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.  

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.