Every January I intend to write up a summary of the previous year’s successes, but so far work has gotten in the way of that each and every year. This year, however, I finally got it done. In 2017, Willmoth Immigration Law obtained H-1b visas and extensions for five separate small businesses in the area, and obtained Immigrant Visas through a variety of labor certifications through the Department of Labor for local businesses and a well-known University for several of their researchers and professors.
In Immigration Court, we obtained bonds for 10 different people who were detained by ICE so that they could continue their proceedings while living at home with their families. All 10 were able to post their bonds and go home.
We also successfully terminated proceedings against five people for a variety of reasons, some of whom should never have been in deportation proceedings at all, but due to aggressive enforcement found themselves there anyway. In addition to terminating proceedings, we had about 20 cases approved for administrative closure throughout the year so that their deportation proceedings were on hold to allow for some other process to take place in their cases.
Finally, in trials before the Immigration Court, we won asylum for seven people throughout the year, and Cancellation of Removal for another five people, one of whom was detained because of criminal convictions. We also won a case for someone who had previously committed fraud, but then proved that she had turned her life around and was granted a waiver due in large part to her military service.
Before USCIS, we helped five people who had affirmatively file for asylum get approvals through the asylum office and bring in family members from back home. We also got Lawful Permanent Resident (green card) status for about 30 people for a variety of reasons, some after they had been asylees for more than a year, some based on marriage to a US citizen, etc. Finally, we helped six people begin and complete their naturalization process, filing for and becoming US citizens all within the year 2017.
We also won several non-immigrant visas for people outside of the business context, including a number of Special Immigrant Juveniles and U visas for victims of serious crimes.
With USCIS and the Department of State, we won every single waiver application we filed this year, which came to a total of seven cases. We then helped another nine people come to the US as permanent residents through consular visa processing, where they did not require a waiver of any kind.
All told, we won more than 100 cases for people from all over the planet, including: Mexico, Honduras, El Salvador, Guatemala, Somalia, Kenya, Nigeria, Jamaica, China, India, Brazil, Egypt, Liberia, The Gambia, Burma, Turkey, Croatia, The Cameroon, among a few others.
We just got an approved I-140 for an Outstanding Researcher approved without any Request for Evidence (RFE) or Notice of Intent to Deny (NOID), which are fairly standard tools of USCIS in most researcher cases. Particularly when you file paying for Premium Processing, USCIS issues RFEs in most cases (at least according to anecdotal evidence), probably due to the quick turn-around required (15-business days). Years ago, I heard an attorney describe how they try to overwhelm USCIS with huge researcher filings, sometimes 1,000 pages or more of materials. I remember thinking that was a bad idea back then, and over the years, this has been proved to be the case.
The argument for over-inclusiveness comes from the standards involved - they have to show that they are recognized internationally as outstanding in the academic field specified, by submitting evidence of at least two of the following categories:
(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
They also have to submit evidence that the alien has at least three years of experience in teaching and/or research in the academic field. See 8 CFR 204.5(i).
What we try to do is to focus the material presented to only those that will highlight the importance of the researcher’s work, and the most important parts of their publications/citations - the categories above that they will actually be able to prove instead of trying to argue for each of them. By focusing the recommendation letters, employer letter, and our cover letter, as well as providing a detailed index, we can help the officer see why the case should be approved, instead of just overwhelming them with materials that make it harder for them to figure that out. The downside to be being focused and concise is that it takes longer. As Mark Twain once said: “I didn't have time to write a short letter, so I wrote a long one instead.” It may take longer, but it’s worth it to make the case tighter and clearer for the adjudicator.
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.
By deciding to prioritize every single case, and refuing to grant prosecutorial discretion to anyone anymore, including those with no criminal history, family ties, and lengthy stays in the US, the Department of Homeland Security has essentially decided to not prioritize any cases resulting in huge backlogs. The Immigration Court backlog has grown to almost 600,000 cases, jumping up 100,000 in the last year. We had a number of trials scheduled for June and July this year, and so far almost all of them have been put off months or years due to the changes in DHS priorities. What that means is that cases are going to take years to get to trial. However, the Board of Immigration Appeals (BIA) has sped up its processing of appeals. We have received several single-member appeal decisions recently that took only 6 months or so to be decided, where in the past we have had appeals generally take a year or more, and some as many as 4 years to be decided.
Cancellation of Removal is a form of relief from deportation that requires someone to be in the US for 10 years before they are put in proceedings, and who have US citizen of Lawful Permanent Resident (green card holders) parents, spouse or children, who would suffer serious hardship - and you have no disqualifying criminal conviction (drugs, domestic violence, theft/fraud). Cancellation of Removal is very difficult to win for a lot of reasons, and another complicating factor is that only 10,000 cases can be granted each year, so we often see 1-2 year waits after trial before we get decisions in those cases where applicants are minimally qualified at least. Just in the last couple of weeks, new numbers have been released and so we have received a number of decisions in these cases, including two victories so far: based on hardship to a man’s elderly mother, and another to a father’s two US citizen girls. Congratulations to them both!
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.