RESTRICTIONS ON ASYLUM BLOCKED.  A San Francisco judge issued a temporary restraining order last night, preventing the Trump Administration from implementing its new limitations on asylum.  Those regulations sought to deny access to asylum to many refugees at our Southern border.  Judge Michael Tigar of the U.S. District Court held that the law appears to violate the U.S. Refugee Act of 1980, as well as other provisions of law.

The United States Refugee Act (Public Law 96-212) was passed by Congress in 1980 to provide an established procedure for the admission to the United States of refugees of special humanitarian concern to the U.S.   That statute guarantees individuals the right to seek asylum whether at the U.S. border, a port of entry or even from the interior of the country. https://www.thoughtco.com/united-states-refugee-act-1980-1952018

Many of the refugees arriving as part of the caravans seek to apply for asylum at the U.S. border port of entry.   As reported in the Washington Post, some of those and others have gone to the wrong port of entry or crossed the border in desperation when they were turned away at a port of entry.  The U.S. Customs and Border Patrol has limited access to ports of entry and closed lanes of access routinely, greatly restricting the numbers of asylum seekers who may apply through the port of entry.   

The Trump Administration was attempting to limit access to asylum to only those persons applying at the port of entry.  Those who crossed the border at other points would be ineligible.   But the judge held that this limitation runs contrary to the express terms of the 1980 law.

 “If what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also,” the judge found

“This ban is illegal, will put people’s lives in danger, and raises the alarm about President Trump’s disregard for separation of powers, “ stated the ACLU lawyer who brought the case.   “There is no justifiable reason to flatly deny people the right to apply for asylum, and we cannot send them back to danger based on the manner of their entry. Congress has been clear on this point for decades.” https://www.washingtonpost.com/nation/2018/11/20/blow-trumps-immigration-agenda-federal-judge-blocks-asylum-ban-migrants-who-enter-illegally-mexico/?utm_term=.10c4a89558a2

HOW DO I GET MY GREEN CARD IF I MARRY A U.S. CITIZEN?

Under present law, a person who came to this country on a valid visa can apply for permanent residency if they marry a US citizen.  If the person came to the US on a fiancee visa, they must marry within 90 days to the person who sponsored their visa in order to qualify for adjustment of status to permanent residence in this country. 

All other persons can apply for adjustment of status to permanent resident in this country based upon marriage to a U.S. citizen, as long as they entered the United States on a valid visa and have not committed a crime or some other act which makes them ineligible. 

Of course, the marriage must be a valid and bona fide one.

Also persons who qualify for a special law called Section 245i can also file for a green card here in the U.S. based on marriage – even if they came here without a visa.  You only qualify for Section 245i if you had a family member or employer file to sponsor you for permanent residence before April 30, 2001.  Many persons who have been sponsored by parents or siblings and have been waiting many years for their case to be “current” can file instead through a U.S citizen spouse under Section 245i.  (However, it is very important to get good legal advice before filing to make sure you are eligible.)

There are many necessary forms and documents necessary to submit with the marriage petition, including photos, birth and marriage records and other immigration forms.   It generally takes only 9-15 months to finish the adjustment of status process.  There is an interview at the end of the application process, which both spouses must attend. 

In order to prove that the marriage is valid at the interview, it is necessary to provide certain documentation.  This includes financial records such as leases with both spouses names, joint bank account statements, joint credit cards, utility bills and other evidence that the couple is living together.  It is also helpful to bring photographs of the couple together, including photos of the wedding.  Other personal documents such as correspondence before marriage or even personal mementos can be helpful to show the immigration officer.

The interviews generally last approximately one hour or less and are intended to determine whether the marriage is legitimate or not.  If there is any significant doubt about whether the marriage is real, the applicants are required to come for a second, more intensive interview.  In these second interviews, the spouses are separated and questioned at greater length by trained officers. 

If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the adjustment of status application is approved.  If the marriage is less than two years old, the immigrant is given conditional permanent residence.  This status gives the immigrant all the same rights as a permanent resident except that it expires after 24 months. 

Two years after the granting of conditional permanent residence, a new application must be submitted to the immigration service, documenting that the marriage still exists. 

For those persons who came here without a visa and do not qualify to change their status here under 245i, there is a possibility to apply at the U.S. Consulate in your home country, and request a pardon of the penalty for being here illegally.  One should definitely seek legal advice before applying in this manner for a pardon.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law more than 25 years and has been recognized as one of the top immigration lawyers in Northern California for 9 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

SEEKING ASYLUM: Part Two: Applying for Asylum in Court.

By Christopher Kerosky

[This article was published in La Voz Bilingual Newspaper, http://www.lavoz.us.com/Read_La_Voz.html]

This is the second installment in a series about the asylum process for the many citizens of Mexico and Central America coming to our U.S. border to seek refuge from violence and persecution.  That first step, covered last month, is the interview conducted by an asylum officer at the border.  This article will describe the second step – the immigration court process. 

In order to stay in the United States (and eventually permanent residency), asylum seekers must prove to an Immigration Judge that they have a “well founded fear” that they will be persecuted if they were forced to return to their countries of origin. 

The applicant needs to demonstrate that he or she has a fear of future persecution on account of race, religion, nationality, political opinion or membership to a particular social group. 

To obtain such protection from U.S. authorities, the asylum applicant should prepare an application known as I-589, and file it before an Immigration Judge.  The application should include declarations from the applicant and other witnesses and other detailed information as to why the applicant fears returning to his home country.  All of the information should be true; otherwise, the immigrant can be accused of presenting a “frivolous” application, which carries serious penalties.

The chances of obtaining asylum are greater if the application is filed within one year (365 days) from the applicant's entry into the United States. If this is not possible, then the applicant needs to demonstrate that the delay in the filing was due to extraordinary circumstances or that that the application was filed within a reasonable time after a change of circumstances that make the applicant eligible for asylum.

The asylum process could take approximately from six months to six years, depending on the judge's calendar and the backlog in the courts generally.  I have been representing clients in asylum proceedings since 1988 and over the years, I’ve handled more than 1000 asylum cases.  Over that time, the length of time asylum applicants wait for a hearing has steadily increased, recently averaging about 5 years.  However, the Trump Administration is attempting to increase the number of judges and expedite the process, especially for new applicants.

At the end of the immigration court case, a trial is held before a judge where the applicant is able to give testimony and present evidence favorable to his or her case. After the asylum applicant presents their case, the government's attorney is given the opportunity to convince the judge that the applicant is not eligible for asylum in the United States. Normally, the judge renders a decision at the end of such hearing.

If the judge denies the request for asylum, the applicant may appeal the decision with the Board of Immigration Appeals (BIA) and thereafter before the federal Court of Appeals.  During the time the appeals are pending, the applicant can remain in the U.S. legally.

If the judge decides to grant the individual asylum, he or she can remain in the United States indefinitely. One year after being granted asylum, the applicant and their qualified relatives can apply for Permanent Residency.

The asylum process is often long, complicated and stressful.  Despite some common misconceptions to the contrary, it is generally very difficult for asylum seekers to stay in this country.  However, if they present their case well, asylum seekers can often succeed in convincing a judge that they deserve refuge from the growing violence and persecution in Mexico and Central America.

TRUMP’S NEW EXECUTIVE ORDER issued yesterday denying access to asylum to many refugees at our Southern border will surely be challenged in Court.  The law appears to violate the U.S. Refugee Act of 1980, which guarantees individuals the right to seek asylum whether at the U.S. border, a port of entry or even from the interior of the country. https://en.wikipedia.org/wiki/Refugee_Act

Also, Donald Trump has justified his new Order on many “alternative facts” about these asylum seekers.  Here’s a couple examples contradicted by his own Justice Department:

Donald Trump claimed last week that only 3% of asylum seekers show up for court.  The false myth is that asylum seekers disappear once they arrive and don’t appear for their Court hearings.  But the U.S. Department of Justice (which operates the immigration courts) reports that the overwhelming majority of individuals requesting asylum appear in court, including 89% of those who file an application for asylum. See their statistics at: https://www.justice.gov/eoir/page/file/1107056/download

We work on a daily basis with asylum seekers from Central America and Mexico and I can tell you that most are fleeing terror at the hands of cartels, gangs and other criminal elements in their country. They wish to tell their story and the small fraction that don’t appear for their hearings generally don’t understand the process or don’t have a lawyer or are just simply afraid of deportation. 

Another myth is that only a small number win their asylum cases.  To prevail in court, they must convince a judge that they have a well-founded fear of persecution based on race, religion, nationality, political opinion or social group.  Nonetheless, in 2017, 40% of asylum applicants succeeded in doing so and obtaining asylum from an immigration court.

To read more:

https://kpblawfirm.blogspot.com/2018/06/the-truthabout-immigrant-families-at.html

https://kpblawfirm.blogspot.com/2018/10/seeking-asylum-part-1-credible-fear.html

TODAY’S 9TH CIRCUIT COURT DECISION ON DACA. What does it mean for those with DACA?

By Christopher Kerosky, Esq.

Today the Ninth Circuit Court of Appeals in San Francisco told the Trump Administration it acted without legal basis when it sought to closed down DACA. 

https://www.cnn.com/2018/11/08/politics/daca-9th-circuit/index.html

To read the decision: https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000927

Here’s a summary of where DACA stands now and where things go from here:

The Fight over DACA and today’s Decision.

On September 5, 2017, Donald Trump announced the rescission of the DACA program.  Those who have DACA status were to begin to lose their status on March 5, 2018, but a San Francisco District Court judge ordered the government to continue renewals.  While that case was pending, two other federal judges issued similar injunctions against Trump.

Earlier this year, the Administration asked the U.S. Supreme Court to expedite its review of these rulings but the Supreme Court refused.  In the meantime, the San Francisco judge’s decision was appealed to the Ninth Circuit Court of Appeals. 

Today, that Court ruled in favor of the DACA recipients and against the Trump Administration.  The decision of the three-judge panel was unanimous.  While this is not a final decision, it affirms the lower court’s injunction requiring the administration to keep the program open for renewals.

"We conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA -- at least as justified on this record -- is arbitrary, capricious, or otherwise not in accordance with law," reads the opinion. 

What does this mean for DACA?

This decision means the San Francisco federal judge’s order requiring the Trump Administration to continue DACA renewals will remain in place for the indefinite future. The Administration will now have to seek reversal in the U.S. Supreme Court.  That begins with a Petition for Certiorari requesting that the high court take the case.  That will likely come soon.  There probably is sufficient time for the Supreme Court to consider this case in its current term.  A decision would likely then come at the end of its term in June 2019. 

With the current composition of the Court, a ruling in favor of DACA recipients is unlikely.  Earlier this year in its ruling on the Muslim Ban, the Supreme Court granted the Trump Administration wide latitude over executive action on immigration issues.  Now the Court is even more likely to endorse these powers since Brett Kavanaugh has joined the bench. 

For now, persons who already have DACA can continue filing renewals.  We recommend that applicants do so 150 days before their DACA expires.

Unfortunately, new applicants are still not eligible. 

Will this week’s election results lead to DACA legislation?

The current Congress failed to act on DACA this year.  After devoting a week to debating solutions for DACA holders, the Senate did not approve any of several proposals it considered.  None of the proposals received the 60 votes necessary to become law in the Senate, largely due to the efforts of the Trump Administration to oppose all proposals except one that would eliminate much of family sponsorship and slash legal immigration in half.  

A vote for a Dream Act law never occurred in the current House of Representatives. 

That will almost certainly change now that the Democrats will control the House in January.  The new House of Representatives will likely pass a law offering a path to permanent residence for DACA holders.  Then it will be up to the Senate to consider a bill already approved by the House.

Hopefully, before a decision by the U.S. Supreme Court in June, political pressure can be brought to bear to force the Senate and Trump to finally approve DREAM Act legislation that has been considered by Congress since 2006 but never passed. 

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, Ukiah, Napa, Walnut Creek, San Jose and Sacramento.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 9 years, he has been honored as one of Northern California’s top lawyers by San Francisco Magazine, “Super Lawyers” edition.  Mr. Kerosky speaks Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case. 

WHAT THE ELECTION RESULTS MEAN FOR IMMIGRANTS.  Here’s 5 positive takeaways:

1.     Democrats won control of the House, which means they won control of House Committees.  This is a significant victory for immigrants.  Among other things, it will mean the death of  Republicans’ pending anti-immigration proposals to reduce family reunification or impose criminal penalties on being undocumented.  

2.    DACA legislation more likely now.  This means that there will probably be positive legislation like the Dream Act passing the House – something that never happened under the Republican-held House of Paul Ryan.  This would confront the Senate and Trump with having to approve a solution for DACA-holders or go on record as vetoing it—something that neither has yet had to do.

3.    Good riddance, Goodlatte. One of the most strident anti-immigrant members Congress was Bob Goodlatte of Virginia, who happened to run the House Judiciary Committee.  He used this post to block any reasonable immigration reform from ever being considered including legislation to help DACA recipients.  He’ll no longer have that power.  The new Committee Chair, Democrat Jerome Nadler, is likely to make a solution for DACA recipients a top priority.

4.  Adios Mr. Brat.  In 2014, Economics Professor and Tea Party favorite Dave Brat unseated one of the Republican leaders of the House, Eric Cantor, by attacking Cantor for simply being willing to consider immigration reform.  Long before Trump tried it, Brat cynically exploited fear of immigrants in his electorate in order to gain votes and power.  This election, Brat himself was unseated, by Abigail Spanberger, a first-time Democratic candidate.  Her website promises to support a solution for DACA-recipients and a pathway to citizenship for the undocumented.

5.   Building that wall just got harder. During his first two years, Trump has yet to get one dime from Congress to construct his wall and now, he’s even less likely to get it in his last two years…. But then again, no matter for as Trump has often repeated to his base: Mexico’s gonna pay for that.  It’s just that no one has told them yet.