Political Asylum generally requires someone to show that they suffered past persecution on one of the enumerated grounds (race, religion, national origin, political opinion, or membership in a particular social group), or that they will be harmed on account of one of those grounds in the future. Sometimes, they can show they suffered past persecution, but conditions have changed in some regard rendering their future harm unlikely on the same ground that they were harmed in the past. As an alternative, they can argue that they will suffer "other serious harm" if they have to go back, even if that harm is not on account of one of the enumerated grounds. See 8 CFR 1208.13(b)(1)(iii). In a case we won today, we were able to argue that a Honduran woman, small business owner, would face other serious harm in the form of serious violence against women in that country, as well as gang violence related to extortion attempts against small business owners. Even though the Judge wouldn't have been willing to argue either of those groups fall under the enumerated grounds, he did find that the likeihood of her suffering this other serious harm was so great that she should be granted asylum under this alternative regulation. The Board of Immigration Appeals issued a decision which holds that judges can look to the general conditions of the country that "could severely affect the applicant, such as civil strife and extreme economic deprivation," and can also look to the "potential for new physical or psychological harm that the applicant might suffer." Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). This fairly open-ended inquiry is a great reprieve for those who have suffered past persecution, but for one reason or another may not be eligible for asylum otherwise.
The Administration believes it can stem the tide of refugees coming from Central America by deporting those who have arrived in the last couple of years - but that only makes sense if those seeking refuge know about the deportations, and that such fear of deportation is more powerful than the fear causing them to leave.
The Administration apparently believes that those fleeing don’t have genuine fears either because some are denied asylum, or because of what they are hearing from the Customs and Border Patrol agents who do initial screening of those they apprehend. This Vox article gets it exactly right: “But there's a reason that Border Patrol agents aren't in charge of evaluating asylum claims; they can be too dismissive of legitimate danger.”
In fact, we repeatedly see people who have CBP forms completed in English where they allegedly said they had no fear of returning to their home country, but instead were coming to find work. These are forms signed by the refugee, but they claim the form and answers was not translated to them, they were told to sign it so they could be released to family. If that is what is happening, CBPs information can not be trusted.
The Administration is treating Central American refugees differently than those from other countries, it could be because this is the most immediate crisis on our borders, or it could be a continuation of the Administration’s high enforcement levels which resulted in Obama being called the Deporter in Chief. In any event, the people I am seeing in my office are young, generally single mothers and small children, who were fleeing domestic violence, drug and/or gang related violence, and sometimes religious persecution. While not all will ultimately win asylum, they certainly have legitimate fears of return and would not likely have been deterred from making an expensive and dangerous journey to this Country simply because some people had been deported before, which - after all - this Administration has been doing in a high volume for many years.
We have been posting our updates/victories on our Facebook and Twitter sites. Please check them out to stay informed. While we are updating here though, we have recently received another Cancellation of Removal approval which is rarer now as the number of available approvals had been reached for most of the year, and apparently just opened up again, at least temporarily.
We are still seeing I-601A stateside waiver approvals rolling in which is just a terrific development for so many families. We are seeing fairly fast turn arounds at US CIS once they are on file, though the National Visa Center appears to be slowing down in response. Be warned on almost all of our consular processing cases we are getting letters from the NVC indicating that it will be 60 days before they respond to our submissions.
While we generally post about cases to our Facebook and Twitter accounts, I felt a new blog post was in order as we have updated our website, and make a number of changes that will hopfully make getting information about the firm easier, as well as making it easier to find and contact us online.
Since the last blog post, I have begun co-teaching an Immigration Law class at my alma mater, the University of Missouri - Kansas City, School of Law. I am teaching this year and next with my immigration law professor, Jim Austin. After next year, I will take it over on my own and work to continue the great tradition of Howard Eisberg and Jim Austin at UMKC.
Additionally, we continue to see a lot of children coming through in removal (deportation) proceedings. So far, we have had a lot of success with both asylum for unaccompanied minors as well as the Special Immigration Juvenile Visa, which requires us to pair with a family-law attorney to get a guardianship or similar family-court order for the children. While these two programs will not help every child in removal proceedings, we have seen quite a few already filing for their permanent residence on account of one or both of these programs.
We have had a number of other recent victories in immigration court, including: asylum for a family of converts to Christianity from Egypt, and victims of domestic violence from Central America; a long-time permanent resident (green card holder) who had a recent criminal issue after many years without any; and quite a few cases which were administratively closed - effectively stopping the removal proceedings and allowing those who are not enforcement priorities to remain in the country with their families and with work authortization.
We continue to see a great deal of success in our many motions to reopen removal proceedings where someone failed to appear in court, received ineffective assistance of counsel, or otherwise did not get their day in court.
On the business side of things, we just won an appeal of a wrongfully denied labor certification (PERM) case, which was heartening in part because of how quickly it was decided. Sometimes those cases are sent through the full Department of Labor appeal process which can take more than year to decide. This case, however, was quickly redecided without having to go through the whole process. We also won a religious worker visa for a local Somali religious facility which desperatly needs teachers for their students.
We recently received one of the first approvals for a same-sex marriage case in the Kansas City area. The couple has been together for years, but it has only been since the Supreme Court's decision in US v. Windsor that there has been the possibility for them to remain together permanently in the United States.
The process was fairly smooth, almost identical to what we are used to seeing in traditional marriage cases. Although there was some confusion on the part of the officer as to how to apply the different legal status of same sex marriage where the couple was married as opposed to where they live, the interview was almost without issue.
We have written about this issue in a few of our weekly articles being published in Dos Mundos, in our "Hablando con el Experto" section. Check out Dos Mundos each week for a new article.