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Issue: #10
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December 2018
bringing immigration news updates since 2006
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Beach-Oswald Immigration Law Associates, PC
is a Washington, D.C. boutique firm devoted exclusively to immigration law. We have the highest possible rating for lawyers for legal acumen and ethical standards, and we have been practicing law since 1981. We are well versed in all aspects of immigration law, particularly, employment based immigration, citizenship, naturalization, asylum, deportation and removal, and temporary visas.
Our top-notch lawyers represent professional workers, business owners, families, and asylum-seekers from all over the world. We provide the absolute best professional service possible to our clients and aid them in every step of their immigration processes. We prioritize ensuring our clients are not only assisted with their immigration cases but are thoroughly educated about the processes, laws, and requirements. All of our attorneys and legal staff at Beach-Oswald have a genuine desire to help those in need. We ensure the highest quality of professionalism and legal expertise.
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Welcome BOILA's New Attorney:
Dariel Cancel-Caceres
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Dariel joins BOILA as a seasoned immigration attorney. A graduate from the Inter American University of Puerto Rico Law School and George Washington University Law School, Dariel has been practicing since 2010.
Dariel began his legal career in civil rights litigation in San Juan, Puerto Rico where he represented clients in employment discrimination issues, police misconduct and civil rights depravity cases. After many years in civil rights, Dariel opened a solo immigration practice in 2014 where he represented clients in family immigration, employment visas, adjustments applications, asylum, DACA and consular processing, just to name a few!
At BOILA, Dariel will serve as the "go-to" for all court cases; removal defense, asylum, cancellation of removal, and SIJS. He will also be assisting with Master Calendar and Individual hearings.
We welcome Dariel to the BOILA team! Make sure to say hello if you seen him in the office; many of you will get to know him soon.
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BOILA Feature Grant Story:
Special Rule Cancellation of Removal
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There are thousands of women, men and children around the world that are being abused and battered by the ones they love most. For some in removal proceedings ( who meet the eligibility requirements) they are able to file Special Rule Cancellation of Removal applications and have their status' adjusted to that of an LPR ( lawful permanent resident).
BOILA's client, Ms. D, a native and citizen of Kenya, entered the United States on a student visa in 2008. Though she worked tirelessly to earn her nursing degree, Ms. D was subjected to both physical and mental abuse in both of her marriages.
Ms. D came to BOILA in search of options to avoid deportation. After a lengthy consultation with Danielle Beach-Oswald, it was decided that BOILA would file a Special Rule Cancellation case for Ms. D.
BOILA put together a large pack to present to the Immigration Judge documenting Ms. D's eligibility for a cancellation grant. There were six key elements that BOILA had to demonstrate to the Immigration Judge that Ms. D met in order to be granted Cancellation:
1. She had been battered or subjected to extreme cruelty by her U.S. citizen spouse.
2. She entered into her marriage in good faith
3. She had been physically present in the U.S. for a continuous period not less than 3 years immediately preceding the date of her application
4. She was not inadmissible under the specified INA rules and had never been convicted of a crime involving moral terpitude
5. She was not deportable under the specified INA rules, and,
6. If she were to be removed from the United States to Kenya, it would result in extreme hardship to herself due to her severe medical condition.
Through numerous supporting documents on the country conditions in Kenya, psychological reports on Ms. D to determine the degree of mental and emotional trauma inflicted on her, and her ample medical documentation, the Immigration Judge determined that Ms. D met the requirements to be granted Special Rule Cancellation of Removal.
Nationwide, Immigration judges can only approve 4,000 cancellation applications per year for non-lawful permanent residents. This cap is often reached very early in the fiscal year, meaning that even if an immigration judge deems the case "approvable" they will not be able to formally approve the case until there is a number or green card available to the applicant.
In Ms. D's, she will have to wait at least another year before the numbers become available again and her case can be formally approved, but the informal approval from the immigration judge is a huge win for Ms. D who has had no definitive status in the U.S. for over a decade. Her mind can be put at ease knowing she now only has to wait for the number to be made available to her before she can receive her green card.
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BOILA Grant Highlights
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Ms. J
, a native and citizen of Cameroon was granted lawful permanent resident status after a lengthy interview with the USCIS officer in Missouri. Ms. J has been with BOILA for a number of years. She initially came to us to help her with a divorce. A hopeless romantic, BOILA assisted Ms. J with three divorces before she found lasting love with her current husband. We filed Form I-130 and 485 and prepared both Ms. J and her husband for their interviews. The interviewing officer had many questions for Ms. J including the authenticity of previously submitted documents and the bona fide nature of her current marriage, but both Ms. J and BOILA were able to answer all of the Officer's questions, leading to a successful interview.
Ms. M
, a native and citizen of Cameroon, came to BOILA in need of assistance on her I-485, Application to Register Permanent Resident or Adjust Status. Ms. M had received a Request for Evidence from USCIS due to some inconsistencies and discrepancies in her adjustment application. BOILA wrote a detailed affidavit in response to the RFE. Ms. M's adjustment application was then approved by the Service, and she now has a ten year green card.
Mr. E is a native of
Cameroon. He was granted derivative asylum status on January 17, 2008. He received his derivative asylee status through his mother who was granted asylum on April 6, 2006. Mr. E's mother was granted asylum based on his political activities in Cameroon with the Southern Cameroons National Council (SCNC). Mr. E hired BOILA to file his NUNC PRO TUNC asylum application. Ms. Danielle Beach-Oswald successfully represented Mr. E and his asylum was approved. Now Mr. E is able to adjust his status, apply for his EAD, travel document and eventually would obtain his lawful permanent resident card.
Ms. D, a native and citizen of Vietnam, came to BOILA for assistance in filing to remove the conditions on her green card. She had been granted two-year Lawful Permanent Resident status based on BOILA successfully demonstrating her bona fide marriage to her U.S. citizen husband. 90 days prior to her conditional green card expiring, Ms. D came to BOILA. We filed the necessary documents to USCIS in hopes of a quick adjudication, but with the constant changes in Immigration these days, the requirements for filing have increased and the necessary documents needed to show bona fide marriages are highly scrutinized. As a result, Ms. D was issued a Request for Evidence (RFE) by USCIS. Determined to prove her bona fide marriage, BOILA submitted substantial documentation on her marriage, included home deeds, bank statements, credit card accounts, travel history, etc. Two weeks after submitting our response to the RFE, Ms. D received her I-751 approval notice and her ten year green card. She is now in the process of preparing to file for citizenship.
Mr. D, a native and citizen of
Jordan, entered the United States on a B2 visa with authorization to stay until February 2018. Mr. D's wife was in the U.S. for medical care and was expected to stay for several months. In order for Mr. D to not overstay his B2 visa and accrue unlawful presence in the U.S., BOILA filed Form I-539, Application to Extend B2 Nonimmigrant Status requesting a six month extension on his visa so that he could accompany his wife during her medical treatments. Mr. D's extension request was granted and he can no stay with his wife in the U.S.
Mr. SF is a native from
Honduras who entered the United States in 2001. The challenge for our team once Mr. Santos hired BOILA was determining if Mr. Santos met the requirements for Cancellation of Removal. Mr. SF's three U.S. citizen children would suffer exceptional and extremely unusual hardship should they be forced to return to Honduras,a country they had never been to. The Immigration Judge granted Mr. SF's Cancellation of Removal based on the hardship of is US children's medical conditions and the extreme and unusual hardship they would suffer without their father here in the U.S. Now Mr. SF can get his lawful permanent resident card when the visa numbers are available.
Mr. C, a minor child from El Salvador escaping from the abuse caused by his mother and his grandfather's girlfriend arrived in the United States in 2016. Mr. C , accompanied by his aunt, came to BOILA seeking relief for her young abused nephew. We successfully worked with both through the custody process where the DC superior court granted custody of Mr. C to his aunt and made him eligible now to apply for his Special Immigrant Juvenile Status.
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President Trump's Midterm Promise:
No Asylum and Tent Cities
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During President Trump's midterm election announcement on Thursday, November 1st, promises of tighter border control, additional detentions facilities for mother's and children and the termination of aslyum were made.
Even though the law states that any person, so long as they are inside the United States, may apply for asylum, President Trump seeks to discontinue asylum all together.
During his speech, the President made numerous false claims about the number of immigrants apprehended at the border not attending their trial hearings. The President claimed almost 90 percent of immigrants don't attend their hearings when in fact the number is closer to 28 percent.
He also said the government is no longer releasing immigrants while they await trial. Meanwhile, migrants are being caught and released at the border regularly, as has happened for decades.
In many of his previous speeches the President has made promises about implementing new actions and executive new executive orders to further the crackdown on immigration. As of Thursday, the President has offered no official orders on ending asylum or the separation of children from parents at the border.
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USCIS Policy Update on Marital Union and Naturalization
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U.S. Citizenship and Immigration Services (USCIS) has updated its policy guidance on the married and living in marital union requirements for naturalization under section 319(a) of the Act.
Lawful Permanent Residents applying for naturalization under the three year provision, are eligible to file for naturalization if they have continuously resided in the U.S. for a period of three years and are married to a U.S. citizen. In general, all naturalization applicants filing under the basis of marriage to a U.S. citizen must continue to be married from the time of filing the naturalization application until the Oath of Allegiance.
The new policy update clarifies that the applicant spouse and their U.S. citizen spouse must have been living in marital union for at least three years immediately preceding the date of filing for naturalization. It also reaffirms that the termination of the marriage at ANY time before the applicant takes the Oath of Allegiance for naturalization makes the applicant ineligible under INA 319(a). A termination of the marriage also applies to legal separation or death of the U.S. citizen spouse.
Citation: Volume 12: Citizenship and Naturalization, Part G, Spouses of U.S.Citizens, Chapter 2, Marriage and Marital Union for Naturalization [12 USCIS PM G.2].
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Ending Birthright Citizenship
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President Trump intends to end birthright citizenship and plans to issue an executive order in the coming weeks.
Birthright citizenship comes from the Fourteenth Amendment to the Constitution, which states that "Any person born or naturalized in the United States, and subject to the jurisdiction thereof, is a citizen of the United States and of the State wherein they reside." Although the president falsely claimed that no other country provides birthright citizenship, it is the law in over 30 countries, including Mexico and Canada.
President Trump also believes that children born of undocumented immigrants are not citizens because their parents were not "subject to the jurisdiction" of the United States, as required by the Fourteenth Amendment.
The only people not subject to the jurisdiction of the United States are diplomats and ambassadors, who are entitled to diplomatic immunity and are not required to follow most American laws.
The only way for the president to end birthright citizenship would be to amend the Constitution, which requires a two-thirds majority vote of the House and the Senate, and then for three-fourths states to approve the Amendment.
Eliminating birthright citizenship would create a new permanent underclass in the United States and could even leave some children stateless.
It would also impose hardship on all Americans, who could no longer point to a birth certificate as proof of citizenship. If place of birth no longer guaranteed citizenship, then all Americans-not just those whose parents were undocumented-would be forced to prove their parents' nationality to the government in order to be recognized as a U.S. citizen. Many Americans would likely be denied citizenship based on government mistakes.
Although President Trump cannot change the Constitution with an executive order, his threat to eliminate birthright citizenship at a highly political moment is not only divisive but fundamentally out of line with America ideals.
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Extending TPS Under Court Order
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After weeks of negotiation with the ACLU, the government has established a plan which provides those whose TPS was getting ready to expire a little more breathing room.
Under this plan USCIS will begin negotiating new terms for TPS extensions for Sudan, Haiti, El Salvador and Nicaragua. The extensions are to remain in effect so long at the Court's orders remain in effect.
In the short term, USCIS will automatically extend all work permits currently issued to TPS recipients from Sudan and Nicaragua for a six-month period ending on April 2, 2019. Both Sudan and Nicaragua's TPS designations were set to end before that date; Sudan on November 2, 2018, and Nicaragua on January 5, 2019. TPS for El Salvador and Haiti are not set to expire until late 2019, no extension action will be taken on those countries just yet.
The government's plan also provides some measure of protection for TPS holders if the lower court's order is reversed on appeal. In that situation, TPS holders from countries where the TPS designation has already expired will be given an "orderly transition period" of four months. However, if the court's order is reversed before TPS expires for a specific country, then the agency will use the original expiration date.
Over the next year, as Congress debates the fate of individuals with TPS, it should keep in mind that hundreds of thousands of TPS holders deserve protection and the right to remain here in the country that they've made their home.
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USCIS Revises Interview Waiver Guidance for Form I-751
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On November 30, 2018 USCIS issued a new Policy Memorandum (PM) providing guidance to USCIS officers on whether or not to waive the interview requirement for form I-751. The new PM went into effect on December 10, 2018 and applies to all Form I-751 petitions received on or after December 10, 2018.
The new PM supersedes the June 24, 2005 memo.
Form I-751 is filed for nationals who were granted conditional permanent resident status, meaning at the time their green card application was approved, their marriage was less than two years old. They obtain conditional permanent resident status and 90 days prior to the expiration of their conditional green cards, they file form I-751 to remove the condition on their green card and receive a green card valid for ten year period.
Generally, USCIS officers use the I-751 interview to verify information on the petition, as well as discover new information that may be relevant to the adjudication or credibility of the individual. The principal petitioner uses Form I-751 to further demonstrate their bona fide marriage to their spouse. In some cases, individuals petition to have the conditions on their green cards removed individually by requesting a waiver on the joint filing requirement.
USCIS officers may considering waiving an interview if they are satisfied that:
- they can make a decision bases don the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was no entered into for an immigration benefit;
- For Form I-751 cases received on/after December 10, 2018, USCIS has previously interviewed the I-751 principal petitioner;
- There is no indication of fraud or misrepresentation in the form I-751 or supporting documentation; and,
- There are no complex facts or issues that require an interview to resolve the questions or concerns.
The considerations listed above are reviewed on all Form I-751 petitions filed whether they are filed jointly or as a waiver.
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USCIS Policy Memo on Medical Certification for Disability Exceptions
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In USCIS Policy Memorandum (PM) issued December 12, 2018 to update and clarify filing procedures and adjudications on the Medical Certification for Disability Exceptions ( Form N-648). The PM provides updated guidance on these requirements. The new PM supersedes any prior guidance and goes into effect on February 12, 2019.
- Clarifies filing requirements for Form N-648, including that the form must be submitted with the naturalization application.
- Clarifies that USCIS may consider a late filing if there is a credible explanation.
- Clarifies that an officer may find an N-648 insufficient if there is a finding of credible doubt, discrepancies, misrepresentation or fraud as to the applicant's eligibility for the exception.
- Clarifies that applicants may decline the English and civics test or discontinue the interview when an officer determines the Form N-648 is insufficient, but this will count as a failed attempt to pass the English and civics requirements.
The medical disability exception requirement is for those who are unable to meet the requirement for taking the English and civics test for naturalization purposes because of a physical or developmental disability or mental impairment. The burden is on the applicant to show that they have a disability or impairment that affects functioning needed to meet the English and civics tests requirements for naturalization. A licensed medical professional must complete the form and certify under the penalty of perjury that the applicant's medical condition prevents the applicant from meeting the English or civics requirement or both.
The applicant must submit Form N-648 as an attachment with their naturalization application in order to be considered timely filed. In some instances, late submissions will be accepted if the applicant can provide a credible explanation for filing the Form N-648 after filing the Form N-400, for example, a significant change in the applicant's medical conditions.
Applicant's should avoid submitting multiple Form N-648 unless there have been significant changes to medical circumstances. In cases where there are multiple form N-648's, the officer will have to review each for significant discrepancies or changes.
All Form N-648's should contain the following information:
- Clinical diagnosis of the applicant's medical condition(s) and, if applicable, the relevant medical code recognized by the Department of Health and Human Services (HHS).10 This includes the most current Diagnostic and Statistical Manual of Mental Disorders (DSM) and the International Classification of Diseases (ICD) codes.
- Description of the medical condition(s) forming the basis for the disability exception.
- Date(s) the medical professional examined the applicant.
- Description of the doctor-patient relationship indicating whether the medical professional regularly treats the applicant for the cited conditions or an explanation of why he or she is certifying the disability form instead of any regularly treating medical professional.
- Statement that the medical condition has lasted, or is expected to last, at least 12 months.
- Statement whether the medical condition is the result of the illegal use of drugs.
- Explanation of what caused the medical condition, if known.
- Description of the clinical methods used to diagnose the medical condition.
- Description of the medical condition's effect on the applicant's ability to successfully complete the educational requirements for naturalization.
- Statement whether the medical professional used an interpreter to examine the applicant.
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USCIS Using Tablets for English Test in Naturalization
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On October 1st, USCIS started using digital tablets to administer the English reading and writing test during naturalization application interviews.
USCIS will be continue to use the paper process but only on case-by-case basis. Immigration Officers are to carefully instruct applicants on how to use the tablets and stylus.
For the reading test, a sentence will appear on the tablet ad the Officer will ask the applicant to read it
For the writing test, several lines will appear on the tablet, replicating the appearance of a piece of blank paper. The Officer will read a sentence aloud and ask the applicant to write it on the tablet.
Applicants will continue to take the civics test verbally, without the tablet.
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USCIS Expanding Information Service Modernization Program
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USCIS will expand its Information Services Modernization Program to key field offices, beginning with the Detroit Field Office and the five offices in the Los Angeles District on Nov. 13. Field offices in the Newark, Great Lakes, and San Francisco districts will implement the program during the first quarter of fiscal year (FY) 2019.
The Information Services Modernization programs ends the self-scheduling InfoPass appointments applicants are used to getting through the USCIS website. Instead applicants are now encouraged to seek updates on their cases directly through the USCIS Contact Center.
USCIS has been diligently working to update and improve the online tools so that applicants can better obtain their case status and other immigration information without have to go to a field office. Reducing the number of applicants coming to the field officers should help to alleviate some of the delays and assist in officers adjudicating cases more quickly.
Based on surveys and other data, USCIS determined that most people who made in-person information service appointments through InfoPass could have received the same information by calling the USCIS Contact Center or checking the USCIS website. Importantly, when it is determined an applicant does need in-person assistance under the Information Services Modernization Program, personnel at the USCIS Contact Center will help schedule an appointment without the individual having to search for available timeslots.
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ICE Arrests 170 Immigrants Seeking to Sponsor Migrant Children
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170 Immigrants were arrested for coming forward and admitting to seeking to sponsor migrant children in government custody, according to ICE.
ICE said Tuesday that the arrests were of immigrants suspected of being in the United States illegally and took place from early July to November. They were the result of background checks conducted on potential sponsors of
unaccompanied migrant children
placed under the care of the Department of Health and Human Services. Most of the immigrants arrested had to criminal history.
The Trump administration
allows immigration authorities to examine the criminal background and legal status of anyone who steps forward to sponsor unaccompanied migrant children - usually parents or close relatives already in the U.S. - as well as any other adults living in their home. Meaning,
ICE has the right to collect bio-metric data, including fingerprints, of the sponsors as well as other adults in the home.
Just under 80 percent of people screened by ICE during the sponsorship process showed results that they were not in the country legally, the agency said.
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Funding Immigration Deportation
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The Trump Administration has put a lot of money into the deportation system and specifically into the Immigration and Customs Enforcement (ICE). ICE has its own private airline operation known as ICE Air which it uses to deport thousands of immigrants back to their native homes.
Currently, ICE is $017 million over its budget. Deportation cost have gone up 30 percent in the last fiscal year as the Trump Administration continues to crack down on immigration in the U.S.
Ten times a week, ICE Air off loads hundreds of deported immigrants at the Guatemala City airport. Deportees are handcuffed or restrained as they fly into their countries of origins. There are no in flight entertainment systems on the plane and they are fed minimal meals such as plain white bread with a slice of American cheese and a cup of water. Deportees are offered the bare minimum on the flights. The focus is not on comfort but on the efficiency of deporting as many individuals as possible.
ICE Air flew over 97,000 deportees home last year. Most went to Guatemala, followed, in order, by Honduras, El Salvador, Haiti, the Dominican Republic, Brazil, Ecuador, and Colombia.
When there are not enough deportees to fill a charter flight, ICE buys tickets on commercial flights. This summer, however, several major carriers refused to fly children who'd been separated from their parents by the government.
ICE did not have a breakdown for the cost of a typical charter flight, but these international trips are expensive. An inspector general's report three years ago calculated the cost of charter flights at about 85 hundred dollars, per hour, regardless the number of passengers.
ICE Air relies on a network of contractors. The biggest was CSI Aviation of Albuquerque, New Mexico - whose contract with Homeland Security swelled from $88 to $96 million this year. In July, CSI says the ICE Air contract was awarded to a different company.
The budget for Department of Homeland Security, which includes Immigration and Customs Enforcement, is upwards of $47 billion. ICE's budget for custody operations is a record $3 billion dollars this year - up from $1.77 billion in 2010.
The Trump Administration is still seeking to add funds for the wall build along the U.S. border and Mexico which is likely to require hundreds of millions of additional funds.
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Federal Court to Consider the Deportation of Children without Attorneys
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The Ninth Circuit Court of Appeals is reviewing arguments in
C.J.L.G v. Whitaker,
a case addressing whether children in deportation have the right to court appointment attorneys.
Presently,
pro se
minors are being deported with little to no regard of the potentially life-threatening circumstances they are returning to in their home countries. The case being heard before the Ninth Circuit involves C.J., a 13 year-old Honduran national who fled his native country after being held at gunpoint and threatened with death if he did not join a local gang. Upon entering the United States, C.J. was placed into removal proceedings on his own, even though he entered the country with his mother.
In 2015 C.J. attempted to apply for asylum - without representation because he could not afford an attorney, leaving his asylum application filled with several incomplete with several errors. Had C.J. had the help of an immigration attorney, he would have known that he was eligible for other forms of relief such as Special Immigrant Juvenile Status. But because he was not represented C.J. was ordered deported by the Immigration judge.
With the assistance of attorneys, C.J. appealed the decision claiming the immigration court violated his right to due process, because children cannot receive proper immigration hearings without attorney representation. A three-judge panel in the Ninth Circuit upheld the courts decision that minors are not entitled to representation in immigration court. Earlier this year, the full Ninth Circuit court voted to withdraw the decision and reconsider the case in front of an 11 judge panel, also known as
en banc (or the "entire bench").
Although C.J. now has representation, there are thousands of children forced to to through immigration court without proper legal help, although the government always has trained attorneys arguing for their deportation. The Ninth Circuit now has a chance to reconsider children like C.J.
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USCIS Updates
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Form I-751 Continued Delays
On June 13, 2018, USCIS announced that the California Service Center (CSC) was experiencing a delay in initial data entry for Form I-751. After changing the filing location for Form I-751 from the USCIS Service Centers to the USCIS Lockbox facilities in September, USCIS completed receipting and data entry of these petitions on Oct. 1.
If you submitted a Form I-751 to the CSC between May 1 and Sept. 9, 2018, and you have not received a receipt notice, do not file a duplicate Form I-751 unless you have received a rejection notice or have been instructed to do so by the CSC.
Proposed I-912 Fee Waiver Form Revision
USCIS is proposing to revise our Form I-912, Request for Fee Waiver, to remove the receipt of means-tested benefits from the eligibility criteria.
Individuals should use Form I-912 to request a fee waiver for eligible immigration benefit applications and petitions. When requesting a fee waiver, an alien must clearly demonstrate that he or she is unable to pay the fees. We will not accept a letter from the applicant stating they are unable to pay the filing fees or biometric services fees without a completed Form I-912 and supporting documentation, to include federal income tax transcripts or a Verification of Non-filing. With the proposed change, an alien may request a fee waiver if the documented annual household income is at or below 150 percent of the Federal Poverty Guidelines (FPG), or if the person can demonstrate financial hardship.
USCIS is permitted by regulation to waive certain fees, provided the party requesting the benefit is unable to pay the prescribed fee. The proposed form revision does not change the list of applications and petitions that are eligible for a fee waiver. For the complete list of applications and petitions that are eligible for a fee waiver, please refer to 8 CFR 103.7(c)(3).
USCIS Publishes Revised Form G-28 and Extends Grace Period for Prior Versions
USCIS has published a revised version of
We are also extending the grace period for prior versions of Form G-28. You may continue to use the 05/05/16 and 03/04/15 versions of the form until Nov. 19, 2018. Starting Nov. 19, 2018, we will only accept a Form G-28 with edition date 09/17/18 or 05/23/18. You can find the edition date at the bottom of the page on the form and instructions.
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