Author: Jim Hacking

Missouri Immigration Attorney Applauds Ninth Circuit Asylum Ruling

In this case, Mr. Singh was an Indian citizen from the state of Punjab.  He alleged that because of his politcal activities, government authorities had arrested and tortured him on four separate instances.  He fled to the U.S. and claimed to have arrived in the U.S. on October 20, 2004 without inspection.  In the fall of 2005, he filed for asylum.

Generally, asylum claims must be filed within one year of the asylee’s last arrival.  The immigration judge ruled that the asylum claim was untimely filed.  The judge did not say that he did not believe the asylum applicant, but rather that Mr. Singh’s testimony alone could not establish his last date of entry “by clear and convincing evidence.”  Basically, the immigration court said that the asylee’s testimony alone could not satisfy the standard.

The Board of Immigration Appeals agreed.  The Ninth Circuit Court of Appeals, in an en banc decision (decision by the entire Court), found the BIA had erred in imposing the corroboration requirement on the timeliness question.  Specifically, the Court said that simply because other provisions of the asylum statutes required corroboration, this did not mean that other provisions were governed by that same requirement.  The Court held that “[n]othing in the text of the statue allows the corroboration provision of [one portion of the asylum statutes] to be imported magically into … the provision establishing the one-year filing deadline.”  In fact, the rules of statutory construction required the opposite result.

In the end, the Court remanded the case back to the immigration judge for further proceedings – namely, the adjudication of Mr. Singh’s asylum application.

Employment-Based Permanent Residence for Professors | Missouri & Illinois Immigration Attorney

University professors are able to pursue permanent resident status in the United States in two different ways, both of which are more streamlined and advantageous than other types of professionals seeking employment based status.

These avenues are available to professors with advanced degrees who are coming to/stayinig in the U.S. to fill a tenure track position at a university here.

Most professors will pursue legal permanent resident status in the EB-2 category which requires a job offer from a U.S. educational institution and a labor certification. The job offer must be for a permanent, tenure-track position and the university must conduct a recruitment campaign to establish that the foreign professor in question is the most qualified for the position offered. Once this is established through the labor certification process, the university may petition the immigrations service for an immigrant visas (green card) for the professor and the individual may apply to adjust his/her status if in the U.S. or begin the process of obtaining the immigrant visa at a U.S. Consulate if outside of the U.S.

There is currently no wait for available visas in this category so the professor can move forward on the permenant resident status quickly and easily. If the professor is in the U.S. in some other status, he/she may obtain employment authorization allowing him/her to work here while the green card application is pending.

An individual professor may also pursue permanent resident status in the EB-1 category. This is a much more difficult route to follow, but allows the individual to move forward without a specific job offer and does not require the labor certification.

In order to establish that an individual is an outstanding professor or researcher, one must demonstrate international recognition for outstanding achievements in a particular academic field. The individual must have at least 3 years experience in teaching or research in that academic area and be entering the United States in order to pursue tenure or tenure track teaching or comparable research position at a university or other institution of higher education.

Proof of international recognition must include at least two of the following:

Evidence of receipt of major prizes or awards for outstanding achievement
Evidence of membership in associations that require their members to demonstrate outstanding achievement
Evidence of published material in professional publications written by others about the alien’s work in the academic field
Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
Evidence of original scientific or scholarly research contributions in the field
Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
Again, this route will allow the professor/researcher to avoid the job offer and labor certification requirements; however, it is very difficult to meet the standard of outstanding for these purposes.

Our office has helped professors in Missouri and Illinois obtain valid employment status in these ways. To find out more, please contact us to discuss your situation.

Self-Petitions Under the Violence Against Women Act (VAWA)

The Violence Against Women Act (VAWA) is a law that was enacted by Congress in 1994. VAWA created a number of provisions that allow for battered noncitizens to obtain lawful permanent resident (LPR status in the United States. The rationale behind these provisions is that, in an abusive relationship, immigration status can often become yet another tool the abuser can use to torment the noncitizen.

Ordinarily, when a noncitizen that is married to a US citizen or an LPR wants to become an LPR, their spouse must petition USCIS. VAWA modifies the Immigration and Nationality Act (INA) to allow noncitizens that are married to an abusive US citizen or Lawful Permanent Resident to self-petition USCIS for LPR status.

When a noncitizen self-petitions for LPR status under VAWA, USCIS is forbidden from telling the abusive spouse that the petition has been made. Self-petitions can allow both the battered spouse and that spouse’s children to apply for permanent residency. As with many immigration-related topics, time is of the essence. For example, in the case of a battered noncitizen spouse of an LPR, there is a two-year window after the couple divorce during which the noncitizen can petition for LPR status.

The law in this area is complicated. If you would like to self-petition for LPR status under VAWA, it is important to speak to an immigration specialist so that they can guide you through the steps you need to take to file a self-petition. Contact the Hacking Law Practice today by filling out our online contact form or by calling us at 314-961-8200.

Missouri & Illinois Immigration Attorney Jim Hacking Explains The Visa Bulletin

The visa bulletin is a document produced by the United States State Department each month. The purpose of the visa bulletin is to tell people waiting to get immigrant visas how long they will have to wait.

Subject to a few exceptions, every country is given the same number of immigrant visas each year. So, when more people in a particular country decide that they would like to immigrate to the US, it creates a backlog. It works like a line, where the people that applied for visas first are in front of those that applied later. Applicants move forward in the line as people that applied before them either drop out or are admitted as immigrants.

The dates you see when you look at the bulletin are the application date for the people who are currently being given their immigrant visas. For example, if it says 01MAY04, this means that the immigrants in that category applied for the visa in May of 2004. This date also gives an estimate for how long you may have to wait. Again, for a date of 01MAY04, you will likely be waiting about seven years for your visa.

In each visa bulletin, there is a list of countries where the wait time is different than the rest of the world. The first column on the list (“All Chargeability Areas Except Those Listed”), means the rest of the world. Any countries where the wait time is different are listed to the right of that column. Generally, these are countries where the line is particularly long in certain immigrant preferences.

A piece of terminology that you will often see in visa bulletins is the word ‘current’ (sometimes designated simply as “C”). Current means that visas are currently available in that particular immigrant preference and you will only have to wait for the visa’s processing before you will be allowed to enter the US. Most of the time, you will see current in the employment-based preferences because it is rare that they are all used up each year.

The final part of the visa bulletin is the diversity immigrant information. Diversity immigrant visas are allotted to countries where there has been relatively little immigration to the US in recent years. There is a complicated formula to determine how the visas are apportioned. If you are from one of the countries that are given diversity visas, then you will generally only have to wait for the processing of your application before being given your visa.

It is important to emphasize that the dates on the visa bulletin are estimates. The actual wait time could be longer or shorter than what is listed there. Regardless, if you’re interested in immigrating to the United States, it is in your best interests to get into the line as soon as possible. Contact the Hacking Law Practice at (314) 961-8200 or by filling out our online contact form. We have a great deal of experience obtaining immigrant visas for our clients and we will be able to provide you with more specific information than the visa bulletin on your potential wait time.

Missouri & Illinois Immigration Attorney Jim Hacking Explains the Test of Ineffective Assistance of Counsel in Deportation

In June 2009, Attorney General Eric Holder vacated Matter of Compean, a decision by former Attorney General Michael Mukasey that all but did away with appeals for ineffective assistance of counsel in deportation proceedings. Compean required that a noncitizen prove not only that the actions by their lawyer were egregious but also that they prejudiced the outcome of the proceeding. Holder’s decision to vacate Compean re-instated Matter of Lozadaas the governing law for deportation proceedings.

Under Lozada, there are three requirements for noncitizens who wisht to appeal a decision because of ineffective assistance of counsel. First, the noncitizen must submit a motion (most likely a motion to re-open), supported by an affidavit explaining what their former lawyer did wrong. Next, the noncitizen must inform their previous lawyer of the allegations and give that lawyer the opportunity to respond to the allegations. Finally, the noncitizen must file a grievance against their former lawyer with their former lawyer’s bar.

The requirements of Lozada were created to try to stop what had become a popular delaying tactic during deportation proceedings. Before Lozada, one way to slow deportation was to claim ineffective assistance of counsel and push for a new hearing. Lozada took away that strategy by forcing any ineffective assistance claim to be coupled with a complaint to the bar against the former attorney. This meant that attorney could face sanctions if a former client filed an ineffective assistance claim and took away the incentive to use such claims dishonestly.

Compean caused controversy when it was handed down in 2009. Attorney General Mukasey re-affirmed in the decision that noncitizens have no right to an attorney during a deportation proceeding. He went on to state that since the state didn’t have to provide a lawyer, the poor performance of the lawyer chosen by the noncitizen is not state action and, therefore, does not violate due process. Mukasey then said that reopening cases due to poor performance by the noncitizen’s counsel was left up to the discretion of immigration judges and the BIA.

When Attorney General Holder vacated Compean, he also set into motion the process for developing new rules for the Executive Office of Immigration Review (EOIR) for what is required to prove ineffective assistance of counsel. These new rules have yet to be completed. So, for the time being, Lozada remains the law for ineffective assistance of counsel appeals in deportation proceedings.

If you think that you may have an ineffective assistance of counsel claim in a deportation proceeding or if you’re looking for an experienced immigration lawyer call the Hacking Law Practice at (314) 961-8200 or by filling out the short online contact info form.

St. Louis Missouri Immigration & Deportation Attorney | James Hacking

For many people facing deportation, the day that they were picked up by U.S. Immigration and Customs Enforcement began like any other day.  At some point, ICE officials appeared at their home and office looking for the alien.  The ICE officials typically have paperwork to give to the alien and place the person in handcuffs before transporting them to the local ICE office for processing.

In many parts of the country, ICE has detention facilities for housing detained immigrants.  In St. Louis, detained individuals are transported by ICE to one of four outstate jails – Charleston (Mississippi County), Benton (Scott County), Montgomery City (Montgomery County) or Troy (Lincoln County).  It typically takes four or five weeks for an individual being detained to have their initial appearance and bond hearing with the immigration judge.  Because St. Louis does not have an immigration court, detainees here appear by videoconference with an immigration judge in Oakdale, Louisiana.

You should know that many individuals detained by ICE are subject to something called mandatory detention.  Mandatory detention requires ICE to detain individuals with criminal backgrounds or various other offenses.  An immigration judge cannot release someone on bond if they are subject to mandatory detention.

But assuming that mandatory detention does not apply, the first step in the bond process occurs at the District Office of the Department of Homeland Security.  ICE officials make an initial custody and bond determination.  If the person demonstrates that they are not a danger to the community or a flight risk, ICE can release the person on their own recognizance.

If ICE refuses to release a non-citizen, that person has the right to request a bond determination hearing from the immigration judge.  In theory, the bond proceedings are separate from the removal proceedings themselves.  In reality, many issues related to bond carry over into the merits of the attempted deportation.  Immigration judges are prohibited from granting bond for certain types of people – arriving aliens, those charged as deportable on national security grounds and those subject to mandatory detention.  But the immigration judge does have the authority to determine whether the charged non-citizen actually falls into one of these categories.

The immigration judge can consider many factors in determining bond – both the factors that warrant release on bond and those that suggest that the person should remain detained.  For instance, an immigration judge may consider crimes that the person committed which are not contained in the removal documents (the notice to appear).  The judge can also consider the likelihood of whether the person will, in fact, be deported.  The immigration judge can consider family factors, job offers, letters of support from friends.

If the immigration judge does set bond, the lowest bond possible is $1,500.  Bond can be made with a money order or cashier’s check made out to the Department of Homeland Security or by using an authorized bail bondsman.  As with criminal bonds, if the person fails to appear for immigration court, the bond is forfeited.  The government or the non-citizen has the ability to appeal whatever bond determination the immigration judge reaches.  Finally, a noncitizen may ask for bond redetermination if the circumstances of the individual’s case have “materially changed.”

If you or a family member are being detained by ICE and you need assistance with your deportation case or with bond, please contact the immigration attorneys at the Hacking Law Practice by calling 314-961-8200 or by using our online contact form.

St. Louis Missouri Immigration Attorney Jim Hacking Explains Priority Naturalization

United States Citizenship and Immigration (USCIS) recently released a memorandum explaining how noncitizens that are close to losing their Supplemental Security Income (SSI) benefits can expedite their applications for naturalization. SSI is a government program that uses tax money to provide an income for individuals with low income or limited resources. For noncitizens, SSI has a time limit such that noncitizens can only receive SSI benefits for seven years. In most cases, a noncitizen legal permanent resident may not naturalize until they have been a legal permanent resident for five years. Combine this naturalization requirement with the length of time it often takes for USCIS to act on a naturalization application and there is a risk that many people will be faced with losing their SSI benefits.

In order to combat this risk, USCIS has provided a new procedure that allows noncitizens to expedite the evaluation of a naturalization application for a person whose SSI benefits are about to expire. If you have received a notice from the Social Security Administration (SSA) informing you that your SSI benefits will expire in a year before you apply for naturalization, then you must write “SSI” on the top of your N-400 (naturalization application form). You must also include a copy of the latest letter from the SSA that indicates when your SSI benefits will expire.

If you have already applied for naturalization and receive a notice from the SSA that your benefits will expire within a year, then there is another procedure for informing USCIS. You must send USCIS a packet containing a cover letter (explaining that you have applied for naturalization, your SSI benefits will expire in less than a year and your naturalization application has been pending for at least four months), a copy of your most recent N-400 and a copy of your most recent letter from the SSA indicating that your SSI benefits will expire in less than a year.

Our firm can help you with this somewhat confusing process.  Please give us a call for free information on this important topic by calling 1-314-961-8200.