Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

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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Question: I know that Congress has a ‘lame-duck’ session now. I was wondering if there were any new and recent developments in the immigration laws.

Answer: There has actually been quite a bit that has been recently signed into law by President Bush. Here is the summary of those recent laws.

On November 2, President Bush signed into law the “21st Century Department of Justice Appropriations Authorization Act.” It includes the following.

Waiver of Foreign Country Residence Requirement with Respect International Medical Graduates. Extends until 2004 the “Conrad State 20” program, which allows states to request waivers of the two-year home residence requirement of INA § 212(e) for certain J–1 physicians who agree to work in medically underserved areas for a period of at least three years, and raises the number of visas available per state from 20 to 30.

Posthumous Citizenship for Non-Citizen Veterans.: Extends the deadline for allowing family members to apply for honorary posthumous citizenship for noncitizen veterans who died while honorably serving the U.S. in past wars.

Extension of H-1B Status for Aliens with Lengthy Adjudications.: Recognizing that lengthy processing times by the Department of Labor have precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000, this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the six-year limitation. As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed his or her status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point.

Application for Naturalization by Alternative Applicant if Citizen Parent Has Died: Amends the INA to authorize a child’s grandparents or legal guardian to submit an application for naturalization on behalf of the child under section 322 of the INA where the child’s parent, who otherwise would be authorized to submit the petition, died during the preceding five years.

Also on November 2, the President signed the “Border Student Commuter Act of 2002”. The new law amends INA §§ 101(a)(15)(F) and (M) by creating a new border commuter nonimmigrant classification under the F and M visa categories for Canadian and Mexican nationals who maintain residence in their country of nationality and commute to the U.S. for full- or part-time academic or vocational studies. The legislation was triggered by a May 22, 2002, INS proclamation that commuter students residing in contiguous territory would no longer be allowed to enter the U.S. as visitors to attend school on a part-time basis.

President Bush, on October 29, signed the “Persian Gulf POW/MIA War Accountability Act” to provide refugee status to any alien (and his or her spouse or child) who: (1) is a national of Iraq or a nation of the Greater Middle East Region; and (2) personally delivers into the custody of the U.S. government a living American Persian Gulf War prisoner of war or individual missing in action. Excepted from the Act’s benefits are persons who are ineligible for asylum (including terrorists, persecutors, certain criminals, and individuals presenting a danger to the security of the U.S.).

On September 30, President Bush signed the “Foreign Relations Authorization Act for Fiscal Year 2003” (H.R. 1646, Pub. L. No. 107–228). The Act contains numerous immigration-related provisions, including authorization for $4.97 billion in appropriations for the administration of foreign affairs in fiscal year 2003.

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The Board of Immigration Appeals issued a decision, In re Ariadna Angelica Gonzalez, et al. (23 I & N Dec. 467, Interim Decision #3479, BIA 2002) on September 19, 2002 that seems to ease some of the restrictions on applying for cancellation of removal.

When an alien is placed into removal proceedings (previously referred to as deportation proceedings), there is a type of relief known as cancellation of removal. If the Immigration Judge grants the relief, then the alien will be granted lawful permanent residence in the United States. To qualify for this relief, one must show that he or she has been physically present in the United States for at least ten years prior to being placed into removal proceedings. Next, the alien must show they have good moral character and have not been convicted of certain crimes. Finally, the most difficult element to prove for this type of relief is to show that an immediate family member who is either a United States citizen or Lawful Permanent Resident will suffer exceptional and extremely unusual hardship if the he or she is removed from the United States.

Prior to In re Gonzalez, it appeared as though only those aliens in removal proceedings who had a United States son or daughter who suffered from some type of sever medical trauma would be granted cancellation of removal. Naturally, most people in proceedings could never meet such a high standard. This type of standard was not only restrictive, but unrealistic for most people to meet. Congress has allowed aliens without legal status in removal proceedings to apply for this type of relief. They have intended that long term residents should be given a real chance to be able to continue their lives in the United States without having their families torn apart and separated for years or for the rest of their lives.

The problem is with the term ‘exceptional and extremely unusual hardship.’ Clearly, any family who is separated by removal of one of its members from the United States will suffer hardship. However, for those who want to win the cancellation of removal cases, they must present facts showing that they will suffer exceptional and extremely unusual hardship. When this law was passed under the Immigration and Nationality Act section 240, there were no precedent decisions as to what constitutes this type of hardship. In reality, each Immigration Judge could have their own interpretation as to what type of hardship will fall under this standard. Previously, the Board of Immigration Appeals has issued very harsh decisions as to what constitutes this high standard of hardship. Subsequent to the issuance of those decisions, it has been practically impossible to ever get a grant of cancellation of removal from an Immigration Judge.

In re Gonzalez moves the pendulum back and gives the attorneys and the judges some realistic direction on what constitutes ‘exceptional and extremely unusual hardship’. In this case there was a single mother of six children and no family ties in Mexico. Four of her children were United States citizens. She has lawful permanent resident parents and five of her siblings are United States citizens.

The factors the Board of Immigration Appeals considered in assessing the hardship included the heavy financial burden imposed on her by having to support all of her family in her native country, the lack of any familial support for her children, the lack of any family in her native country, the children’s unfamiliarity with the Spanish language and the unavailability of any other means of immigrating to the United States.

In re Gonzalez makes it clear that ‘unconscionable’ hardship need not be shown. In deciding a cancellation of removal case, the age, health, and other circumstances of the relative must be considered if they are to live in a country with a lower standard of living.

The financial hardship on the alien was a determinative factor. The Board of Immigration Appeals noted that her children were not receiving any type of financial assistance from their father. Additionally, the Board of Immigration Appeals noted that should she be removed from the United States, it would be unlikely that she would be able to legally return to the United States in the foreseeable future.

The Board of Immigration Appeals stated that they must consider the ‘totality of the burden on the entire family’ that would result from the removal of the mother from the United States. Thus, a cumulative analysis must be made as to all of the factors relating to the hardship.

Prior to this decision, getting the Immigration Judge to grant a cancellation of removal was rare. Now, aliens in removal proceedings can present a myriad of evidence to meet the high standard of hardship that their families will suffer if they are removed from the United States.

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