Immigration Visa Lawyer Blog

How much torture or other mistreatment must you show in order to qualify as having been "persecuted" as defined in the immigration law? The answer is that it would seem there really is no bright line definition. Rather, a foreign national's asylum case could likely depend upon the subjective opinion of what a government official thinks persecution does or doesn't mean. When presenting an asylum case, don't simply rely that a government official will sympathize with your situation. It is necessary to properly research similar successful cases in order to have a strong case.

For a foreign national to be eligible to be granted asylum in the United States, the person must establish that he or she has suffered past persecution as a result of membership in one of a number of protected groups that include race, religion, nationality, particular social group, or political opinion.

The legal standard to establish "persecution" for purposes of asylum is that persecution is an "extreme concept" and requires "more than a few isolated incidents of verbal harassment, intimidation and accompanied by any physical punishment, infliction of harm, or significant deprivation of liberty." But what does this really mean? One person's concept of what is "extreme" or "significant" may be entirely different from that of another person.

An example of this is illustrated in a recent case decided by the US Court of Appeals for the 11th Circuit in Shi v. US. In this case, the Petitioner Jiaren Shi was originally denied asylum by the Immigration Judge (IJ) on the basis that he had not established that he had suffered past persecution. The IJ's decision was also affirmed by the Board of Immigration Appeals (BIA).

The facts of the case are these. Mr. Shi, a Chinese national, presented testimony that he was arrested in China for attending Christian church service at his father's home. He testified that he was held by police for seven days, interrogated, subjected to physical abuse, and warned not to be involved in such "illegal meetings" in the future. He testified that while in custody, police slapped his face, kicked his chair out from under him, and threatened to beat him with a baton. He testified that after one interrogation session, police handcuffed him to an iron bar outside and left him there overnight in the rain, after which he became ill for days.

The IJ and the BIA determined that these acts did not rise to the level of persecution required to establish an asylum case. The US Court of Appeals disagreed and reversed. In its opinion, the Court of Appeals did distinguish the facts of the case from other cases in making its determination. The court said that while the court has declared in previous cases that a short period of detention combined with some physical abuse was not sufficient to be deemed persecution, this finding was not made in cases where detention lasted as long as a week.

However, a reading of this case seems to show that the court did not base its ruling on a bright line test of the how long the detention was. Rather, the court simply restated Mr. Shi's story about what happened, and then determined that such a fact pattern did rise to the level of persecution required. One distinction the Court did make is that it seemed to imply that the IJ and BIA did not look at the totality of the circumstances, and that when all the facts are taken as a whole, such a fact pattern is persecution when compared with previous court decisions.

A government official may not be impressed with the mere fact that an asylum applicant was physically abused and detained by police as a result of his or her religious belief. That government official may agree that it is bad, but may not agree that is "extreme" enough to be called persecution. Don't rely on the subjective opinion of a government official. Do your legal research and come prepared to show that other cases similar to yours have been decided in your favor.

The United States Court of Appeals for the Eighth Circuit recently denied a foreign national's application for asylum last month because it did not demonstrate past persecution or a well-founded fear of future persecution.

Pedro Garcia-Colindres, a foreign national of Guatemala, had entered the United States without legal authorization along with his wife and son in 1994, and filed an initial application for asylum shortly thereafter. The US then began removal proceedings against him in 2005. He then filed an updated asylum application in 2006, which also was a request for withholding of removal.

In 2008, the Immigration Judge denied Garcia-Colindres' asylum applications and withholding of removal. The Judge found that although he was credible, he did not demonstrate that he had suffered past persecution or that he had a well-founded fear of future persecution. The judge ordered him and his family removed to Guatemala. He filed an appeal with the Board of immigration appeals, which then affirmed the judge's decision denying asylum. He then filed an appeal with the US Court of Appeals in 2012.

The court acknowledged that any foreign national may apply for asylum if the person is physically present in the United States and can establish that he/she is a refugee. The definition of refugee includes someone who is outside his or her country of nationality, and who is unable or unwilling to return, and is unable or unwilling to get protection of that country due to persecution or well-founded fear of persecution on the basis of that person's political opinion or particular social group membership.

Garcia-Colindres claimed that he was persecuted in the early 1990s by the Guatemalan National Civilian Police (PNC). His claim alleged that the PNC briefly held him in custody and interrogated him for eight hours and gave him a minor beating including cigarette burns. He also alleged that the PNC murdered his son and daughter.

The Court of Appeals held that the brief interrogation and minor beating was not enough to rise to the level of past persecution required to obtain asylum. The court held that the asylum application lacked evidence that linked the PNC to the death of his two children. Finally the court held that the PNC was no longer in existence, and therefore he no longer had a future well-founded fear of persecution.

From the above opinion, it would seem that if his asylum application would have been adjudicated in 1994 when it was originally filed, it may have been granted on the basis that the PNC was still in existence, justifying a future well-founded fear of persecution.

To commemorate World Refugee Day, U.S. Citizenship and Immigration Services (USCIS) conducted special naturalization ceremonies at locations around the country beginning June 18, 2012. The new citizens are all former refugees who settled in the United States, most through USCIS's process for refugee immigration.

World Refugee Day features events held around the world, coordinated by United Nations officials, intended to raise awareness of refugee issues and promote laws and cultural shifts to help refugee populations. It began with a resolution of the UN General Assembly on December 4, 2000. The first World Refugee Day occurred on June 20, 2001.

The UN defines a "refugee" as a person fleeing his or her home and country because of a "well-founded fear of persecution" based on race, religion, national origin, political opinion, or membership in a social group. The term can also apply to people "in exile" due to a natural disaster. The UN estimates that there are 15.2 million refugees worldwide, out of a total of 42.5 million "forcibly displaced people."

Continue reading "USCIS Marks World Refugee Day by Conducting Naturalization Ceremony for Former Refugees" »

The Department of Homeland Security (DHS) announced on May 1, 2012 that it will extend Somalia's eligibility for temporary protected status (TPS) for eighteen months from its current expiration date. The government cited the ongoing "disruption of living conditions" in the east African nation due to severe drought conditions, armed conflict, and political instability. Somalia has had TPS status since September 16, 1991, and was redesignated in 2001. The extension allows individuals currently registered as TPS to re-apply, and it allows individuals who are from Somalia but present in the United States to obtain TPS for the first time.

Somalia is a country in east Africa with a population of approximately 10 million, according to the U.S. State Department, with land area making it slightly smaller than the state of Texas. Of its total population, about 2 million people live in the region of Somaliland in the north, which seeks international recognition as a separate, independent country. The country has endured decades of civil war, but its current troubles began over twenty years ago, when the national government collapsed in 1991. Various factions, supported by a variety of foreign governments and organizations, have fought for control of the country ever since. A severe drought began in the spring of 2011, leading to widespread famine and a worsening refugee situation in neighboring countries. The United States has contributed millions of dollars in humanitarian aid. Armed conflict continues as well, according to the State Department, with neighboring Kenya and Ethiopia sending troops into the country in the past year.

Continue reading "DHS Grants 18-Month Extension of Temporary Protected Status to Somalis in the United States" »

Secretary of Homeland Security Janet Napolitano and the U.S. Citizenship and Immigration Services have made temporary protected status (TPS) available to Syrian nationals effective March 29, 2012. This means that Syrians, who were in the United States as of March 29, 2012, are eligible to stay in the United States for eighteen months and can receive a work authorization document allowing them to work in the US through September 30, 2013. Attorneys from the Law Firm of Shihab & Associates will make themselves available to all persons who have questions regarding this form of humanitarian relief.

Time Frames and Deadlines for TPS

Persons who wish to obtain TPS must apply between March 29, 2012 and September 25, 2012. If an application for TPS is not received by the September 25 deadline, the application will be rejected by the USCIS.

Entry Date and Physical Presence Requirements for TPS

Only those Syrians who entered the United States on or before March 29, 2012 are eligible for TPS. Additionally, the applicant must demonstrate continuous physical presence in the United States after entry to remain eligible for TPS. The USCIS has stated that short and incidental exits from the United States will not break the physical presence requirement. This is in recognition that the violence and turmoil in Syria may necessitate short periods of travel in and out of the US to attend to matters pertaining to the protection of persons and property. It is highly recommended that applicants for TPS obtain an advance parole document before traveling outside of the US in order to notify the USCIS of the applicant's intent and need for travel.

Visa Status Requirements for TPS

TPS is available for all Syrians regardless of visa status. TPS is supplementary to whatever visa status a person holds at the time of filing for TPS and Syrians are encouraged to maintain their alternate visa status while at the same time applying for TPS. Even people who have overstayed previous visas or who have entered without inspection are eligible for TPS. Immigration status violations are not a bar to receiving TPS. It is recommended that applicants consult with an attorney regarding the effects of TPS on a currently held visa status or lack of visa status prior to applying.
TPS is a temporary visa status and at the end of the TPS designation period, TPS holders will revert back to whatever visa status they possessed prior to TPS. Therefore it is highly recommended that TPS applicants maintain their underlying visa status if at all possible while on TPS.

Nationality Requirements for TPS for Syrians

The designation for Syrian TPS is intended as a humanitarian relief for Syrian nationals. However, persons who do not possess a nationality, and who last habitually resided in Syria may apply.

Continue reading "Syrians Now Eligible for Temporary Protected Status (TPS)" »

Prominent Immigration Lawyer Ghassan "Gus" Shihab, who is of Syrian origin himself applauds the US government for announcing that it will designate Syria for Temporary Protected Status. Because of the worsening security situation in Syria, the US Department of Homeland Security ("DHS") stated on Friday March 23, 2012 that it will designate Syria for an 18 month TPS. The details as to how and when Citizens of Syria currently in the US can apply for this benefit will be announced in few days.

If you are a Syrian national presently in the US, such designation will allow you to remain in the United States legally, and to receive work authorization and travel privileges, so long as Syria continues to be renewed for TPS designation. The designation is not effective yet, but the US Citizenship & Immigration Service ("USCIS") will host a public meeting to discuss the process and how and when applications will be accepted. The designation is expected to become effective this coming week. Attorney Gus Shihab of The Law Firm of Shihab & Associates will be attending this meeting and will post here on the latest developments.

What is Temporary Protected Status?

TPS is a temporary benefit afforded by the US government given to eligible individuals from designated countries or portions thereof, in this case Syria, who are unable to return to their home countries for a variety of reasons. The law enumerates several reasons and circumstances for a country to be so designated. One of such reasons is the occurrence of ongoing armed conflict within the country and because of such conflict the return of the foreign nationals to that country would be extremely dangerous, which is the case for Syria today.

How is A Country Designated for TPS?

The US Attorney General has the power, under US immigration laws, to designate the citizens of a certain countries for TPS benefits because of circumstances currently existing in their country. The Attorney General will create a notice of the designation in the Federal Register and will estimate the number of nationals of the foreign country who are likely to benefit from the designation. We are expecting the announcement in the Federal Register within few days.

What is the Length of Time Syria will be Designated for TPS?

18 months. The DHS announced that the designation will initially be for 18 months. At the end of the 18 month period, the Attorney General may extend this designation for Syria for an additional period of time.

Can I work and Travel While on TPS?

Yes. You may receive work authorization While on TPS status and travel in and out of the US freely but you must apply for TPS to receive such benefits. But remember, these benefits exist only while Syria continues to be designated for TPS by the US Attorney General. Some countries have received TPS designation for many years. While we hope for the situation in Syria to improve in the very near future, TPS is a great benefit for those Syrian Nationals within the US.

I am Syrian and Have Been in the US without Status Can I Benefit?

Yes. Any Syrian National who is presently in the US is eligible for this benefit. This is true whether you are legally or illegally present. Once approved, you are eligible to receive work authorization and legally reside in the US.

Continue reading "Syria TPS Designation - Syrian Citizens in US Can Now Apply for TPS " »

A Mauritanian woman named Marieme (a pseudonym) who lives in Cincinnati recently shared her story with CNN, telling how she escaped a life of slavery in her home country and obtained asylum, followed by citizenship, in the United States. Asylum is a means by which people who fear persecution in another country can obtain legal immigration status in the United States. Her story demonstrates how people who fear the conditions in their country of origin may find hope here.

Mauritania, a country in west Africa, was the last nation in the world to formally abolish slavery, according to CNN, only doing so in 1981. Still, slavery remains an "open secret," with as much as ten to twenty percent of the Mauritanian people living in a state of slavery. The CIA's World Factbook states that half of the population still relies on livestock and agriculture to survive. The country has extensive natural resources, but most are subject to extraction by foreigners. A military junta currently runs the government, according to the CIA, after a 2008 coup deposed the democratically-elected president. The country faces conflict between different ethnic groups.

Marieme reportedly began working for her master at the age of 3 or 4 in an area of southern Mauritania near the border with Senegal. Her brothers and sisters disappeared from the master's household when Marieme was 12, possibly because he made gifts of them. The master began sexually abusing Marieme around this time as well. Luckily, the master's son helped her, teaching her to read and write and telling her about the outside world. This gave her the courage and the resources to escape.

After one unsuccessful attempt, Marieme escaped across the border into Senegal. She had to leave her six children behind. She spent about two years living with a man who hosted a group of refugees in Dakar, the capital of Senegal. The man eventually put her on a cargo ship bound for a place she had never heard of, the United States. She spent some time in a Mauritanian community in the Bronx before settling in Cincinnati in 2003. She sent as much of her salary as she could back to Senegal, where the people who helped her escape were working on a plan to get her children out. Gradually, all six children made it to Ohio.

Continue reading "Ohio Woman Tells How She Escaped Slavery in Mauritania and Gained Asylum in the United States" »

Miriam Mendiola-Martinez, a foreign national of Mexico, filed a lawsuit in Arizona last week against Maricopa County Sheriff, Joseph M. Arpaio alleging that she was mistreated while she was pregnant as an inmate in the Sheriff's jail. She was six months pregnant when she was arrested in 2009 on charges of identity theft. The suit states that her Eighth and Fourteenth Amendment rights were violated by the MCSO's infliction of cruel and unusual punishment, deliberate indifference to her serious medical needs, and disparate treatment. The lawsuit alleges that MCSO and Maricopa Medical Center's unconstitutional policies, practices, acts and omissions, Ms. Mendiola-Martinez suffered immediate and irreparable injury, including physical, psychological and emotional injury and risk of death.

According to the lawsuit, Ms. Mendiola-Martinez was undernourished at the jail due to what jail staff called a "special" pregnancy diet. These pregnancy meals consisted of items such as two slices of bread, two slices of cheese or ham, undistinguishable cooked vegetables, and an occasional piece of fruit. She was also given two small cartons of milk per day. This hardly seems to be enough food for a pregnant woman eating for two.

She was taken to the Maricopa Medical Center by MCSO officers when she began to go into labor. Ms. Mendiola-Martinez gave birth to her son via Cesarean section, and she was not allowed to nurse or even hold her son after he was delivered. Officers put shackles on her feet before and after the surgery, and she was shacked to the hospital bed. Wearing only a hospital gown, Ms. Mendiola-Martinez was forced to walk through the hospital, with her hands and feet shackled. She began to bleed and could do nothing about it. She was not provided with a breast pump to safely and hygienically remove the breast milk she produced while she was separated from her infant son.

When she was discharged from the hospital, Ms. Mendiola-Martinez was not given a wheelchair to assist her, even though she was in great pain and could hardly walk. A deputy took her so quickly from the hospital that she did not receive her pain medication and discharge paperwork. A deputy then chained Ms. Mendiola-Martinez again and forced her to walk back to the nurse's station. Then, while shackled at her hands and ankles, with a bleeding surgery wound, Ms. Mendiola-Martinez was returned to the Estrella Jail.

About September 2008, the Maricopa County jails lost their accreditation from the National Commission on Correctional Health Care. On October 22, 2008, the Honorable Neil V. Wake found that the food given to inmates in the Maricopa County Jails constituted "current and ongoing violation of pretrial detainees' federal right to adequate nutrition."

On December 15, 2011, the United States Department of Justice issued the findings of the investigation it began in June 2008 in a letter addressed to Maricopa County Attorney William Montgomery. In that, letter, the Justice Department stated: "MCSO operates its jails in a manner that discriminates against its limited English proficient ("LEP") Latino inmates. Specifically, we find that MCSO, through the actions of its deputies, detention officers, supervisory staff, and command staff, routinely punishes Latino LEP inmates for failing to understand commands given in English and denies them critical services provided to the other inmates, all in violation of Title VI and its implementing regulations." The Department of Justice also noted: "MCSO fosters and perpetuates discriminatory police and jail practices by failing to operate in accordance with basic policing and correctional practices and by failing to develop and implement policing and correctional safeguards against discrimination in such areas as training, supervision, and accountability systems."

A class action lawsuit was filed last week against US immigration agencies on behalf of many asylum applicants who were wrongly denied work authorization, A.B.T., K.M.-W., G.K., L.K.G., D.W. v. USCIS; EOIR (Case No. 2:11-cv-02108 A.B.T). The nationwide lawsuit was filed by the American Immigration Council's Legal Action Center (LAC) against the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) in the United States District Court in Seattle. The suit alleges that the USCIS and EOIR delays violate the Constitution, federal statutes, and governing regulations.

Asylum seekers are not eligible for work authorization during the 180-day period after the application is filed. But according to federal law, asylum applicants are to be granted work authorization after the application has been pending for 180 days. Due to unlawful and unfair practices and policies, U.S. immigration agencies have prevented asylum seekers from obtaining work authorization after the 180-day waiting period has elapsed. For example, one named plaintiff in the lawsuit is a man from China who filed his asylum application in 2003, and he has been pursuing work authorization for years without success.

In calculating the 180-day period, the USCIS relies on immigration judge determinations who work for the EOIR, which results in arbitrary policies on when the 180-day "clock" should start and stop. This, along with the increasing backlog in U.S. immigration courts, has unlawfully prevented asylum seekers from working. According to the lawsuit, these unlawful policies and practices prevented asylum applicants from obtaining work authorization and forced them to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications, and this process can take many months and sometimes years.

The 180-day period (or "asylum EAD clock") may be suspended, but only for applicant-requested or caused delay of the adjudication of their asylum application, according to the lawsuit. USCIS and EOIR policies result in EAD clocks being arbitrarily started and stopped, and even permanently stopped in some cases. Many asylum seekers have not received adequate notice that their EAD asylum clocks have stopped, and they are consequently deprived of a meaningful opportunity to remedy these determinations.

Continue reading "Class Action Lawsuit Alleges Asylum EAD Clock Is Unfair" »