by Victor Okeke | Apr 26, 2010 | Uncategorized
1. An application for asylum must be filed within 1 year of an applicant’s arrival to the United States to be considered properly filed and be adjudicated (very limited exceptions to this rule).
2. The spouse and unmarried children under 21 years of age can benefit from an approved asylum application, thus they can join the principal asylee here in the United States.
3. An asylum applicant can apply for emplyment authorization after 150 days of a pending, properly filed application. However, such employment authorization would not be granted until at least 180 days i.e 30 days after the 150 days.
4. The spouse and unmarried children under 21 years of age are also employment eligible pursuant to anapproved asylum application.
5. Asylum status is for an indefinite but temporary period. This basically means that an asylee may have his/her status revoked if for instance there are changed circumstances in his/her country making the basis of the original grant non existent.
6. Although an asylee is not required by law to adjust status to that of a lawful permanent resident, (LPR), because of 5 above, it may be beneficial so to do. Eligibility to adjust status accrues to the asylee after one year of the grant of asylum.
7. During the pendency of the application, an asylum applicant can only travel with proper authorization or he/she would be deemed to have abandoned the application.
8. Where the asylum applicant travels to the country of feared persecution during the pendency of the application, he/she is also presumed to have abandoned the application unless if there were compelling reasons for such travel.
9. Upon grant of asylum, an asylee should be wary of travelling to the country of feared persecution as such travel may become a basis for revocation especially where the asylee has reavailed himself/herself of the protection of the said country of persecution.
10. Conviction for an aggravated felony or any other very serious crime (amongst others) would render one ineligible for asylum.
by Victor Okeke | Apr 1, 2010 | Uncategorized
Padilla was facing deportation after pleading guilty to drug distribution charges in Kentucky. He had been a Lawful Permanent Resident for over 40 years. Padilla argued that his counsel failed to advise him of the consequence of deportation before he entered his guilty plea. Counsel told him not to worry about deportation since he had lived in the U.S. for so long. Padilla argued he would have gone to trial had he known otherwise.
The Supreme Court held that changes to U.S. immigration law have made accurate and competent legal advice for non citizens accused of crime very paramount. The sixth amendment’s guarantee of effective assistance of counsel was therefore violated as Padilla was wrongly advised as to the consequences of his guilty plea. Read the full text; http://www.supremecourt.gov/Opinions/09pdf/08-651.pdf
by Victor Okeke | Feb 10, 2010 | Uncategorized
The U visa and the Violence against Women Act (VAWA) both aim at enabling victims of crimes have a path to adjustment of status. For VAWA to apply, there need to have been a marriage relationship, or parent/child relationship, between the victim and the spouse/parent United States citizen/Lawful Permanent Resident (USC/LPR) who usually would be the perpetrator of the abuse or crime. Thus for VAWA, not only would some kind of domestic situation be involved, there must also be a USC/LPR involved. The self petitioner must also show good moral character. Not so with the U visa.
The U visa requires no marriage and certainly does not require a USC or a LPR to have been the perpetrator of the crime. Also the perpetrator need not have been in a domestic relationship with the victim. VAWA offers a clear path towards adjustment of status whereas the U visa offers initially a nonimmigrant status for a period of up to 4 years.
Section 101(a) (15) (U) of the Immigration and Nationality Act (INA), outlines circumstances where subject to the determination of the Secretary of the department of homeland security, an alien may file a petition for a U visa. Those circumstances are where; (I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity; (II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity…; (III) the alien (or in the case of an alien child under the age of 16, the parent, guardian or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a federal, state, or local law enforcement official, to a federal, state, or local prosecutor, to a federal or state judge, to the service, or to other federal, state, or local authorities investigating or prosecuting criminal activity… 8 CFR 214.14 (b).
By INA S. 101 (a) (15) (U) (i) (IV) the said criminal activity must have been in violation of the laws of the United States or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States.
The criminal activity referred to above is one that involves one or more of the following or any similar activity in violation of federal, state, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.. INA S.101 (a) (15) (U) (iii).
As far as family members who can follow the principal alien or the alien victim; if the said alien is under 21 years of age, the spouse, children, parents, unmarried siblings under 18 years of age on the date on which such alien applied for status. If the alien is 21 years of age or older, the spouse and children of such alien may accompany or follow to join the said alien.
The numerical limitation of the U visa is a maximum of 10000. By INA S. 214 (p) (2) (B), this limit applies only to the principal alien and does not include spouses, children, or in the case of alien children, the alien parents of such children.
Certification: a U visa applicant must have obtained a certification from a relevant federal, state, or local law enforcement official to the effect that the alien has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the relevant criminal activity. This would be in Form I-918 supplement B. As for the application procedure see 8 CFR 214.14 (c).
As discussed earlier, the U visa is usually for an initial period not exceeding 4 years. Extension is permissible where another certification is obtained showing that the alien’s presence in the United States is needed to help in the investigation or prosecution of the relevant criminal activity, or where due to exceptional circumstances, the secretary of homeland security deems an extension fit. A U visa applicant may also apply for an employment authorization document. See INA S. 214 (p) (3) and (6).
Stay of order of removal ; worthy of note is INA S. 237 (d) (1) which permits the secretary of homeland security to grant an alien an administrative stay of a final order of removal for an alien who has a pending U visa application that has set forth a prima facie case of approval until such application is finally approved or denied.
Inadmissibility and waivers : but for a singular exception, every ground of inadmissibility could be waived for the U visa applicant if the secretary of homeland security deems it in the national interest so to do. INA S. 212 (d) (14). That exception is for Nazis, genocide perpetrators, or persons who took part in torture or extra judicial killings. INA S. 212 (a) (3) (E). As with most waivers, availability may not necessarily mean a grant. It still remains an exercise of discretion.
Adjustment of status for a u visa holder; you have successfully applied for and received a U visa. What next? Can you adjust status? Remember the U visa is still a non immigrant visa. A U visa holder may be able to adjust status to that of a LPR. The general conditions for eligibility as set forth in INA S. 245 (m) and 8 CFR 245.24 (b) are;
(a) Alien must have been physically present in the united states for a continuous period of 3 years
(b) Alien is not inadmissible under INA S. 212 (a) (3) (E) above
(c) Alien has not unreasonably refused to provide assistance to law enforcement relating to the investigation or prosecution of the underlying criminal activity pursuant to which the alien obtained the U visa and
(d) The alien’s continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is in the public interest.
Application procedures for such adjustment are outlined in 8 CFR 245.24 (d)-(i).
