Month: October 2023

Applying For U.S. Citizenship

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form n-400 Review the application (Form N-400) instructions Complete the naturalization application, Form N-400 Pay filing fee Form N-400 All applicants must send the following 3 items with their N-400 application: □ Permanent Resident CardA photocopy of both sides of your Permanent Resident Card (formerly known as the Alien Registration Card or “Green Card”). If you have lost the card, submit a photocopy of the receipt of your Form I-90, Application to Replace Permanent ResidentCard; and □ FILING FEE A check or money order for the application fee and the biometric services fee, as stated in the M-479, Current Naturalization Fees, enclosure in the Guide.(Applicants 75 years of age or older are exempted from the biometrics services fee). Write your A-Number on the back of the check or money order. You may also pay using a credit card. There is no additional fee when you do so. The N-400 is the only form that you canpay for by credit card using the G-1450, Authorization for Credit Card Transaction. Check www.uscis.gov for more specificinformation.  your facial features must still be exposed in the photo for purposes of identification. IF YOU RESIDE OUTSIDE THE UNITED STATES □ 2 identical color photographs, with your name and A – Number written lightly in pencil on the back of each photo. For details about the photo requirements, see Part 5 of Form M-476, or our post on immigration photo requirements.  DOCUMENTS TO SUBMIT WITH FORM N-400 AttorneyIf an attorney or accredited representative is acting on your behalf, send:□ A completed original Form G-28, Notice of Entry of Appearance as Attorney or Representative. If Name Is Different Than Your LPR CardIf your current legal name is different from the name on your Permanent Resident Card, send:□ The document(s) that legally changed your name (marriage certificate, divorce decree, or court document). If Apply Based on Marriage to a U.S. CitizenIf you are applying for naturalization on the basis of marriage to a U.S. citizen, send the following 4 items: 1.  Evidence that your spouse has been a U.S     citizen for the last 3 years: Birth certificate (if your spouse never lost citizenship since birth); or Certificate of Naturalization; or Certificate of Citizenship; or The inside of the front cover and signature page of your spouse’s current U.S. passport; or Form FS-240, Report of Birth Abroad of a Citizen of the United States of America; and 2. Your current marriage certificate; and 3. Proof of termination of all prior marriages of your spouse (divorce decree(s), annulment(s), or death certificate(s)); and 4.Documents referring to you and your spouse: Tax returns, bank accounts, leases, mortgages, or birth certificates of children; or Internal Revenue Service (IRS)-certified copies of the income tax forms that you both filed for the past 3 years; or An IRS tax return transcript for the last 3 years. If you have ever been arrested or detained by any law enforcement officer for any reason, and no charges were filed, send: An original official statement by the arresting agency or applicant court confirming that no charges were filed. If you have ever been arrested or detained by any law enforcement officer for any reason, and charges were filed, send:An original or court-certified copy of the complete arrest record and disposition for each incident (dismissal order, convictionrecord or acquittal order). If you have ever been convicted or placed in an alternative sentencing program or rehabilitative program (such as a drugtreatment or community service program), send: An original or court-certified copy of the sentencing record for each incident; and Evidence that you completed your sentence: a. An original or certified copy of your probation or parole record; or b. Evidence that you completed an alternative sentencing program or rehabilitative program. If you have ever had any arrest or conviction vacated, set aside, sealed, expunged or otherwise removed from your record,send:An original or court-certified copy of the court order vacating, setting aside, sealing, expunging or otherwise removing the arrest or conviction, or an original statement from the court that no record exists of your arrest or conviction. NOTE: If you have been arrested or convicted of a crime, you may send any countervailing evidence or evidence in your favor concerning the circumstances of your arrest and/or conviction that you would like U.S. Citizenship and Immigration Services toconsider. If you were married before, send:□ Proof that all earlier marriages ended (divorce decree(s), annulment(s), or death certificates(s)). If you are currently in the U.S. military service and are seeking citizenship based on that service, send:□ A completed original Form N-426, Request for Certification of Military or Naval Service. If you have taken any trip outside the United States that lasted 6 months or more since becoming a Lawful Permanent Resident Send evidence that you (and your family) continued to live, work and/or keep ties to the United States, such as: An IRS tax return “transcript” or an IRS-certified tax return listing tax information for the last 5 years (or for the last 3 years ifyou are applying on the basis of marriage to a U.S. citizen). Rent or mortgage payments and pay stubs.If you have a dependent spouse or child(ren) who do not live with you, send: Any court or government order to provide financial support; and Evidence of your financial support (including evidence that you have complied with any court or government order), such as: a. Cancelled checks; b. Money and receipts; c. A court or agency printout of child support payments; d. Evidence of wage garnishments; e. A letter from the parent or guardian who cares for your child(ren). If you have ever failed to file an income tax return since you became a Lawful Permanent Resident, send: All correspondence with the IRS regarding your failure to file. If you have any Federal, state or local taxes that are overdue, send: A signed agreement from the IRS or state or local tax office showing that you have filed a tax return and arranged to pay thetaxes you owe; and Documentation … Read more

U.S. Immigration Law Acronyms

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Acronyms ACC Assistant Chief Counsel Government attorneys that represent the Department of Homeland Security, ICE at EOIR removal proceedings. A Number A File “A” Number or “A” File is short for alien number or alien file. Every foreign national inside of the United States who has had contact with USCIS, ICE, or CBP will be issued an identifying A number, which will be used by the government as their file number and is how one can track their case or find information about their immigration matters. AF Aggravated felony AOS Adjustment of Status Changing status from a nonimmigrant or no status to that of legal resident. This is the process by which a non-citizen obtains a green card when they are already in the United States. AP Advance Parole Advance parole travel document BIA Board of Immigration Appeals CBP Customs and Border Enforcement A government agency created as part of the Department of Homeland Security Act in 2003. It replaced the legacy INS. CBP is primarily focused on border security and customs inspections at port of entry (like airports) as the name suggests. CBP does operate internally within the United States sometimes in states that are nowhere near any international borders. CBP is a sub agency of DHS. CAT Convention Against Torture Article three if the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment is last resort form of a relief for a person who fears they will be in danger if they return to their home country. If the person is unable to obtain Asylum or Withholding of Removal, CAT will not confer any immigration benefit but the U.S. Government will not deport a person to their country of nationality if that person would be in danger there. This not discretionary and it cannot be denied to an alien with criminal convictions. The agency that handles immigration appeals from the EOIR Immigration Court. CIMT Crime involving moral turpitude DACA Deferred Action for Childhood Arrivals Deferred Action for Childhood Arrivals, a program launched in 2012. For more information, go to the Deferred Action for Childhood Arrivals 2017 Announcement page. DED Deferred Enforced Departure (see glossary of terms for more info) DHS Department of Homeland Security The largest government agency in the United States, DHS is massive with an annual budget of hundreds of billions of dollars. It was created in response to the 9/11 terrorist attacks and came into existence in 2003. It includes ICE, CBP, and USCIS, among other agencies that will be less important for the purposes of this wiki. DOJ Department of Justice EAD Employment Authorization Document A document to authorizes a person to legally take employment in the United States, commonly referred to as a work permit. ESTA ESTA Electronic System for Travel Authorization EOIR Executive Office of Immigration Review The immigration court. EWI Entry Without Inspection When a person crosses the border at location not so designated by the attorney general as a port of entry, and enters the United States without being formally inspected by immigration officials or without having a valid visa or travel document. FOIA Freedom of Information Act ICE Immigration & Customs Enforcement ICE is the enforcement branch of DHS. It is the agency that apprehends and prosecutes non-citizens accused of violating United States immigration law. ICE officers are who we contact when a person is apprehended by immigration. They handle the initial arrest and detention of non-citizens and the enforcement of the removal of non-citizens. ICE attorneys represent DHS in removal proceedings. IJ Immigration Judge Immigration Judge LPR Legal Permanent Resident A legal permanent resident is a foreign national who obtained an immigrant visa and has been granted residency in the U.S. allowing them to permanently reside in the United States. Commonly referred to as a “green card” NTA Notice to Appear The NTA is the document that initiates removal proceedings. ICE will serve the noncitizen with the NTA which will contain the factual allegations and charges against them and provide a date, time, and location, for them to appear in Immigration Court. ICE then files that NTA with the Court and removal proceedings are commenced. NOID Notice of Intent to Deny NOIR Notice of Intent to Revoke PD Prosecutorial discretion The legal authority of DHS/ICE to choose whether or not to take action against an individual for committing an offense, in the removal context to pursue their removal from the United States. PSG Particular Social Group Asylum can be granted to a refugee who has been or fears they will be persecuted on the basis of their political beliefs, religion, nationality, race, or particular social group. PSG is a sort of catch-all category for all other basis’s for which a person can be granted asylum. RFE Request for Evidence SIJS Special Immigrant Juvenile Status SIJS stands for “special immigrant juvenile status.” Special immigrant juvenile status is an immigrant visa program that provides a path to legal permanent residency to minors (under 21 and unmarried in NY and most other states) who have been abandoned, neglected, or abused by ONE or both of their parents and reunification with that parent is no longer possible because of said abandonment, neglect, or abuse. TPS Temporary Protective Status USC United States Citizen USCIS US Citizenship & Immigration Services USCIS is the branch of DHS that deals with the granting of immigration benefits. USCIS is not concerned with the enforcement of laws or removal of non-citizens from the USCIS (unless they are violent criminals, terrorists, or individuals with very serious criminal convictions. VAWA Violence Against Women Act

ESTABLISHING EXTREME HARDSHIP

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A. Totality of the Circumstances The officer must make extreme hardship determinations based on the factors, arguments, and evidence submitted. Therefore, the officer should consider any submission from the applicant bearing on the extreme hardship determination. The officer may also consider factors, arguments, and evidence relevant to the extreme hardship determination that the applicant has not specifically presented, such as those addressed in Department of State (DOS) information on country conditions or other U.S. Government determinations regarding country conditions, including a country’s designation for Temporary Protected Status (TPS). Officers must base their decisions on the totality of the evidence and circumstances presented. B. Common Consequences The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship. The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following: C. Factors Must Be Considered Cumulatively The officer must consider all factors and consequences in their totality and cumulatively when assessing whether a qualifying relative will experience extreme hardship either in the United States or abroad. In some cases, common consequences that on their own do not constitute extreme hardship may result in extreme hardship when assessed cumulatively with other factors. For example, if a qualifying relative has a medical condition that alone does not rise to the level of extreme hardship, the combination of that hardship and the common consequences of inferior medical services, economic detriment, or readjusting to life in another country may cumulatively cause extreme emotional or financial hardship for the qualifying relative when considering the totality of the circumstances.  Ordinarily, for example, the fact that medical services are less comprehensive in another country is a common consequence of denying admission; but the inferior quality of medical services, considered along with the individual’s specific medical conditions, may create sufficient difficulties as to rise to the level of extreme hardship in combination with all the other consequences. The officer must weigh all factors individually and cumulatively, as follows: First, the officer must consider whether any factor set forth individually rises to the level of extreme hardship under the totality of the circumstances.  ​Second, if any factor alone does not rise to the level of extreme hardship, the officer must consider all factors together to determine whether they cumulatively rise to the level of extreme hardship. This includes hardships to multiple qualifying relatives.  When considering the factors, whether individually or cumulatively, all factors, including negative factors, must be evaluated in the totality of the circumstances.  D. Examples of Factors that May Support a Finding of Extreme Hardship The chart below lists factors that an applicant might present and that would be relevant to determining whether an applicant has demonstrated extreme hardship to a qualifying relative. This list is not exhaustive; circumstances that are not on this list may also be relevant to finding extreme hardship.  The presence of one or more of the factors below in a particular case does not mean that extreme hardship would necessarily result from a denial of admission. But they are factors that may be encountered and should be considered in their totality and cumulatively in individual cases. All hardship factors presented by the applicant should be considered in the totality of the circumstances in making the extreme hardship determination. Some of the factors listed below apply when the qualifying relative would remain in the United States without the applicant. Other factors apply when the qualifying relative would relocate abroad. Some of the factors might apply under either circumstance.  Family Ties and Impact Qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children. Responsibility for the care of any family members in the United States, particularly children, elderly adults, and disabled adults. Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required. Social and Cultural Impact Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, employment, or civil rights laws; to participate in family law proceedings, victim’s compensation proceedings, or other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation. Fear of persecution or societal discrimination. Prior grant of U nonimmigrant status. Existence of laws and social practices in the country of relocation that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values. Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection. Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability. Qualifying relative’s community ties in the United States and in the country of relocation. Extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation. Extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes. Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant, if the qualifying relative does not relocate. Qualifying relative’s present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail. Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation. Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation. Economic Impact Economic impact of applicant’s departure on the qualifying relative, including … Read more

The Convention Against Torture

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WHAT IS THE CONVENTION AGAINST TORTURE (CAT)? You may have seen or heard the term CAT in connection to the asylum process, but what is it? Introduction The first step in seeking asylum protection in the U.S. is to file an I-589 asylum application. On the Form I-589 asylum application there is a little checkbox next to a question asking if you are also seeking WIthholding of Removal or  protection under the Convention Against Torture (CAT).  That is why it is important that you know what it is and how it may help you. If you don’t check that little box on the I-589 then you will waive your right to protection under the additional section of law.  CAT is going to apply to anyone who is seeking asylum or fears returning to their home country for fear of persecution.  In this post I will explain what the Convention Against Torture is, how it came to be, how it may help you, how you apply for it, and who is eligible.  What is CAT? The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Convention Against Torture (CAT), is an international human rights treaty adopted by the United Nations General Assembly in 1984. The Convention defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information, punishment, or intimidation, and which is carried out by a public official or a person acting with official authorization or consent. It also prohibits other forms of cruel, inhuman, or degrading treatment or punishment, which may not reach the threshold of torture but still violate human dignity. The Convention requires state parties to take effective measures to prevent torture and other cruel, inhuman, or degrading treatment or punishment, to investigate and prosecute allegations of torture, and to provide redress and rehabilitation for victims of torture. It also prohibits the use of evidence obtained through torture in legal proceedings. As of February 2023, 169 countries have ratified or acceded to the Convention, making it one of the most widely accepted human rights treaties in the world. How Does CAT Apply to Immigrants Entering the U.S.? The Convention Against Torture applies to all people under the jurisdiction of a state party, regardless of their nationality or immigration status. This means that the United States is obligated to comply with the Convention in its treatment of all individuals within its territory or under its control, including immigrants and refugees. Under the Convention, the United States is prohibited from deporting or extraditing any individual to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. This is known as the principle of non-refoulement. The United States has incorporated this principle into its domestic law through the Convention Against Torture implementing legislation. In addition, the United States has an obligation to ensure that individuals in its custody are not subjected to torture or other forms of cruel, inhuman, or degrading treatment or punishment. This includes immigrants who are detained by the United States government. The United States is required to provide effective safeguards against torture and to investigate and prosecute any allegations of torture or other mistreatment of individuals in its custody. Furthermore, the United States is obligated to provide redress and rehabilitation for victims of torture, including immigrants who have been subjected to torture or other forms of mistreatment. This includes access to medical care, legal assistance, and compensation for any harm suffered as a result of torture or mistreatment. It is important to note that the United States has been criticized by human rights organizations for its treatment of immigrants, particularly with regard to the conditions in detention centers and the use of force by immigration enforcement officials. APPLYING FOR CAT PROTECTION IN REMOVAL PROCEEDINGS Who is Eligible for Protection Under CAT? This is not a detailed an exhaustive guide. This is the basic information. If you are interested or think it may apply to you then you should speak with an immigration attorney or contact me (an immigration attorney) for more information about the convention against torture.  Under the Convention Against Torture (CAT), any person who is in the United States, regardless of their nationality or immigration status, is eligible for protection against torture or other cruel, inhuman, or degrading treatment or punishment. This includes refugees, asylum seekers, and individuals who have entered the country without authorization. The CAT defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information or a confession, punishing, intimidating, or coercing someone, or for any other reason when such pain or suffering is inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. Therefore, any individual who has reason to believe that they are at risk of being subjected to torture or other forms of cruel, inhuman, or degrading treatment or punishment in their country of origin, or any other country to which they might be returned, may be eligible for protection under the Convention. In the United States, an individual seeking protection under the CAT may file an application for protection with the Department of Homeland Security (DHS). The application is known as a “CAT application” or a “Convention Against Torture claim.” The applicant must demonstrate that it is more likely than not that he or she would be tortured if returned to their home country or to another country where they are likely to be subjected to torture. If the application is granted, the individual will be protected from deportation or removal to the country where they would face torture.  How Do You Apply for CAT? First, remember what I said earlier. You must check the box on the Form I-589 … Read more

Mandatory Detention

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When a foreign national is taken into the custody of U.S. Immigration and Customs Enforcement (ICE), one of the initial steps taken by the deportation officer is to determine whether or not to grant a bond. A bond is a monetary payment made to the U.S. government (often by a friend, relative, or bond company) that allows the individual to be released from custody while pursuing relief in removal proceedings in front of an immigration judge. The bond money paid is intended to ensure that the foreign national will attend their hearings, as failure to do so will result in the government keeping the money. However, some foreign nationals are not eligible for release on bond, even if they are willing to pay, regardless of the circumstances. Specifically, those who have criminal convictions will not be able to request release on bond because of the mandatory detention statute INA § 236 (c). Mandatory Detention Statute INA § 236 (c), The Attorney General shall take into custody any alien who- (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence 1 to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. INA § 236 (c) Serious Harms of Mandatory Detention If a respondent is subject to mandatory detention neither ICE nor an immigration judge will entertain the possibility of granting them bond. These individuals will remain in jail throughout the removal proceedings, irrespective of their immigration status or personal circumstances. Each year, ICE detains over 100,000 immigrants, including people who have lived in the U.S. fordecades, parents of U.S. citizens and individuals who come to the country seeking safety. ICE subjects people in detention to dangerous conditions and substandard medical care. Noncitizens that are detained by ICE are typically held in jails along with criminals that are being detained by the State pending a criminal trial or serving short sentences. Detention facilities are often located in rural, hard to reach areas, inaccessible to families and legal counsel. In New York ICE hold noncitizens in several jails in New Jersey that are run by various counties and private prison companies (Bergen County, Hudson County and Kearny are the most commonly used facilities). Bergen County Jail was actually the subject of a season of the TV show “Locked Up” where viewers saw the widespread drug trafficking and inmate on inmate violence in the facility that was filled with career criminal gang members. Grounds for Mandatory Detention The grounds for mandatory detention always involve some criminal activity on the part of the noncitizen. The exact type depends on whether U.S. immigration authorities are charging them with being inadmissible to the United States or deportable from the United States. The document containing the immigration charges against you, called a Notice to Appear (NTA), tells you which one the government is charging you with. If you were legally admitted to the United States the last time you came, you’re subject to grounds of deportability. If you were never legally given permission to come to the U.S., or if you come back from a trip outside the U.S. after having committed a certain type of crime, you’re subject to the grounds of inadmissibility. Mandatory detention applies to respondents charged as inadmissible due to conviction for: An actual conviction is not required in all of the above cases. If you admitted committing certain crimes, or there’s enough evidence to suggest you committed certain crimes, you can be subject to mandatory detention. Respondents charged as deportable/removeable based on criminal convictions for: MANDATORY DETENTION FLOWCHART NOTES: Two ore more CIMT convictions from “single scheme”: A person is deportable for two or more CIMT convictions after admission, unless the convictions arose from a “single scheme of criminal misconduct.” INA § 237(a)(2)(A) (ii). The BIA defines single scheme to mean essentially from the same incident, where the perpetrator has no time to reconsider continuing with the criminal plan. Matter of Islam, 25 I&N Dec. 637, 638 (BIA 2011). The above flowchart does not ask about this. The petty offense exception applies to the inadmissibility, but not to deportability based on crimes involving moral turpitude (“CIMT”), and also to the bar to establishing good moral character based on CIMTs. Immigration and Nationality Act (“INA”) §§ 212(a)(2)(A)(i)(II), 101(f)(3). The petty offense exception requires a potential sentence that does not “exceed” one year, so one year is okay. The potential sentence must be one year or less, the sentence imposed must be six months or less, and the person must have committed just one CIMT. The above flowchart includes the petty offense exception. Petty offense exception and non-LPR cancellation: A conviction for a petty offense that fits within the exception may still bar a respondent from non-LPR cancellation of removal (42B) relief under INA § 240A(b)(1)(C), See Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010). This rule may change in the Ninth Circuit Ninth Circuit. See Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1088-93 (9th Cir. 2017), but at the moment the Board continues to apply the rule. See Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018).