Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I have been in the U.S. for over 30 years. I’m illegal here, but cannot seem to find a way to get my status. Is there anything I can do?

Answer: If you have been present in the United States since January 1, 1972, you may be eligible for the “registry” provisions of our immigration laws which would allow you to obtain lawful permanent residence even if you are illegally in the United States now, or if you initially entered the U.S. illegally.

Question: Where Can I Find the Law?

Answer: The part of the law concerning the registry provisions is located at INA §249. The specific eligibility requirements and procedures for becoming a permanent resident through registry are included in the Code of Federal Regulations (CFR) at 8 CFR 1259 .

Question: Who Is Eligible?

Answer: You are eligible to apply for permanent residence based on 8 CFR 1259 if you: Entered the United States prior to January 1, 1972; Have continuously resided in the United States since entry; Are a person of good moral character; Are neither ineligible for citizenship, except for the requirement of five years of lawful permanent residence, nor inadmissible for participation in terrorist activities, certain criminal or security grounds, or for alien smuggling and never participated in Nazi persecutions or genocide.

Any alien who has at any time engaged in terrorist activities is ineligible for registry. Further, any alien who fails to appear at a removal hearing, or who fails to depart after agreeing to voluntary departure, is ineligible for registry for a period of ten years.

Question: How Do I Apply?

Answer: You must submit a completed Form I-485 with filing fee, and a completed Form G-325A with evidence that you have continuously resided in the United States prior to January 1, 1972, to the USCIS district office having jurisdiction over the place in which you live. You must establish that you are eligible and that registry should be granted in the exercise of discretion. There is no appeal from the decision of the District Director but your application may be renewed in front of an Immigration Judge.

Question: Will I Get a Work Permit?

Answer: Applicants who are inside the United States and have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) are eligible to apply for a work permit while their case is pending. You should use Form I-765 to apply for a work permit.

You do not need to apply for a work permit once you are accorded permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the United States permanently.

Question: Can I Travel outside the United States while I am waiting for my application under the registry provision to be processed?

Answer: If an alien obtains Advance Parole from the USCIS following approval of a Form I-131, he or she may travel outside of the United States and return without jeopardizing their registry application. However, any alien who has accrued more than 180 days of unlawful presence in the United States and then travels outside the United States is inadmissible for a period of 3 to 10 years. Registry applicants have, by definition, accrued long periods of time in unlawful status. If you are applying for permanent residence using the section 249 registry provisions, you should not travel outside of the United States without first obtaining advance parole from the Service, or you will be unable to return to the United States.

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Question: We just petitioned our child after not seeing him in our home country for over 2 years. He will be coming to the U.S. as a Lawful Permanent Resident. When can we apply for citizenship for him?

Answer: On October 30, 2000, the Child Citizenship Act of 2000 (CCA) was signed into law. The new law permitted foreign-born children (including adopted children) to acquire citizenship automatically if they meet certain requirements. It became effective on February 27, 2001.

Question: Which Children Automatically Become Citizens Under the CCA?

Answer: Since February 27, 2001, certain foreign-born children of U.S. citizens (including adopted children) residing permanently in the United States acquired citizenship automatically. The term “child” is defined differently under immigration law for purposes of naturalization than for other immigration purposes, including adoption. To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law, and must also meet the following requirements: The child has at least one United States citizen parent (by birth or naturalization); The child is under 18 years of age; The child is currently residing permanently in the United States in the legal and physical custody of the United States citizen parent; The child has been admitted to the United States as a lawful permanent resident or has been adjusted to this status; An adopted child must also meet the requirements applicable to the particular provision under which they qualified for admission as an adopted child under immigration law. Acquiring citizenship automatically means citizenship is acquired by operation of law, without the need to apply for citizenship.

Question: Must an application be filed with USCIS to establish a child’s citizenship?

Answer: No. If a child qualifies for citizenship under the Child Citizenship Act, the child’s citizenship status is no longer dependent on USCIS approving a naturalization application. The child’s parents may, however, file an application for a certificate of citizenship on the child’s behalf to obtain evidence of citizenship. If a child satisfies the requirements listed above, he or she automatically acquires U.S. citizenship by operation of law either on the day of admission to the United States or on the day that the last condition for acquiring citizenship is satisfied.

Question: Will Eligible Children Automatically Receive Proof of Citizenship?

Answer: If the child falls under this provision, they will automatically receive a Certificate of Citizenship within 45 days of admission into the U.S. This program eliminates the need for the issuance of a Permanent Resident Card for newly entering children, since these cards are not applicable to U.S. citizens.

In other words, if the child falls under this provision of law, the moment they are admitted as a Lawful Permanent Resident, they are immediately considered to be a U.S. Citizen.

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Question: I have heard that some new case just came down as a victory for a person filing for asylum. Is that true.

Answer: Yes. For years due process rights have been stripped away from aliens. These people who come into the United States are at the mercy of the laws of the United States. Many aliens apply for asylum in order to avoid having to return to their own countries which have persecuted them. They will leave everything behind and come to the United States with nothing else than the clothes on their backs. They are desperate people who are looking for refuge.

Once they come to the United States, they have one year to apply for asylum. First, the asylum will be processed and decided by the asylum officer. If that officer denies the case, it is immediately referred or sent to the Immigration Judge. In other words, when the alien loses at the asylum officer level, he or she is immediately put into deportation (now known as removal) proceedings.

The Immigration Judge will be able to hear the case de novo. Many times an alien will attempt the first try at asylum by themselves, and then, only after they lose at the asylum officer level will they secure counsel.

If the Immigration Judge denies the case, then it can be appealed to the Board of Immigration Appeals. Lately, the Board of Immigration Appeals has been issuing summary decisions which are basically two to three lines long. These decisions many times will not give any type of reasoning as to why the decision was issued and why the alien’s case was denied.

However, the Ninth Circuit Court of Appeals has just issued a decision which not only verifies certain due process rights still available for aliens, but criticizes the Board of Immigration Appeals on this particular decision.

In this case the Court had to decide whether the Board of Immigration Appeals erred in dismissing an appeal when the petitioner (the person applying for asylum) dutifully followed all regulations and procedures pertaining to filing his Notice of Appeal, but the Board of Immigration Appeals itself deprived him of the opportunity to timely file his brief by sending the briefing schedule and transcripts of proceedings to the wrong address.

The Immigration and Naturalization Service (“INS”) contended that the Board of Immigration Appeals decision, dismissing petitioner’s appeal from the denial of asylum solely on adverse credibility grounds, should be affirmed despite the Board of Immigration Appeals failure to provide any notice and any opportunity to be heard. In other words, the Immigration Judge denied the asylum claim only and solely because he had found the alien not to be credible.

The Court ruled that because these minimal due process requirements are clear and fundamental, and petitioner was prejudiced by an adverse credibility determination unsupported by substantial evidence, that they would grant the petition. However, the path they took to grant the petition was full of statements to the Board of Immigration Appeals which indicate they were not pleased with the decision making process in this case.

In this case, the alien had timely filed an appeal to the Board of Immigration Appeals. However, he had moved subsequent to filing the Notice of Appeal. Over one year later, the Board of Immigration Appeals had sent the briefing schedule to the alien’s old address. It stated when the opening brief needed to be filed. Once the alien had received notification of the briefing schedule the date for the filing of the brief had passed. He filed an unopposed motion to the Board of Immigration Appeals to be allowed to file a late brief based upon the fact he never received the briefing schedule. The Board of Immigration Appeals denied his request and ruled that his asylum will be denied because of the inconsistent testimony which they had refused to allow him to brief in order to explain why such inconsistencies might have occurred.

The Court stated that the alien provided a credible account of persecution on political and religious grounds. The alien, Singh fled his native India after suffering persecution due to his support of religious and political rights for the Sikh minority in the Punjab province of India. He entered the United States without inspection in November of 1995 and filed an application for asylum. On September 26, 1996, the Immigration and Naturalization Service commenced deportation proceedings against him.

In his asylum application, and during seven subsequent hearings before an Immigration Judge held over the course of more than four years, Singh described his activism on behalf of the Sikh separatist movement in Punjab, including his membership in the All India Sikh Student Federation (“AISSF”) and his support of the Akali Dal Party.

At the age of nineteen, Singh became involved with the AISSF after an attack on the Sikh Golden Temple, which was believed to be the work of Indian security forces. In 1988, Singh was arrested during an AISSF rally that he organized in Jallhandar. He was held in jail for fifteen days, while being beaten and tortured by the police. He was never charged with a crime nor brought before a judge.

In January of 1992, Indian police again arrested Singh without a warrant. He was held for twenty days, beaten with a bamboo stick, punched, kicked, and threatened with death if he did not end his affiliation with the AISSF. The police told him he was arrested because of his association with Sikh militants, even though he adamantly denied any such association.

In August 1993, Singh was arrested for a third time, along with three other AISSF members, while leaving the Sikh temple in his village. He was held by the police for thirteen days, during which time he was beaten until he lost consciousness. His head was shaved, an affront to Sikh religious practice, and he was then forced to stand for hours under the hot summer sun.

In April 1995, Singh testified that he was arrested for a fourth and final time while distributing party posters and collecting party funds. This time, he was held in jail for thirty-five days, again without being charged with a crime or taken before a judge. While in jail, he was tortured, humiliated, and threatened with death if he continued to support the AISSF.

The Board of Immigration Appeals ruled that they found three inconsistencies (even though they did not let the alien explain those inconsistencies.) The Court held that adverse credibility findings are reviewed for substantial evidence. The Court went on to rule that the Board of Immigration Appeals refusal to allow Singh to file a brief explaining his allegedly inconsistent testimony violated his right to due process. They ruled that the Board of Immigration Appeals must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum. Denying Singh the opportunity to file a brief plainly violates this well-established due process right.

In statements which the Board was reprimanded, the Court stated that the Board, after sending the briefing schedule and transcript to an incorrect address, justified denying Singh’s motion to file a late brief by asserting that the motion was untimely. However, to comport with due process requirements, the notice afforded aliens about deportation proceedings must be reasonably calculated to reach them. The Court stated that notice mailed to an address different from the one Singh provided could not have conceivably been reasonably calculated to reach him. As Singh was not afforded notice of the deadline, the Board of Immigration Appeals reasoning that his motion was untimely is patently insufficient.

Singh’s testimony took place over the course of seven hearings spread out over four years, during some of which he was so fatigued that the hearing had to be continued “in deference to the respondent’s condition.” After reviewing Singh’s testimony alongside his explanatory brief, the Court concluded that the testimony was remarkably consistent given the circumstances. The Board of Immigration Appeals decision to the contrary was not supported by substantial evidence, and could only be a result of its refusal to entertain Singh’s brief. The Court went on further to state that the Board of Immigration Appeals own words were revealing: it considered its conclusion bolstered by he fact that Singh failed to provide “any specific and detailed arguments about the contents of his testimony and why he should be deemed a credible witness.” Because the Board of Immigration Appeals denied him the opportunity to do just that, they reversed its determination that Singh is not credible.

In its final ruling, the Court held that because the adverse credibility decision was the sole basis for the denial of asylum, substantial evidence compelled them to find that Singh is eligible for asylum. They remanded the case back to the Board of Immigration Appeals to exercise its discretion, accepting Singh’s testimony as credible, to determine whether to grant asylum.

This case is a victory for aliens insofar as it shows that their due process rights cannot simply be trampled upon and that they must be afforded some level of due process in their asylum claims.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.

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