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  1. Credibility Determinations Are Not Credible

    In an asylum case, one of the most difficult determinations for the fact finder is the alien's credibility: Is the alien telling the truth about his claim?
    Over time, various courts have weighed in on how to determine whether an alien is telling the truth.  There is an excellent resource about the case law on credibility available from EOIR here (click where it says "Circuit Credibility Outline"). 
    One of the main methods used to determine credibility is to to look for inconsistent statements in an alien's testimony and evidence.  In some ways, this is an effective means of judging credibility.  For example, I know of a case where an Ethiopian asylum seeker claimed to have been detained and mistreated by her government.  DHS had evidence that the asylum seeker had actually been living in Italy for many years, including during the period that she claimed to have been detained in Ethiopia.  Thus, it was pretty clear that her claim was fraudulent.  However, the vast majority of inconsistencies are far more subtle.

    Someone named Mr. Incredible would probably not do well in Immigration Court.

    A much more common scenario is where an alien is found incredible because he gives the wrong date for an arrest or participation in a political event.  Such an inconsistency tells us little about whether the alien is lying or telling the truth because human memory does not work that way.  Most events are not tied to a particular date in our memories. 
    For example, I was once in a car accident.  I remember many details of the accident, but I cannot tell you the day (or month or year) that it happened.  As a lawyer, when I sit in my office preparing the client's affidavit, I ask him to list all the dates as accurately as possible.  Often, this involves figuring out or estimating the correct date.  Once we have agreed upon the (hopefully) correct date, the client memorizes that date.  So in Court or at the Asylum Office, the client is not actually remembering the date of the event.  Instead, he is remembering the date that we reconstructed in my office.
    This means that the recitation (or regurgitation) of dates to the fact finder may be a decent test of the alien's memory, but it is of little value in assessing his credibility. The corollary, of course, is that failure to remember dates-except in the most egregious circumstances-should not be used to support a negative credibility finding. 
    Another technique to evaluate credibility is to look for inconsistencies between an alien's testimony and the testimony of her witness.  However, this is not very reliable either.  I tried a little experiment recently that illustrates the point: Last semester, I co-taught Immigration Law and Policy at George Mason University.  My co-teacher and I had dinner a month prior to the class.  To demonstrate a marriage interview to the class, the co-teacher waited outside and the students asked me a series of questions about the dinner.  She returned and they asked her the same questions.  Our answers were only partially consistent.  The class then voted on whether we actually had dinner.  About half the class thought we had dinner; the other half thought that we were lying about having dinner.
    Now if this is the level of consistency when two immigration lawyers are questioned about a recent event, it seems likely that non-lawyers who are not familiar with the U.S. immigration system might respond inconsistently to questions about more distant events.  Therefore, it is unfair to base an adverse credibility finding on minor inconsistencies between a respondent's and a witness's testimony.
    In a future posting, I will discuss other methods of determining credibility.
    Originally posted on the Asylumist:
  2. Bloggings: ICE Agents Union Head Refuses to Allow Members to Accept Training in New Deportation Policy; by Roger Algase

    According to the January 8 New York Times, Chris Crane, head of the 7,000 member ICE deportation officers union, has ordered his members to refuse to participate in training sessions for implementing the John Morton memo. This memo focuses on deporting serious criminal immigrants, rather than ones with no criminal record, and with family or other ties to the US. Crane refuses to implement the Morton memo because he is opposed to it, calling it "amnesty". But unions exist to protect the employment rights of their members, not to set agency policy.
    A Republican president, Ronald Reagan, not only signed legislation legalizing 2 million immigrants, but when faced with a federal employees' union representing insubordinate air traffic controllers, he promptly fired them. President Obama should announce immediately that any ICE agent who refuses to attend the Morton memo training sessions will be treated the same way. Will Obama show the same courage as his Republican predecessor?
    In other news, anyone who watched the infantile shouting, name-calling sessions known as Republican presidential debates this past weekend, must have been struck by the intelligence and common sense of the only adult on the stage, Jon Huntsman. It is noteworthy that Huntsman is the only Republican candidate (except, perhaps, Ron Paul) who has made clear that mass deportations are not a solution of America's immigration problem and will not happen if he is president. One does not, like Hunstman, have to be smart enough to speak Mandarin fluently in order to recognize this simple reality. All that is needed is some basic intelligence, honesty and humanity. These qualities were present in the Republican party of Ronald Reagan. It is hard to find them among today's Republican leaders.
    Even though Huntsman may be gaining in the polls, he has no chance of being nominated by a party that has been taken over by hate - against immigrants, gays, Muslims and women seeking abortions. There is no such thing as prejudice against foreign citizens only. The genie of bigotry cannot be kept in the anti-immigration bottle.
    President Obama has now signed a law allowing for indefinite detention, without charges or trial, of American citizens who may be "suspected" of terrorist activities. It is no accident that this giant step toward fascism was approved by the same president who has deported record numbers of immigrants. Denying basic human rights to non-US citizens is coming back to haunt Americans as well.
  3. Notarios Already on the Prowl

    by , 01-08-2012 at 08:19 PM (Greg Siskind on Immigration Law and Policy)
    After more than a decade with virtually no positive news for illegally present immigrants, a new industry began to flourish across the country. Called "notarios" fake lawyers have created a cottage industry of fraud, bilking immigrants on millions of dollars with promises to deliver immigration benefits that simply aren't going to happen. Notarios in Latin America are actually lawyers, but in the US it takes little more than a few dollars and an application to qualify to be a notary public.
    In the wake of good news on prosecutorial discretion as well as I-601 waivers, notarios are starting to get more brazen in marketing their services even though only a relatively small percentage of those in the US illegally are likely to benefit from the changes.
    My friend Paul Parsons passed on the link to an article that provides good information on notario fraud and how to avoid being scammed. Hopefully, it will help stop individuals from becoming victims.
  4. New Waiver Policy Would Promote Family Unity
    A proposal was put forth last Friday by the USCIS which would allow thousands of spouses of U.S. citizens to come out of the shadows and apply for green cards.

    This is as it should be since the stated purpose of our immigration laws is to promote family unity and spouses of U.S. citizens are usually given special preference in regularizing their status.

    Despite this general rule, many thousands of families in the U.S. consist of one spouse who is a U.S. citizen and another who is an illegal alien. Worse yet, our laws require many spouses of U.S. citizens to leave the U.S. and travel abroad in order to apply for green cards. As a result, many of these spouses are forced to remain separated from their families for a lengthy period, from a few months to over 10 years.

    Now, the Obama Administration seeks to halt this terrible travesty.

    Before we explain the new policy proposal, it is best to recount the reason for this separation.

    In 1996, Congress passed and President Clinton signed the "Illegal Immigration Reform and Immigrant Responsibility Act" (IIRIRA). This law sought to punish persons who were "unlawfully present" in the U.S. by making it difficult for them to receive immigration benefits.

    Here is one example that is worth a thousand words.

    Let's say that a Mexican couple unlawfully entered the U.S. with their 3 children back in the 1980s. In 2005, their son Marty, now 21 years of age, married Barbara, a U.S. citizen. Marty and Barbara have been married for 6 years, and have two children. Yet, Marty is still unlawfully in the U.S. Why is that?

    If Barbara sponsors him for a green card, he will have to apply at the U.S. Consulate in Ciudad Juarez, Mexico. Barbara hesitates to do this because Ciudad Juarez is a very dangerous place. More than one applicant for immigration benefits has been murdered or severely injured there. There is, however, another compelling reason why Barbara does not want her husband to go to Juarez.

    Because Marty has been unlawfully present in the U.S. since his parents brought him here, the law bars him from returning to the U.S. for a period of 10 years. There is a way to avoid this, but it is neither quick nor certain.

    If Marty can demonstrate that Barbara would suffer "extreme hardship" if he were not allowed to return to the U.S. for 10 years, then he can apply to obtain a "waiver" from this bar. However, applying for a waiver is very tricky since only hardship to Barbara matters under the law. Hardship to Marty or even hardship to their children simply does not count.

    Also, Marty must remain outside the U.S. while his application is pending, a difficult proposition since Marty is the sole breadwinner of the family. It takes the government several months or worse up to one year to process Marty's waiver. If the waiver is denied, which occurs about half the time, Marty can appeal, but that is a two-year process. Marty must still remain outside the U.S. the entire time.

    Because of this law, thousands of families trying their best to follow the law have been separated for years, have had to go on welfare and have had their homes foreclosed when they could no longer make payments on their mortgage. As a result, most U.S. spouses in this situation simply choose not to sponsor their foreign-born spouses for green cards. The spouses simply remain in the U.S. with their families in unlawful status.

    Do these same harsh penalties apply to spouses of U.S. citizens who enter the U.S. from Europe? Most of these spouses enter the U.S. lawfully as visitors or students, and many overstay their visas and remain in the U.S. illegally for months or years before marrying U.S. citizens. Yet, the law permits them to obtain their green cards without having to leave the U.S. or even requiring them to obtain a waiver. They may be illegal, but the severe penalties mentioned above mostly fall on spouses from south of the border.

    So what is the new policy that was recently proposed by the USCIS and how will it promote family unity?

    Is the government going to treat illegal Mexican spouses of U.S. citizens the same as illegal European spouses, and permit them to get their green card in the U.S.? No. Is the government going to dispense with the waiver requirement or ease the standards for what is considered extreme hardship? Not on your life!

    What the Obama Administration is proposing is something much more modest. Nothing in the new proposal will change the law. It simply provides that before the green card appointment takes place outside the U.S., the waiver application may be submitted in the U.S. and the family can remain intact while waiting for the result.

    Furthermore, the proposed regulation which is scheduled to appear in the Federal Regulation on January 9, would limit the applicability of the new waiver process in 3 additional ways:

    1. Only immediate relatives of U.S. citizens may apply;

    2. Only unlawful presence waivers are included; and

    3. The extreme hardship must be to qualifying relatives who are U.S. citizens.

    Because lengthy family separations are avoided, the new policy would enable more U.S. citizens to apply to legalize their spouses, and would dramatically lower the number of illegal aliens in the U.S., something that everyone claims to be in favor of.

    However, Representative Lamar Smith (R-TX), the principal author of IIRIRA, who currently serves as the Chairman of House Judiciary Committee, characterized the proposal as an "abuse of administrative powers".

    We disagree. Still, we caution families to remember that the new policy is only at the proposal stage, and it may be many months before it is fully implemented. This is definitely a good time to start preparing your I-601 waiver application!

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    Updated 12-02-2013 at 01:30 PM by CShusterman


    by , 01-08-2012 at 06:47 AM (Chris Musillo on Nurse and Allied Health Immigration)

    by Chris Musillo

    The Department of State has just released the February 2012 Visa Bulletin. The February Visa Bulletin is the fifth Visa Bulletin of US Fiscal Year 2012.

    This Visa Bulletin again showed much improvement in the EB-2 categories. The China and India EB-2 numbers jumped another 12 months, and now stand at January 2010. In the last two months these EB-2 numbers have improved almost two years. The February Visa Bulletin notes that:

    China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

    The EB-3 categories had much more modest gains -- a few weeks in all instances.

    February 2012 Visa Bulletin

    All Other Countries



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