SEEKING ASYLUM: PART 1

The Credible Fear Process at the U.S. Border.

By Christopher Kerosky

The asylum process has received increased attention lately with the Trump Administration’s decision to separate parents from their children at the border.  But now that Donald Trump has reversed his policy, once again the spotlight has moved away from the many refugees at our border seeking asylum.

Meanwhile, this humanitarian tragedy continues.  A large number of those pursuing asylum eventually come to California and the North Bay specifically.  Beginning in the first days at the border, the Department of Homeland Security starts a lengthy process to consider any arguments and evidence the asylum applicant might have to support their claim of asylum.

I felt it would be useful to describe the process for those in the public who are interested and to provide some guidance to persons going through it.  This segment covers the first step of the process, known as the “Credible Fear Interview” (CFI).

Credible Fear Process.

A person detained at the border without proper documents to enter generally does not  have the right to stay in the United States or file an application for immigration benefits. The only exception is if that individual has “a well-founded fear of persecution based on race, religion, nationality, political opinion or social group”.   The person also needs to prove that the persecution was by the government or that the government could not stop it.

If a person at the border declares they are afraid to return, ICE will ask them some preliminary questions to determine if they are afraid and then the US asylum office will conduct a formal interview to determine if they  have "credible fear" of returning. to their country.

The purpose of the credible fear interview is to determine if there is a significant possibility that the immigrant could be eligible for asylum. During the credible fear interview, the officer will ask the asylum applicant many questions about their fear, who they are afraid of and why. 

The interview is typically conducted by the an asylum officer, often by video. A lawyer can be participate, typically by telephone.   

If the the asylum officer finds that there is not a sufficient credible fear of harm based on one of the five statutory grounds, the applicant can ask for the opportunity to appeal the ruling before an immigration court.  However, the asylum seeker will remain in custody while he or she goes through further appeals of the denial of asylum.  Typically future courts affirm the denial of credible fear and the person is ultimately deported. 

Even if the applicant is successful and convinces the asylum officer that he or she has a credible fear of persecution during the CFI interview, they are still placed in deportation proceedings before an immigration court, where they must convince a judge that their “credible fear” rises to the level of a “well-founded fear”, a higher standard of proof.  If they fail to do so, they are also deported. 

Part Two of this series will cover the asylum process before an immigration judge.

HOW TO FIGHT YOUR DEPORTATION, Part Two

In the first segment of this series, I discussed what to do if you are arrested by Immigration (ICE).  In short, don’t sign anything and you will likely be able to fight your deportation in court. 

Once you tell ICE that you want a court hearing, you also can ask for your release on bond, so you can be reunited with your family while your case moves forward.  Below, I will explain how to convince the immigration judge that you deserve to be free on bond, to make the bond as low as possible, and to get the bond paid and get out of immigration custody.

How is the bond set.

If a person is detained but eligible for bond, the government will often set an initial bond amount.   ICE under the Trump Administration has been setting bonds higher than in previous administrations or often dismissing deportation cases altogether.  We can expect that ICE under Trump will set bonds at $10,000 or higher, even for immigrants without any real criminal record.  But this can be lowered by an immigration judge.

In most cases, you have the right to ask the immigration court for a bond re-determination hearing.  The immigration court will then consider the arguments you make and often lower the bond set by ICE.

In setting the amount of bond, the judge will look at a number of criteria.  The most important criterion is whether the person is a “flight risk”; that is, whether he would likely come back to court if released.  In making that decision, the judge will consider factors which tend to show good moral character on the part of the individual held.  These factors include:

• Relatives in the United States: does the person have relatives here who are in legal status?  Do they have a citizen or permanent resident spouse or child?

• Employment: does the person have a regular job and income?

• A residence: does the person have a place to live if released?

• Immigration Court History: Has the person ever failed to show up in court on any of his prior criminal or immigration cases? Can they show the judge that they always went to court when required to do so in the past?

• Tax Records: has the person paid his taxes in the U.S.?

• Eligibility for Relief:  What immigration status does the person qualify for?  Do they have an immigrant petition filed by a relative?  Or can one be filed? Do they have a credible argument that they would fear persecution in their home country?  Do they qualify for some other status here?

How to Pay the Bond.

Once the bond is set, a relative or friend can post the bond if they can show that they are a U.S. citizen or lawful permanent resident.   That person must agree to be responsible for ensuring that the person attends any immigration hearing or interview whenever requested to do so.

The person posting the bond will need to know the last name of the person in ICE custody and their “A” number--the case number which begins with A followed by 9 numbers.   The bond can be paid with a cashier’s check from a bank, or a money order – not by cash or personal check. 

In San Francisco, the person paying the bond must present the money in person at the immigration office located at: 630 Sansome Street, 5^th Floor.  Hours are: Monday – Friday, 8:00am to 3:00pm.

If you pay the bond directly to the government, the bond money will be returned to your family only when your court case is completed and only if you have complied with the court’s order, even if that order is to leave the country.

Next post on this topic will deal with how to fight and possibly win your deportation case in the Immigration Court.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law since 1984 and has been recognized as one of the top immigration lawyers in Northern California for 7 years by “Super Lawyers”.   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.

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.

Obtaining a visa for foreign-born workers

[This article was published in the Sonoma County Gazette, July issue. https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-by-christopher-kerosky-july-2018.  Thanks to Liliana Gallelli, who cowrote this article]

The federal government has long had a sort of “don’t ask, don’t tell” policy toward much of our economy here – vineyards, other agriculture, restaurants, hotels, among others.  It goes something like this: we won’t ask if your workers are legally here and please don’t tell us, or we’ll have to deport them and your industry won’t have workers to hire.    

Now, Sonoma Count is suffering from an ever-growing shortage in labor.  Contributing factors are low interest rates leading to an increase in business development and a tight housing market, made worse by the fires.  Draconian immigration policies have further worsened the situation.    

Unknown to many employers, a guest-worker visa program exists to supposedly help fill the gap in business personnel needs.  One such visa is the H2 visa--H2A for agricultural workers, and H2B for temporary, nonagricultural jobs.  But the bureaucracy an employer is required to navigate and the costs of the process are too daunting for most.

The H-2B temporary non-agricultural program allows U.S. employers to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs.

This visa is a highly technical process that involves multiple state and federal government agencies, including State Workforce Agencies, the U.S. Department of Labor, the U.S. Department of Homeland Security, and the U.S. Department of State.

  

While there are numerous reports that businesses throughout the nation are being hurt by the inability to count on a labor force, H2 visas are capped at only 66,000 per year  (33,000 for workers required during April 1 – September 30, and 33,000 for October 1 – March 31). In fiscal year 2018, U.S. Citizenship and Immigration Services (“ USCIS”), received approximately 2,700 H-2B petitions requesting approximately 47,000 workers, which is more than the number of H-2B visas available. As a result, USCIS, conducted a lottery February 28 to randomly select enough petitions to meet the cap. 

Despite the Trump Administration’s focus on “Buy American, Hire American”, U.S. businesses depend on immigrant workers.  After strong lobbying by companies ranging from tech to Maine lobster, The Secretary of Homeland Security, in consultation with the Secretary of Labor, decided to increase the numerical limitation on H–2B nonimmigrant visas to authorize the issuance of up to an additional 15,000 through the end of Fiscal Year (FY) 2018.

Temporary worker visas usually are contingent on the employer’s showing that it tried to locate and hire U.S. workers but was unable to do so.  This includes obtaining the requisite prevailing wage  determination from the US Department of Labor.   Thus, before requesting H-2B classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL).

In order to receive an H-2B temporary labor certification, the employer must establish that:

§  There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

§  The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

§  Its need for the prospective worker's services or labor is temporary. With the exception of a one-time occurrence need that could last up to three (3) years, temporary need will not be approved for longer than 10 months. The employer's need is considered temporary if it is a(n):1) a one-time occurrence, 2) seasonal need, 3) peakload need, or 3) intermittent need 

Embarking on the H2 visa also requires an economic commitment:  Filing fees payable to the government, reimbursement of visa fees, recruiting, transportation from their hometown to the job site prior to employment, and back again when the employment period is over, housing etc.  Best estimates on costs alone: $8,000 to $10,000 per worker. 

Oh, and by the way, no persons who are already here without status are eligible.  You need to find appropriate workers in Mexico or some other country and they are not getting a visa if they’ve been here illegally.

This is just another example of why our immigration laws need reform.

Immigration Effects of Drugs and Alcohol: Part 1 DUIs

By Susanna Bogue, Esq.

There have been several recent developments in immigration law practice regarding the effects of being charged with driving while intoxicated which is known as driving under the influence (DUI) in California.

Many people who hold valid visas to work (including the E treaty visa, the L company transfer visa, and the H-1B professional worker visa), who have been arrested for driving under the influence are receiving letters informing them that their nonimmigrant visa has been revoked. The concept of the presumption of innocence before a conviction seems to have been abandoned for temporary work visa holders. Under the Department of State’s newly revised Foreign Affairs Manual, 9 FAM 302.2-7(B)(3) “Substance-Related Disorders under INA 212(a)(1)(A)(iii) – Alcohol and Other Non-Controlled Substances”, a visa can be revoked for “a single alcohol related arrest or conviction within the last five years; two or more alcohol related arrests or convictions within the last ten years; or if there is any other evidence to suggest an alcohol problem.”

If the visa is revoked, the person who departs the US will have to apply for a new one at their home Embassy or Consulate and after being denied the visa, will then be required to be referred to a panel physician for evaluation, after which (assuming the doctor determines there is no alcohol dependence and the person is not a probable “threat” to society) they will return to have the visa issued.

Obviously such a requirement will lead to delay in all cases involving an arrest for a DUI and in some cases the visa will not be reissued. If the visa is not issued and the DUI trial has not taken place, this leads to a further problem in that it is unlikely that a visitor visa would be issued to someone who has lived for years in the US even if the only reason for their trip is to fight the DUI. Once denied a visitor visa, most consulates will not reconsider their denial until at least a year has passed. Talk about a Catch-22!

According to immigration attorney Ellen Krengel, the panel doctor will request a CDT (carbohydrate deficient transfer) to see if there is long-term alcohol abuse in the blood which would show alcohol dependence. The panel doctor will also be asking 11 questions in the form of “Have you ever…” three of the eleven I’ve listed below. To read the complete list, they can be found in this June 5, 2015 Psychology Today article www.psychologytoday.com/blog/the-athletes-way/201506/what-are-the-eleven-symptoms-alcohol-use-disorder  

  Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.

  Important social, occupational, or recreational activities are given up or reduced because of alcohol use.

  Recurrent alcohol use in situations in which it is physically hazardous. [i.e. driving]

Someone who has recently been arrested for driving under the influence may have difficulty only answering one question with a “yes.” Ellen says the panel doctors informed a group of immigration lawyers recently that to determine Class A or B, they look for “abuse + behavior” for alcohol, and simple abuse for drugs (eliminates experimental use). If a person is determined to have a Class A medical condition, then they are ineligible for a visa. Class B determinations, while not causing ineligibility mean that the applicant may have a “serious medical condition” and might be unable to care for themselves or require extensive medical treatment or need to be institutionalized.

Note that this article is primarily covering the effects of an alcohol-related arrest for people who hold nonimmigrant (temporary) visas and who are applying for a visa outside of the US. The situation is different for permanent residents (green card holders). DUIs are not considered to be crimes of moral turpitude (CMT) and as such do not trigger removal (deportation) proceedings. 

Also, for the purposes of applying for naturalization, it is a conviction which is important, not an arrest. A conviction in California for a simple DUI normally includes a three year period of probation, during which time a person is normally not eligible to apply for naturalization. Even after the three years expire, many applications for naturalization will be denied if the most recent half of the period for good moral character (five years, or three years for spouses living with US citizens for three years) is primarily spent on probation.

Part 2 of this series will deal with the effects of marijuana use under our immigration laws.  This will be posted soon.

THE GRADUATES.

Gustavo and Saul

By Christopher Kerosky

[This article appeared in June’s issue of the Sonoma County Gazette. https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-the-graduates-by-christopher-kerosky-june-2018]

This spring, young people throughout the United States are celebrating their graduations from high school and college.  Many of these graduates are immigrants or the children of immigrants, a tangible reminder that the American Dream still plays out every day in this country, from sea to shining sea.   

Here’s two such examples from our own County -- Saul Diaz and Gustavo Espinoza – who both graduated from Sonoma State University (SSU) in May.   I’m selfishly proud of these gentlemen, as they have both worked for me over the last 4 years, at the same time attending classes and earning their college degrees. 

Gustavo

Gustavo Espinoza is a native of Cotija, Michoacan, Mexico, a town most known for its distinctive cheese.  Immigrating to the U.S. at a young age, he grew up in Sonoma County, attending Kawana Elementary and Slater Middle School in Santa Rosa.  I first met Gustavo when he was still a student at Elsie Allen High School. He expressed an interest in law so I invited him to intern with us.  As a 17-year-old, Gustavo would show up after school and put in a few hours filling out forms and preparing cover letters.  Within months, we hired him.  

Quickly, Gustavo became so well-versed in immigration law that clients referred to him as "Licenciado Espinoza", thinking he was a lawyer.  He has a quiet commitment to helping immigrants through the stressful and intimidating process of obtaining status in this country.  Last month, after four years of full-time work and a heavy college load, “Gus” put on his cap and gown and was handed his degree from SSU in front of his proud immigrant parents.  That same night, he became engaged to his high school sweetheart, Karla, making for a memorable weekend indeed.

Gustavo plans to go to law school in the future.  But the law degree would only make it official: this guy is already a legal star in my book.

Saul

A native of  Oaxaca, Mexico, Saul Diaz came to the U.S. at age 3.  He attended Roseland Elementary School and Laurence Cook Middle School.  After graduating from Elsie Allen, Saul earned two associate degrees at Santa Rosa Junior College (SRJC)..  He also volunteered at the Graton Day Labor Center, a non-profit organization aiding immigrants in finding employment and protecting their legal rights.  Throughout high school and college, Saul worked weekends for his dad as a laborer and did some landscaping on the side.

DACA allowed Saul to get a professional job in 2013 and I hired him after his good friend Gustavo recommended him.  Saul started as a receptionist, but he quickly began to master immigration law. Over the years, we have watched Saul develop into a very knowledgeable and skillful advocate for immigrants, who now trains our newer staff members and handles complex cases. 

Two years ago, Saul transferred from SRJC to SSU.  And last month, Saul was awarded his Bachelor’s Degree from Sonoma State, a right of passage that left many of his family members and others like me very proud to know him.  Felicidades, Saul!

Myth of the uneducated immigrant.

The sky is the limit for both Saul and Gustavo.  It wouldn’t surprise me if they are powerful trial lawyers or sitting as judges on some federal court in the future. 

But their stories are not unlike many others from our County and communities across the U.S..  Immigrant youth – including large numbers of sons and daughters of Mexico -- are quietly obtaining degrees and professions, refuting the common myth about immigrants being uneducated and unassimilated.

The fact is that recent immigrants to the U.S. are more educated than those who immigrated to the U.S. at other periods of our history.  According to Fortune Magazine, over 33% of immigrants enter the U.S. with a college degree and 75% of recent arrivals have a high school diploma or higher.  Moreover, the number of immigrants with higher education has grown at more than twice the rate of the same population among the U.S. born. 

California has the largest number of college-educated immigrants with 2.5 million or 24% of all college-educated immigrants in the U.S.  Sonoma County has a large share: 28.8% of the student body of SSU and 30% of Santa Rosa Junior College is Latino and many are immigrants or the children of immigrants.  And this number is growing every year: a full 44% of the County’s school age population is Latino.

The accomplishments of young immigrants like Saul and Gustavo are the best rejoinder to all the myths and malicious rhetoric about immigrants, prevalent since the rise of Donald Trump.   I prefer to remember the words of a different national leader, Robert Kennedy, who was assassinated 50 years ago this month while running for President:

“Our attitude towards immigration reflects our faith in the American ideal. We have always believed it possible for men and women who start at the bottom to rise as far as the talent and energy allow. Neither race nor place of birth should affect their chances.”

THE TRUTH  ABOUT THE IMMIGRANT FAMILIES AT THE BORDER

By Christopher Kerosky

There is so much misinformation about the asylum seekers coming to our Mexican border, including a plethora of “alternative facts” put forth by Donald Trump. 

Our office has represented many families who went through the same process like those incarcerated at the border now and so I will try to address here some of the most common fallacies and provide some accurate information.  It’s important that the public understand why this is happening and who is to blame for a policy of separating children from their parents in our name.   

Are these immigrants all coming in illegally?

No, a large portion of these refugees are entering the U.S. border legally, seeking asylum through a legal procedure established by the U.S, by statute in 1980, and in accordance with the UN Human Rights Treaty.  This is true of all of those coming in the caravans of desperate refugees from Central America, organized by humanitarian organizations.  Donald Trump has condemned these caravans, but the fact is these people are following our own laws that provide a procedure for refugees to seek asylum at our border.

According to the Washington Post, some of the others who have been separated from their children were also seeking asylum but were apprehended because they went to the wrong port of entry or crossed the border in desperation when they were turned away at a port of entry.   

The majority of those seeking asylum are from Mexico, Honduras and El Salvador, all countries ravaged by violence at the hands of criminal organizations.  Extortion, kidnappings and even murder are very common in many of the areas from which these refugees come.  Virtually all of the asylum seekers I’ve met reported that their families were targets of this violence and were threatened with more violence if they stayed in their communities.

Are these immigrants able to stay forever in the U.S. just by coming to the border?

No, all applicants for asylum have to go through a rigorous interview process to establish they have a credible fear of persecution in their home country before they are ever allowed to leave the custody of the border officials.

Those who fail these interviews are deported. 

Those who succeed in proving to a DHS official that they credible fear of persecution still have to go through a trial before an immigration judge in deportation proceedings.  There, they are subject to a higher standard of proof, requiring that they prove have a well-founded fear of persecution based on religion, race, nationality, political opinion or social group; if they fail to prove this to a judge, they are deported.

Are the Democrats responsible for this family separation policy?

Donald Trump continues to falsely blame Democrats for an administration policy that has led to more than 2,000 children being separated from their parents at the U.S. border.

The family separations began earlier this year after the Administration announced a so-called “zero tolerance” policy of referring all border crossings for federal criminal prosecution, which leads to children being separated as their parents are sent to jail.

A law intended to protect children from trafficking was  passed by a Democratic Congress and signed into law by George W. Bush in 2008.  It establishes certain due process rights for unaccompanied minors .  That is apparently the law Donald Trump is referring to; however that law does just the opposite. 

Isn’t there an alternative to incarcerating them and separating them from their children?

Yes, even if the U.S. government insists on criminally prosecuting all these immigrants, I believe these families could be given electronic ankle bracelets or other devices commonly used by immigration or law enforcement to ensure a person will attend future court hearings and not disappear. 

There has never been an adequate explanation from the Trump Administration why these refugees cannot be given electronic devices to track their whereabouts, instead of incarcerating them at greater cost to our government, not to mention the cost to their children who are taken away from them.

Why Sanctuary is Important

By Christopher A. Kerosky

[This article was published in the May issue of  SONOMA COUNTY GAZETTE]

https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-why-sanctuary-is-important-by-christopher-kerosky-may-2018

Between 2006 and 2013, hundreds of our neighbors in Sonoma County, California were arrested by our Sheriff’s Department, even though they were guilty of no serious crimes.  Some were stopped because of a traffic violation or a broken headlight.  Because they did not have a driver’s license, they were then handcuffed, jailed and detained sometimes indefinitely.  Their cars were often impounded.  In many cases, they were charged only with driving without a license or other misdemeanors; sometimes no charges were filed at all.  Yet they were not allowed to go free, even if they paid a bond.

After up to 48 hours of incarceration in our county jails, these Sonoma County residents were handed over to the Immigration and Customs Enforcement (ICE) to commence their deportation from the United States.  They were often young, sometimes students in college or even high school.  Others were young mothers or fathers, with small children at home.  Sometimes they were driving their children to school or coming home from work. 

Our Sheriff at the time claimed he had no choice under the law but to arrest, detain and transfer these neighbors of ours for deportation.  Many were removed from the U.S. as a result, leaving behind U.S.-born children, spouses and extended family.

I can tell you this happened because I represented hundreds of them in deportation court.  I saw the way this County policy devastated many families in our community.  This occurred to hundreds of thousands of immigrants in counties throughout California and across the country.

Why did this happen?  Because our County participated actively in the Secure Communities Program run by ICE back then, and now revived under Trump. 

What stops this from happening today?  Our state and county sanctuary policies. Nothing more.

Sanctuary is a good thing.

With the Trump Administration’s constant drumbeat of verbal attacks, financial sanctions and lawsuits against sanctuary communities, many in our state are questioning whether “sanctuary” is a good thing.   As someone who has seen the trauma that our prior policies caused immigrant families here, I can tell you: sanctuary is a good thing.   

It’s vital that we don’t return to the days when thousands of our state residents were rounded up and deported; to when just driving to the store or the school created serious risk for undocumented immigrants.