December 2018: Cancellation of Removal for Honduran Father

Background:

Omar* came to the United States from Honduras in 1999 after Hurricane Mitch caused such devastation in his country that he could not find work and his four children were at risk of starving. After arriving here knowing no one and not speaking English, he worked hard and learned the construction trade. After several years, he started a successful business laying stone flooring and patios in housing developments around central Texas. He continued to send remittances every month to his children in Honduras to provide for their welfare and education, and in 2008, he and his U.S. citizen girlfriend had a son together in Austin, Texas. Sadly, however, Omar’s girlfriend developed severe post-partum depression after the birth of the child and their relationship did not last. Omar was granted full custody of his son after it was determined that the child’s mother was not well enough to care for him.

In 2013, Omar was stopped in Williamson County on his way to a job after allegedly failing to use a turn signal. When Omar could not provide lawful immigration documents, the Williamson County Sherriff’s deputy turned him over to ICE. Omar was placed in removal proceedings and shortly thereafter hired WGV for his defense.

Our Approach

Because Omar had more than 10 years living in the United States, no criminal record, and a U.S. Citizen son, he qualified to apply for Cancellation of Removal in the immigration court. Winning Cancellation of Removal results in a grant of lawful permanent resident status, so we were hopeful that we could help Omar transform this stressful and frightening situation into a benefit for himself and his family.

The most challenging aspect of any Cancellation of Removal case is the requirement to show that one’s U.S. Citizen relative would suffer “extreme and exceptionally unusual hardship” in the event of deportation. Because Omar had been granted full custody of his son, and because his son’s maternal aunts, uncles and grandparents were willing to provide testimony to the fact that Omar’s role as father was critical to the child’s well-being, the Immigration Judge agreed that Omar met this very high hardship threshold and granted his application for Cancellation of Removal. Because of backlogs in the immigration court system, Omar’s green card was not issued until 2018, more than five years after he was placed in proceedings.

Omar gets to hug his children for the first time in nearly 20 years

Immediately upon the grant of his residency, Omar travelled to Honduras to visit the children he left behind in 1999. Because of Omar’s unfailing commitment to provide for them, his children have all had the opportunity to obtain an education in Honduras, a luxury that many Hondurans cannot afford. Omar is now beginning the process of petitioning for his adult sons and daughters and he hopes that they will one day be able to join him in the United States.

WGV is proud and honored to have assisted Omar and we congratulate him on his hard-won Lawful Permanent Residency.

Immigration Policy Changes Under President Trump

Although Congress has not changed the immigration law for several years, President Trump has implemented a series of policies that have serious implications for immigrants and the processing of immigrant applications with U.S. Citizenship and Immigration Services. This article lists and explains some of the most important changes in policy, with the aim of empowering immigrants to make educated decisions about their lives, their security, and their immigration cases.

This information is intended for general use, and is not intended as legal advice.

Increased Interior Enforcement

In February of 2017, The Department of Homeland Security announced a new enforcement policy that drastically expanded the category of people to be prioritized for removal.
Under previous policy, immigrants who had been convicted of serious crimes were prioritized for deportation.

In contrast, the new policy authorizes federal agents to detain any immigrant suspected to be in the country illegally, regardless of criminal record. At the same time, ICE has stepped up its enforcement operations, and in 2017 ICE arrests of immigrants reached a three-year high.

Cooperation Between Local Law Enforcement and Immigration Officials

The Trump Administration’s February 2017 policy changes encourage local law enforcement to cooperate in enforcing federal immigration law and purport to punish localities that refuse to cooperate.
If you are arrested or detained, you have the right to remain silent. Do not answer any questions about your place of birth or immigration status, do not sign anything that you do not understand, and ask to speak to a lawyer.

Furthermore, if you are the victim of a crime – including domestic violence – you may qualify for immigration relief if you report the crime and cooperate in the investigation or prosecution of the crime. Victims of crime should not hesitate to report; in our experience, most law enforcement authorities are great advocates for crime victims, regardless of immigration status.

Travel Bans and Extreme Vetting

The Supreme Court has upheld the most recent version of President Trump’s travel ban restricting travel into the United States by individuals from Chad, Iran, Libya, Korea, Somalia, Syria, Venezuela, and Yemen. The travel ban essentially halts the issuance of all visas to nationals of the designated countries, with limited exceptions. Immigrants from the affected countries should consult with a qualified attorney before traveling abroad or filing any application for an immigration benefit.

The executive order imposing the travel ban also orders extreme vetting of all immigrant applicants deemed to be a potential security threat, regardless of whether they are from one of the seven designated countries. As a result, additional screening procedures are being added to the already rigorous vetting of immigrant applicants, and applicants should be prepared to respond to requests for additional information, interviews, and significant delays in the processing of applications.

Termination of Deferred Action for Childhood Arrivals (DACA)

The Trump administration attempted to terminate DACA as of March 2018, but whether the President has the authority to terminate the program is unclear and is still being litigated in federal court. Right now, individuals who have already been granted DACA can apply to renew their status and continue living and working in the United States legally. First-time applications, however, are not being accepted at this time.

The future of DACA remains uncertain. In the absence of comprehensive immigration reform, however, the program affords valuable protection and security for hundreds of thousands of young immigrants. It is exceedingly important that DACA recipients and potential new applicants stay informed about the status of the program and consult with a qualified immigration attorney to determine their eligibility for the program.

Termination of Temporary Protected Status (TPS) for Five Countries

TPS is a humanitarian program that allows certain individuals from counties facing natural disasters or extreme violence to remain in the United States lawfully. The Trump administration has announced the termination of the program for five countries: El Salvador, Haiti, Nicaragua, Sudan, and Honduras. As a result, more than 400,000 individuals—many of whom have lived in this country for over 20 years—could be put at risk of deportation.

Whether the government has the authority to eliminate TPS protection for these countries is being litigated in federal court. While the litigation is pending, a federal judge has ruled that the government must maintain TPS for immigrants from El Salvador, Haiti, Nicaragua, and Sudan. This means that some TPS recipients may be eligible to continue to lawfully live and work in the United States, at least temporarily.

TPS beneficiaries are encouraged to speak to a qualified immigration attorney to determine how their case may be affected by this litigation. Furthermore, an experienced immigration attorney can help TPS beneficiaries assess eligibility for other immigration benefits.

Increased risks and consequences for denied applications

U.S. Citizenship and Immigration Services (U.S. CIS) recently announced a revision in policy which makes it easier for reviewing officers to deny an application without warning if they deem it to lack sufficient evidence to establish eligibility for the benefit.

The new policy also states that individuals whose application for an immigration benefit have been denied may automatically be placed in removal proceedings, forcing them to appear before an immigration judge.

The practical result of these policies is that more applications will be denied and the consequences of being denied are significantly increased. However, as scary as these new policies may sound, eligible persons should not be deterred from applying for immigration benefits. The passage of increasingly antagonistic policies against immigrants highlights the importance of obtaining legal status, if possible. Working with an experienced immigration attorney can significantly reduce the likelihood that an application will be denied. In some cases, immigrants may actually benefit from appearing before an immigration judge since judges have the authority to grant relief in some cases that would not otherwise be available.

Longer Processing Times and Increased Application Fees

The number of applications for immigration benefits has increased significantly in recent years, and at the end of last year, U.S.CIS had a backlog of approximately 5.6 million pending applications. This backlog and the resulting delays in processing applications have been exacerbated by new policies requiring heightened scrutiny of all applications. In some cases, processing times have more than doubled.

In response to longer processing times, U.S. CIS—which is funded almost exclusively by application fees—increased application fees by an average of 20 percent in 2016. The agency is once again reviewing changes to its fee structure, and additional increases can be expected in the near future.

Proposed Rule Could Make it Harder for People Who Receive Government Assistance to Get Immigration Benefits

A new rule proposed by the Trump administration could make it harder for immigrant families who have relied on public assistance to receive legal status in the United States. This rule still has not been adopted, but if it goes into effect, it could allow some immigration benefits to be denied to immigrants who have received, or who have dependent family members (including U.S. citizen children) who have received, any public service, including non-emergency Medicaid, CHIP, SNAP, WIC, Section 8 housing vouchers, the Low-Income Home Energy Assistance Program, the earned income tax credit, and financial assistance provided under the Affordable Care Act.

Increased Hurdles to Citizenship for Members of the Military

Immigration law provides a special, expedited path to citizenship for immigrant members of the armed forces. However, in 2017, the Department of Defense announced that immigrant military personnel would be required to undergo extensive background investigations and would be required to serve for a longer period of time before applying for this benefit. As a result, this policy makes it significantly more difficult and time-consuming for military personnel to take advantage of the immigration benefits of serving in our armed forces.

Increased Obstacles for Asylum Seekers

Asylum is a well-established legal principle in American and international law grants protection to foreign nationals in the United States who have a well-founded fear of persecution in their country of origin. The Trump administration, however, has characterized it as a “loophole” in the immigration laws, which it accuses asylum seekers of exploiting, and the administration has attempted to sharply restrict the ability of migrants to request asylum in this country.

In April 2018, Attorney General Jeff Sessions announced a “Zero-Tolerance” policy, under which the Trump administration began separating families seeking asylum. Then, in June 2018, Jeff Sessions issued a legal ruling that made it much harder for migrants fleeing gangs or domestic violence to qualify for asylum. Both of these polices have disproportionately migrants from Central America and have made it significantly harder for them to exercise their legal right to request protection under the asylum laws of this country.

Animosity against asylum seekers has further increased with news of the “caravan” of migrants from Central America, and President Trump has doubled down on his efforts to prevent migrants from requesting asylum. For months, migrants seeking asylum have reported that U.S. Customs and Border Protection officers have turned them away at the border, telling them that the country is full and to come back later. Then, in November 2018, President Trump announced an executive order attempting to prohibit migrants caught crossing illegally from requesting asylum. A federal judge has temporarily blocked this order, however, pending litigation to determine its legality.

There are currently an estimated 5,000 migrants camped outside of Tijuana, Mexico—and many more along the rest of the U.S.-Mexico border—waiting to request protection under the asylum laws of the United States. Although these migrants have a legal right to request asylum, the United States government has prevented them from doing so and has even resorted to shooting tear gas into crowds including families and children. These actions violate both American and international law and are morally reprehensible.

Zero Tolerance and Family Separation

In June 2018, the Trump administration announced that it would end its former policy of separating children from parents accused of entering the country illegally, and instead began detaining the children with their parents in federal detention centers. However, under a twenty-year-old court settlement designed to protect immigrant children in government custody, the government is prohibited from detaining children for more than 20 days, unless the facility is a state-licensed child care facility.

In order to circumvent these standards regarding the treatment of children in detention, the Trump administration has announced a proposed rule that would authorize the government to obtain “alternative federal licensing” for facilities where children are incarcerated. If finalized, this rule would allow the federal government to set its own standards for detaining children with limited independent oversight of conditions. The elimination of protections for children in detention is extremely troublesome, particularly in light of repeated reports of widespread abuse and inappropriate conditions in federal family detention centers.

We at Walker Gates Vela strongly condemn these attempts by the federal government to detain children indefinitely in potentially unsafe and under-regulated facilities.

Elimination of “Administrative Closure” in Immigration Court

In May 2018, former Attorney General Jeff Sessions issued a legal decision that practically eliminated the practice of “administrative closure”, a mechanism that immigration judges have used for decades to control their caseloads by temporarily taking certain cases off their docket and prioritizing cases ready to be heard.

By eliminating administrative closures, the Attorney General undermined the independence of immigration judges to manage their dockets. More importantly, the end of administrative closures could have disastrous human consequences for immigrants in removal proceedings but eligible to apply for a visa or legal permanent residence, which can take years and thus are unlikely to be resolved before an immigrant is deported.

Erosion of Judicial Independence

On October 1, 2018, the Department of Justice, which oversees the immigration courts, instituted new requirements for immigration judges that have the effect of undermining judicial independence and the right of due process in immigration proceedings.

The new standards implement a quota requiring immigration judges to complete 700 cases each year, or approximately 3 cases each day. The standards, furthermore, institute a series of new performance metrics, including the imposition of penalties on judges whose decisions are overturned on appeal in more than 15 percent of cases.

These changes have been sharply criticized by immigration advocates as well as the National Association of Immigration Judges, the union representing immigration judges. Immigration cases can be highly complex, and it is inappropriate for judges to be pressured to resolve such cases quickly without due consideration of the issues, or for judges to consider how their career may be affected if the case is overruled on appeal. These changes, furthermore, jeopardize the due process rights of immigrants to a fair trial and the opportunity to be heard.

Do Not Be Deterred From Seeking Legal Status

As scary as these new policies may sound, eligible persons should not be deterred from applying for immigration benefits. The passage of increasingly antagonistic policies against immigrants highlights the importance of obtaining legal status, if possible.

Working with an experienced immigration attorney can significantly reduce the likelihood that an application will be denied. In some cases, immigrants may actually benefit from appearing before an immigration judge since judges have the authority to grant relief in some cases that would not otherwise be available. Thus, more than ever before, the advice and guidance of a trusted immigration attorney is of the utmost importance when seeking to change or legalize your immigration status.

November 2018: Citizenship for Iraqi Military Interpreter

Background

Sayed* came to the United States in 2010 after having served the U.S. military in Iraq as an interpreter for five years. He was forced to leave Iraq under threat of death after his work with our armed forces was discovered by militants opposed to the U.S. presence there. Upon his departure from his country, he was awarded with numerous commendations for his courage, service, and sacrifice which were credited with having advanced the United States’ military mission in Iraq.

In March 2015, after accruing the required five years of presence in the USA as a lawful permanent resident (and meeting all other requirements), Sayed applied with USCIS for naturalization. His application stalled. Despite many attempts to gain information from USCIS about his application, Sayed was kept in the dark for almost three years regarding the status of his case. In late 2017, Sayed hired Walker Gates Vela to help with his case.

Our Approach

First, Walker Gates Vela reviewed Sayed’s application thoroughly. In doing so, we were able to ascertain that there was nothing in the contents of the application itself indicating a problem that could account for the delay.

Second, we submitted a written request for information to the San Antonio office of USCIS, where the application was to be adjudicated. When, after 30 days we did not receive a response to our inquiry, we escalated the case to the USCIS General Counsel in San Antonio. The GC was able to locate Sayed’s file and prompt USCIS adjudicators to schedule the required interview.

The Naturalization Interview

 At the interview on his application, Sayed was subjected to questions which far exceeded the scope of what is normally reviewed during an application for naturalization. At the end of his interview, Sayed was instructed to gather and provide an extensive list of additional documentation in support of his application.

WGV helped Sayed gather, organize, and submit all the requested documentation, along with his letters of commendation from U.S. military officers. Not satisfied, however, USCIS then responded with an additional list of items for Sayed to submit. We responded again, only to be sent yet another list.

WGV files Lawsuit in Federal Court

 Upon receipt of the third list of requested documents, WGV and Sayed agreed that USCIS had abused its authority with respect to his application and that the adjudication had already taken far too long. Sayed had no criminal record, had answered all of USCIS’s inquiries openly and honestly, and had provided plenty of evidence to demonstrate his eligibility for naturalization. Rather than continue to engage with USCIS regarding his application, Sayed decided to take his case to Federal Court.

Under section 336 of the Immigration and Nationality Act, if USCIS does not issue a decision within 120 days of interviewing an applicant for naturalization, the applicant may file a petition for naturalization with the Federal District Court presiding over his place of residence. Accordingly, in early October 2018, WGV filed a petition on Sayed’s behalf in the Western District of the U.S. District Court in Austin.

Sayed finally becomes a U.S. Citizen

Within approximately one week of Sayed’s District Court filing, USCIS agreed to schedule Sayed for his naturalization oath ceremony. Sayed would not be required to submit any additional documentation or attend any Court hearings or additional appointments with USCIS. On November 15, 2018, Sayed was sworn in as a naturalized U.S. citizen.

WGV is proud and honored to have assisted Sayed, and we congratulate him on his hard-won U.S. citizenship.

Filing Taxes? Five Tips for Non-Citizen Filers

Whether you are petitioning for a family member, applying for naturalization, defending yourself against deportation, or serving as a co-sponsor for another immigrant, there are many circumstances that require the Department of Homeland Security to scrutinize your tax records.

Here at WGV, we have seen many tax documents with errors and omissions, some of which have cost our clients many thousands of dollars to rectify, plus subjected them to fines, penalties, and findings that they lack good moral character. With tax season now in full swing, here are five tips to keep in mind if you or a loved one are an immigrant tax filer in the United States.

You do not need to have a social security number to file taxes

All workers in the United States – whether authorized or not – are able to file tax documents with the IRS. If you do not have a valid social security number, you may apply for an “ITIN” or “Individual Tax-Payer Identification Number” when you file your return. The ITIN will substitute for a social security number on your taxes, though including it may render you or your spouse ineligible for certain benefits.

You should not file as “Head of Household” if you live with your spouse

Many spouses of undocumented individuals file as “Head of Household” even though they are married and living with their spouse. While there are many tax benefits granted to persons filing as “Head of Household,” this filing status is essentially a declaration that you are either single or residing separately from a spouse. If you need to convince the immigration service that you are residing with your spouse in a good faith marriage, having tax returns filed as “Head of Household” works against you and could even be considered fraudulent.

Do not declare Dependents unless you have paid at least 50% (half) of that person’s living expenses

In order to legitimately claim a dependent on your tax return, you need to be able to prove that you have provided, during the tax year, at least 50% of that person’s living expenses. Naming relatives on your tax return as dependents in order to maximize a tax refund is illegal and a bad idea for anyone trying to avoid problems with the IRS or DHS.

Do not declare children for the Child Tax Credit unless they are living with you

To properly claim a child for the Child Tax Credit, the child must physically reside with you, be younger than 17 years, unmarried, and dependent on you for care. Do not claim your children if they are living outside your home.

Beware of tax preparers who promise big refunds

At WGV, we have seen that some tax preparers routinely file returns for clients with the objective of maximizing the tax refund. In order to do so, the preparer often includes questionable dependent information, designates an improper filing status (e.g. “single,” “head of household,” etc.), or includes children that do not reside with the filer.

This approach often leaves clients vulnerable to fines, penalties, and even potential criminal charges, while the preparer him or herself faces little to no liability. Beware of tax preparers who do not conduct a complete interview each year to see how your circumstances may have changed, or who encourage you to claim dependents or children that are not legitimately yours to claim. You should NEVER sign a blank tax return – always insist on seeing the tax preparer’s work. Also be wary of tax preparers who offer to prepare and file immigration documents for clients, as doing this is a crime unless the person is an attorney or accredited by the government for non-profit work.

WGV encourages clients to work with well-established, accredited, and reputable tax preparers. For a listing of tax preparers and their credentials in your area, visit https://irs.treasury.gov/rpo/rpo.jsf.


 

WGVs Best Advice for Immigrants in 2018: Leave your foreign ID at home!

As the Trump Administration has made good during the past year on its promise to pursue mass deportations of immigrants – both documented and undocumented, we have been forced to become more creative in our strategies for protecting our clients.

Consequently, as strange as it may sound, WGV is now advising all clients NOT to carry ANY form of foreign identification which may identify you as the citizen of any country besides the USA. This includes passports, consular IDs, voter registration cards, driver’s licenses, or any other document issued by a foreign, non-USA government or agency.

The reasoning for this advice is as follows:

  1. A foreign identification does not provide you any legal benefit or protection – it does not authorize you to live, work, or drive in the United States;
  2. If you are detained by police or immigration, you must state your name, your date of birth, and your address. If you are in possession of an identification document of any sort, you will be asked to show it and it may be confiscated from you;
  3. If you give the police or DHS agents a foreign identification document, you are admitting that you are a citizen of a foreign country;
  4. If you do NOT give the police or DHS any identification, and you do not say that you are from a foreign country, then DHS cannot prove you are from a foreign country;
  5. If DHS cannot prove that you are not a citizen of the United States, then they cannot deport you.

Therefore: If you are detained by police or immigration agents, state your name, age, and address, and in response to any further questions, simply state, “I would like to speak to my attorney.” The only way to avoid showing a foreign ID in this circumstance is to not have it on your person or in your car.

Even without a foreign ID document, you may still be detained by DHS.

Leaving your foreign identification at home does not guarantee that you will not be arrested, detained or even deported. Especially if you are arrested for a criminal offense, the likelihood that you will be detained by immigration is very high. However, if you do not give a foreign ID to police when you are arrested, then they cannot pass it to DHS. This will put you in the best possible position to be successfully defended by your immigration attorney when the time comes.

Conclusion: LEAVE YOUR FOREIGN ID AT HOME!

If you have questions or would like additional information, call us at 512-633-1785 and schedule a consultation.


 

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