Help your family members before it’s too late!

U.S. citizens and lawful residents who can petition for foreign relatives should do so very soon, because Congress might restrict family-based immigration.

Washington, D.C., politicians are talking a lot about changing immigration law.  Reducing the categories of family-based visas – ending “chain migration,” as restrictionists call it – is one change that could pass in Congress.   This change could happen as a trade-off for protecting immigrants who were eligible for Deferred Action for Childhood Arrivals (DACA) and maybe those who have had Temporary Protected Status (TPS) in past years.

If Congress did reduce family visas, people currently in line for such visas would probably remain in line, but no new petitions would be allowed in the newly eliminated categories.

Because of this, U.S. citizens and lawful residents who can sponsor someone for a green card would be wise to file a petition now – before time runs out.

Currently, if you are a U.S. citizen, you may sponsor:  (1) your spouse, (2) your parents, (3) your children of any age or marital status (including some adopted and step-children) and (4) your brothers and sisters.  If you are a lawful resident, you may sponsor:  (1) your spouse and (2) your unmarried children of any age.

Most of the proposed changes eliminate eligibility for parents, adult children, and siblings of U.S. citizens and for adult children of lawful residents.  If you have relatives in these categories whom you want to sponsor, contact a lawyer today and file a petition.

Petitioning for a foreign relative is the first step towards a green card.  The U.S. citizen or lawful resident (the “petitioner”) files forms with U.S. Citizenship and Immigration Service (USCIS), with documents supporting the application and a filing fee.  USCIS typically approves the petition in months to years, depending on how many applications are in line for that particular category.

Still, having the petition filed before Congress changes the law puts your relative in line.

It can take months to many years between filing a petition and the alien relative getting a green card; the complexity of the case and the backlog of similar cases will make all the difference.

Linnartz Immigration Law Office has many years of experience successfully getting people through the family immigration process.  If you have a need, contact us today.

 


Indefensible deportations on the rise – One of our cases makes news

ICE recently (unexpectedly and without explanation) arrested one of our clients while he was making a routine check-in; he is detained now in Lumpkin, GA. We are trying to have this harmless and productive 59-year-old gentleman, who also suffers from a life-threatening medical condition, released. His church and other faith organizations have stepped up to advocate for him.

Congo native living in Cary faces deportation

http://www.wral.com/cary-church-fighting-to-stop-deportation-of-member-with-life-threatening-medical-condition/17250141/

http://abc11.com/society/cary-church-fights-potential-deportation-of-legal-immigrant/2930951/

This detention is just one more sign of the times in which we live; I am glad to be on the side of the God of compassion.


I have DACA, and mine’s expiring! Is all lost?

No.  For many of you, all is not lost.

The Trump administration is ending DACA, but there is an opportunity to renew – if your DACA will run out before March 5, 2018, AND you apply for renewal before October 5, 2017.  Notice that second date – you MUST apply to renewe before October 5!

According to the official Department of Homeland Security, it:

“Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.”

In addition, people whose renewals are already in process will not be affected by Secretary Sessions’ September 5 announcement.  DHS will accept no more initial DACA applications, nor will it issue travel permission to DACA holders.  But many can renew, if they act fast.

So, if your DACA will expire before March 5, 2018, and you have not yet applied to renew, apply right away!  Run; do not walk, to the best lawyer you can find and file that renewal application!  There is no time to lose!

Linnartz Immigration Law can help with that.  Give us a call or an e-mail.


The End of DACA: An Opportunity or a Tragedy?

President Trump has announced that Deferred Action for Childhood Arrivals (DACA) will end in March 2018. This decision has drawn fire from hard-line restrictionists, who wanted him to cancel the program (as he once promised) “on day one” of his presidency and to deport all its participants.
On the other hand, many pro-immigrant groups would like DACA to continue indefinitely – or at least until comprehensive immigration reform, which is like saying “until it snows asparagus.”
The end of DACA could be a tragedy, not only for around 800,000 young people whom it currently protects, but also for their families and employers – not to mention the American economy, which would be severely shocked by the abrupt loss of so many productive workers.
But it could be an opportunity to do the right thing – if politicians act wisely and compassionately.
Nobody credibly sees DACA participants as threats, terrorists, or morally culpable for their “illegal” presence in America. They were brought to the United States as children and have established lives here. They qualified for DACA by pursuing education and showing good moral character.
Congress has often in the past had opportunities to pass the DREAM Act – a law that would provide such blameless, productive people with legal status. But politics on both sides – Republican and Democrat – have prevented the passage of this good legislation.
In general, Republican opposition has come from protectionist belief that immigrants steal jobs from Americans and the harsh notion that even children brought to the U.S. unlawfully must be punished for the sins of others.
In general, Democrats have undermined the DREAM Act by requiring that it be tied to the impossible dream of comprehensive immigration reform. They were not too disappointed when this failed, because it provided a good issue for the next campaign.
The pressure of a deadline for DACA now creates an incentive for Congress to step up and act like a body of adults. Passage of the DREAM Act or its equivalent should be a no-brainer for any official who has an ounce of compassion and claims to care more about the good of America than about re-election.
Will you, Sens. Tillis and Burr, stand up for the right cause? Will you, our 13 House members, set aside petty posturing and act for good?
Will you?


President Trump! The Sky is not Falling (Yet).

Donald Trump will be America’s president starting January 20, 2017. Given Trump’s campaign statements about immigration, immigrants and their sponsors, families, and advocates are very worried.

I’m sure some of my clients will consider giving up their American dreams and returning permanently to their home countries.  Even Americans are thinking about leaving!  As the election results became clear, the Canadian government’s immigration website crashed under the weight of many American citizens checking out how to get out of America and immigrate there.

But it’s a good time to take a deep breath.  The election of one president will not cause the sky to fall.  Waiting to see what happens would be wise.

The new president does not take office until January 20.  In the time between now and then, Congress could take action to limit his options after the election.  After all, Congress makes the laws; the president is only charged with administering what Congress sets as policy.

Trump himself could walk away from some of his campaign statements about immigration.  In fact, he already has (during the campaign) moved from a total ban on Muslim immigrants to “extreme vetting” of refugees and a possible ban on immigration from (unspecified) countries that “have been compromised by terrorism.”  He has a history of changing his positions.

What about the pledge to deport all unauthorized immigrants?  Trump has moderated that position to a priority on fast deportation of criminal aliens (the stated policy of the current administration) and to enforcing all immigration laws.  Finding and deporting all of the estimated 11 million unauthorized migrants would require Congress to appropriate five times as much money for enforcement as the current budget allows.   Will a fiscally responsible Congress do that?

It’s a good time to have a little patience, while trying to shape the new administration’s policies by peaceful advocacy.

All of that being said, here are the most repeated and least flexible of Trump’s immigration policies:

  1. Ending President Obama’s administrative Deferred Action for Childhood Arrivals (DACA).  DACA has given temporary harbor to unauthorized migrants who were essentially brought here when they were children and who have shown good behavior and educational ambition.  Since this program was a unilateral act of the Obama administration, the Trump administration would have unilateral power to cancel it.

However, “cancel” could mean many things.  It likely means that once Trump is president, he will instruct USCIS to process no more DACA applications and issue no more employment authorizations, either for new applicants or renewing DACA holders.  If he wanted to spend the time and money needed, he could try to cancel existing employment authorizations, but it would be easier just to let them expire.  Nobody in Trumpland is talking about the most extreme form of cancellation, which would be to use information collected during DACA to begin deportation proceedings against all who registered.  That extreme action is not likely, although it could happen.

  1. Building a Wall on the U.S. southern border.  The US-Mexican land border is about 2000 miles long.  In 2006, President George W. Bush signed the Secure Fence Act, which authorized a 700 mile barrier, as well as enhanced technology to interdict unlawful crossings.

However, the Act has never been fully funded, and Trump’s proposed full wall would have to add about 1,300 more miles of barrier.  Congress would have to appropriate money to do this, and it has failed to do so under Democratic and Republican leadership.  Trump would not have the power to fulfill this promise on his own.  As for having Mexico pay for the wall – what would be his leverage?  Threatening to undo NAFTA?  Oh, wait.  He was going to do that anyway.

  1. “Turn off the jobs and benefits magnet” that attracts unlawful immigrants.  This most likely means stronger enforcement against businesses that employ unauthorized workers.  Trump could redirect existing resources to this mission on his own, but at the risk of really disrupting the economy, since many businesses really depend on their undocumented workers.
  2. “Extreme vetting” for immigrants, and a “biometric entry-exit visa tracking system.”  How “extreme vetting” would exceed already stringent inspection of immigrants, especially those from terrorism-related countries, Mr. Trump has not outlined, but presumably it and the entry-exit tracking systems would require more money, again from Congress.  The 9/11 Commission had recommended an entry-exit tracking system, but Congress has never appropriated enough money for the Department of Homeland Security to create one.  Here, too, Mr. Trump would need help from Congress to achieve his goal.

Conclusion:  Among all the immigration policy campaign promises made by Mr. Trump, only a couple could he implement on his own; all the others require large appropriations of money by Congress – and some require changes in the written law.  So even if he sticks to his intentions, time, money, and the assistance of Congress will be required for the changes he has advocated.

The sky is not falling yet, but stay tuned; it could.


Get a Waiver without Leaving the U.S. – Now Expanding!!!

In 1996, Congress decided to punish immigrants who had been unlawfully present in the United States for more than six months and then left the country.  Those who had six to twelve months of unlawful presence were made inadmissible to the U.S. for three years after departure, and those with more than a year of unlawful presence were inadmissible for ten years.

Most immigrants who have been here without permission and then acquire a means to immigrate (for example, by marrying an American citizen) therefore face the hard choice of remaining here illegally or returning to the home country to ask for an immigrant visa – and then being barred from using that visa for three or ten years!

Because this harsh penalty could cause harm to American relatives of such immigrants, Congress authorized “waiver” of the 3- or 10-year bars when “extreme hardship” would befall a lawful resident or U.S. citizen spouse or parent of the barred immigrant.  However, for many years the only way an alien could apply for that waiver is by first leaving the U.S., applying for an immigrant visa abroad, and only then asking for the waiver.

So immigrants possibly eligible for a waiver had to take the risk of leaving America, incurring the applicable bar, and then hoping that their waiver from abroad is successful; otherwise, they would be stuck out of the U.S., separated from their families for three or ten years.

This requirement (applying for a waiver only outside the U.S.) is not written into the law; it was part of regulations adopted by the Clinton Administration after passage of the law creating the unlawful presence bars and the waiver.

In 2013, the Obama Administration eased this burden by allowing alien parents, spouses, and unmarried minor children of U.S. citizens to apply for these waivers before they depart the United States.  If they are issued a “provisional waiver” of the unlawful presence bar, they can then seek an immigrant visa in their home countries more quickly and with much more assurance of a good outcome than before this new rule went into effect.

Now the “provisional waiver” process has been expanded!  Beginning September 22, 2016, the process will be available to “aliens in all statutorily eligible immigrant visa categories.”  In other words, anyone eligible to apply for an immigrant visa abroad can seek a provisional waiver of the unlawful presence bar before having to leave the U.S.

Among those who could use this provision are spouses and unmarried children of lawful permanent residents, winners of the “diversity lottery,” adult and married children of U.S. citizens, and workers sponsored by their employers for lawful status.

Unlike DACA and DAPA, this change in immigration procedures clearly is something that the U.S. executive branch has power to do on its own, and there is no chance it will be overturned in court.  It has the potential to help many thousands of good people obtain lawful resident status.

Of course, this change is far from the comprehensive immigration reform that we need.  But it is a good example of a simple administrative change that can positively change the lives of many people.  We can applaud the government for doing it, and encourage the government to take many more similar steps.


Holy Family Denied Asylum

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

PHOENIX, ARIZONA

 

IN THE MATTER OF                                      )                              IN REMOVAL PROCEEDINGS

Joseph Davidson                                              )                              A217 001 001

Mary Davidson                                                 )                              A217 001 002

Jesus Davidson                                                 )                              A217 001 003

_____________________________)

CHARGE:                              Section 237(a)(1)(C)(1) of the Immigration and Nationality Act

APPLICATION:                   Asylum, Withholding of Removal, and Withholding of Removal under the United  Nations Convention Against Torture

Written Decision of the Immigration Judge

The respondents are Palestinian Jews, who have come to the United States from territory of shared Roman/Herodian sovereignty. Their identity documents (from a Roman census taken about one years ago) are in order. They were detained while crossing into the United States at Nogales, Arizona, on December 25, and have been in family detention since that time. They have applied for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). Because they cannot establish a nexus to one of the five protected grounds for asylum or withholding and because they have not shown torture to be more likely than not if they are returned to their place of origin, their applications are denied and the Court will order them removed to the Herodian Kingdom of Judah.

The adult Respondents testified in a manner consistent with each other and with their declarations of credible fear. While the Court finds that they do subjectively fear returning to their homeland, there are significant issues of credibility to their account. More importantly, even giving them the benefit of belief, their expectations of persecution directed against their infant child do not correspond to any of the grounds for which refugee status may be granted.

The Respondents assert that they fear returning to Judah because the Edomite King of that region, Herod, seeks to kill their child, Jesus. The State Department Country Conditions Report provides some support for this claim, as Herod has been known to execute not only the remnants of the Hasmonean kingdom that preceded him, but even members of his own family out of fears of a palace coup. The trial and execution of his Hasmonean wife, Mariamne, and the execution of their sons, Alexander and Aristobulus IV, are well documented, as are numerous other ruthless acts directed against those whom he supposed to be threats to his throne.

However, the adult Respondents’ fear that their son is under such a threat is difficult to credit. First, the female Respondent testified that this child was born when she was still a virgin. Granted, the child appears to have been conceived before the parents were married, but there are many more credible explanations for that fact than parthenogenesis. This first implausible claim, although it does not go to the heart of her case for asylum, bears negatively on her credibility.

Moreover, both parents assert that angelic visitors had (prior to and at the time of the child’s birth) announced that this child is the son of God. The respondents could not provide any corroboration for these tales, except for poorly authenticated statements from relatives still in Judah, one Elizabeth and her husband Zachariah. Those letters also feature angelic visions and other miraculous accounts which the Court must view with skepticism. There are also reports that the child was hailed as the Messiah (a long-awaited religious deliverer of the Jews) by two old people in the Temple at his circumcision. However, the Respondents admitted that those old people have now died and no written record was kept of their statements, except that the female Respondent has “pondered them in my heart.”

Respondents further assert that King Herod was informed of the child’s birth (and, implicitly, threat to his throne) not by any official investigation, but through a report by mysterious foreign astrologers who visited the King’s court near the time of the child’s birth. In connection with this, Respondents also point to several passages of Hebrew sacred writings which they say indicate the place and nature of the Messiah’s birth, and they say these indications were used by Herod to target their son for execution.

Respondents’ counsel has supplied the Court with ample documentary evidence from learned journals and other sources to show that even the nobility in these Middle Eastern countries do indeed believe and act based upon ancient prophesies and mystical interpretations of the movements of celestial objects. So it is believable that Herod and these astrologers thought that a new king was born at the time and place where the infant Respondent was. And the evidence in the record is sufficient to support the idea that Herod is sufficiently paranoid and ruthless to order the slaughter of innocent children if he thought a rival to his throne might be found among them.

For these reasons, the Court is willing to entertain the possibility that this family could anticipate a criminal act against the minor Respondent by King Herod.

Respondents claim that they were able to escape this threat – again, straining credulity – because they were warned by God in a dream to flee from the area of Bethlehem before the persecution began. Since they left before the alleged persecution even began, the Court strongly suspects that their actual motivation for migrating was economic and unrelated to the later-arising alleged threat.

In any case, asylum in the United States is not granted merely upon a showing that a threat of harm exists; the threatened persecution must be “on account of race, religion, nationality, political opinion, or membership of a particular social group.” In this respect, Respondents’ claim fails to justify the grant of asylum or withholding of removal.

The minor Respondent, being of tender years, clearly has no political opinions. His parents have acknowledged no affiliation with or adherence to any political party or movement which opposes either the Herodian dynasty or the Roman occupation of Judah. Consequently, no political opinion basis for persecution can exist. Since King Herod and the Respondent family are related ethnically, and because there is no evidence that the King has targeted all Jews for persecution, there is no racial or national basis for the alleged threat.

Respondents argue that religion is one basis for the threat they have experienced. But they have not alleged or shown that they follow any religion or sect of their religion to which Herod has expressed hostility. Respondents are ordinary Jews, observant but unremarkable. They are not part of any unusual sect of that religion; their belief in a coming Messiah is also common to most Jews of the region. There is no evidence that Herod himself has departed from that common belief or is attempting to exterminate it.

These parents believe that their son is the Messiah. It is natural for parents to entertain high aspirations for their offspring. However, such a belief does not a religion make. The family remains, for purposes of asylum analysis, simply observant Jews, and the record contains no evidence that the religion of Judaism suffers persecution under Herod, who follows that religion and is himself associated with the sect of the Sadducees. Hence, there is no religious basis for the alleged threat.

Similarly, Respondents have not shown that they belong to a “particular social group” which is under this threat. They assert that King Herod ordered the execution of all male children in the region of Bethlehem (the child Respondent’s birthplace) aged two or younger. Respondents have not provided documentary corroboration for this order, which might indeed have involved a fairly small number of potential victims, since Bethlehem and environs are rather sparsely populated. Although the alleged danger is possible, given the evidence of Herod’s capricious and jealous nature, the Court does not find sufficient evidence to establish it as “more likely than not.”

Even if this massacre was actually ordered and carried out by Herod, Respondents have not shown that the minor Respondent is within a “particular social group” threatened by King Herod. To show that such a group exists, a claimant must prove that the group is identified by one or more immutable characteristics, that it is socially distinct, and that it is particular. In other words, such a group must be unchangeable, socially recognized, and well-defined within the society.

The group to which the minor Respondent claims membership, “Hebrew boys two years old or younger in the vicinity of Bethlehem,” does not meet these criteria. First, all members of this group age out after only two years. The court notes that the minor Respondent here will soon do so himself. Hence, the group does not share an immutable characteristic. Furthermore, the term “in the vicinity of Bethlehem” is not sufficiently delineated to give the feature of particularity to this group. “Vicinity” is an especially vague term, which can describe an area measured in feet or, when related to astronomical objects, light-years. If defined broadly, it threatens to defeat the law’s requirement of particularity. If defined narrowly, the threat becomes localized, and Respondents cannot show that the threat of persecution exists throughout the country, another requirement for asylum.

Consequently, the Court concludes that even if Respondents’ somewhat implausible factual claims are accepted, they have not made out a case for persecution on account of a protected ground, and are therefore ineligible for asylum or withholding of removal.

Regarding protection under CAT, the Court finds that although the threatening agent is the King, who must be regarded as a government actor, and the threatened action is murder, which would fall under most definitions of torture, the credibility issues raised supra (the minor Respondent being the son of God, the virgin birth story, the angels, foreign astrologers, dreams, etc.) plus the lack of any corroborating press reports or documentation supporting the alleged royal order, render the probability of torture lower than 50 per cent. CAT protection is only available when a claimant proves that it is more likely than not that he or she will be tortured on return to the home country. That has not been shown here.

Although it is unfortunate if King Herod is indeed slaughtering male babies in Judea, unless that act fits the narrow legal definition of persecution based on “race, religion, nationality, political opinion, or membership of a particular social group,” it is not a basis for asylum in the United States.

The claims for asylum, withholding of removal, and protection under CAT are hereby DENIED and IT IS ORDERED that Respondents be repatriated to the Herodian Kingdom of Judah.

 

 

1/1/1                                                                                     ___________________________________________

Date                                                                                      MURGATROYD WESLEY

Immigration Judge

Phoenix, AZ