Month: July 2015

What is a DS-2019?

The form DS-2019 is the main document used by the State Department and USCIS in processing the exchange visitor program.  The form allows a prospective exchange student to seek an interview at a U.S. consulate in order to obtain a J visa to enter the United States.

Information included in the DS-2019 includes identifying information regarding the exchange visitor, their designated sponsor and includes a brief description of the appropriate exchange program.  The DS-2019 lists the start and end date of the exchange, the type of exchange and an estimated cost of the exchange program.

The DS-2019 can only be produced through the Student and Exchange Visitor Information System (“SEVIS”).  SEVIS is a database maintained by the Department of Homeland Security to collect background and tracking information on F, M and J visa holders.

The DS-2019 is issued by the designated sponsor after the sponsor screens and selects the exchange visitor.  Once the visitor receives the executed DS-2019 from the sponsor, they are free to apply at a U.S. embassy or consulate for the actual visa stamp.  The ultimate decision as to whether the visitor receives the J-1 visa rests with the consulate.  So obtaining a DS-2019 is not enough, the consulate has to sign off on the visa itself.

DS-2019

 

Federal Appeals Court in St. Louis Denies Bosnian Asylum Claim

The Eighth Circuit Court of Appeals upheld the denial of a Bosnian couple’s claim that they had a credible fear of persecution if they returned to their native homeland.  Hazret and Jasminka Nanic entered the U.S. in November of 2006.  Customs gave them until June 8, 2007 to depart the U.S.  They did not leave; instead, they filed asylum petitions on June 13, 2007.  The couple also requested the discretionary relief of withholding of removal, as well as protection under the Convention Against Torture (“CAT”).  The asylum office denied the claim and referred the case to the immigration court.

In asylum cases, one of the strongest pieces of evidence of future persecution is, in fact, instances of prior persecution.  The Nanics told the immigration judge about being harassed by a police officer in 1994, being hit by the police in 1996 and some harassment that their daughters had suffered in 1996.   The immigration judge did not find these decade old, relatively minor instances to constitute past persecution.  The asylum, withholding and CAT claims were denied.

The Board of Immigration Appeals upheld the denial and the Nanics appealed to the Eighth Circuit in St. Louis.  As it turns out, the Eighth Circuit is one of the least immigrant-friendly courts in the entire nation.  The Court very rarely rules in favor of the immigrant and against the Department of Homeland Security.  True to form, the Court denied the claims and upheld the decision of the Board of Immigration Appeals.  In doing so, the Court agreed with the lower court findings that the past harassment did not constitute persecution.  The Court also rejected the Nanics’ claim that they faced persecution for yet another reason – their refusal to identify as a Serb, Croat or Muslim and to instead state their support for a unified Bosnia.

This was a tough case.  Life in Bosnia has returned to some semblance of normality since the brutal civil war of the late 1990s.  It seems that this case had very little chance of success, given the thin evidence of harassment that the couple provided.  It also highlights just how hard it is for immigrants to succeed at the Eighth Circuit.

Eagleton

What happens if your naturalization case is denied?

What happens if my naturalization case is denied?

Hi, I’m Jim Hacking, Immigration Attorney practicing Law throughout the United States and based here in our office at St.Louis Missouri.

You know, we get this question a lot about what happens exactly when our naturalization case gets denied, so the typical scenario where in someone filing for a naturalization on their own.

That form is  N-400 and it involves them filling out a bunch of information about the background, talking about how they got their lawful permanent residence, asked about crimes and other kinds of activities that would make someone ineligible for naturalization and after they go to their interview, they get a notice in their mail telling them that their case has been denied.

Sometimes you might get a notice of intent to deny and that’s a letter before they deny that basically says that we see some problems with your case. We’re thinking about not naturalizing you but giving you a chance to respond and supplement the record.

Now in those situations, people often do come and get another attorney and that’s a good idea because if your case is about to be denied, you’d probably need legal help in order to fix it. but in other instances, people will just file it on their own and the case gets denied. And you should know there’s no guarantee that you’re gonna get that notice of intent to deny, they can just flat out deny it for whatever reasons they can fit.

Alright, so your case has been denied and now you come to us, our office and you now ask us for help. Of course we wish you’d come to see us earlier but in that point that’s one other bird so we don’t spend much time dwelling on that or beating other clients about that.

The form that you file to file an appeal of the denial of your naturalization column N-336 is just a technical name for a way for you to appeal and you have to understand that this is an administrative appeal, it’s not like trial or anything at this stage. What happens here is that you basically file a form that says what you think the error was, why you think immigration was incorrect when they decided to deny your naturalization case and you can submit whatever supplemental evidence you think is the right thing to do to help show how your case was mishandled by the agency.

The thing that’s not so great about N-336 is that for the most part, you’re basically just going down the hall from the officer that denied you to another officer who’s typically their friend or at least their co-worker and their asking their co-worker that hey your buddy down the hall made a mistake when he or she denied my naturalization case.

In many ways, the N-336 is a rubber stamp. We have seen many instances in which the N-336 is decided very quickly without much independent analysis, you are entitled to another interview and usually at the interview is where we sit down with the officer and really advocate for our clients with our clients help to try to show what the error was but you have to understand these officers are being asked to say that their buddy did something wrong and a lot of officers aren’t willing to do that to their credit someone but really when you thinking about appealing and naturalization, you really need to think about the long fight because it’s very unlikely that you’re gonna get any relief at the N-336 stage and a lot of times we tell our clients that this is sort of a rubber stamp that you need to file just in order to get to the next stage and the next stage is going to federal district court.

If you have your naturalization case denied then if the agency denies your N-336 then you have the ability to go into federal court and have a judge decide what’s called “de novo” which means all new, that the judge isn’t going to be bound by the decision of USCIS. This is an independent federal judge she’s appointed for life who’s not beholden to the immigration service, who doesn’t get paid by the immigration service and really is going to give an independent assessment of whether or not the particular person deserves to become a citizen. There can even be a mini trial as to whether or not the person is a good moral character and meets all the statutory requirements.

Now you should know that in some instances the agency really take things in their heels and fights these cases tooth and now but in some situations the agency looks at it a new and it sees it that gonna have to explain itself to a federal judge and we have had a lot of clients get relief at this stage so if your naturalization case is denied, you have to have that long term view, you have to be willing to think two steps or three steps ahead to understand that you might not win at the end N-336 stage and at the real shoot and match is when you get to federal court, that’s where you’re gonna have your  best chance of independent review.

So if you have any questions about the appeals process of filing the denial of N-400, give us a call 314- 961-8200 or you can email us at info@hackinglawpractice.com. Thanks!

 

EB-1 Petition Approved for Rolla, Missouri Scientist

On July 1, 2015, we filed a petition for an alien worker (I-140), a leading scientist from Rolla, Missouri.  We are happy to report that – with premium processing – the case was approved in seven days and without a dreaded request for evidence.  This is the first step towards obtaining lawful permanent resident status.

This interesting case involves a PhD. who specializes in nanotechnology and metals.  He filed for an EB-1 visa for aliens of extraordinary ability.  This case was a self-petition, which means no employer was involved.

In most employment-based immigration cases, an employer is required to file a PERM application with the Department of Labor before filing the visa petition with USCIS.  But for a rare number of workers, the law allows them to self-petition without an employer and without going through the expensive and time-consuming PERM process.  To qualify for the exception, the alien has to satisfy at least three out of ten listed criteria and the standard is very stringent.

Our office is frequently contacted by scientists, researchers, educators and others who believe that they may qualified for this extraordinary path to lawful permanent resident status.  We turn down the vast majority of cases after having a heart-to-heart with the potential applicant.  The standard is very, very high and most people just don’t have the credentials necessary to prevail.

visa

One significant factor in determining whether these cases get approved is who will write letters in support of the person seeking to obtain the EB-1 visa.  If the potential applicant only has letter writers from a close circle of friends or from people that they studied or worked with, the application is unlikely to succeed.  To prevail, the person really needs world-class individuals in the field to write strong letters of support.

This is why we agreed to take this case.  The client had an impressive publication, teaching and presenting history.  But more importantly, the people that he had writing letters for him were the tops in the field and were both academics and industrial leaders.  We filed what we thought was a strong application and apparently USCIS agreed.

Now our client will need to file for adjustment of status.  We will get working on that shortly.

If you have questions about employment-based visas or would like for us to evaluate your credentials to see if you have a good chance of success, please contact us at (314) 961-8200.

CBP Pays Settlement for Wrongfully Deporting US Citizen

After more than two years of litigation, justice has finally been served. The U.S. government has agreed to settle a lawsuit filed by Leonel Ruiz on behalf of his minor daughter, alleging that in 2011, U.S. Customs and Border Protection (CBP) detained and deported his then 4-year-old U.S. citizen daughter.

When the child arrived at Dulles Airport in Virginia, she was deprived of any contact with her parents and held for twenty hours in CBP custody with her grandfather and given nothing to eat other than a cookie and soda.  The government provided her nowhere to sleep other than the cold floor and she was then deported back to Guatemala rather being allowed to reunite with her parents who awaited her arrival in New York.

After the deportation, the child’s father hired a local attorney to fly to Guatemala to retrieve her. Once home, three weeks later, she was diagnosed with post-traumatic stress disorder by a child psychologist who concluded that this was a result of her detention and her separation from her parents. The lawsuit sought damages for the harm the girl suffered as a result of this ordeal. In June, the government agreed to settle the case for $32,500.

Earlier, the government moved to dismiss the case, arguing that among other things, the actions of the CBP officers fell within the “discretionary function exception” to the FTCA and argued that CBP officers had discretion to detain, barely feed and place a 4-year-old in a bedless cell for 20 hours. The court rejected this argument, finding that the Plaintiff stated valid claims as there were no public policy considerations that would justify the CBP officer’s’ behavior.

This is the latest indictment of an agency that treats the individuals they encounter with little regard, humanity or decency. This small measure of justice is a victory, but much more has to be done to hold CBP accountable for the way it treats individuals in its custody.

South Korean Mom Charged With Child Abduction After Fleeing Husband

A bitter custody dispute with immigration implications recently played itself out in California. is the immigrant who was convicted of felony child abduction for taking her US-born daughter to South Korea. Nan and her daughter were detained in two separate jails in California.

In 2009, Nan left the U.S and returned to South Korea with her daughter Hwi.  According to court testimony, Nan-Hui left the US because her visa had expired and took her child with her. Nan also stated “I had no choice” because of her violent husband.  As she said, “Jesse was not safe for my baby.”

Nan claimed she has been a domestic violence victim by Hwi’s American father Jesse Charlton, an Iraq War veteran who was diagnosed with PTSD. For years, Nan-Hui lived and raised her daughter in South Korea. According to Court testimony, Jesse didn’t know where his daughter was at the time of her departure. When Nan-Hui landed at Hawaii, she was immediately arrested on child abduction charges. Then last March she was convicted of felony child abduction. A judge reduced her conviction to a misdemeanor but right after her release, she was taken into custody by Immigration and Customs Enforcement (ICE). Nan is still detained and faces possible deportation.

During the trial, Jesse admitted “I grabbed her by the throat by the right hand, and threw her up against the wall. And she’s a lot smaller than me, and we were face-to-face, and I yelled into her face that everything is bad.”

Despite the incident, Jesse was awarded full custody of their daughter.

“I have no intention of separating our daughter to her mother. I know my daughter loves her mom very much, and I hold that bond as sacred. I am concerned about the story Ms. Jo has told at trial and her supporters continue to tell. She told the court under oath that she was a victim, and i was an abuser. Not true at all. I vehemently denied those accusations.”

Nan JO

Democratic lawmakers determined to shut down several immigration detention centers

Democratic lawmakers toured two notorious immigration detention centers this week.  They left determined to seek changes to the way our nation detains immigrants awaiting possible deportation.

“Let me just make clear: Our goal is to shut the facilities down,” said Rep. Luis Gutierrez (D-Ill.). “These kids, they shouldn’t be in there. … There is damage being caused to these kids that they’re going to have to live with for the rest of their lives.”

“There’s a difference between using beds while [the courts] are making a determination … and treating them as a locked facility, where they are now, treated as criminals,” Rep. Steny Hoyer said. “We are urging … that these facilities, for the purpose they’re being used, be closed.”

Gutierrez and Hoyer were part of an eight-member group of Democrats who traveled this week to the Karnes County Residential Center, a 532-capacity facility in Karnes City, Texas, and the South Texas Family Residential Center, a 2,400-capacity facility in Dilley.

Detention

Gutierrez also criticized the current system for its reliance on for-profit companies running the detention centers. He’s advocating for the facilities to be managed by the government, perhaps under the Health and Human Services Department.

“This shouldn’t be run by jailers. This should be run by people who care about kids,” he said. “Let’s take the profit out of it.”

Democrats called for the nation to prioritize the health and well-being of mothers and children while also prioritizing our enforcement objectives. Detaining mothers and children in jail-like settings is not the answer, according to these leaders.

ICE to change the way it houses transgender detainees

US Immigration and Customs Enforcement (“ICE”) has decided to make a change to the way that they house transgender people. Based on the gender the person identifies with, ICE will house them accordingly. The agency will also track transgender detainees. ICE will train detention staff and prepare individual detention plans for transgender inmates

“ICE will allow for the placement of a transgender woman consistent with their gender identity, meaning that a transgender woman could be with biological females,” said Andrew Lorenzen-Strait, who was also appointed as a national coordinator for issues related to gay, lesbian and transgender detainees.

The move did little to limit criticism from advocates who have encouraged the agency to discharge more transgender inmates, referring to the danger of sexual assault in detention. A heckler recently interfered with President Barack Obama’s comments at a gay pride event in Washington to protest the detainment and deportation of gay, lesbian and transgender immigrants.

Raffi Freedman-Gurspan, a policy adviser for the National Center for Transgender Equality thinks these people shouldn’t be in detention centers.

The Department of Justice issued similar rules for transgender inmates years ago, but many jails and detention centers still aren’t following the rules and continue to house transgender inmates based on their current physical condition or alternately put them in isolation purportedly for their security explained Carl Takei, a staff attorney at the American Civil Liberties Union’s National Prison Project.

transgender protest

ICE currently has about 60 transgender detainees. About 25 are housed in a special unit in Santa Ana, California, for transgender women and gay men. The rest are housed in different facilities across the country, mostly with the general population and consistent with their biological sex

The agency currently houses about 31,000 detainees a day, Lorenzen-Strait said..

“When you decide who should be urgently released, pregnant women, people with severe health problems, transgender individuals, there are certain populations that weigh so heavily in favor of release and that the automatic response is always to detain,” Morris said. “It’s not in anyone’s best interest.”

Immigration enforcement advocate Jessica Vaughan, director of policy studies at the Center for Immigration Studies, said she worries that gender identity could trump other factors, such as flight risk, when making decisions about detention.

“In practice, this could become a double standard for transgender individuals that seems unprecedented,” Vaughan stated

 

 

 

 

Immigration Attorney convicted of $579,000 fraud scheme

New York immigration attorney Marijan Cvjeticanin was convicted of nine counts of mail fraud after a one week trial in U.S. District Court.  The jury deliberated 2 hours before finding Cvjeticanin guilty.

Cvjeticanin worked at the immigration firm of Wildes & Weinberg, P.C., first as a paralegal and then as an attorney.  He was responsible for preparing Department of Labor certifications and applications for permanent residency for foreign workers.  Firm clients included Automatic Data Processing, Inc. (“ADP”) and Broadridge Financial.

The PERM application process requires that job postings be published in the largest daily newspaper in the area in which employment would occur.  Unbeknownst to his law firm or to the clients, Cvjeticanin created a fictitious company to handle the publication of the classified ads.  But he never ran the ads.  Instead, he fabricated false advertisements and submitted them to the immigration service so as to suggest that the ads had been properly placed.

A routine email audit at Wildes & Weinberg revealed that Cvjeticanin had been running the fictitious company.  A subsequent investigation showed that ADP and Broadridge had paid nearly $579,000 for advertisements related to the PERM process for their employees.  False ads had been generated suggesting that they had been placed in Computer World magazine, as well as the New York Times, the Boston Globe and other newspapers around the country.

Cvjeticanin faces 20 years in prison and a $250,000 fine on each of the nine counts.  Sentencing is scheduled for late August.

Ex-immigration attorney Marijan Cvjeticanin
Ex-immigration attorney Marijan Cvjeticanin

 

U.S. State Department Says All Visa-Issuing Embassies and Consulates are Back Online

In early June 2015, the State Department reported serious technological problems at embassies and consulates around the world.  A hardware failure in the Consular Consolidated Database left overseas facilities unable to print visas, passports and other documents.  The agency refused to try and speed up the process in other ways and visas did not get printed at the vast majority of embassies and consulates for about three weeks.

The good news is that the State Department is now reporting that all embassies and consulates are back online and printing out visas and passports without any problems.