Thursday, November 17, 2011

Relief from DEPORTATION: VAWA Cancellation

By Monica Ganjoo

QUESTION:  What is VAWA Cancellation of Removal?
ANSWER:  VAWA Cancellation of Removal provides a deportation defense to domestic violence victims who are in removal proceedings in immigration court.  These individuals are in front of an immigration judge, and the Government is trying to remove them from the United States.  While it is not a new defense, many individuals, including attorneys, do not know much about it.
QUESTION:  What eligibility do you have to show in order to apply for VAWA Cancellation in immigration court?
ANSWER:  You must show the following six items:  1) Battery or extreme cruelty by a United States citizen or Legal Permanent Resident (green card holder) or battery to your child if that child is also the child of a United States citizen or Legal Permanent Resident; 2) Physical presence in the United States for three or more years before the VAWA application and notice to appear for removal proceedings (if it can be shown that any absence was connected to the violence experienced, this is not a bar to filing for VAWA); 3) Good moral character while in the United States (there are exceptions for acts or convictions that are tied to the violence suffered by the applicant); 4) Not otherwise inadmissible or deportable under the immigration law; 5) No convictions of aggravated felonies; AND 6) Evidence that removal would result in extreme hardship to the applicant, the child of the applicant, or the parent of the applicant.
QUESTION:  Who can apply for the VAWA Cancellation?
ANSWER:  The following individuals are eligible to apply:  1) Former spouse or child of United States citizen or Legal Permanent Resident, regardless of when death, divorce, or termination of parent-child relationship occurred; 2) Former or current spouse or child of someone who was formerly a United States citizen or Legal Permanent Resident, but has lost that status for any reason; or 3) Individual with child in common with former United States citizen or Lawful Permanent Resident, where the child in common was abused by the United States citizen or Lawful Permanent Resident.
QUESTION:  What is the difference between VAWA Cancellation and VAWA I-360?  
ANSWER:  There are several differences.  The main difference is that you can apply for VAWA Cancellation only if you are in removal proceedings (in front of an immigration judge).  Unlike the I-360, where the decision is to be decided by the Citizenship and Immigration Services, the VAWA Cancellation is to be decided by the immigration judge.  VAWA Cancellation can be applied for people that do not qualify for the I-360.  The following individuals can apply for VAWA Cancellation, even though they are not qualified to apply for the VAWA I-360:  1) Abused spouse who was divorced for over two years from the abuser; 2) Abused spouse of Legal Permanent Resident who has died or any abused children of a United States Citizen or Legal Permanent Resident parent who has died; 3) Parent of an abused child who was never married to the child’s abusive United States citizen or Legal Permanent Resident parent; 4) Abused stepchild whose immigrant parent has been divorced from the abusive parent for over two years; 5) Abused spouse or child whose citizen parent gave up citizenship or lost Legal Permanent Resident status for over two years; 6) Victims of incest or child abuse who were abused while they were under 21, but failed to file I-360 and who are now over 21; 7) Victims of child abuse who cannot establish that they have resided with the abuser.
QUESTION:  What do I have to provide to the immigration court?
ANSWER:  You must show that you had a relationship with the abuser by providing evidence such as marriage and/or birth certificates, depending on the relationship you had with the abuser.  You must provide evidence to prove that you were continuously present in the United States for a period of three years prior to filing your applicant.  You must prove that during your stay in the United States, you were subject to extreme cruelty or abuse by the United States citizen or Legal Permanent Resident.  You must prove that you are a person of good moral character and that you or your abused child or your parent will suffer from extreme hardship if you are deported from the United States.  
QUESTION:  What is the most difficult part of the VAWA Cancellation?
ANSWER:  The most difficult evidence to show in court is that extreme hardship will exist if the applicant is forced to be removed from the United States.  The following items can be shown as evidence:  1) The need for access to the United States court system, such as criminal justice system and family courts in order to support child support, maintenance, and custody agreements; 2) The need for medical services not readily available in the country that applicant is to be deported to; 3) The laws or customs in the country that the applicant is to be deported to that would penalize the applicant or his/her children for being domestic violence victims; 4) The abuser’s ability to follow the applicant to the country that he/she is to be deported to; 5) The chance that the abusers family or friends could victimize the applicant or his/her children in the country that the applicant is to be deported to.
QUESTION:  What do you do if you are not in removal proceedings (in front of an immigration judge) but you want to apply for VAWA Cancellation?
ANSWER:  You can turn yourself in to the United States Immigration and Customs Enforcement (ICE) and request to be placed in deportation/removal proceedings.  Do NOT take this step without consulting with an immigration attorney.  Once you are placed in deportation/removal proceedings, you will then be required to appear in court.  At this point, you can apply for the VAWA Cancellation, along with supporting evidence, in order to prove your case.  You will then have a hearing.  The immigration judge with then decide whether or not to grant you this relief.  If granted, you will obtain your Legal Permanent Resident (green card) status.  If denied, and you do not have other avenues to becoming legal, then you will receive a removal order.  
For more information, call Attorney Monica Ganjoo for a consultation.
Ganjoo Law Offices currently offer a consultation with Attorney Monica Ganjoo in San Francisco or San Jose for only $25 (phone consultations also available for $50).  The Staff of Ganjoo Law Offices speak a total of six different languages.  For a consultation with Monica Ganjoo, call one of her offices below:

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

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

Did you obtained an immigrant visa as single but actually married?

By Crispin Lozano
 
If you obtained an immigrant visa as single son or daughter of a Lawful Permanent Resident or a U. S. citizen but you are actually married at the time of your entry to the U. S., you committed a misrepresentation of material fact in obtaining a visa because you did not disclose your marital status at the time of the interview and/or at the time you entered the United States.  Even if you are actually single at the time of the interview but you get married the day before entering the U. S. you still committed a misrepresentation. Although you have a document which is your green card, your actual status is that of a person not in possession of a valid visa.  An alien not in possession of a valid visa is inadmissible and deportable.  If you applied for naturalization the USCIS will likely find it out.  Your naturalization application will be denied and you will be sent to an Immigration Judge for removal proceedings.
Question: Mario was petitioned by Jose, his father who is a Lawful Permanent Resident in 1985.  His father became a U.S. citizen in 1993.  Mario got married to Linda in 1988.  Mario and Linda have a child born in 1989 named Cindy. In 1991, Mario was interviewed at the U. S. Embassy, Manila for an immigrant visa.  He declared that he was single and has no child.  Based on this declaration he was given a visa and entered the U. S. in 1992.  Mario married Linda again in 1993 and filed an immigrant visa petition for his wife and daughter.  The petition was denied because the USCIS discovered his prior marriage to Linda in 1988 and he committed a misrepresentation of material fact by not disclosing his marriage to Linda in 1988 and the existence of his daughter.  Mario received a Notice to Appear to the Immigration Court.  What is Mario’s immigration status?
Answer: Mario committed a fraud or misrepresentation of material fact in obtaining a visa at the U.S. Embassy.  By entering the U.S. without disclosing his marriage and children is again a misrepresentation to the U.S. Immigration Officer.  These two acts of misrepresentation made Mario inadmissible and deportable.
Question: What is the relief available to Mario?
Answer: Mario may request the immigration court for a waiver of the misrepresentation. To avail of this waiver Mario must have a parent or son or daughter who is Lawful Permanent Resident or U.S. citizen.
Note: This is not a legal advice.
Immigration News  
1. On November 7, 2011, we received an approval from the Immigration Court for waiver of misrepresentation for a person who entered the U.S. as single but actually married.  The person can now apply with naturalization.

Immigration Questions and Answers

By Beverly Byrd

Question:  Hello Attorney Byrd.  My husband wants to apply for naturalization, but he is on probation for a disturbing the peace conviction he received because of an argument with a neighbor.  Can he still apply for naturalization, or will this cause him problems?  Thank you Attorney.  God bless.  Ma. Teracita.
Answer:  Hello Teracita.  Thank you for your question.  USCIS is prohibited from naturalizing an applicant who is on probation.  However, the application could be filed while an applicant is on probation, and potentially approved if the applicant is no longer on probation when the decision is made.  As it takes approximately 3 to 4 months to currently have a naturalization interview scheduled, your husband would have some limited time for his probation to end, or to make a motion to the criminal court to have his probation terminated early.  He should speak with his criminal defense attorney regarding early termination.  He should also speak with a competent immigration attorney to assess his naturalization case and ensure that his conviction, and any other convictions that may exist, will not cause problems for his naturalization case.  Good luck.
To ask Attorney Byrd an immigration question and have your answer appear in the weekly column, please e-mail Attorney Byrd at bab@byrdassociates.com.  Though we usually receive a large number of inquiries, we will make every effort to reply to all questions.
Immigration News and Updates
H-1B Numbers Almost Exhausted
The maximum number of cap subject H-1B visa is almost reached.  If you are planning to file for an H-1B visa, you should do so immediately to prevent losing your opportunity.  Contact a competent immigration attorney to help you and your employer file.
Car Impoundments for
Persons Here Illegally
Governor Jerry Brown signed a new law that prevents unnecessary car impoundments that severely harm immigrant families in California.  It allows drivers pulled over for non-DUI offenses to obtain a licensed driver to remove the car before the checkpoint ends and thus avoid impoundments, which are typically for 30 days and result in the forfeiture of the car since towing and impoundment fees commonly exceed the value of the vehicle.
Misdemeanors Now Not as Serious in Two Local Counties
Sacramento and Santa Clara County District Attorneys have developed policies to infract misdemeanor convictions (making them infractions rather then misdemeanors, thus less serious) to prevent undocumented immigrants from entering the criminal justice system.  Examples:  driving without a license and driving with a suspended license.  The DA in Santa Clara County is considering infracting petty thefts.
Attorney Beverly Byrd received a Master’s in International Law from the prestigious Georgetown University law Center in Washington, D.C.  Philippines President Arroyo and U.S. President Bill Clinton are alumni of Georgetown. Attorney Byrd has practiced only immigration law for over 10 years.  She has helped thousands of Filipinos in the Bay Area with their immigration issues.  
Currently, Byrd & Associates offers a consultation with Attorney Byrd for $25.  Please feel free to contact Attorney Byrd via e-mail at bab@byrdassociates.com, or via telephone at either of her Bay Area two offices found below.  You can also visit our website to read our immigration Blog, follow us on Facebook and Twitter and see our LinkedIn profile.
San Jose Office   
95 S. Market Street, Suite 300 
San Jose, CA 95113   
Toll Free 800-794-4546  
San Francisco Office
One Embarcadero Center,
Suite 500
San Francisco, CA 94111
Toll Free 800-794-4546

Wednesday, November 9, 2011

Immigration Question of the Week

By Atty Beverly Byrd

Question:  Hello Attorney Byrd.  I hope you could answer my question.  I’m always informed by your column.  I’ve been in the U.S. since my parents brought me here in 2006, and have no legal status.  A few years ago, I was attacked by several young men that I didn’t know after leaving a gym in San Jose.  I was stabbed in the stomach, and left on the sidewalk.  My attackers were ultimately caught by the police and prosecuted.  My cousin told me that I might qualify for a U visa.  Is this true?  Thank you Attorney Byrd.  Ted.

Answer:  Hello Ted.  First, I’m sorry to hear about the terrible events that happened to you, and I am hope that you have no ill effects from the attack.  You may be able to qualify for a U visa, as it seems likely that your attack was a felonious assault.  First, please see the information below, and if you think that you may qualify, then second, see a competent immigration attorney.
 
Immigration Topic of the Week:  U Visas
Are you or have you been the victim of a crime?  You might qualify for a U Visa.

The purpose of a U Visa is to give victims of certain crimes temporary legal status and work eligibility in the United States for up to 4 years.  The U visa is a nonimmigrant visa, and only 10,000 U visas may be issued every fiscal year.  Family members may also be included on the petition including spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents.  An approved U visa petition will automatically grant the applicant work eligibility in the United States.

An applicant for a U visa must have suffered substantial physical or mental abuse due to a criminal activity in a t least one of the following categories:  rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

All petitions must include information on how the victim can or did assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime. The victim must also be willing to, or did work with local law enforcement. The crime must have occurred in the United States or in a U.S. territory, or violated U.S. law.

A portion of U visa application must be certified by a Federal, State or local law enforcement agency, such as a prosecutor or a Federal or State judge in charge of the investigation in which the petitioner is the victim. Without this certification, the U visa petition cannot be submitted. However, a certification alone is not enough to establish eligibility as all facts around the petition will be considered. The certifying individual must be the head of the agency or a person designated to issue U nonimmigrant certifications. If at any point the victim stops to cooperate with law enforcement, the certification can be withdrawn.

Immigration News and Updates
New USCIS Medical Form
For those filing a green card application, you should be aware that USCIS has a new medical form, Form I-693 as of November 1, 2011.  To ensure no delays in your green card case, ensure that your Civil Surgeon, or USCIS approved physician, uses the new form.  Civil surgeons completing medical examinations between Nov. 1 and Dec. 31, 2011, should use the new form dated 10/11/11. However, USCIS will continue to accept the previous version, dated 7/20/10, for examinations completed between Nov. 1 and Dec. 31, 2011. Beginning Jan. 1, 2012, civil surgeons must use the new version of the form.  If a medical examination completed on or after Jan. 1, 2012, is reported using an outdated form, USCIS will reject the form, requiring the applicant to return to the civil surgeon and resubmit the new form.  

Update on the New ICE Policy on Prosecutorial Discretion
The Chief Counsel’s office that handles cases in the San Francisco immigration court appears to be approving requests to administratively close deportation cases for young persons who were brought to the U.S. with their parents while still minors, are in the U.S. without legal status and who are currently attending college.  If this applies to you or your family member, seek the advice of a competent immigration attorney to determine whether it is appropriate to try to close your deportation case.

Attorney Beverly Byrd received a Master’s in International Law from the prestigious Georgetown University law Center in Washington, D.C.  Philippines President Arroyo and U.S. President Bill Clinton are alumni of Georgetown. Attorney Byrd has practiced only immigration law for over 10 years.  She has helped thousands of Filipinos in the Bay Area with their immigration issues.  

Currently, Byrd & Associates offers a consultation with Attorney Byrd for $25.  Please feel free to contact Attorney Byrd via e-mail at bab@byrdassociates.com, or via telephone at either of her Bay Area two offices found below.  You can also visit our website to read our immigration Blog, follow us on Twitter and Facebook and see our LinkedIn profile.

San Jose Office   
95 S. Market Street, Suite 300 
San Jose, CA 95113  
Toll Free 800-794-4546  

San Francisco Office
One Embarcadero Center,
Suite 500
San Francisco, CA 94111
Toll Free 800-794-4546