.
Congratulations to this client and gratitude as always, to USCIS.
By: Duane M. Hamilton
Friday, June 27, 2014
STUNNING REVERSAL OF FORTUNE FOR KENYAN ACCUSED OF MARRIAGE & VISA FRAUD
I am certain that the irony of this posting, coming immediately after my previous one, will not be lost on some of my readers. However, the matter of which I am now posting should serve as a reminder that USCIS is gracious enough to sometimes recognize that an alien who appeared to have committed marriage fraud in the first instance, might not in fact have done so.
In this particular case, the alien had been accused of marriage and visa fraud and a denial of an I-360 "Widow" petition and associated adjustment application recommended by USCIS for a number of reasons which when combined, seemed to USCIS to suggest such fraud. The applicant had tried without legal representation to rebut those allegations and failed, receiving a May 2, 2014 denial of the I-360/adjustment.
We were retained on May 21, 2014 to pursue appeals of various aspects of the case, and filed our notice of appeal on May 30, 2014. We had determined that in all of USCIS's discussion of its reasons for alleging fraud, the agency had not discussed a critical piece of evidence which we believed exonerated our client on both the visa and marriage fraud charges. With our notice of appeal we filed an attachment bringing the piece of evidence to the agency's attention and citing case law which discussed the importance of this particular sort of evidence in such cases.
On June 16, 2014, USCIS issued a notice informing us that our Notice of Appeal was treated as a "Motion to Reopen," and that the I-360 petition had been approved.
On June 20, 2014, the applicant's Resident Alien Card (green card) was shipped to the applicant from USCIS.
As of today's date the Applicant is in possession of the resident alien card and is now a Lawful Permanent Resident of the United States on a pathway to US Citizenship.
This is among the fastest reversals our office has ever seen in an immigration appeal and is a testament to the efficiency and competency of the USCIS's adjudicators handling the matter.
We are grateful to USCIS and I will express special thanks to my partner, attorney, Peter Chow, who worked with me on this case.
By: Duane M. Hamilton
In this particular case, the alien had been accused of marriage and visa fraud and a denial of an I-360 "Widow" petition and associated adjustment application recommended by USCIS for a number of reasons which when combined, seemed to USCIS to suggest such fraud. The applicant had tried without legal representation to rebut those allegations and failed, receiving a May 2, 2014 denial of the I-360/adjustment.
We were retained on May 21, 2014 to pursue appeals of various aspects of the case, and filed our notice of appeal on May 30, 2014. We had determined that in all of USCIS's discussion of its reasons for alleging fraud, the agency had not discussed a critical piece of evidence which we believed exonerated our client on both the visa and marriage fraud charges. With our notice of appeal we filed an attachment bringing the piece of evidence to the agency's attention and citing case law which discussed the importance of this particular sort of evidence in such cases.
On June 16, 2014, USCIS issued a notice informing us that our Notice of Appeal was treated as a "Motion to Reopen," and that the I-360 petition had been approved.
On June 20, 2014, the applicant's Resident Alien Card (green card) was shipped to the applicant from USCIS.
As of today's date the Applicant is in possession of the resident alien card and is now a Lawful Permanent Resident of the United States on a pathway to US Citizenship.
This is among the fastest reversals our office has ever seen in an immigration appeal and is a testament to the efficiency and competency of the USCIS's adjudicators handling the matter.
We are grateful to USCIS and I will express special thanks to my partner, attorney, Peter Chow, who worked with me on this case.
By: Duane M. Hamilton
Thursday, June 19, 2014
A REMINDER RE THE HARSH CONSEQUENCES OF KENYAN IMMIGRATION MARRIAGE FRAUD
The following report which can be found at:
http://www.yourhoustonnews.com/spring/news/four-kenyan-nationals-sentenced-in-marriage-fraud-conspiracy/article_a53f96c2-c64d-11e3-a42d-0019bb2963f4.html?mode=story is an important reminder of why arranged marriages for the purpose of acquiring immigration benefits is such an incredibly bad idea. It is a mystery as to why such fraud operators are so convinced that the Government cannot or will not figure out their schemes.
http://www.yourhoustonnews.com/spring/news/four-kenyan-nationals-sentenced-in-marriage-fraud-conspiracy/article_a53f96c2-c64d-11e3-a42d-0019bb2963f4.html?mode=story is an important reminder of why arranged marriages for the purpose of acquiring immigration benefits is such an incredibly bad idea. It is a mystery as to why such fraud operators are so convinced that the Government cannot or will not figure out their schemes.
Four Kenyan nationals sentenced in marriage fraud conspiracy
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Posted: Thursday, April 17, 2014 3:44 am | Updated: 11:31 am, Thu Apr 17, 2014.
Four Kenyan nationals residing in Houston have beensentenced for conspiracy to commit marriage fraud, marriage fraud and visa fraud, announced U.S. Attorney Kenneth Magidson.
Herman Ogoti, 53, Alfonso Ongaga, 36, Andrew Mokoro, 36, and Rebmann Ongaga, 33, were all convicted following a seven-day trial on Nov. 14, 2013. Ogoti and Alfonso Ongaga were also convicted of unlawful procurement of naturalization.
On Wednesday, U.S. District Judge Melinda Harmon sentenced Alfonso Ongaga and Andrew Mokoro to terms of 16 months in federal prison, while Ogoti and Rebmann Ongaga each received six-month terms. Judge Harmon also signed an order revoking the naturalization of Ogoti and Alfonso Ongaga, thereby stripping them of their fraudulently acquired U.S. citizenship.
A fifth defendant charged in the case, Andrew Mitema, 35, of Houston, pleaded guilty in advance of trial to conspiracy to commit marriage fraud and tampering with a witness. He is set for sentencing on April 23, 2014.
The defendants conspired together to recruit and pay U.S citizens to enter into fraudulent marriages for the purpose of receiving lawful permanent resident status or citizenship. Before entering the U.S., each of the defendants applied for student visas. All but Rebmann Ongaga were granted those visas and used them to enter the country.
After his student visa was denied, Rebmann Ongaga, working with his other co-conspirators, flew a recruited U.S. citizen to Kenya for the sole purpose of conducting a sham wedding ceremony. After two days in Kenya, the woman returned to the United States. Several months later, Rebmann Ongaga entered the U.S. with a spouse visa.
After entering the country, the remaining defendants married recruited American citizens, most of whom were related to each other and to the citizen who traveled to Kenya. Each recruited woman was to be paid $5,000 for her participation in the sham marriages.
The scheme was uncovered Nov. 10, 2009, after two additional recruited women were detained at the U.S.Passport Office in Houston, suspected of committing passport fraud. They had told officials that they weretraveling to Africa “to see the animals,” although they did not know where.
Upon further questioning, they admitted they were both recruited to travel to Africa to marry the recruiters’ family members. At trial, surveillance video showed the two women entering into the passport office with a male, later identified as Mokoro.
The case was investigated by the Department of State – Diplomatic Security Service, Immigration and Customs Enforcement - Enforcement and Removal Operations and Department of Homeland Security - Fraud Detection and National Security.
Assistant U.S. Attorneys Kebharu H. Smith and Suzanne Elmilady and Department of Justice Trial AttorneyAshlee McFarlane prosecuted the case.
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