Asylum provides a safe haven for those who either have been persecuted in their countries of origin or have a well-founded fear of persecution. Asylum are for individuals who are in removal proceedings and are not in removal proceedings. To apply for asylum, not only do you need to satisfy the definition of “refugee” to be eligible for asylum, but you must also be physically present in the United States. The refugee definition is someone who is, “unable or unwilling to return to” their country of origin, “because of persecution or well-founded fear of persecution”, and based on five protected groups of face, religion, nationality, membership of a particular social group or political opinion. You must fit in one of these categories.
You can file for Asylum up to one year after arriving to the United States. If you pass that one year deadline, you may still qualify, but speak with an immigration attorney to assist you with your application. After filing your application, you can file for a work permit so you can work in the United States. Keep in mind that Asylum is a discretionary application, which means that even if you meet the substantive eligibility requirements for asylum, you may be denied asylum if you have a record of criminal or terrorist behavior, among other activities considered detrimental. The determination of asylum is based on substantial evidence on the record as a whole, and is credible in nature.
Other supporting documents to assist you with your application include Asylum a declaration on why you left your country, and what happened to you when living in your country.
After your application is granted, he or she is called an “Asylum.” An asylee’s spouse and children may be granted permission to reside and work in the United States. Because asylum is a temporary status, you can apply for other more permanent types of status after certain requirements are met.
Affirmative Asylum overview
Immigrants residing lawfully in the Unites states can seek asylum through an affirmative process. Through this process the asylum seeker will have to have an interview conducted by an Asylum officer.
The affirmative asylum process will allow the immigrant to remain in the U.S while their application is pending. If the asylum is denied the Asylum seeker will be issued a Notice to Appear (NTA) before immigration court. Asylum applicants
Defensive Asylum Overview
If you are an immigrant facing removal proceedings you could apply for asylum and withholding of removal. Immigrants who are apprehended by Customs and Border Protection at time of entry are placed in detention. An asylum officer will provide a credible fear interview and determine whether the immigrant maintains credible fear of harm based on one of the five grounds or if the alien has been persecuted. If fear of persecution is legitimate they may opt to apply for asylum before an immigration judge.
Withholding Removal is very similar to Asylum, however, it is a very limited benefit. This section of the law deals with individuals who are detained and have an order of removal against them. This means that you are being ordered by the immigration judge to go back to your original country. Withholding or removal is granted when you are ordered to be deported and you ask the immigration judge to stop and withhold the case. Withholding of removal can only be granted by an immigration judge. Like Asylum, withholding is granted to someone who shows that they have 51% chance or higher that returning to their home country will result in persecution based on their religion, race, nationality, membership of a particular social group, or political opinion. The burden of proof of persecution relies on the applicant. However, if the government can find another country that you can live without persecution, then you may deported to that country. If your application of withholding of removal is granted, you can reopen your case and apply for another form of immigration relief, however the stakes are high. Make sure you consult with an immigration attorney to go over your options.
Being granted withholding of removal allows you to receive authorization to work in the United States, but does not give you a path to citizenship or a green card. You are unable to sponsor your child, spouse or parent. Withholding is country specific, and you cannot travel outside the United States. In addition receiving withholding of removal, you will have a documented order against you, and maybe ordered to be supervised by checking in with immigration either by phone or in person. Being convicted of a serious crime, such as aggravated felony, does not qualify you for withholding of removal.
Relief under the Convention Against Torture Protection is the third method of relief a person fearing persecution can pursue. An applicant must demonstrate that it is more likely than not that she will be tortured if removed to her country of origin. The Convention Against Torture is an international human rights treaty that has been ratified by the U.S. Senate. While its main purpose is to prevent signatory countries from torturing people within their territories, it also calls for a ban on “refoulement”. Refoulement means the returning, or extraditing of a person to a country where there are substantial grounds for a belief that they will be subjected to torture. Each State Party has a duty to take all needed measures to avert acts of torture. This includes legislative, administrative and judicial measures, as well as any other actions that may be appropriate. States are also obliged to stop other cruel, inhuman or degrading treatment or punishment. Article 2.2 of the Convention states that “no exceptional circumstances whatsoever” can justify torture. This includes war or the threat of war, political instability, combating terrorism or any other emergency. Orders from a superior officer are also not a justification for torture.
Importantly, the convention defines torture in its first article:
For the purpose of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, 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. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
Like withholding of removal, the benefits to CAT are restricted. A person who is successful under the convention against torture claim cannot be removed from the United States to the country from which she fled persecution, but can be sent to a third country if one is available. An individual granted CAT cannot adjust her status to legal permanent resident, but can obtain work authorization. This treaty can often be a recourse for someone who has fled their home and to whom Asylum or Withholding of Removal is not available.
If you have been inspected and admitted into the United States as a non-immigrant or a parolee, and you are eligible for permanent legal residence in the United States, you may qualify for a change of your immigration status. This transition is often referred to as adjustment status. An alternative is known as consular processing (obtaining immigrant visas at appropriate consulates or U.S. Embassies).
In order to be eligible for adjustment of status, you must first identify the immigrant visa you may qualify for. Most categories require the filing of an immigrant petition. You may be eligible for a family based visa through US citizen or legal permanent resident family members. If you will be working for a U.S. employer, you may be eligible for an employment-based visa that leads to legal permanent residence. There are also various classes of special immigrant statuses that could lead to adjustment.
Some of these visas have significant waiting times while others may be available as soon as filed. In certain circumstances, you may qualify for more than one of these visas. Once you apply for one of these visas and your petition is approved, you can apply for adjustment to the status of legal permanent resident. Some of the visas described allow for immediate adjustment, that is, filing a petition for an immigrant visa and an application for adjustment of status simultaneously.
STEPS FOR ADJUSTMENT OF STATUS.
- Determine your basis to Immigrate
Determine which specific immigrant category you fit in. Ex: green card through a petition submitted by a family member or employer, asylum, etc.
- File the Immigrant petition
You could be eligible, depending on the category you adjust under, to file the petition at the same time as the Form I-485, Application to Register Permanent residence or Adjust Status. That is called “concurrent filing.”
- Check Visa Availability
Every category is different. You can not file an I-485 until a visa is available for that particular category.
- File Form I-485, Application to Register Permanent Residency or Adjust Status.
Make sure you file the I-485 at the appropriate time along with the required supporting documents. Failure to follow instructions could result in your application being delayed or possibly denied.
- Go to your Application Support Center appointment (fingerprints)
You will receive a notice in the mail regarding your biometrics appointment. It is a fairly easy process which usually involves a picture, signature and fingerprints.
- Go to your interview (If applicable)
If applicable, you will be informed of a date, time and location for an interview at a USCIS office. This interview is to answer questions under oath regarding your application. You must make sure you attend all interviews.
- Get you final decision in the mail
After all steps have taken place and all paperwork has been submitted your case will be ready for a decision by USCIS. Times vary depending on the category
Cancellation under the Violence Against Women Act stands for the Violence Against Women Act. Enacted in 1994, VAWA allows certain persons who are the victims of domestic violence to file an immigrant visa petition. VAWA is not just available for battered spouses, other persons eligible for VAWA include: parents of United States citizen children who have been abused by that child and children under the age of 21, who are unmarried, and have been abused by their U.S. citizen or permanent resident parent(s).
The most common VAWA cases involve spouses who are victims of domestic violence by their U.S. citizen or permanent resident spouse. In order to qualify for VAWA you must be married to a U.S. citizen who has emotionally or physically abused you OR you were in a marriage with a U.S. citizen who had emotionally or physically abused you that terminated due to death or divorce within 2 years immediately preceding the filing of your petition. VAWA petitions are also available to those persons who believed they were legally married to a U.S. citizen or permanent resident spouse, who are the victims of emotional or physical abuse by that spouse, but the marriage is illegitimate and unlawful due to your spouse’s bigamy.
Once you have demonstrated you are involved in a qualifying relationship under VAWA, you must show that you have suffered batter or extreme cruelty, that you entered into your marital relationship in good faith, that you have good moral character, and that you have lived with your spouse in the past.
With your VAWA application you must include a completed form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. You must also include any and all supporting documentation you have to support your claims including (but not limited to): letters of support from friends and family, police reports, protective orders, medical records and/or psychiatric records, and a declaration written by you detailing the abuse that occurred.
VAWA is an available form of relief to persons both in and out of removal proceedings. IF you are in removal proceedings there are extra requirements that must be fulfilled in order to apply for VAWA cancellation of removal. In addition to all of the requirements listed above you must also show that you have been physically present in the United States for a continuous period of at least 3 years immediately preceding your application, that you have never been convicted of an aggravated felony, that your removal would create extreme hardship to you, your child, or your parent, and that you are not inadmissible or deportable under certain federal statutes.
Once your VAWA application has been approved, you will be eligible to both file for your green card AND obtain an Employment Authorization Document permitting you to work in the U.S.
The Nicaraguan Adjustment and Central American Relief Act (NACARA) applies to certain individuals from Guatemala, El Salvador, and the former Soviet Bloc Countries who applied for asylum in the United States by specific dates or registered for benefits under the American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) class-action lawsuit settlement agreement.
NACARA also applies to qualified family members and certain individuals who have been victims of extreme cruelty at the hands of legal permanent residents, U.S. Citizens or other NACARA beneficiaries.
Under a subsection of this act (203), qualified individuals may apply for suspension of deportation or cancellation of removal under standards similar to those in effect before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Special Immigrant Juvenile Status is for children in the United States who have been abused, neglected, or abandoned by one or both of their parents. Children who are granted Special Immigrant Juvenile Status can apply for permanent residence in the United States. In order to qualify for this status, the child, through their attorney, must prove these facts:
- The child is under 21 years old;
- The child has never been married;
- The child was abused, abandoned, or neglected by one or both parents;
- Reunification with the abusive or missing parent is not possible; and
- It is not best for the child to go back to their country.
When a child applies for Special Immigrant Juvenile Status, they must submit an order from a juvenile court that includes these five facts. The child can request this order in many types of cases, including custody, guardianship, adoption, and other family or juvenile court cases. If you know a child under 21, or if you are a child under 21, ask yourself these questions:
- Does the child live apart from their father or mother?
- If so, does the absent parent fail to provide financial or emotional support?
- Has the child’s father or mother ever intentionally hurt them?
If you answered “yes” to any of these questions, then the child may qualify for Special Immigrant Juvenile Status.
A motion to reopen is a means to provide new facts applicable to your case to immigration authorities.
Were you ordered removed but things changed? Did you recently get married, forget to show up to a hearing, or qualify for other types of immigration relief? Or did the circumstances change, and you have new facts for your case? If your case was closed, we can still help by filing a motion to reopen. Although the immigration judge ordered you to be removed, you still have rights. You can file for a motion to reopen. A motion to reopen is filed with immigration court that is purely fact-based, presents newly discovered facts or changed circumstances since your hearing. You have 90 days to file this motion. Filing a motion to reopen is based on facts, and seeks a fresh determination based on newly discovered facts or a change in your circumstances. Keep in mind that filing a motion to reopen does not guarantee that you can stay in the U.S.
You can reopen your case for submitting a new application, ineffective assistance from a prior attorney and more. You can also ask to reopen your case for the following reasons:
- If you missed your hearing. If you missed your hearing, you must provide evidence of exceptional circumstances of reasons why you missed your hearing.
- If you were not given enough notice to appear for court.
- The BIA reopened your case.
- The government was wrong in their conduct, and prevented you from filing a timely motion or extraordinary circumstances beyond your control made it impossible to file within the timely manner.
- Change in country conditions, for your asylum, CAT, or withholding of removal application.
A motion to reopen for the reasons listed above need to be supported with evidence, such as affidavits, reports, and other new evidentiary material to be introduced to a new application or existing application. If the Judge denies your motion to reopen, it will be based on the following grounds, (1), you did not establish enough evidence for relief, (2), you did not provide enough new evidence or changed circumstances, and (3), the judge’s discretion.
Do not submit a motion to reopen without speaking to an immigration attorney. This motion is for people have been ordered removed. If you are currently in proceedings call us today.
If you or someone you know is facing deportation, you may consider requesting Request Prosecutorial Discretion. If successful, Immigrations and Customs Enforcement (ICE) will administratively close the case. Ice will analyze the factors in your background, positive and negative, to decide if it is a priority for the government to continue with your case.
Konare Law represents individuals who are in the process of being deported. Prosecutorial discretion is a written request to the office of chief counsel and the immigration judge to get you out of proceedings. To ask for prosecutorial discretion, you will need to show proof that you are eligible and deserve to be out of removal proceedings. You must show that you are not a DHS priority to be removed and provide strong written evidence of other reasons why you should no longer be in proceedings. You must consider and support with evidence the following factors that relate to you:
- How long have you stayed in the United States;
- How you came to the United States and why;
- Provide proof if you receive an U.S. education, such as GED, High School Diploma, Degree, or higher:
- Provide your immigration history;
- Provide proof of your ties to family, community and other members in the U.S;
- Provide proof of your ties to your home country, if any;
- Provide proof of your current age;
- Provide proof if you have U.S. citizens as children and/or spouse;
- Provide proof if you are the primary caretaker;
- Provide proof if you or your spouse is pregnant and/or nursing;
- Provide proof if you are eligible for different types of relief; and
- You were or have been cooperating with federal, state, and local law enforcement authorities.
All these factors can be intimidating, however, you do not need to do it alone. We can help. Prosecutorial discretion does not provide you immigration relief, such as a green card, or work permit, however, it prevents you from being deported, and allows you to be out of the proceedings process. Your case will be shelved for future use. This also means, if you become eligible for other forms of immigration relief, or you get married to a United States citizen, you can reopen your case. However, if you commit a crime, DHS can reopen your case and put you back in proceedings.
Konare Law specializes in bond redetermination hearings. If ICE decides to place you or your loved one in removal proceedings (deportation), you or they will be detained at a detention center. Most times, being picked up by ICE will result in staying in a detention center. To locate your loved one, look up on the ICE locator, for their location. Being detained does not automatically mean being deported. You or your loved one may be eligible for a bond. To receive a bond, a written request to the Immigration Judge or Officer will need to be submitted.
First, you will need to make sure you or your loved one are eligible for bond. If you or your loved one committed a crime you might not be eligible. The law says that if you or they have been convicted of a crime of moral turpitude (e.g., theft), an aggravated felony, drug offense, or firearms offense, they are not eligible for bond.
Once the bond amount is set, which usually starts at $25,000 you or your loved one can either pay the bond and be released, or request for a hearing before an immigration judge to lower the bond amount if you cannot afford it. This is the motion for bond redetermination. Once the motion is submitted, you will have a hearing about the bond amount. To determine the new bond amount, the immigration judge will consider your or your loved one’s criminal record, family ties, length of residence in the United States and stable employment history, among other things. The burden of proof relies on you or your loved one who is being detained. Having supporting documents will help your or your loved one’s case, such as notarized letters from friends, family, employers, evidence of participation in rehabilitation programs, owning property, and copies of income tax returns. You must show the immigration judge that you are not a dangerous person, not a threat to national security, will appear for a scheduled hearing, and are not a flight risk.
Once the amount is set by the judge, you can either pay it and be released from the detention center, or appeal the bond amount if you disagree with the judge’s decision. You or your loved one will remain in the detention center if the bond is not paid in full. But note, this only gets you out of being detained, not removal proceedings. You do not need to go through this process alone, we are help to assist you and your loved ones.
We defend individuals who are about to be deported. It is important to know what your rights are and what is available to you. If you are about to be deported, and want to return to your country you have options. Voluntary Departure allows you to leave the United States without a deportation order and allow you to return to the United States legally. We can help you through this process. The benefit of the voluntary departure, not only allows you to return legally to the United States but also shows in your immigration record no order of deportation. However, like most applications certain qualifications are required before choosing voluntary departure. To qualify for voluntary departure, you must show the judge:
(1) You are a good person;
(2) You deserve to return to the U.S; and
(3) Ability to pay for your trip home.
If you were convicted of an aggravated felony, you won’t qualify for voluntary departure. However, keep in mind that at your first hearing, if you chose Voluntary Departure, you are giving up your right to fight your case. If you are unsure contact an experience attorney. If you qualify for other kinds of immigration relief, Voluntary Departure might not be the best option for you.
So you decided that Voluntary Departure is the right option for you, so what is next? Gather letters of support from family, friends, religious leaders, employers and other people that state you are a person of good morale. Also, each letter must be written in English. Provide birth certificates, copies of green cards, and other paper work showing that members of your family are U.S. citizens or lawful permanent residents. In addition, you will need to provide paper work that shows you support your family, if you are married, you will need to provide a marriage certificate. If you received certifications or a degree in the U.S, you will need to provide that as well. You can also have witnesses speak to the judge about how your good morale. Showing the Judge that you are a good person depends on you and the documentation you provide, but you don’t have to do it alone. We are here to help.
Waivers Inadmissibility Deportability – People who enter the United States, illegally are not eligible to adjust their status, get a green card or work permit. People who enter illegally are forced to receive a visa outside the United States that allows them to enter. However, if you entered the United States illegally, you are subject to a bar. Meaning, if you leave the United States under any circumstances you are not allowed to return within a certain time frame beginning at 3 years, and going up to 10 years. There is an application that allows the waiving of those two bars, a waiver of inadmissibility and deportability application. If you were in the United States for more than a 180 day time period, you will be required to file this application.
This application is only available to people who are immediate relatives to United States Citizens. To qualify, you must be an immediate relative to an United States citizen, show that your absence will provide extreme hardship to your immediate relative, your length of stay in the U.S. is more than 180 days, be at least of 17 years of age, have an approved Petition For Alien Relative, or Petition For Alien Worker or, Petition For American Widow(Er), or Special Immigrant who has paid the immigrant visa processing fee.
To apply, you must show documentation, of the hardship that will occur if you or your loved one, leaves the country. Proving hardship can be difficult, and the criteria of hardship consist of the following area financial, emotional, health, personal, and educational. In general, the form will be adjudicated by U.S. Citizenship and Immigration Services, and depending on the circumstances of your case, it is adjudicated by the Immigration Judge. Once you receive the approved waiver, you are able to go schedule an appointment with the consulate in your home country. At the consulate, you will be required to attend an interview. If you pass the interview successfully, you will return to the United States with a visa, and be able to adjust your status. Doing a waiver by yourself without consulting with an attorney, puts you at a high risk of being deported or not able to re-enter the United States. Make sure you consult with an immigration attorney prior to filing for a waiver application.
Deferred Inspection (CBP) sites are located throughout the entire United States that provide inspections of individuals that are entering legally into the United States. An inspection may occur when there is a discrepancy of entering the United States, or inaccuracy on their I-94. This is a procedure used by customs and border protection to admit an “Arriving Alien” into the U.S. During this procedure, the individual is allowed to enter into the U.S. while the Border Patrol is figuring whether that person belongs in the U.S. It may occur if documentation is missing, or other circumstances. You will receive a form called the I-546 which enforces you to appear at one of the Deferred Inspection sites. If you fail to appear, you may be put in removal proceedings. Also, a deferred inspection can assist with any errors on your documentation, such as biographic, improper non-immigrant classification, or incorrect period of admission. If the documentation is not verified, or too many errors in your documentation and after further review of the case and in many instances the individual or family is issued a Notice to Appear and placed in removal proceedings. It is important to consult with an immigration attorney if you are issued an I-546.