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.

HAMILTON WINS GRANT OF ASYLUM FOR INDONESIAN ASYLUM APPLICANT IN LOS ANGELES IMMIGRATION COURT

This morning, Judge Travieso of the Los Angeles Immigration Court granted my Indonesian client asylum, in a case which was tried over several days spread out over more than a year.  The case commenced in 2007 at the Asylum Office (AO) and was denied by the AO and referred to the Immigration Court in Removal Proceedings where the asylum claim was renewed as a defense to removal.

The applicant was not only required to demonstrate a "well founded fear of persecution" in Indonesia, but also, to show why after residing in the United States for many years before the 2007, such filing was justified, given the general one-year filing requirement in asylum claims, which requires that an applicant must apply for asylum within one year of his or her arrival in the United States.

We were ultimately able to establish that the applicant qualified for one of the very narrow exceptions to the one year requirement, and after extensive testimony, documentation, and legal citation, that the requisite burden had been met to qualify the client for asylum.

The client was relieved and at the same time overjoyed to hear the judge's words of welcome to the United States, and to have concluded a long and challenging journey for lawful status in the United States.  Asylees (those granted asylum) may apply for lawful permanent residence (green card) one year after the asylum claim is approved, and then for naturalization (US Citizenship) five years after the green card is approved.  The asylee is also permitted to apply for and upon approval, travel to, any country of the world (except of course, the country of persecution) on a Refugee Travel Document.

This approval has been my 16th completed immigration trial of the year 2012 in Removal Proceedings, and the 16th in which my client has secured some form of permanent or indefinite immigration relief.

By:  Duane M. Hamilton

LOS ANGELES IMMIGRATION JUDGE GRANTS ASYLUM TO KENYAN IN CASE COMMENCED IN 2005

This afternoon I completed an asylum trial before Immigration Judge Dorfman of the Los Angeles Immigration Court in the matter of a Kenyan Kikuyu, whose case I took on at the Asylum Office (AO) level in 2005.  The case was initially denied by the AO and administratively closed and could not be referred to Immigration Court due to a lack of jurisdiction on the part of the court at the time.

In early 2010, long after court jurisdiction became possible, the client returned to my firm wishing to continue the asylum claim before the court in "Removal Proceedings."  We thus requested of the AO that the case be referred to the Immigration Court and commenced proceedings before the Court in mid 2010.

Now, seven years after we commenced this case, and after numerous delays, including changes in judges, we are happy to have been given our day in court and to have secured asylum for this cient.

This has been my 15th immigration trial of the year, and the 15th in which the client, facing removal from the United States, has secured some form of permanent or indifinite immigration relief.

By: Duane M. Hamilton

HAMILTON'S 14TH IMMIGRATION TRIAL FOR 2012 ENDS IN GRANT OF LAWFUL RESIDENCE FOR KENYAN COUPLE

Got up at 4:30 this morning to get ready for my 14th immigration trial of the year.  Trial proceedings began before Judge Ashley Tabaddor of the Los Angeles Immigration Court, promply at 9:00 a.m. in the matter of a Kenyan couple seeking various overlapping forms of relief, including what we call Non-LPR Cancellation of Removal. 

In this challenging application, we must prove that the alien: has resided continuosly in the United States for at least 10 years; is of good moral character; has a qualifying relative who would suffer "exceptional and extremely unusual hardship" if the alien is removed from the U.S.; and the alien is deserving of approval in an exercise of the judge's discretion.  This hardship standard is far more than mere inconvenience, or even significant disadvantage which would generally be suffered by an alien forced to depart the United States. 

In this case (as in all of our cancellation cases this year) we were able to meet the very high hardship standard and satisfy all of the other elements of this particular form of relief, this time for both husband and wife independently.  The judge at length, approved the cancellation claims for both, warmly welcoming the the couple to the United States and informing them that they are Lawful Permanent Residents of this country from this day forward.  The Government's counsel, representing ICE, graciously waived appeal and wished the couple well.

I have tried 14 cases thus far this year in various immigration courts, and am fortunate enough in all of them, to have secured indefinite or permanent immigration relief, including, adjustment of status, cancellation of removal (both LPR and Non-LPR), asylum, withholding of removal, and termination of proceedings for individuals fighting to preserve their green cards after criminal conviction.  Our clients have not suffered any removal or voluntary departure orders, nor have I had to reserve appeal in any case so far this year.  Most (though not all) of the beneficiaries of these life changing grants of relief have been natives of Kenya.

By: Duane M. Hamilton, Esq.

HAMILTON SUCCESSFULLY COMPLETES THIRD IMMIGRATION TRIAL FOR OCTOBER

On October 18, 2012, I conducted my third immigration "Removal" trial for the month, before the Los Angeles, California Immigration Court, in the matter of a native of Kenya.  In spite of profound complexities in this matter, we concluded proceedings with a grant of Withholding of Removal, by Immigration Judge Tabaddor, which will allow our client to remain in the United States indefinitely, with continuing renewable employment authorization.

By:  Duane M. Hamilton

SEPTEMBER AND OCTOBER BEAR FRUIT FOR KENYAN AND JAMAICAN CLIENTS

In late September to October 10, 2012, I completed a couple important cases for Kenyans and one Jamaican family.

On September 27, 2012, the Anaheim Asylum Office (AO) granted asylum in what had been a protracted case with that office which necessitated my filing of complaints against an AO supervisor with Asylum Office Headquarters in Washington DC and with the Office of the Inspector General.  The case had been filed in mid 2011 and interviewed not long thereafter, yet remained pending for far longer than it should have due to certain internal matters at the AO.  Ultimately a second interview was conducted on September 27 and the case was granted that very day.  We are grateful to the AO and the officers who participated in resolving this matter.

On October 5, 2012, I conducted a trial in Los Angeles in my first Jamaican Non-LPR Cancellation of Removal claim.  The applicants had been residing in the United States, out of status, for a significant amount of time, but were able to demonstrate that they should be granted Lawful Permanent Residence as a result of their long stay in the US and certain hardships which their US born children would suffer were they to return to Jamaica.  The case was heard and approved by Judge Tabaddor of the Los Angeles Immigration Court.

On October 10, 2012, I completed a second day of trial in a hotly contested Kenyan asylum claim before Judge Rooyani of the Los Angeles Immigration Court.  The Government's attorneys argued that asylum should be denied because the case had not been filed within the requisite one year period required by law in asylum cases.  However, I was able to demonstrate, using the very particularized circumstances of the alien and the presentation of certain witnesses, including experts, that a waiver of the one year requirement should be granted.  Judge Rooyani found that the applicant had established eligibility for such waiver and had also met the required burden in the asylum claim, immediately granting the alien asylum in the United States.

All of these cases resulted in final decisions in which no appeal or referral was taken.  We look forward to our remaining matters scheduled for trial and other hearings this year.

By:  Duane M. Hamilton, Esq.

DHS PUBLISHES FORMS AND INSTRUCTIONS FOR NEW "CHILDHOOD ARRIVALS" PROCESS

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.