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Jason Dzubow on Political Asylum

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  1. Asylum for People with TPS

    In the last few weeks, the Trump Administration has moved to end Temporary Protected Status ("TPS") for Nicaraguans and Haitians, and we can expect TPS programs for other countries to end as well. There are about 321,000 people with TPS in the U.S. Most (195,000) are from El Salvador. There are about 2,500 Nicaraguans with TPS and 57,000 Haitians.


    Nicaraguan TPS Holders: One more year to party like it's 1999.

    The decision for Nicaraguan TPS came on November 6, 2017, though USCIS delayed the effective end-date of the program for 12 months "to allow for an orderly transition before the designation terminates on January 5, 2019." Nicaraguan TPS went into effect in 1999, after Hurricane Mitch devastated the region.

    The Department of Homeland Security ("DHS") announced an end to the Haitian TPS program on November 20--

    To allow for an orderly transition, the effective date of the termination of TPS for Haiti will be delayed 18 months. This will provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. It will also provide time for Haiti to prepare for the return and reintegration of their citizens.... Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the respective termination or extension periods.

    USCIS also signaled the likely end of TPS for Honduras, but delayed the decision until later. "As a result of the inability to make a determination, the TPS designation for Honduras will be automatically extended for six months from the current January 5, 2018 date of expiration to the new expiration date of July 5, 2018."

    Given these changes, the fate of the remaining TPS beneficiaries is uncertain. "Recognizing the difficulty facing citizens of Nicaragua – and potentially citizens of other countries – who have received TPS designation for close to two decades," Acting DHS Secretary Elaine Duke called on Congress to "enact a permanent solution for this inherently temporary program." The idea that Congress will act to protect TPS beneficiaries seems unlikely, at best.

    So if you have TPS and you are concerned about the end of the program, what can you do?

    People losing TPS status potentially have a number of options, such as claims to U.S. citizenship, Cancellation of Removal, Adjustment of Status based on a family relationship or a job, a residency applications based on being a victim of a crime or human trafficking. Talk to a lawyer to review your specific situation and evaluate your eligibility (if you cannot afford a lawyer, there might be free services available to you).

    For many TPS recipients, however, the only viable option may be asylum. To win asylum, an applicant must demonstrate that she faces a well-founded fear of persecution on account of her race, religion, nationality, political opinion or particular social group. In other words, to win an asylum case, you need to show that someone wants to harm you for one of these reasons. If you fear return because your country is generally crime-ridden or war-torn, that is probably not enough to win an asylum case. You need to show a specific threat based on a protected ground (I’ve written in more detail about this issue here).

    Most of the “protected grounds” are pretty obvious. If someone in your country wants to harm you because they do not like your religion or race or political opinion, that is easy to understand. But what is a “particular social group”? The law defining particular social group or PSG is complex, and different courts have reached different conclusions about what constitutes a PSG. For purposes of this blog post, it is easier to give some examples of PSGs, and then if you think you might fall into one of these categories (or something similar), you can talk to a lawyer. Some common PSGs include members of a family or tribal group, LGBT individuals, women victims of FGM (female genital mutilation) or women who fear FGM, and people who are HIV positive. Other groups of people that some courts–but not others–have found to constitute a PSG include members of a profession (doctors, journalists, etc.), former police officers, former gang members, former U.S. embassy workers, street children, people with certain disabilities, people who face domestic violence, union members, witnesses/informants, tattooed youth, perceived wealthy individuals returning from abroad, and “Americanized” people. These last two PSG groups might be of particular interest to TPS recipients.
    Creative lawyers (and asylum applicants) are coming up with new PSGs all the time, but if you can fit your case into a group that is already recognized as a PSG, that certainly increases the likelihood that your case will succeed.

    To win asylum, you also need to show that someone (either the government or someone who the government is unable or unwilling to control) wants to “persecute” you on account of a protected ground. You will be shocked to know that the term “persecution” is not clearly defined by the law, and different courts have come up with different–and inconsistent–definitions. Persecution is usually physical harm, but it could be mental harm or even economic harm. An aggregation of different harmful events can constitute persecution.

    In addition to all this, an asylum applicant must show that he filed for asylum within one year of entering the United States or that he meets an exception to this rule. I expect that this will be a particular issue for TPS recipients, since most have been here for years. If you have not filed within a year of entry and you do not meet an exception to the one-year rule, then you are not eligible for asylum. You may still qualify for other relief, which is similar to asylum but not as good: Withholding of Removal and Torture Convention relief.

    One piece of good news is that TPS is considered "extraordinary circumstances" excusing the one-year asylum filing deadline. See 8 C.F.R. § 208.4(a)(5)(iv) ("The applicant maintained Temporary Protected Status... until a reasonable period before the filing of the asylum application."). This means that it is probably important to apply for asylum before your TPS expires. Whether people who were in the U.S. unlawfully before they received TPS can meet an exception to the one-year rule, I am not sure, but for people in this situation who fear return to their country, it is certainly worth exploring.

    Another possible exception to the one-year rule is “changed circumstances.” Maybe it was safe for you in your country, but then something changed, and now it is unsafe. If that happens, you need to file within a “reasonable time” after the change–hopefully, within a month or two. If you wait too long after the change, you will not meet this exception to the one-year rule.

    For TPS recipients, asylum may be a last-ditch effort to remain in the U.S., and it may be difficult to win such a case. However, there are some advantages to seeking asylum. First, despite a crackdown on non-citizens, the Trump Administration has not moved to eliminate asylum. Such a move would be very difficult anyway, since asylum is written into the law (based on a treaty signed by the United States in 1968) and cannot be eliminated without Congressional action. So asylum should remain an option for the foreseeable future. Second, 150 days after you file for asylum, you can apply for a work permit. The work permit is valid for two years, and is renewable for the duration of the asylum case. Finally, the asylum process is slow. Normally, asylum delays are horrible for applicants (and for their attorneys), but if you are trying to delay your deportation until a new Administration comes along, asylum might do the trick.

    If you have TPS, it is important to start considering your options now. Talk to a lawyer or a non-profit organization about your situation to see what you can do. Since we can't expect much (besides trouble) from the government, non-citizens must use the tools at their disposal to protect themselves. Asylum is one such tool.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, tps Add / Edit Tags
  2. The Secret Refugee History of Casablanca

    This month marks the 75th anniversary of the Hollywood classic Casablanca. The move has been acclaimed as one of the great films of all time, and in my (correct) opinion, it contains the greatest scene in movie history (more on that later).


    French refugee Madeleine Lebeau: "Vive la France!"

    Probably, you know the basic story. It's 1942. France has fallen to the Nazis, and some French colonies, including the city of Casablanca in Morocco, are under Vichy control (the Vichy government of France collaborated with the Nazis). Refugees, freedom fighters, Nazis, smugglers, and numerous others pass through Rick's Café in Casablanca. Many are seeking papers to escape to Portugal and then to freedom in the New World (the film's technical director, Robert Aisner, actually took this route himself after he escaped from a German prison camp).

    Rick--the owner of the café--is an American ex-patriot (played by Humphrey Bogart) whose loyalties through much of the movie are ambiguous. One day, Rick's former lover Ilsa (Ingrid Bergman) appears with her husband, resistance leader Victor Laszlo (Paul Henreid), and Rick and Ilsa have to make some relationship decisions ("Of all the gin joints in all the towns in all the world, she walks into mine."). If you don't know how the movie ends, I'm not going to tell you here--you should see it for yourself (and you can thank me later).

    What's less well-known about Casablanca is that many of the actors in the film were themselves refugees. Of 75 people who had bit parts and larger roles in Casablanca, almost all were immigrants of one kind or another. And of the 14 who got screen credit, 11 were foreign-born. Here is the story of some of them:

    Conrad Veldt was a well-known German actor who opposed the Nazis and left Germany with his Jewish wife in 1933. Before he departed, he had to complete a questionnaire about his race. Even though he was not Jewish, he listed himself as a Jew. The government offered him an opportunity to divorce his wife and align himself with the Nazis, but he refused. Mr. Veldt moved to Britain where he performed in anti-Nazi films. He eventually came to the United States, where he wanted to help persuade the U.S. to enter the war. Mr. Veldt donated the better part of his personal fortune to Britain to assist with the war effort. He played Major Strasser, the primary bad guy in Casablanca.


    S.Z. Sakall and his wife Anne Kardos became American citizens in 1946: "Mama and I are happy, happy people today."

    Lotte Palfi played a desperate woman selling her jewels to raise money. In her only line in the film, she asks for "just a little more, please?" Ms. Palfi was a leading stage actor in German, but fled in 1934 because she was Jewish. She hoped to find success in America, which she viewed as a "melting pot" where the "great majority of the people... had emigrated from other countries." So she initially thought her German accent "shouldn't be any hindrance to [her] acting career." "Of course," she wrote, "I couldn't have been more wrong." Ms. Palfi married fellow Casablanca actor Wolfgang Zilzer (who grew up in Germany and only learned of his American citizenship when he was trying to secure a visa to escape from Europe). The couple divorced after 50 years when he wanted to return to Germany at the end of his life and she refused to go back.

    S.Z. Sakall played Carl the waiter in Casablanca. He was a Hungarian Jew who worked on stage and screen in his native country, and also in Austria and Germany. He lost three sisters and many other relatives in the Holocaust. Known for his comedic performances and his shaking jowls (one of the Warner brothers made him adopt the nickname "Cuddles"), Mr. Sakall achieved success in Germany using broken German, and in America using broken English. He arrived in the U.S. just before the war, in May 1939, and appeared in 30 movies between 1940 and 1950. Mr. Sakall was immensely proud of his United States citizenship, and kept his naturalization documents on the mantel in his living room.

    Hans Twardowski played a German officer in Casablanca. He began his career as a supporting actor in The Cabinet of Doctor Calgary, but had to flee Germany because he was gay. In the U.S., Mr. Twardowski was type-cast as a Nazi, and never worked as an actor after the war ended, but he always dreamed of returning to the stage.

    Helmut Dantine played a young Bulgarian husband trying to earn travel money at the roulette table. In Austria, he led an anti-Nazi youth movement, and was rounded up after Hitler annexed his country in 1938. Mr. Dantine was only 19 years old. He spent three months in a concentration camp before he managed to get released based on family connections and medical reasons. His parents immediately sent him to Los Angeles, where they had a family friend. In the U.S., he worked as an actor and a producer.

    Peter Lorre, born Laszlo Lowenstein in Hungary in 1904, played Ugarte, a black marketeer who hands Rick the letters of transit that Victor and Ilsa need to escape from Casablanca. Mr. Lorre moved with his family to Austria when he was young, and he began his career there. He eventually migrated to Germany where he acted on stage and screen. His breakout role was as a killer in Fritz Lang's 1931 film M. With Hitler's ascension to power, Mr. Lorre left Germany in 1933, and made his way to France, Britain, and eventually, the U.S., where he settled in Hollywood.


    Anti-Nazi actor Conrad Veidt played a Nazi in Casablanca.


    Marcel Dalio
    , who played Emil the croupier, had been a star in French cinema (Rules of the Game and La Grande Illusion), but fled the country ahead of the Nazi invasion (he was Jewish and feared persecution). The Vichy government used Mr. Dalio's image to depict the stereotypical Jew on propaganda posters, but in the U.S., he was reduced to playing minor roles. Upon learning of the posters, he quipped, "At least I had star billing on the poster." Mr. Dalio was promoted to playing Renaud (in the movie, this character was Renault) on the short-lived and largely forgotten Casablanca television serious (1955-56). Mr. Dalio's mother and sisters were murdered at Auschwitz.

    Madeleine Lebeau was the French woman seen crying (real tears) and shouting "Vive la France" during the greatest scene in movie history. In real life, she was a citizen of France who married Marcel Dalio when she was 16, and then fled the country with him after the German invasion. Their marriage was short-lived, and Ms. Lebeau returned to Europe after the war, where she continued to act in France, Britain, and Spain. She died last year at age 92--the last surviving named cast member in Casablanca.

    Seventy-five years after its release, Casablanca is recognized as one of the great films of all time. The emotion brought to the movie by so many real-life refugees from Nazism certainly contributes to the film's power. Indeed, refugees helped shape the movie, and the movie helped shape our vision for the war (critic Pauline Kael once opined, "Our image of the Nazi was formed by the Jewish refugees").

    Finally, the undisputed greatest scene in movie history: A group of Nazi officers is singing a patriotic German song at Rick's café. They are--they believe--the masters here. Resistance leader Victor Laszlo notices the men and marches over to the house band. He tells them to play le Marseille, the anthem of free France. The band looks to Rick, and he has another decision to make--keep out of it, or get involved. See what happens here.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: history, movies Add / Edit Tags
  3. The Perils and Pitfalls of Applying for a Green Card

    In the past few weeks, we’ve had two former asylum clients return to our office for help after USCIS denied their applications for citizenship. The applications were denied due to mistakes the former clients made on their I-485 forms (the application for a green card). These cases illustrate the danger of incorrectly completing the I-485 form, and this danger is particularly acute for people with asylum.


    The new Green Card application process.

    Let’s start with a bit of background. After a person receives asylum, she must wait for one year before applying for her lawful permanent resident (“LPR”) status (her green card). The form used to apply for the green card is the I-485. In the good old days (a few months ago), this form used to be six pages. Now it is 18 pages. The old I-485 form contained 32 yes-or-no questions; the new form contains 92 such questions.

    Many of these questions are difficult for me to understand, and I am a trained lawyer who speaks reasonably decent English. So you can imagine that people with more limited English, who are not familiar with the complicated terms and concepts contained in some of the questions, might have trouble answering.

    In my clients’ cases, two questions in particular caused them trouble (these are from the old I-485). The first question was, “List your present and past membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place since your 16th birthday.” Both clients had been involved with political parties, but were no longer members of those parties in the United States. The clients did not carefully read the question, and instead of listing their “past membership,” they instead answered “none” (because they are no longer members).

    The second question asked whether the clients had ever been “arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations.” In fact, my clients had never been arrested for “breaking or violating any law or ordinance.” They were arrested for exercising their supposedly-lawful political rights, and they were correct to answer “no” to this question. Nevertheless, USCIS viewed their answers as deceptive.

    My clients’ problems were compounded by the fact that they were never interviewed for their green cards, and so a USCIS officer never went over the questions with them and gave them an opportunity to correct the errors.
    The result of all this—confusing questions, carelessness, and no interview—was that my clients obtained their green cards, but also sowed the seeds for future problems. Five years later, these problems appeared when the clients tried to naturalize, and USCIS went back and carefully reviewed their prior applications.

    To me, my clients’ errors were clearly honest mistakes. Indeed, in their asylum applications, the clients had already informed USCIS about their party memberships and about their arrests, and so they had nothing to gain—and everything to lose—by failing to mention these issues in the I-485 form. But that is not how USCIS sees things. To them, the errors were “misrepresentations,” which disqualified my clients for citizenship.

    To solve the problem, my clients will likely need to apply for waivers (an expensive application to seek forgiveness for making misrepresentations). Given that they are asylees, and that the misrepresentations were relatively minor, I suspect the clients will ultimately qualify for waivers and—eventually—become U.S. citizens. But between now and then, they will face a lot of unnecessary stress and expense. Unfortunately, this is the reality now-a-days for all applicants: If you leave yourself vulnerable, USCIS will bite you.

    So what can be done? How can you protect yourself when completing the form I-485?

    The key is to read each question carefully and make sure you understand what it means. This is time consuming and boring, but given that USCIS is looking for excuses to deny cases and cause trouble, you have little choice if you want to be safe.

    Even using a lawyer is no guarantee. Until recently (when USCIS started looking for reasons to deny cases), I had a tendency to gloss over some of these questions. I am more careful now, but it’s not easy. Many of the questions are ridiculous: Are you a prostitute? Did you gamble illegally? Were you a Nazi in WWII? But intermingled with these questions are others that require closer attention: Did you ever have a J visa? Have you ever received public assistance? Have you ever been denied a visa? It’s easy to skim over these, but the consequences of an erroneous answer can be serious.

    Also, some questions are tricky, and can’t easily be answered with a “yes” or a “no.” For example, my clients indicated that they had not been arrested for a crime, and this was correct, but they had been arrested for their (lawful) political activities, and USCIS took their answers as misrepresentations. What to do? When we complete I-485 forms and we encounter questions like this, we normally check “no” (or “yes” if that seems more appropriate) and circle the question. Next to the question, we write, “Please see cover letter,” and on the cover letter, we provide an explanation (“I was never arrested for a crime, but I was arrested by my home government for political reasons”). At least this avoids the problem of USCIS labeling your answer a misrepresentation.

    In the end, the only real solution here is to read each question carefully, make sure you understand the question, and answer it appropriately. If the question is not amenable to a yes-or-no answer, or if you think an explanation is required, circle the question and provide an explanation. If you don’t understand something or are not sure, ask for help. It’s best to get the form correct now, even if that involves extra time or money, than to make mistakes that will cost you later on.

    Originally posted on the Asylumist: www.Asylumist.com.
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