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
Wednesday, July 9, 2014
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.
Friday, June 6, 2014
BIA ORDERS REOPENING IN THE CASE OF A KENYAN ORDERED DEPORTED OVER 12 YEARS AGO
On May 30, 2014, the Board of Immigration Appeals (BIA), upon consideration of an extensive Motion to Reopen (MTR) filed by me in February of this year, ordered that the case of a Kenyan, whose voluntary departure order had converted to an order of "removal" (more commonly known as "deportation") over 12 years ago, be reopened and remanded to the Immigration Judge for "further proceedings."
In this case, we were able to show, under 9th Circuit authority, that sufficient "changed circumstances" had taken place in Kenya to warrant reopening and remand. Demonstrating "changed circumstances," in the context of MTRs is not necessarily intuitive, and involves consideration and application of a number of intersecting law, regulations, policy and concepts. Further, the BIA's treatment of such motions sometimes varies depending upon its interpretation of the Circuit Court of Appeals law under which the case was initially tried.
We continue at this time to pursue a separate petition for review before the 9th Circuit Court of Appeals on behalf of this Kenyan on issues pertaining to the underlying case filed in the late 90s in which he was represented by another attorney. Sometimes attorneys work on multiple tracks simultaneously, on behalf of alien clients.
We are deeply gratified for the May 30 BIA decision, since our client will now be given a further opportunity to demonstrate at trial, why permanent or indefinite immigration benefits should be approved.
By: Duane M. Hamilton
In this case, we were able to show, under 9th Circuit authority, that sufficient "changed circumstances" had taken place in Kenya to warrant reopening and remand. Demonstrating "changed circumstances," in the context of MTRs is not necessarily intuitive, and involves consideration and application of a number of intersecting law, regulations, policy and concepts. Further, the BIA's treatment of such motions sometimes varies depending upon its interpretation of the Circuit Court of Appeals law under which the case was initially tried.
We continue at this time to pursue a separate petition for review before the 9th Circuit Court of Appeals on behalf of this Kenyan on issues pertaining to the underlying case filed in the late 90s in which he was represented by another attorney. Sometimes attorneys work on multiple tracks simultaneously, on behalf of alien clients.
We are deeply gratified for the May 30 BIA decision, since our client will now be given a further opportunity to demonstrate at trial, why permanent or indefinite immigration benefits should be approved.
By: Duane M. Hamilton
Tuesday, May 20, 2014
KENYAN FAMILY SPARED FROM REMOVAL BY SAN DIEGO IMMIGRATION JUDGE
Yesterday, I completed trial before Judge Ignacio Fernandez of the Los Angeles Immigration Court in the case of a Kenyan family facing certain forms of social persecution in Kenya. I took on the case from its inception in mid 2012, with the understanding that this matter would end in Removal Proceedings and in a high-stakes trial before an immigration judge. Along the way, we were able to get the family more settled with the issuance of work permits for all family members and proceeded methodically with the diligent assistance of the clients and their witnesses to build our case.
The case presented many novel and fascinating legal issues, and highlighted intriguing, intersecting tribal and socio-political realities in Kenya. Like so many of my humanitarian cases, the stakes were literally life for the family, if allowed to remain in the U.S., and death if returned to Kenya.
In a stipulation between the Government's attorney, Mike Adams, myself and the judge, we all chose life, agreeing, for a plethora of practical reasons, that the Court should grant Withholding of Removal to each family member, permitting them to remain in the United States with renewable employment authorization indefinitely. Neither side reserved appeal and the decision is final. Thus, life in the shadows is now over and a new chapter begins.
This family left a lasting positive mark upon my life and my practice. Rarely have I met individuals who have endured so much and complained so little. The odds overcome and the achievements of the family were truly remarkable, and if they do not accomplish something great in this country, then I am certain they will inspire someone to accomplish greatness. What a blessing, not only for the family, but also for the attorney.
Gratitude as always to Judge Fernandez and Mr. Adams for their thoughtfulness and compassion in this extraordinary matter.
By: Duane M. Hamilton, Esq.
The case presented many novel and fascinating legal issues, and highlighted intriguing, intersecting tribal and socio-political realities in Kenya. Like so many of my humanitarian cases, the stakes were literally life for the family, if allowed to remain in the U.S., and death if returned to Kenya.
In a stipulation between the Government's attorney, Mike Adams, myself and the judge, we all chose life, agreeing, for a plethora of practical reasons, that the Court should grant Withholding of Removal to each family member, permitting them to remain in the United States with renewable employment authorization indefinitely. Neither side reserved appeal and the decision is final. Thus, life in the shadows is now over and a new chapter begins.
This family left a lasting positive mark upon my life and my practice. Rarely have I met individuals who have endured so much and complained so little. The odds overcome and the achievements of the family were truly remarkable, and if they do not accomplish something great in this country, then I am certain they will inspire someone to accomplish greatness. What a blessing, not only for the family, but also for the attorney.
Gratitude as always to Judge Fernandez and Mr. Adams for their thoughtfulness and compassion in this extraordinary matter.
By: Duane M. Hamilton, Esq.
Monday, April 28, 2014
KENYAN ASYLUM OFFICE AND IMMIGRATION COURT CASES APPROVED MERE DAYS APART
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.
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.
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.
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