An asylum applicant who demonstrates he or she has suffered past persecution is presumed to have a well-founded fear of persecution if forced to return to his or her country of citizenship or last habitual residence. See 8 C.F.R. §1208.13(b)(1). Once the asylum applicant has established he or she suffered past persecution, the burden of proof shifts to the Department of Homeland Security (DHS) to rebut this presumption. The DHS must rebut this presumption by establishing by a preponderance of the evidence that “there has been a fundamental change in circumstances”, 8 C.F.R. §1208.13(b)(1)(i)(A), or the alien “could avoid future persecution by relocating to another part of the applicant’s country of nationality.” 8 U.S.C. 1158(b)(1)(i)(B).
I typically post blog entries regarding decisions from the Board of Immigration Appeals (the “BIA”) and Court of Appeals. However, I recently read an article in Newsday by Victor Manuel Ramos entitled “LI leads state in undocumented-immigrant deportations” and wanted to take the opportunity to discuss the immigration enforcement program known as Secure Communities. This article discussed how the impact of Immigration and Customs Enforcement’s (the “ICE”) Secure Communities program had in the State of New York. You can read the article by following this link: “LI leads state in undocumented-immigrant deportations”
The Court of Appeals for the Third Circuit (the “Third Circuit”) recently held the Board of Immigration Appeals (the “BIA”) “did not err when it concluded that it lacked jurisdiction to consider [an alien’s] motion to reopen sua sponte”, Desai v. Attorney General of the United States, No. 11-3229 (August 21, 2012), after the alien’s departure from the United States. Id. The respondent was admitted as a lawful permanent resident in 1980. Id. He was subsequently arrested on numerous occasions and convicted of committing at least twelve crimes. Id. He was placed in removal proceedings in 2008 based upon convictions for possession of a controlled dangerous substance and theft in the third degree. Id. The respondent conceded removability as charged, but sought relief from removal under the Convention Against Torture (the “CAT”). Id. The Immigration Judge (the “IJ”) concluded the respondent failed to establish eligibility for CAT and the respondent was ordered removed. This determination was subsequently affirmed by the BIA and Third Circuit. Id.
I stumbled upon an article with this very name by Helen O'Neill, a New York based national writer for The Associated Press. The article was published in HuffPost's “Latinovoices” section and can be found using the following link: http://www.huffingtonpost.com/2012/08/25/us-born-kids-deported-parents_n_1830496.html. Whether one agrees or disagreed with the author's angle of view, the problem of children of illegal immigrants is a pressing and heartbreaking one. Like many other Immigration-law related issues, the problem of broken illegal immigrant families with US-born children does not have a simple solution. In fact, it is always a tragedy, when children have to be separated from their parents, especially so when they end up in foster care.
The Board of Immigration Appeals (BIA) has unequivocally held an alien who entered the United States on a K-4 non-immigrant visa can “only adjust his or her status to that of a lawful permanent resident based on the Petition for Alien Relative (Form I-130) filed by the United States citizen K visa petitioner.” Matter of Jean Ro Saclolo Valenzuela, 25 I&N Dec. 867 (BIA 2012). In the Matter of Jean Ro Saclolo Valenzuela, the respondent’s mother married a United States citizen who petitioned for both the respondent and her mother to receive K non-immigrant visas. Id. at 868. The respondent was issued a K-4 non-immigrant visa, which she used to enter the United States on December 28, 2003. Id. She was authorized to remain in the United States until December 27, 2005. Id.
The Board of Immigration Appeals (BIA) recently issued a precedent decision that addressed removal proceedings for aliens that entered the United States as refugees. Matter of D-K, 25 I&N Dec. 761 (BIA 2012). In the Matter of D-K, the BIA first determined “that a refugee who has not adjusted status to that of a lawful permanent resident (LPR) may be placed in removal proceedings without a prior determination by the Department of Homeland Security (DHS) that the alien is inadmissible.” Id. This decision overruled prior BIA precedent set in the Matter of Garcia-Alzugaray, which held exclusion proceedings had been improperly initiated against the alien as “the former Immigration and Naturalization Service (INS) failed to terminate the alien’s refugee status or determine him to be inadmissible as an immigrant after examination under oath by an immigration officer.” Id. at 763-764 citing Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986). The BIA found the reversal was necessary as the Federal Regulations pertaining to refugees had been “amended to streamline the adjustment process, making the decision whether to interview a refugee seeking permanent resident status a discretionary determination for DHS.” Id. at 764.
Today, the Bureau of U.S. Citizenship and Immigration Services announced the process for filing for requesting deferred action for aliens who arrived as children. The Obama Administration-had previously announced a deferred action process for young aliens considered low enforcement priorities on June 15, 2012. Deferred action is a discretionary determination to defer removal of an individual as an act of prosecutorial discretion. Deferred action is not the DREAM Act. It is important to remember that deferred action does not confer lawful status upon an individual. It does not provide a path to lawful permanent residence and/ or United States citizenship.
Under section 101(a)(43)(S) of the Immigration and Nationality Act (INA) “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year”, INA §101(a)(43)(S), constitutes an aggravated felony. INA §101(a)(43)(S). However, the INA fails to define the phrase “an offense relating to obstruction of justice.” The Board of Immigration Appeals (BIA) recently used its authority to interpret statutes to conclude “accessory after the fact offenses necessarily relate to obstruction of justice within the meaning of section of 101(a)(43)(S) of the Act[.]” Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 844 (BIA 2012).
On June 24, 2012, the Annual NYC Gay Pride Parade sailed down Fifth Avenue to the Greenwich Village where the gay liberation movement was born in 1969. This year a group of Russian-speaking LGBT persons and their supporters marched in the Pride Parade, brought together by the RUSA LGBT – Russian-Speaking American LGBT Association – a New York City based organization which unites and supports gay, lesbian, bisexual and transgender/transsexual immigrants from the countries of the former U.S.S.R.
According to a poll conducted by the web-portal GayRussia.Ru – Russia’s leading online community for LGBT persons and their supporters – 65% of the respondents indicated that they would like to emigrate from Russia to a country which is safer and more respectful of its LGBT citizens. Some 27 % of the respondents indicated that they had no desire to leave Russia, while the remaining 5 and 3% of the respondents pointed out that they either already left Russia or never lived in Russia in the first place.