Tuesday, May 4, 2010

Immigration Policy Allows Asylum for Battered Women

QUESTION: Is it possible for a woman to get asylum in the United States if she was abused by her spouse in her home country?

ANSWER: Yes. The Obama administration has just granted a new policy that allows foreign women to receive asylum in the United States. This new policy applies to women who are victims of severe domestic beatings and sexual abuse. The Obama administration has opened the door to the protection of women who have suffered severe violations.

QUESTION: What must an applicant for asylum show in order to get his/her case granted?

ANSWER: An asylum applicant must demonstrate a well-founded fear of persecution because of race, religion, nationality, political opinion, or membership in a particular social group. Thanks to the Obama administration, battered women will now be included in this list.

QUESTION: What requirements need to be met in order to be granted asylum under this new category?

ANSWER: In addition to meeting the conditions of asylum, abused women also need to show that they are treated by their abuser as subordinates and little better than property, and that domestic abuse is widely tolerated in their home country. The abused woman must show that she could not find protection from institutions in their home country or by moving to another location within that country.

QUESTION: How did this new policy come about?

ANSWER: The Obama administration laid out its position in an immigration appeals court case of a Mexican woman who applied for asylum in San Francisco, stating that she feared she would be killed by her common-law spouse in Mexico. This woman was repeatedly raped by her him at gunpoint, was held captive, and was stolen from. More shocking, her common-law spouse had broken her nose and tried to burn her alive when he had found out that she was pregnant. This woman had asked for her from her local police but the reports were dismissed of violence as a private matter. Finally, in 2004, she fled to the United States with her three children (abuser was the father of all three children).

QUESTION: Does this new policy apply to women fleeing genital mutilation?

ANSWER: No, this policy only applies to battered women in domestic relations. Each case is highly fact dependent and requires scrutiny of the threats that an applicant has faced and will continue to face if she is returned to her home country.

For more information, you may contact us for a consultation.

MONICA GANJOO is an immigration attorney with offices in San Francisco and San Jose. Ganjoo Law Office currently offers $25 consultations in San Francisco, San Jose, or through the telephone. To obtain a consultation in San Francisco, call (415) 495-3710. To obtain a consultation in San Jose, call (408) 975-0500.

870 Market Street
Suite 340
San Francisco, CA 94102
(415) 495-3710

111 West St. John Street,
Suite 513
San Jose, CA 95113
(408) 975-0500

May Using a Different Name upon Entry to the U. S. Be Forgiven?

What relief is available to aliens who entered the United States using a different name? There is still hope for those aliens as we will discuss hereunder.

Example: Delia came to the United States in 1999 using a different name in her passport as her real name. She married a U.S. citizen in Jan. 1, 2001 and an immigrant petition was filed by her spouse in March 2001. Delia’s real name is Rhea. In the I-130 petition, she used her real name and the USCIS discovered this matter when she showed her passport. Can Rhea adjust status and what are the conditions?

Analysis: The law requires that for an alien who apply for adjustment of status, the following is required:
1. A visa is immediately available.
2. Must have entered the U. S. legally and have legal status at the time of adjustment application. If applying under Sec. 245 (i) the alien must have entered the United States before December 21, 2000 and an immigrant petition or labor certification must have been filed for the alien on or before April 30, 2001.
3. The alien is not inadmissible. If she is inadmissible, there must be a waiver of inadmissibility approved.

Application of the Law to Rhea’s case: The first requirement is satisfied because she married a U.S. citizen and a visa is immediately available for her as the spouse. Since she entered the U.S. under a different name, she is not qualified under the normal law of adjustment of status. She will need to file under Sec. 245(i). She qualified under Sec. 245(i) because she is present in the United States on December 21, 2000 and there was an immigrant petition filed on her behalf before April 30, 2001. Under the third requirement, Rhea is inadmissible because she entered under a different name and this is considered a misrepresentation. She will need to apply for a waiver of inadmissibility to be approved for adjustment of status.

Question: How can Rhea apply for waiver of inadmissibility?

Answer: Rhea will need to file an I-601 waiver and prove that it will be an extreme hardship to her U.S. citizen spouse if her application for adjustment of status is denied.

Note: This is not a legal advice.

Immigration News

1. We have just received approval from Administrative Appeals Office of I-601 Waiver for an applicant entered with an assumed name.
2. On March 17, 2010 we received an approval in Immigration Court of adjustment of status for a conditional residence whose status was terminated before.
3. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.
4. We recently received a grant of asylum for the son of a victim of kidnapping by the NPA in the Philippines.
5. On Dec. 7, 2009, our client Ms. E was approved for a waiver of misrepresentation in the Immigration Court. In another case, on October 29, 2009, our request for waiver of misrepresentation for entering as single but actually married for our client Mr. D in Fresno, CA was approved by the Immigration Judge.

Tip of the Week

1. Petitioner’s death is not a problem if the beneficiary is in the U.S. when the petitioner died and at the time of adjustment of status.
2. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents.
3. Denied I-751 application to remove condition on residence may be renewed in Immigration Court.

4. Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. It is also needed by employers to charge to expense payment for contractual job. Our office assists clients in obtaining ITIN.

Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a CPA and a Bachelor of Business Administration Cum Laude graduate. His offices are located at 1290 B Street, Suite 203, Hayward, California 94541; at 17057 Bellflower Blvd. Suite 205, Bellflower CA 90706 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone number (510) 538-7188.