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REAL ID ACT Updates and Asylum

Posted on February 16, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The June 2009 Immigration Briefings, entitled “Credibility, Burden of Proof, and Corroboration Under the Real ID Act,” 09-06 Immigration Briefing 1 (June 2009), discusses credibility determinations as prescribed by the REAL ID Act of 2005, primarily in the context of asylum relief. The Briefing addresses both burden of proof and corroboration as part of its analysis of credibility under the REAL ID Act. The Briefing begins with a historical background of the REAL ID Act and continues by examining burden-of-proof issues. The Briefing provides an analysis of the standard requirement under the REAL ID Act that aliens applying for relief demonstrate that harm on account of a protected ground be at least one central reason for feared persecution as compared with the pre-REAL ID Act mixed-motive standard. Also discussed in the Briefing are the REAL ID Act credibility amendments, which require that factfinders consider the totality of circumstances when considering credibility as applied to minor inconsistencies in testimony and the heart of the applicant’s claim. Finally, the Briefing discusses language in the REAL ID Act that gives immigration judges the right to demand that an alien produce evidence to corroborate otherwise-credible testimony unless that alien does not have the evidence and cannot reasonably obtain it.

The June Briefing was written by James Feroli, an attorney with the Immigrant and Refugee Appellate Center in Alexandria, Virginia, specializing in immigration appellate issues.
During the 108 Congress, a number of proposals related to immigration and
identification-document security were introduced, some of which were considered
in the context of implementing recommendations made by the National Commission
on Terrorist Attacks Upon the United States (also known as the 9/11 Commission)
and enacted pursuant to the Intelligence Reform and Terrorism Prevention Act of
2004 (P.L. 108-458).  At the time that the Intelligence Reform and Terrorism
Prevention Act was adopted, some congressional leaders reportedly agreed to revisit certain immigration and document-security issues in the 109th Congress that had been dropped from the final version of the act.
The REAL ID Act of 2005 was first introduced as H.R. 418 by Representative
James Sensenbrenner on January 26, 2005, and passed the House, as amended, on
February 10, 2005.  The text of House-passed H.R. 418 was subsequently added to
H.R. 1268, the Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Tsunami Relief, 2005, which was introduced by Representative
Jerry Lewis on March 11, 2005, and passed the House, as amended, on March 16,
2005.  H.R. 1268 passed the Senate on April 21, 2005, as amended, on a vote of 99-
0, but did not include the REAL ID Act provisions.  A conference report resolving
differences between the two versions of the bill, H.Rept. 109-72, passed the House
on May 5, 2005 and the Senate on May 10, 2005, before being enacted into law on
May 11, 2005. The version of the REAL ID Act (P.L. 109-13, Division B) ultimately
enacted includes most of the provisions of the REAL ID Act that initially passed the
House (though not those relating to the bond of aliens in removal proceedings),
though some changes were made to certain REAL ID Act provisions.
This report analyzes the major provisions of the REAL ID Act, as enacted,
which, inter alia, (1) modifies the eligibility criteria for asylum and withholding of
removal; (2) limits judicial review of certain immigration decisions; (3) provides
additional waiver authority over laws that might impede the expeditious construction of barriers and roads along land borders, including a 14-mile wide fence near San Diego; (4) expands the scope of terror-related activity making an alien inadmissible or deportable, as well as ineligible for certain forms of relief from removal; (5) requires states to meet certain minimum security standards in order for the drivers’ licenses and personal identification cards they issue to be accepted for federal purposes; (6) requires the Secretary of Homeland Security to enter into the appropriate aviation security screening database the appropriate background
information of any person convicted of using a false driver’s license for the purpose
of boarding an airplane; and (7) requires the Department of Homeland Security to
study and plan ways to improve U.S. security and improve inter-agency
communications and information sharing, as well as establish a ground surveillance
pilot program.

Filed under: asylum | Tagged: , , , , , , , , , | Leave a comment »

REAL ID ACT Updates

Posted on February 16, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The June 2009 Immigration Briefings, entitled “Credibility, Burden of Proof, and Corroboration Under the Real ID Act,” 09-06 Immigration Briefing 1 (June 2009), discusses credibility determinations as prescribed by the REAL ID Act of 2005, primarily in the context of asylum relief. The Briefing addresses both burden of proof and corroboration as part of its analysis of credibility under the REAL ID Act. The Briefing begins with a historical background of the REAL ID Act and continues by examining burden-of-proof issues. The Briefing provides an analysis of the standard requirement under the REAL ID Act that aliens applying for relief demonstrate that harm on account of a protected ground be at least one central reason for feared persecution as compared with the pre-REAL ID Act mixed-motive standard. Also discussed in the Briefing are the REAL ID Act credibility amendments, which require that factfinders consider the totality of circumstances when considering credibility as applied to minor inconsistencies in testimony and the heart of the applicant’s claim. Finally, the Briefing discusses language in the REAL ID Act that gives immigration judges the right to demand that an alien produce evidence to corroborate otherwise-credible testimony unless that alien does not have the evidence and cannot reasonably obtain it.

The June Briefing was written by James Feroli, an attorney with the Immigrant and Refugee Appellate Center in Alexandria, Virginia, specializing in immigration appellate issues.
During the 108 Congress, a number of proposals related to immigration and
identification-document security were introduced, some of which were considered
in the context of implementing recommendations made by the National Commission
on Terrorist Attacks Upon the United States (also known as the 9/11 Commission)
and enacted pursuant to the Intelligence Reform and Terrorism Prevention Act of
2004 (P.L. 108-458).  At the time that the Intelligence Reform and Terrorism
Prevention Act was adopted, some congressional leaders reportedly agreed to revisit certain immigration and document-security issues in the 109th Congress that had been dropped from the final version of the act.
The REAL ID Act of 2005 was first introduced as H.R. 418 by Representative
James Sensenbrenner on January 26, 2005, and passed the House, as amended, on
February 10, 2005.  The text of House-passed H.R. 418 was subsequently added to
H.R. 1268, the Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Tsunami Relief, 2005, which was introduced by Representative
Jerry Lewis on March 11, 2005, and passed the House, as amended, on March 16,
2005.  H.R. 1268 passed the Senate on April 21, 2005, as amended, on a vote of 99-
0, but did not include the REAL ID Act provisions.  A conference report resolving
differences between the two versions of the bill, H.Rept. 109-72, passed the House
on May 5, 2005 and the Senate on May 10, 2005, before being enacted into law on
May 11, 2005. The version of the REAL ID Act (P.L. 109-13, Division B) ultimately
enacted includes most of the provisions of the REAL ID Act that initially passed the
House (though not those relating to the bond of aliens in removal proceedings),
though some changes were made to certain REAL ID Act provisions.
This report analyzes the major provisions of the REAL ID Act, as enacted,
which, inter alia, (1) modifies the eligibility criteria for asylum and withholding of
removal; (2) limits judicial review of certain immigration decisions; (3) provides
additional waiver authority over laws that might impede the expeditious construction of barriers and roads along land borders, including a 14-mile wide fence near San Diego; (4) expands the scope of terror-related activity making an alien inadmissible or deportable, as well as ineligible for certain forms of relief from removal; (5) requires states to meet certain minimum security standards in order for the drivers’ licenses and personal identification cards they issue to be accepted for federal purposes; (6) requires the Secretary of Homeland Security to enter into the appropriate aviation security screening database the appropriate background
information of any person convicted of using a false driver’s license for the purpose
of boarding an airplane; and (7) requires the Department of Homeland Security to
study and plan ways to improve U.S. security and improve inter-agency
communications and information sharing, as well as establish a ground surveillance
pilot program.

Filed under: asylum, Immigration Attorney, los angeles immigration attorney, REAL ID Act, USCIS | Tagged: , | Leave a comment »

Is the Marriage Bona-fide?

Posted on February 16, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

This type of visa will allow you to obtain the Green Card for you, your spouse and your unmarried children under 21 years old. You can get the Immigration Green Card by marriage if the marriage is bona-fide.

If you marry a United States Citizen, you can begin the process immediately to get your Green Card. Depending on your current status and whether you entered the country legally, you can stay in the United States and Adjust your Status to that of a Lawful Permanent Resident. Otherwise, you may have to have the application prepared and sent to the United States Consulate of your home country. Many times the spouse will want to get the foreign national deported because the marriage is not working out and they do not believe it was bona-fide even if kids were born.

If you have been married less than two years, you will get a Conditional Green Card. This means that two years later, you will have to file another petition to remove the Conditional Residency to prove the marriage is real.

Filed under: Green Card, Immigration Attorney, los angeles immigration attorney, LPR, USCIS | Tagged: , | Leave a comment »

Adoption in general

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

This page explains the process for adopting children from foreign countries. Additionally, it provides information on immigration benefits obtainable through adoptive relationships. These resources are intended for adoptive and prospective adoptive parents of foreign-born children, as well as adoption agencies, and state and local officials involved in adoption proceedings.

Orphan petitions are the most common way of bringing foreign adopted and prospective adoptive children to the United States. The material addressed on this link is comprehensive and meant for readers who want to avoid problems and/or delays with the adoption process. Information is included on some of the difficult issues that can occur in orphan cases.

The Immigration of Adopted and Prospective Adoptive Children materials feature a section on immigration benefits that may be gained from adoptive relationships through procedures other than the orphan petition. There is also some general information on how a foreign-born adopted child can become a U.S. citizen.

Above all, this material alerts prospective adoptive parents about some serious problems that may happen in foreign adoption cases. For example, unscrupulous adoption practices are common in many areas of the world. Moreover, adoption of a foreign-born child does not guarantee the child’s eligibility to immigrate to the United States. The adoptive parent must comply with the U.S. immigration law and legal regulatory procedures. There is no way an orphan can legally immigrate to the United States without Bureau of Citizenship and Immigration Services (INS) processing.

INS regulations require that all foreign adoptions undergo an investigation to guarantee compliance with the laws of both the United States and foreign sending country. When necessary, an overseas investigation is initiated. This investigation can cause delays in adjudicating the case. Prospective adoptive parents are advised to retain a reputable agency with foreign adoption experience or competent legal representation in their efforts to bring foreign-born children to the United States.

INS places a priority on processing adoption petitions. Many BCIS field offices have assigned individual officers and clerks to process orphan petitions applications and respond to inquiries from the petitioners concerning the status of their case. Prospective adoptive parents are encouraged to go through their adoption agencies for guidance and insight on the immigration of orphan and adopted children.

The U.S. Department of State’s Office of Children’s Issues coordinates policy and provides information to the public on international adoptions, including country-specific data. Prospective adoptive parents can contact the Office of Children’s Issues at (202) 736-7000.

Adoption information is also available from the U.S. State Department internet website at http://travel.state.gov/family/family_1732.html.

Adoption and immigration

Decree of adoption

Family petitions to immigrate family members adoption 

Find a good Immigration Lawyer

Filed under: Adoption | Tagged: , , , , , , , , , , | Leave a comment »

Federal Judicial Review

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996included restrictions on federal judicial review of deportation, exclusion and removal cases. Former INA § 106, passed in 1961 by the United States Congress, had provided the basis for judicial review of immigration matters until its elimination by IIRIRA which replaced it with INA § 242, (8 U.S.C.A. § 1252).

After the passage of IIRIRA, different procedures were created for judicial review of removal orders, including exclusion or deportation orders, and for immigration decisions generally. Decisions regarding judicial review of removal orders are now subject to INA § 242 (8 U.S.C.A. § 1252). Review of immigration decisions outside of removal proceedings are governed by (28U.S.C.A. § 1331) and the provisions of the Administrative Procedures Act and occur in the District Courts.

Judicial review of immigration decisions can be divided into three categories depending on the date of commencement of proceedings or issuance of a final order. If a person had a final order of deportation or exclusion entered before October 30, 1996, judicial review was governed by former INA § 106. Deportation or exclusion cases which were commenced on or before October 30, 1996—but where no final deportation or exclusion order had yet been issued—are subject to the transition rules under IIRIRA. Judicial review of post-IIRIRA removal proceedings initiated on or after April 1, 1997 are governed by INA § 242 (8 U.S.C.A. § 1252) which provide limited judicial review of many immigration matters.Except as provided in INA § 242(b) (8U.S.C.A. § 1252(b)). (requirements for review of removal orders), judicial review of a final order of removal is governed by Chapter 158 of Title 28 of the United States Code, except that courts may not order taking of additional evidence under (28 U.S.C.A. § 2347(c). However, there are matters not subject to judicial review as outlined in INA § 242(a)(2) (8 U.S.C.A. § 1252 (a) (2)). Generally, judicial review of an order of removal lies with the circuit courts of appeals.

Under several provisions contained in IIRIRA, the United States Congress sought to simplify and expedite the removal of aliens, including either eliminating or severely limiting judicial review of immigration decisions as follows:

(1) elimination or limitation of judicial review under INA § 242 (8 U.S.C.A. § 1252): this provision contains a variety of court stripping or limiting provisions;
(2) elimination of review regarding discretionary decisions relating to detention, or release, including the grant, revocation or denial of bond or parole;
(3) elimination of review of decisions of the Attorney General or his or her successor regarding voluntary departure;
(4) elimination of challenges against the United States or its agencies or officers under INA § 279 (8 U.S.C.A. § 1329).;
(5) restriction on judicial review of certain legalization claims other than in the context of review of a final order of deportation or removal unless the person filed within the original deadline or was refused (“front-desked”) by the legacy INS at the time and
(6) restriction on review of the denial of the right to seek asylum because the applicant;

(a) could seek protection in a safe third country;
(b) was previously denied asylum;
(c) did not file the application within one year of entry; or
(d) is deemed to be a terrorist.

Despite the restrictions created by IIRIRA precluding judicial review of a broad range of immigration related matters, federal courts still retain jurisdiction to review jurisdictional facts and determine the proper scope, if any, of its own jurisdiction.

Generally, petitioners must exhaust all administrative remedies prior to requesting review of a final order. Additionally, petitioners must comply with general Article III requirements relating to subject matter jurisdiction, standing, ripeness, mootness and the political question doctrine. These and the other bars to judicial review noted above must be addressed prior to reaching the merits of a case

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996included restrictions on federal judicial review of deportation, exclusion and removal cases. Former INA § 106, passed in 1961 by the United States Congress, had provided the basis for judicial review of immigration matters until its elimination by IIRIRA which replaced it with INA § 242, (8 U.S.C.A. § 1252).  

After the passage of IIRIRA, different procedures were created for judicial review of removal orders, including exclusion or deportation orders, and for immigration decisions generally. Decisions regarding judicial review of removal orders are now subject to INA § 242 (8 U.S.C.A. § 1252). Review of immigration decisions outside of removal proceedings are governed by (28U.S.C.A. § 1331) and the provisions of the Administrative Procedures Act and occur in the District Courts.

Judicial review of immigration decisions can be divided into three categories depending on the date of commencement of proceedings or issuance of a final order. If a person had a final order of deportation or exclusion entered before October 30, 1996, judicial review was governed by former INA § 106. Deportation or exclusion cases which were commenced on or before October 30, 1996—but where no final deportation or exclusion order had yet been issued—are subject to the transition rules under IIRIRA. Judicial review of post-IIRIRA removal proceedings initiated on or after April 1, 1997 are governed by INA § 242 (8 U.S.C.A. § 1252) which provide limited judicial review of many immigration matters.Except as provided in INA § 242(b) (8U.S.C.A. § 1252(b)). (requirements for review of removal orders), judicial review of a final order of removal is governed by Chapter 158 of Title 28 of the United States Code, except that courts may not order taking of additional evidence under (28 U.S.C.A. § 2347(c). However, there are matters not subject to judicial review as outlined in INA § 242(a)(2) (8 U.S.C.A. § 1252 (a) (2)). Generally, judicial review of an order of removal lies with the circuit courts of appeals.

Under several provisions contained in IIRIRA, the United States Congress sought to simplify and expedite the removal of aliens, including either eliminating or severely limiting judicial review of immigration decisions as follows:

(1) elimination or limitation of judicial review under INA § 242 (8 U.S.C.A. § 1252): this provision contains a variety of court stripping or limiting provisions;
(2) elimination of review regarding discretionary decisions relating to detention, or release, including the grant, revocation or denial of bond or parole;
(3) elimination of review of decisions of the Attorney General or his or her successor regarding voluntary departure;
(4) elimination of challenges against the United States or its agencies or officers under INA § 279 (8 U.S.C.A. § 1329).;
(5) restriction on judicial review of certain legalization claims other than in the context of review of a final order of deportation or removal unless the person filed within the original deadline or was refused (“front-desked”) by the legacy INS at the time and
(6) restriction on review of the denial of the right to seek asylum because the applicant;

(a) could seek protection in a safe third country;
(b) was previously denied asylum;
(c) did not file the application within one year of entry; or
(d) is deemed to be a terrorist.

Despite the restrictions created by IIRIRA precluding judicial review of a broad range of immigration related matters, federal courts still retain jurisdiction to review jurisdictional facts and determine the proper scope, if any, of its own jurisdiction.

Generally, petitioners must exhaust all administrative remedies prior to requesting review of a final order. Additionally, petitioners must comply with general Article III requirements relating to subject matter jurisdiction, standing, ripeness, mootness and the political question doctrine. These and the other bars to judicial review noted above must be addressed prior to reaching the merits of a case.

In absetia removal order

Reinstated removal order

Removal order, is there something to do?

How a deportation Attorney can help you win a cancellation of removal for non permanent residents 

Filed under: Removal Proceedings | Tagged: , , , , , , | Leave a comment »

What is Appeals?

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Our law firm prepares each and every kind of appeal regarding all types of petitions and applications under the Immigration and Nationality Act. Appeals can be made from the Immigration Court, the Bureau of Citizenship and Immigration Services, the Department of State, the Department of Labor and many more.

Appeals go to many different types of entities. Depending on where the original denial came from, appeals can go to the Board of Immigration Appeals, the Board of Alien Labor Certification Appeals, the Administrative Appeals Unit, various Federal District Courts, various Federal Appellate Circuit Courts and the United States Supreme Court.

Appeals are extremely time sensitive. This means that if the appeal is sent one day late, you will have probably lost all chances to ever appeal the decision. Our law firm can get the appeal out in an expedited timely manner to ensure that you are protected.

9th circuit court of appeals

Administrative appeals office

Immigration appeals

Losing at the Immigration Court is not the end 

Filed under: Appeal | Tagged: , , , , , , , , , , , | 1 Comment »

Who is Eligible to Apply?

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:

Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.

Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.

Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries

Filed under: Battered Spouse, Derivative Citizenship, Immigration Attorney, los angeles immigration attorney, USCIS | Tagged: , | Leave a comment »

United Nations High Commissioner for Refugees

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

“The Office of the United Nations High Commissioner for Refugees was established on December 14, 1950 by the United Nations General Assembly. The agency is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, with the option to return home voluntarily, integrate locally or to resettle in a third country. It also has a mandate to help stateless people.

In more than five decades, the agency has helped tens of millions of people restart their lives. Today, a staff of some 6,600 people in more than 110 countries continues to help about 34 million persons.”

Taken from the Official UNHCR Web Site.

Bureau of population refugees and migration

Form I-131 for a refugee travel document

Refugee and immigration

New update to be released regarding a refugee placement program from such countries 

Filed under: asylum | Tagged: , , , , , , , , , | Leave a comment »

Convention Against Torture

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Generally, if you will be tortured, imprisoned, or persecuted for various reasons upon returning to your home country, you may qualify for relief under the Convention Against Torture (CAT). You can only apply for this form of relief if you are in Removal or Deportation Proceedings.

The implementation of CAT is from an International Treaty which the United States has agreed to be a country subject to the provisions of this treaty. It is officially known as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1). While it has been around for some time, it was only recently that the United States recently ratified its provisions.

Convention against torture

Convention against torture act meaning 

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Convention against torture granted

Filed under: Convention Against Torture (CAT) | Tagged: , , , , , | Leave a comment »

What is Refugee Processing?

Posted on February 15, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The U.S. Attorney General has statutory discretionary authority to admit any refugee who is not firmly resettled in a third country, who is determined to be of special humanitarian concern, and who is admissible as an immigrant. The Attorney General has delegated this authority to the Bureau of Citizenship and Immigration Services (INS). In both overseas refugee processing and domestic asylum proceedings, BCIS has the statutory role of being the decision-maker, determining who meets the requirements for refugee status.

Within the BCIS , the Office of International Affairs, Refugee Branch, located in Washington, D.C., is responsible for oversight and management of the entire BCIS overseas U.S. refugee adjudication program. The overseas refugee processing is assigned by geographic location to the three District Offices, which are located in Rome, Mexico City, and Bangkok. The refugee interviews are conducted by BCIS officers, who are stationed in the three overseas district offices and numerous other sub-offices, and by domestic U.S. asylum officers who travel to overseas locations.

Asylum persecution

Bureau of population refugees and migration

Form I-131 for a refugee travel document

Refugees and immigrants

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