Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: Many people from around the world are being persecuted, tortured, imprisoned or killed in their home countries. However, sometimes they do not win. I heard that they may not be allowed to ever get immigration benefits again. Is this true?

Answer: They flee this persecution and apply for asylum in the United States. As a side benefit of applying for asylum, people can get work-permits which sometimes are more important for these people than the actual asylum. In the past, applying for asylum would be abused by thousands of people for this very purpose.

Thus, in 1996, Congress enacted a law which essentially stated that if someone files a frivolous asylum application, they would be permanently barred from ever applying for any immigration benefit for the rest of their lives. This bar would apply if the Immigration Judge made a ruling that the asylum application was frivolous or meritless.

In a recent 9th Circuit decision, Jamal vs. Ashcroft, 2003 U.S. App. LEXIS 23239 (9th Cir. 2003), the alien first challenged the Immigration Judge’s credibility determination underlying his removal order. The Immigration Judge had made a specific ruling that the alien was not credible. The Immigration Judge identified specific inconsistencies in the alien’s testimony, his expert’s testimony, his brother’s testimony, and between the different witnesses’ testimony. Further, the Immigration Judge ruled that the inconsistencies went to the heart of the asylum application and the alien’s identity, his membership in a persecuted group, and the date he entered the United States.

The Immigration Judge then ruled that the alien knowingly filed a frivolous asylum application and ordered that the alien be removed from the United States. Thus, because of this ruling the alien was barred for life from ever coming back to the United States. The alien appealed both the removal order and the order that the asylum application was frivolous.

Such a finding carries the severe penalty of a permanent bar to immigration relief. Immigration regulations require there to be sufficient opportunity to account for discrepancies or implausibilities.

The Immigration Judge reviewed with Farah the consequences of filing a frivolous asylum application. However, Farah wanted to continue with the application. In the end, the Immigration Judge found that Farah had knowingly filed a frivolous asylum application, but never allowed Farah to explain any of the inconsistencies the Immigration Judge relied upon in making that decision.

The primary issue to be answered is whether the Immigration Judge ruled correctly on whether there was a knowingly frivolous asylum application filed. This issue is of critical importance as it bears on whether persons who might have a colorable asylum claim will step forward and apply. If they feel that they will be adjudged to have filed a knowingly frivolous asylum application, a chilling effect for asylum seekers will occur. They will be afraid to file these applications. Instead of the United States attempting to adjudicate an asylum claims, the United States will be sending out a message to try to exclude valid claims.

The Immigration Judge concluded that Farah’s asylum application was so inconsistent that it rose to the level of being knowingly frivolous under the immigration laws.

In this case, the Immigration Judge found two specific examples of fabrication that were relevant to his decision: the petitioner’s entry date and his travel history. In his decision, the IJ held that it was clear that the respondent did not enter in New York on January 24, 1999, in the manner in which he stated and that he has fabricated that portion of his claim. The Immigration Judge further stated that he has also been untruthful as to whether he was in Nairobi, Kakuma, London, England or any other place before he came to the United States.

This court stated that Farah had ample opportunities to explain the discrepancies that led to the adverse credibility finding. For example, discrepancies in his father’s name and in his clan identity. To support the finding of frivolousness, however, the Immigration Judge relied with particularity on different discrepancies between what Farah said and the extrinsic evidence. Farah was not given an adequate opportunity to address those additional discrepancies before the ruling on frivolousness was made. In sum, the evidence presented did not allow a proper opportunity for Farah to explain all discrepancies in the record. Therefore, the court overturned the decision of the Immigration Judge that the application was knowingly frivolous.

Even though the Court did not reverse the decision denying the asylum, they did reverse the permanent bar to future filings with immigration. Now, aliens with colorable asylum claims will not be afraid to present those claims to the United States.

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Question: I am a lawful permanent resident and have petitioned my wife and son many years ago. Just recently I found out about the V Visa which allowed my wife and son to come to the United States and reside with me while we are waiting for the visa number to become current. However, my son is going to be 21 years old in two months. I have been told by USCIS that he will have to return home and he can no longer reside here on the V Visa. I have missed him so much that I cannot bear to be separated for years to come. Is there anything I can do?

Answer: Actually, there was just a case that came out in the Ninth Circuit Court of Appeal. Therefore, if you live in the jurisdiction of the Ninth Circuit (basically the Western United States), then you are in luck.

In this case, the court held that Immigration regulations terminating V nonimmigrant status the day before the visa holder’s 21st birthday, was contrary to Congress’ intent to reunite families when it enacted the Legal Immigration Family Equity Act (“LIFE Act“).

As background: the LIFE Act added a new nonimmigrant visa category, INA § 101(a)(15)(V). Spouses and children of lawful permanent residents who have been waiting for permanent resident status for at least three years are eligible for V visas. These V visa holders are entitled to certain benefits, including employment authorization. The INS regulations implementing INA § 101(a)(15)(V) provide that V visa status “will be granted a period of admission not to exceed 2 years or the day before the alien’s 21st birthday, whichever comes first.” Upon termination of V nonimmigrant status, the individual is no longer eligible for employment authorization.

In this Ninth Circuit case, the government argued that, the court should allow the USCIS regulations to stand. The court ultimately disagreed, stating “[w]e do not owe deference…to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.”

The court concluded that Congress did not directly speak to the issue of whether a person could lose V status by turning 21. The court found that the LIFE Act made clear that a person over the age of 21 was not eligible to receive a V visa but that the statute was silent regarding whether a person over the age of 21 who has been issued a V issue is able to continue to hold that visa. Thus, the court concluded that Congress’ intent was ambiguous.

The court noted that the LIFE Act provided three ways that V visa status may terminate and that aging-out was not one of those ways. Thus, applying the presumption that “when a statute designates certain . . . manners of operation, all omissions should be understood as exclusions,” the court concluded that “[s]ince Congress explicitly enumerated circumstances by which V Visa benefits are terminated, the presumption is that Congress purposely excluded all other possible means, such as aging-out.” The court further found that its conclusion was supported by: (1) statements in the congressional record regarding another LIFE Act provision (adjustment of status under INA § 245(i)); (2) “the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion;” (3) and the rule of lenity (in immigration cases, “doubts are to be resolved in favor of the alien.”).

Thus, the court invalidated the age-out provisions of the V Visa. Thus, your son can legally stay with you under the V Visa even though he will be older than 21 years of age. This is a significant victory for immigrants as it shows the power of the family unit and how Immigration cannot simply make arbitrary regulations.

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Question: I have been a Lawful Permanent Resident for many years. Many of my friends have become U.S. Citizens (USC) as have many of my family members. However, I just do not know why I should become a U.S. Citizen. Can you advise me?

Answer: The Constitution gives many rights to citizens and non-citizens living in the United States. However, there are some rights the Constitution gives only to citizens, like the right to vote. When you are naturalized, you will be given the right to vote. Having a U.S. passport is another benefit of citizenship. A U.S. passport allows citizens the freedom to travel. In addition, citizens receive U.S. Government protection and assistance when abroad. Additionally, while no one should go and commit crimes, persons whom are only Lawful Permanent Residents can be put into deportation proceedings and deported. This is not true of U.S. Citizens. In fact, once you become a U.S. Citizen, it is incredibly difficult to take away your citizenship. Regarding the crimes, many times people will just be in the wrong place at the wrong time. Because of that they will just take a plea bargain. Of course, if they only have their Green Cards, they could be put into deportation for the same reasons as stated above. To be a U.S. Citizen, is simply a much safer way of living here.

Question: Are there increased responsibilities if I become a U.S. Citizen?

Answer: The Oath of Allegiance includes several promises you must make when you become a U.S. citizen, including promises to: give up prior allegiances to other Countries; support and defend the Constitution and the laws of the United States; swear allegiance to the United States; and serve the country when required. Citizens have many responsibilities other than the ones mentioned in the oath. Citizens have a responsibility to participate in the political process by registering and voting in elections. Serving on a jury is another responsibility of citizenship. Finally, America becomes stronger when all its citizens respect the different opinions, cultures, ethnic groups, and religions found in this country. Tolerance for differences is also a responsibility of citizenship. When you decide to become a U.S. citizen, you should be willing to fulfill the responsibilities of citizenship.

You will have to honor and respect the freedoms and opportunities citizenship gives you. Once you become an American Citizen, and participate in all that this country has to offer, you will truly become an American.

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 Question: I am writing from the immigration detention facility. I have had my Green Card for many years, but committed a crime many years ago. After trying to become a U.S. Citizen, they not only denied my application, but put me in detention and deportation. I have heard that there is no way I can be bonded out during the proceedings. Is this true?

Answer: Partially. The United States Supreme Court recently decided a case known as the Kim case. The Court held that the government may detain classes of lawful permanent residents without conducting individualized bond hearings to determine whether they pose a flight risk or danger to the community. The INA lists broad categories of noncitizens that are subject to mandatory detention based on their removability under specific criminal provisions.

After the Court announced its decision, the Bureau of Immigration and Customs Enforcement (BICE) issued a memorandum saying that all persons subject to Kim would receive letters within six months asking them to report for an interview. BICE said it would re-detain individuals who had previously been released after a bond hearing, but who now fall within the mandatory detention provisions.

Question: Is there anyway around the Kim case?

Answer: There may be. The first step in analyzing any mandatory detention case is to determine whether the Kim case even applies. Only individuals who were released from criminal custody after October 8, 1998 are subject to mandatory detention. Thus, if you were released from custody before that time, you are not subject to the mandatory detention.

Also, it can be argued that only individuals who are taken into custody immediately upon their release from criminal incarceration fall within the confines of this case.

Assuming this cannot be argued, a “Joseph hearing” needs to be conducted. A Green Card holder is not “properly included” within a mandatory detention category if the “Service is substantially unlikely to establish at the merits hearing, or on appeal, the charges that would otherwise subject the alien to mandatory detention.” Individuals who prevail at the Joseph hearing are entitled to have a bond hearing.

For example, if the person is charged with removability based on convictions for two crimes involving moral turpitude, consider whether there are possible challenges to (1) the existence of the convictions, and (2) the classification of the crimes as crimes involving moral turpitude. In Matter of Joseph, the BIA concluded that it was substantially unlikely that INS would succeed because Joseph’s conviction was not correctly classified as an aggravated felony. Although Matter of Joseph addressed only the situation where the conviction was wrongly classified as a crime that would trigger mandatory detention, in thinking about whether there is a conviction, take account of the availability of post-conviction relief.

Question: Assuming I cannot prevail at the Joseph Hearing, is there anything else I can do?

Answer: You can bring actions in the U.S. Federal District Courts challenging the mandatory detention. Such factors to bring the attention of the Judge will be the length of the detention and removal from the United States is unlikely. Also, the Supreme Court’s decision was premised on the finding that Kim conceded removability. Individuals intending to challenge removability should state clearly this intention at both the immigration court and in any habeas corpus actions. Cases where the person is challenging deportability may be distinguished from Kim on that basis.

At this point, it will be difficult, but we must continue to argue and fight for the rights of people who are subject to mandatory detention.

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