RECENT BACKLOGGED ASYLUM OFFICE CASE: On April 18, 2014, the Los Angeles District Asylum Office (AO) approved asylum for a young Kenyan whose matter has been pending and backlogged in that office since October of 2012. Adding to the difficulty of this matter, was the fact that due to the AO's grant of a request for an extension of the original interview date, the AO stopped the applicant's Employment Authorization Document (EAD) clock before the requisite 150 days had expired, cutting off the applicant's ability to successfully apply for an EAD while waiting for a new hearing date. It takes some discipline and understanding for applicants who are new to the United States and seeking protection here, to maintain their hopeful attitudes when their cases are delayed at the AO in this manner, and they find themselves without the legal means to acquire employment authorization to support themselves while they await their hearings. Nevertheless, this Applicant remained incredibly positive and disciplined while pursuing a bid for protection in the United States, and has received the ultimate reward. In addition to the approval of the asylum claim, the Applicant should now automatically receive an EAD within 14 business days of approval.
This case was not fraught with a one-year filing bar issue, since it was filed within one year of the alien's arrival in the United States.
IMMIGRATION COURT ASYLUM MATTER: This morning, I successfully completed trial before Los Angeles Immigration Judge, Sitgraves, in the asylum matters of two other Kenyans who have been with me since December of 2011 (after applying for asylum and conducting their AO interview without the assistance of an attorney resulting in an initial denial of the asylum claim). I was able to streamline the direct and cross examinations in this matter with the the Government's prosecutor prior to trial, thereby simplifying the process greatly for the applicants.
There was tremendous relief and joy on the part of these deserving applicants, and satisfaction for the legal professionals involved.
I am grateful to USCIS, ICE and the Court for their roles in these matters, and gratified that all of these applicants are now on their pathways to United States Citizenship with complete protection from harm in their native country.
By: Duane M. Hamilton, Esq.
Monday, April 28, 2014
Friday, April 11, 2014
KENYAN COUPLE SUCCESSFULLY COMPLETES SEATTLE'S SMART ACCELERATED RESOLUTIONS TEAM (SMART) PROCESS
In a case which I have been litigating before the Seattle Immigration Court, since 2011, ICE Chief Counsel (the prosecutor in Immigration Court cases), on April 4, 2014, issued its "Informative Memorandum To The Court," stating its agreement, pursuant to its "Smart Accelerated Resolutions Team" (SMART) process, that the couple should be granted Non-LPR Cancellation of Removal without cross examination by ICE, once visa numbers become available to the couple (hopefully in the next fiscal year starting in October 2014). The Court has thus, responsively removed the case from its trial calendar and "reserved" its decision granting the case to such a time as visa numbers are available.
This innovative program allows Respondent's counsel to fully litigate the case in terms of briefs, applications, motions and supporting documents/evidence, and then once fully documented, to submit a stylized request to SMART for its assessment. ICE Chief Counsel is extremely helpful in assisting litigants in understanding the simple, but precise requirements of preparing the request, which must be followed exactingly to ensure SMART consideration. However, Respondents should understand that success in this process does not imply that their counsel have somehow done or accomplished less for them than would have been accomplished at trial. SMART simply provides a different avenue for Respondent's counsel's advocacy, resulting (if successful) in relief for an over-burdened Immigration Court, reduced stress for the alien Respondents, and a furtherance of ICE's commitment to President Obama's prioritization policies for Removal Proceedings.
Upon approval, these Respondent's will become Lawful Permanent Residents (LPRs) of the United States on a pathway to Naturalization (Citizenship) applications 5 years after approval.
We are grateful for the thoughtfulness of ICE Chief Counsel's Office in Seattle and to the Honorable Immigration Judge, Kenneth Josephson of the Seattle Immigration Court, thus far in this process.
By: Duane M. Hamilton, Esq.
This innovative program allows Respondent's counsel to fully litigate the case in terms of briefs, applications, motions and supporting documents/evidence, and then once fully documented, to submit a stylized request to SMART for its assessment. ICE Chief Counsel is extremely helpful in assisting litigants in understanding the simple, but precise requirements of preparing the request, which must be followed exactingly to ensure SMART consideration. However, Respondents should understand that success in this process does not imply that their counsel have somehow done or accomplished less for them than would have been accomplished at trial. SMART simply provides a different avenue for Respondent's counsel's advocacy, resulting (if successful) in relief for an over-burdened Immigration Court, reduced stress for the alien Respondents, and a furtherance of ICE's commitment to President Obama's prioritization policies for Removal Proceedings.
Upon approval, these Respondent's will become Lawful Permanent Residents (LPRs) of the United States on a pathway to Naturalization (Citizenship) applications 5 years after approval.
We are grateful for the thoughtfulness of ICE Chief Counsel's Office in Seattle and to the Honorable Immigration Judge, Kenneth Josephson of the Seattle Immigration Court, thus far in this process.
By: Duane M. Hamilton, Esq.
Tuesday, April 8, 2014
A BUSY BUT PRODUCTIVE BEGINNING OF THE YEAR
My extremely busy beginning of the year schedule has taken me away from blogging for some time, but here is a bit of an update.
2014 started with two Asylum Office (AO) approvals and the scheduling of interviews at the Los Angeles District AO for several cases which have been back-logged at that office for periods well in excess of a year. We are awaiting decisions in two more cases which were terribly delayed due to the backlog and only recently were actually interviewed. Some of our scheduled cases will not be interviewing at the AO and are awaiting Notices To Appear (NTAs) to pursue relief in Immigration Court. Along with our colleagues who represent applicants before the AO, we continue to experience a slow-down in the AO's processing of cases, from the filing of the case to the scheduling of interviews. Though this can be frustrating for applicants who are anxious to present their cases at the AO, or in the cases of individuals with difficult asylum one-year bar issues, who wish to waive the interview for a referral to Immigration Court to pursue asylum and other immigration relief exclusively available in court, the slow-down has increased the asylum applicant's chances of actually obtaining their Employment Authorization Documents (EADs) while their cases remain pending at the AO.
In the past the AO would rush applicants to a hearing roughly 30 days after filing, and if the alien was out of status by the time the decision was being made on the case two weeks later, refer them to Removal Proceedings in Immigration Court, where the Immigration Judge would either require them to expedite their trial, or stop the expiration of their 180 day clocks which must expire before the alien can be issued an EAD. If the alien requested a continuance at the AO, the applicant's EAD clock would be stopped upon the making of the continuance request and would only restart on the day of the interview. With the present back-log, we are experiencing a pathway to the asylum related EAD which is more relaxed. It appears to be a trade off - long waits for asylum interviews, but greater assurance that the applicant will ultimately qualify for the EAD.
The problem with the backlog is that for those applicants recently escaping persecution in their home countries, with spouses and children remaining in the countries and in need of an approval of the principal applicant's asylum application and an asylee relative petition so as to reach the US, the delays are troubling and in my opinion potentially deadly in some cases. Nevertheless, it does appear that the AO is doing the best it can given its existing man-power and its need to thoroughly adjudicating each application.
Asylum applicants in the Los Angeles District would do well to use the time caused by the AO's backlog to more thoroughly document their asylum claims and ready themselves both emotionally and in ensuring the sharpness or clarity of their presentations and ability to answer reasonable questions regarding the experiences which cause them to be afraid and/or unwilling to return to their countries.
Our Kenyan clients continue to excel in their cases. We are encountering extremely serious applicants from that country with significant need of humanitarian relief. We have also experienced an increase in cases from Mexico, Guatemala and Sri Lanka accross a pleathora of immigration applications and circumstances.
By: Duane M. Hamilton
2014 started with two Asylum Office (AO) approvals and the scheduling of interviews at the Los Angeles District AO for several cases which have been back-logged at that office for periods well in excess of a year. We are awaiting decisions in two more cases which were terribly delayed due to the backlog and only recently were actually interviewed. Some of our scheduled cases will not be interviewing at the AO and are awaiting Notices To Appear (NTAs) to pursue relief in Immigration Court. Along with our colleagues who represent applicants before the AO, we continue to experience a slow-down in the AO's processing of cases, from the filing of the case to the scheduling of interviews. Though this can be frustrating for applicants who are anxious to present their cases at the AO, or in the cases of individuals with difficult asylum one-year bar issues, who wish to waive the interview for a referral to Immigration Court to pursue asylum and other immigration relief exclusively available in court, the slow-down has increased the asylum applicant's chances of actually obtaining their Employment Authorization Documents (EADs) while their cases remain pending at the AO.
In the past the AO would rush applicants to a hearing roughly 30 days after filing, and if the alien was out of status by the time the decision was being made on the case two weeks later, refer them to Removal Proceedings in Immigration Court, where the Immigration Judge would either require them to expedite their trial, or stop the expiration of their 180 day clocks which must expire before the alien can be issued an EAD. If the alien requested a continuance at the AO, the applicant's EAD clock would be stopped upon the making of the continuance request and would only restart on the day of the interview. With the present back-log, we are experiencing a pathway to the asylum related EAD which is more relaxed. It appears to be a trade off - long waits for asylum interviews, but greater assurance that the applicant will ultimately qualify for the EAD.
The problem with the backlog is that for those applicants recently escaping persecution in their home countries, with spouses and children remaining in the countries and in need of an approval of the principal applicant's asylum application and an asylee relative petition so as to reach the US, the delays are troubling and in my opinion potentially deadly in some cases. Nevertheless, it does appear that the AO is doing the best it can given its existing man-power and its need to thoroughly adjudicating each application.
Asylum applicants in the Los Angeles District would do well to use the time caused by the AO's backlog to more thoroughly document their asylum claims and ready themselves both emotionally and in ensuring the sharpness or clarity of their presentations and ability to answer reasonable questions regarding the experiences which cause them to be afraid and/or unwilling to return to their countries.
Our Kenyan clients continue to excel in their cases. We are encountering extremely serious applicants from that country with significant need of humanitarian relief. We have also experienced an increase in cases from Mexico, Guatemala and Sri Lanka accross a pleathora of immigration applications and circumstances.
By: Duane M. Hamilton
Sunday, December 15, 2013
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
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
Saturday, August 24, 2013
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
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
Friday, July 12, 2013
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
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
Friday, July 5, 2013
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
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
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