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Separate and New Immigration Courts advocated by Lawyers

02/08/2010
VIA NY Times


The American Bar Association called for an overhaul of the US Immigration Court system, citing immense backlogs and an “an overwhelmed system choked by an exploding caseload”

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CA4 Holds Immigration Judge’s Finding of 10% Risk of FGM Based on Speculation

Via AILA

Haoua v. Gonzales, (4th Cir. Jan. 5, 2007)

The IJ’s finding that Petitioner was at 10% risk of FGM
if returned to Niger was necessarily premised on speculation and
conjecture, in that there was no evidentiary basis for it. The IJ’s
finding regarding relocation was specifically predicated on the 10%
finding and, therefore, was also not supported by substantial evidence.

Petitioner, a citizen of Niger, sought asylum, withholding of
removal and Convention Against Torture (CAT) protection based on her
fear of female genital mutilation (FGM). She stated that her parents
had arranged for her to marry the elderly chieftain of a nearby village
and that in keeping with the customs of the Hausa, the ethnic group of
which she is a member, she would be forced to undergo FGM before
marrying the chieftain. Upon hearing this and being unable to deter her
family from enforcing the marriage agreement, Petitioner returned to
the United States, where she had been studying. Upon her return,
Petitioner learned that a wedding ceremony had been conducted in her
absence. She also was informed that her family had accepted a large
dowry as consideration for the marriage arrangement. Petitioner decided
that she could not safely return to Niger and sought asylum.

At her hearing Petitioner submitted a State Department report which
indicated that one in five Nigerien women is forced to undergo FGM and
that the practice persists despite a law criminalizing it. She
testified that her ethnic group continues to practice FGM and that the
government’s efforts to suppress FGM have been ineffective in rural
areas. The immigration judge found Petitioner to be credible, but found
that she had only “at least a 10 percent change” of suffering FGM. The
IJ also found the internal relocation was a feasible alternative for
Petitioner given her level of education and support she received from
her uncle who lived in the capital. The IJ then determined that because
Petitioner had a reasonably available internal relocation alternative,
that alternative overcame her 10% fear of persecution. The IJ,
therefore, denied asylum. The IJ also denied withholding of removal,
finding it highly unlikely Petitioner would suffer FGM in light of her
ability to relocate. Lastly, the IJ denied CAT relief finding that she
was unlikely to suffer FGM and that if she did, it was not with the
acquiescence of the Nigerien government. The BIA affirmed the IJ’s
decision without opinion.

On review, the Fourth Circuit began its decision by noting that FGM
constitutes persecution. The court further found that the IJ’s 10%
finding was not supported by substantial evidence. The court noted that
even the Attorney General conceded this point at oral argument and that
the concession was consistent with the evidence, including Petitioner’s
testimony which was deemed credible by the IJ. The court held that the
IJ’s 10% finding was premised on speculation and conjecture and that
there was no evidentiary basis for it.

The court rejected the government’s argument that the IJ’s finding
that Petitioner could reasonably relocate within Niger was an
independent basis for denying asylum. The court held that the IJ’s
finding regarding relocation was predicated on the 10% finding and,
therefore, was not supported by substantial evidence. The court also
found that the IJ erred in denying withholding of removal because the
denial was also based on the erroneous 10% finding.

Lastly, the court upheld the IJ’s CAT denial, noting that Petitioner
did not challenge the IJ’s independent basis for denying CAT, namely
that the FGM would not be with the consent or acquiescence of Nigerien
government officials.

The petition for review was granted in part and denied in part. The
case was remanded to the BIA for further proceedings as may be
appropriate.

Ancient ice shelf breaks free from Canadian Arctic

12/29/2006

At first glance, this CNN article which describes a giant ice shelf the size of 11,000 football fields breaking free from Canada’s Arctic may not appear related to immigration.  However, pollution, global warming, and related environmental pressures will contribute to a massive worldwide reduction in habitable land due to factors such as increased ocean levels.  This will result in overpopulation and and an exponential increase in immigration to countries like the US, Canada and Australia in the next two to five decades.  I forsee the creation of new categories for environmentally displaced refugees in US Immigration Law unless something is done to combat pollution and global warming immediately. 

Therefore, even anti-immigrationists in the US and Australia should seriously consider driving hybrids and the ratification of the Kyoto Protocol.

Senator’s wife in hiding after deportation threat

Via CNN.com
12/05/2006

ATLANTA, Georgia (AP) — State Sen. Curt Thompson has been a
strong advocate of immigration rights, once speaking in Spanish from
the steps of the Georgia Capitol against the adoption of some of the
nation’s strictest immigration controls.

Now Thompson’s Colombian-born wife is in hiding as federal immigration officials try to deport her.

Sascha
Herrera, 28, has been in hiding since Immigration and Customs
Enforcement officers arrived at her home November 28 with an order to
remove her from the U.S. She was not home at the time.

Her
attorney, Charles Kuck, claims she was duped by a man handling her
immigration requests and that she never received the immigration
notices that triggered her deportation order. While Kuck says neither
he nor her husband know where Herrera is, he said that she will turn
herself in Tuesday.

“It’s the right thing to do. She needs to get the law to work for her,” Kuck said.

Kuck
filed a petition Monday to halt her deportation order and reopen her
case, arguing that a man filed an asylum petition on her behalf without
her knowledge and before her husband sponsored her green card
application based on their April marriage.

The deportation order
stems from Herrera’s repeated failure to appear before a judge on the
asylum application, which Kuck said she did not know had been filed.

The
case hinges on whether Herrera received a notice to appear in court,
and whether the asylum application could have been filed without her
knowledge, said Victor Cerda, former general counsel for Immigration
and Customs Enforcement.

According to Kuck, Herrera came to the
U.S. — where her parents have been living — on a visitor visa in
2003. She applied for an extension to the visa through a “notario” — a
man who claimed he was qualified to handle legal immigration matters –
but did not get it until 20 days before the extension was due to expire.

The
notario then suggested an asylum application, which Herrera signed, but
she got a “bad vibe” from the man and decided not to proceed, Kuck said.

Later
in 2004, she was accepted as a student at Kennesaw State University,
which earned her a student visa. She then told the notario she did not
want anything to do with him.

She met Thompson last year and they
got married in April, when he applied for her to become a permanent
resident. Kuck said Herrera’s husband, a Democrat and attorney, would
not comment on the case.

But in the meantime, the notario filed
the asylum application, listing his address as hers. A telephone number
listed for the notario, identified as Tomas Vilela, was being answered
Monday by a fax machine.

Cerda said the deportation order in the
asylum case would trump any pending green card application and trigger
mandatory detention.

Her decision to hide could hurt her request
for a judge’s stay on deportation, Cerda said. If she turns herself in,
she could remain in the U.S. while her petition is pending, either in
jail or released on bond.

New Process for Issuing Employment Authorization Documents to Asylees

USCIS Public Notice
09/14/2006

Beginning October 1, 2006, the U.S. Citizenship and Immigration Services (USCIS) Asylum Division will implement a new process nationwide for issuing secure Employment Authorization Documents (EADs) to applicants who are granted asylum by a USCIS Asylum Office. Under existing regulations, asylees are eligible to work in the United States incident to their asylum status. Previously, USCIS Asylum Offices issued provisional Form I-688B cards evidencing employment authorization to asylees interviewed at a local Asylum Office on the same date they received their asylum approval letters. Those who were interviewed at an Asylum Office circuit ride location (usually a USCIS District Office) were instructed to return to the District Office to receive their I-688B cards. The I-688B card was issued with a 1-year validity period. Under the new process, asylees will receive in the mail the standard, more secure Form I-766 EAD card in the mail within seven to ten days after the date they are issued their asylum approval letters. The Form I-766 EAD will be issued for a 2-year validity period. This will provide most asylees sufficient time to apply for and receive adjustment of status before the validity period of the EAD expires. In March 2006, the Asylum Division successfully tested this new EAD issuance process in the Arlington Asylum Office during a pilot program and will implement the program in all Asylum Offices throughout the nation by October 1, 2006.

Q: Why is USCIS changing the process for issuing asylees EADs?

A: Changing the process accomplishes several USCIS objectives, including enhancing security, customer service, and efficiency in case processing. This change allows USCIS Asylum Offices to issue more secure documents, as the I-766 is more resistant to tampering than an I-688B. Issuance of the I-766 also offers greater convenience for asylees by providing a more widely circulated and recognizable employment authorization document. Issuance of I-766 EADs also contributes to the agency’s goal of relying increasingly on secure means (in this instance, biometric images from the I-766) to verify the status of non-citizens for various purposes, including those asylees hired by employers who are participating in the Basic Pilot employment verification program or a parallel program that verifies status of non-citizen benefit applicants for certain Federal, state and local agencies. While both cards are free of charge, the I-766 for asylees will be issued with a 2-year validity period. The I-688B has been issued for only a 1-year validity period because it is not as secure a document at the I-766. With this extended validity period and the recent elimination of the 10,000 cap on asylee adjustments, it is expected that most new asylees will be able to apply for and receive adjustment of status to lawful permanent resident before their initial EADs expire, which would save asylees the cost of the service fee associated with renewal of EAD cards. Finally, efficiencies in case processing are gained by generating the I-766 through a computer-automated process rather than through the more labor intensive process of generating I-688Bs. In addition, requiring asylees to have secure EADs contributes to theagency’s increasing ability to electronically verify the status of noncitizens for various purposes, such as those who are hired by employers who are participating in the Basic Pilot employment verification program or the similar program that verifies status of noncitizen benefit applicants for certain Federal, state and local agencies.
This change does not modify in any way existing USCIS Asylum Office procedures to issue to asylees approval letters and stamped I-94 Arrival-Departure Records evidencing asylum status, which may be used to obtain a social security card.

Q: How is the new process for obtaining EADs different from the previous process for obtaining EADs?

A: Previously, most applicants who were interviewed at a local Asylum Office and granted asylum received the Form I-688B EAD free of charge on the same day they returned to the Asylum Office to pick up their decision. On that day, the applicant’s biometrics (i.e., fingerprint, photograph and signature) were taken at the Asylum Office and then used to manually create a laminated I-688B card on site at the Asylum Office. Those applicants who were interviewed at a circuit ride location and received notice by mail that they had been granted asylum were instructed to go to the local USCIS District Office where the I-688B was produced and provided to the asylee on the same day. The I-688B cards were valid for a period of one year.
Unlike the I-688B, the I-766 is mailed directly to the asylee’s residence within seven to ten days after the date they are issued their approval letters. The I-766, which is also free, is automatically generated using the applicant’s fingerprint, photograph, and signature, which are captured as part of the required fingerprinting process at the USCIS Application Support Center (ASC) and stored in a database. The I-766 for these asylees is valid for a period of two years.

Q: To whom does this new EAD process apply?

A: The new EAD process will apply to asylees (both principals and dependents included in the asylum application) who were granted asylum through the affirmative asylum process, which takes place in front of a USCIS Asylum Officer. These asylees also must have biometrics on file with USCIS in order to have an EAD card produced through the new process.
Note: Applicants granted asylum by an Asylum Office are eligible for the 2-year I-766 regardless of whether they have been previously issued an EAD based on a recommended approval or a pending asylum application.

Q: To whom does this new EAD process not apply?

A: Because this new process is being implemented at USCIS Asylum Offices and will be used for only those asylees who were granted asylum by USCIS, the new EAD process does not apply to:
1. Asylee following-to-join cases (beneficiaries of an approved form I-730).
2. Applicants granted asylum by an immigration judge or the Board of Immigration Appeals within the Executive Office for Immigration Review (EOIR)
3. Applicants granted asylum by a federal court judge.
Asylees following-to join should submit a form I-765 to the appropriate Service Center as indicated in the form instructions, and the secure I-766 EAD card will then be sent to the asylee in the mail. Individuals granted asylum by EOIR or a federal judge should continue to make their appointments with the local USCIS District or Sub Office to begin immediate processing for an EAD. See post-order instructions for obtaining documentation at http://www.uscis.gov/graphics/lawsregs/PostOrderInstr.pdf. The USCIS District or Sub Office will confirm the asylee’s final EOIR order, biographic information, and address and initiate production of the secure EAD (I-766), with a 2-year validity period, through an automated process. In some cases, it may be necessary for the District or Sub Office to instruct the EOIR-granted asylee to provide biometrics for card production. If so, USCIS will provide an ASC appointment promptly. The asylee will then receive the EAD in the mail within 7 to 10 days. The I-688B EAD will no longer be issued at the District or Sub Offices to EOIR-granted asylees because it is being discontinued. District and Sub Offices will continue to issue asylees in the three categories listed above stamped I-94 Arrival-Departure Records evidencing asylum status.

Q: Can asylees granted by an Asylum Office use this new process for renewals, replacements, or extensions of EADs?

A: No. Under the new process, as under the old process, Asylum Offices will not issue renewals, replacements, or extensions of EADs. Instead, all asylees must apply for a renewal, replacement, or extension by submitting a Form I-765, Application for Employment Authorization Document, to the Nebraska Service Center and paying the applicable fee.

Q: How will asylees be told about
the new EAD process?

A: The Asylum Office will verbally inform asylees who receive their grant letters in person of the new procedures and provide written information that summarizes the process of obtaining an EAD. Applicants who will receive their approval letters in the mail, generally those who are in valid status and those interviewed at a circuit ride location, will be informed of the new procedures in a packet of information included with the asylum grant letter, sent via the mail.

Q: How will the asylee be able to receive the I-766 if he or she has a change of address after the asylum interview?

A: Asylees who receive their grant letters in person at the Asylum Office will be asked that same day to verify that the address the office has on file is correct and the office will update the address if it is not correct. Within seven to ten days after the decision issuance, the asylee will receive the I-766 at any updated address provided. For asylees who are to receive their decision in the mail, prior to mailing the decision, Asylum Office staff will check the databases for the most recent address on file to ensure that the decision and the I-766 is mailed to the correct address. It is imperative that asylum applicants comply with the law and report changes of address to the Department of Homeland Security and the local Asylum Office within 10 days of the change.

Q: What if an asylee does not receive his or her card in the mail?

A: If an asylee granted by a USCIS Asylum Office does not receive the I-766 within fourteen (14) days of the issuance of asylum approval, the asylee should contact the local Asylum Office, per the instructions contained in the approval letter packet.

Kirkland family’s American dream a step closer

Via Seattletimes.com

Ayoob Siddick picked up his cellphone Wednesday afternoon to hear
the news he’d been waiting for after nearly six months of frayed nerves
and sleepless nights.

An immigration judge in Seattle granted asylum in the U.S. to the
Kirkland resident; his wife, Amida; and their four children. They will
not be deported to their native Zimbabwe, where the family feared they
would face persecution or worse.

“I feel as if I’ve been fighting this great war, and now I’m
victorious,” Siddick said. “We are taking time to reflect on everything
that has happened in the past and all the people who have rallied
around us and have never faltered.”

The family, which is buying a home near Mill Creek, moved to
Kirkland five years ago to escape what they described as turmoil and
widespread government corruption. The Siddicks had been fighting for
asylum since 2003, when their first application was denied because the
family had not applied for asylum status within one year of arriving in
the U.S., as the law requires.

In March they appealed that decision and faced an immigration judge
in Seattle to explain why they feared persecution if they returned to
Zimbabwe. In her ruling Wednesday, Judge Victoria Young agreed that the
Siddicks could face persecution.

The Siddicks were members of the Movement for Democratic Change
(MDC), the opposition party to the government’s ruling party, and
members of the MDC have been arrested without cause, tortured and
killed, according to the State Department’s 2005 Country Reports on
Human Rights Practices, released in March.

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Immigration judge off bench while broader U.S. review continues

Via Phillyburbs.com

PHILADELPHIA – One U.S. immigration judge is
off the bench and others could follow in the wake of blistering federal
court rebukes about the treatment of asylum seekers.

Donald V.
Ferlise has been replaced on the court calendar in Philadelphia while
the U.S. attorney general conducts a nationwide review of immigration
judges, who decide who can stay in the United States to avoid turmoil
in their homelands.

Several of the
judges have been the subjects of angry appellate court rulings. In
Ferlise’s case, the increasingly strident 3rd U.S. Circuit Court of
Appeals took aim at his demeanor.

“Yet once
again, under the ‘bullying’ nature of the immigration judge’s
questioning, a petitioner was ground to bits,” U.S. Circuit Judge
Maryanne Trump Barry wrote in a ruling this spring.

In rulings that
were overturned in recent years, Ferlise denied asylum to the nephew of
a deposed Gambian president, to a Pakistani woman whose father was
killed in sectarian violence and to a young Ghanian woman who said her
priest-father held her as a sex slave.

Ferlise denied
even the formality of a hearing for a Jordanian college student who
failed to register under a post-Sept. 11, 2001, program for men from
mostly Muslim countries, saying he had already decided the case.

Ferlise, 62,
did not return calls to his home and Philadelphia office this week. His
lawyer, Ralph Conte, said Ferlise remains employed by the Executive
Office of Immigration Review.

Local immigration lawyers say Ferlise stopped hearing cases a few weeks ago.

William Stock,
who heads the Philadelphia chapter of the American Immigration Lawyers
Association, said Ferlise was “deeply untrusting” of testimony from
asylum-seekers.

“He had a very
hard time finding a lot of people credible,” Stock said. “I think, too,
a lot of his decisions seemed to reflect that he had a very limited
experience of the world.”

The Justice
Department supervises about 215 immigration judges around the country
who oversee the nation’s teeming immigration courts. The department
called Ferlise’s job status a personnel matter and would not say if he
will return to the bench. The Executive Office of Immigration Review
also declined to say if other judges have been disciplined since
Attorney General Alberto Gonzales began a review this year.

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