Saturday, October 24, 2015

Special Immigrant Juvenile Status Findings Made by Virginia JDR Court

A judge in the Norfolk Juvenile and Domestic Relations General District Court granted an order making the findings necessary for a teenage girl to apply for Special Immigrant Juvenile Status (SIJS).  The order will now allow the girls to submit an application to U.S. Citizenship and Immigration Service to become a permanent resident.

Last year, thousand of unaccompanied minors fled Central America to brave the treacherous journey to cross the border into the United States.  This girl, whose father abandoned her before he was born and who was living with her grandmother, was among those unaccompanied children.  Her grandmother had become too ill to take care of her, and she wanted to be reunited with her mother.

Once across the border, she reported herself to the immigration authorities and was taken into detention. Eventually, the Office of Refugee Resettlement became involved and reunited the girl with her mother.

The girl was placed in removal proceedings in Immigration Court. Although she lived in Norfolk, there is only one Immigration Court with jurisdiction over aliens living in Virginia.  That is the Immigration Court located in Arlington.  This meant that the girl and her mother had to wake up early, and leave Norfolk by 4:00am in order to make a 9:00am Immigration Court hearing.

Initially, the case seemed hopeless.  However, more and more immigration practitioners have been using the SIJS provisions of the Immigration and Nationality Act (INA) to help children in similar situations.

The SIJS provisions permit a state court with jurisdiction over juveniles and custody matters to make findings that: (1) the child has legally been committed to, or placed under the custody of, an agency or deparment of a state, or an individual or entity appointed by a state or the court; (2) reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and (3) it is not in the child's best interests to be returned to the child's or parents' home country or country of last residence.

Once the state court makes these findings, the child can then file an I-360 visa petition along with an I-485 application to adjust status to allow USCIS to make the child a permanent resident.

Because the language of the statute requires a finding that reunification with one or both of the child's parents is not viable, this has allowed a parent of a child who entered the United States unaccompanied to apply for custody through the state family courts and then apply for permanent residency for their child, so long as there is evidence that the other parent has been abusive, neglectful or has abandoned the child.  As was the case with the family who appeared before the court in Norfolk, the mother applied for custody and the court made findings that the father had abandoned the child.

This law has been used increasingly by single parents who are present in the United States without legal status to at least help give their foreign born children legal status.

The drawback to this law is that no parent of a child granted SIJS may then use that relationship with the child to apply for their own immigration benefits.  Thus, when a child granted SIJS status eventually becomes a citizen, that child cannot apply for a visa for his or her parents.

By:  William J. Kovatch, Jr.

For an appointment, call (703) 837-8832
Se habla espanol (571) 551-6069

Wednesday, July 1, 2015

Asylum Granted to Woman Escaping Abuse

The Arlington Immigration Court granted asylum to a woman from El Salvador escaping from an abusive relationship. The woman had suffered years of physical abuse at the hands of her partner, who even refused to acknowledge the paternity of their daughter. Cries to her family for help were met with responses such as, "you must have done something to deserve it," and "this is the man you chose to be with for life, you can't leave him."  However, once the woman's father saw the scars and bruises left by the abuse, he changed his attitude and found money to help her make the treacherous journey across the United States border. 

The toughest issue in the case was that the woman had waited more than a year to file her asylum application. U.S. immigration law requires that an asylum petition be filed within one year of entry unless there are changed or extraordinary circumstances. The years of abuse and lack of support from her family had caused this woman to suffer depression, which in turn made her avoidant and reluctant to relive her trauma. Only after meeting a caring man in the United States, who encouraged her to seek help did the woman realize that she could overcome her past and seek legal protection in the United States. 

Now that asylum has been granted, the woman will file a petition to have her minor daughter in El Salvador join her.

Tuesday, April 21, 2015

Victim of Gang Violence Granted Withholding of Removal

The Arlington Immigration Court granted withholding of removal to a young man from El Salvador who had been a victim of gang violence. 

About three years ago, the young man was shot and left for dead when he was unable to pay the quota that members of MS-13 demanded from him for the privilege of living in their territory. The man testified that he was a target for extortion because his father was a former member of the El Salvadoran military. 

U.S. law provides that an alien must be granted withholding of removal if an Immigration Judge finds that it is more probable than not that the alien's life and liberty will be in jeopardy because of race, religion, nationality, political opinion or membership in a particular social group if returned to his or her home country. I this case, the Immigration Judge found that the young man had suffered past persecution because of being an immediate family member of a former military member. 

The young man had presented evidence that the gangs in El Salvador act like a quasi-government, often controlling territory and demanding rent, or a quota, from the people who live there. The gangs have become so dominant, that the El Salvadoran police are unable to provide protection to residents. 

As recipient of withholding of removal, the young man may live and work in the United States.  But withholding of removal does not lead to permanent residency or citizenship. 

By: William J. Kovatch, Jr. 
For an appointment, call (703) 837-8832
Se habla español: (571) 551-6069 

Thursday, January 22, 2015

Immigration Judge Finds Theft of Food and Livestock Does Not Trigger Material Support Bar



In a case that had been pending almost twenty-five years, Arlington Immigration Judge Paul W. Schmidt found that the theft of food and livestock by the FMLN (Farabundo Marti Nation Liberation Front) from the Respondent’s home did not constitute material support of terrorism.  The ruling paved the way for an El Salvadoran man, who had escaped his country’s civil war, to receive permanent residency in the United States.

The Respondent, who fled El Salvador in 1988 when he found a bomb in front of his house, had been attempting to obtain some form of immigration relief since 1990, when he filed his first asylum application.  His most recent attempt was through an application through the Nicaraguan Adjustment and Central American Relief Act (known as NACARA), which permits, among other things, certain Central Americans who have been present in the United States since the early 1990s to adjust to permanent residency, provided they can show good moral character and extreme hardship if returned to their home country.

Eligibility for immigration relief, however, is often not enough.  Rather, those who meet the eligibility requirements must still show that they are admissible under U.S. Immigration law.  One ground of inadmissibility applies to those who have provided material support to a terrorist organization.  This is called the material support bar.

U.S. courts have upheld a broad interpretation of the material support bar made by the Board of Immigration Appeals.  The material support bar can be triggered, for example, merely by providing food and directions to a group that the U.S. Government labels as a terrorist organization.  The text of the statute itself provides for no exception to the material support bar even if the support was given under duress.  Thus, a credible threat of immediate death may not excuse someone who has given food to a group labeled as terrorist.

In the Respondent’s case, he testified that twice the FMLN came to his home and took food and livestock.  The first time, they took about twenty tortillas.  The second time, they took one of his animals.  The Respondent did not stop the FMLN because he feared that he would be killed.  Because the U.S. Government labeled the FMLN a terrorist organization, U.S. Immigration and Customs Enforcement argued that this triggered the material support bar in the Respondent’s case.

In a written opinion, Judge Schmidt ruled that it did not.  Citing an unpublished Board of Immigration Appeals case, the Immigration Judge found that in order to be material the support has to be active.  The fact that the FMLN stole food and livestock from the Respondent, therefore, did not constitute material support.  The Judge granted the Respondent his NACARA application, paving the way for him and his minor daughter to become permanent residents.

By: William J. Kovatch, Jr.
Call now for an appointment:
(703) 837-8832
(571) 551-6069 (ESP)