The purpose of this blog is to share interesting results in cases that Immigration Paralegal Services LLC (IPS, LLC) has assisted on, working under the direction of licensed attorneys.
It is important for us to state this clearly and unequivocally: our clients are licensed U.S. immigration attorneys in need of contract paralegal support. We do not, will not, cannot, and never have assisted the general public on matters of law, immigration law or otherwise. Our services are available only to licensed attorneys, who are the ones providing legal advice and services to their clients.
We take this distinction and responsibility very seriously. Nothing in this blog, or website, should be construed as legal advice. This blog merely discusses aspects of immigration legal cases that its author finds interesting.
If you would like to learn more about what we do, please email us at: firstname.lastname@example.org or call us at: 248.268.2615.
BIA Remanded Asylum Appeal
We worked on a case where an applicant from El Salvador sought asylum based on the Particular Social Group (PSG): “Salvadoran women who are viewed as property and subordinate to men; who cannot leave their marital or partner relationship because their spouses or partners are members of an organized criminal gang group.” At the lower level, the Immigration Judge denied the application for asylum based on the fact that the Respondent did not demonstrate that she was not married to her partner—they had been dating for one year.
The attorney wanted us to prepare an appeal brief that showed that marriage was not necessary to demonstrate a domestic relationship. On appeal, we made some persuasive arguments and the BIA agreed with us and held that the fact that the Respondent was not married, and for one-year only dated her abuser, did not disqualify Respondent from establishing a sufficient relationship to demonstrate that she was a victim of domestic violence. The case was remanded to immigration court and Respondent was subsequently granted asylum!
We received calls from multiple attorneys shortly after the United States Supreme Court issued an opinion on Pereira v. Sessions, 138 S. Ct. 2105 (2018). Each attorney wanted to know the exact same thing: can we assist them in using Pereira to challenge to the legitimacy of Notices to Appear (NTAs) issued by DHS?
Several of those attorneys wanted us to write motions and BIA appeals using Pereira to challenge NTAs. Over the last several months, we have developed and refined our arguments in this matter, filing several motions/appeals to terminate proceedings based on insufficient and defective NTAs. We have also crafted arguments rebutting the BIA’s decision of Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), a case that both DHS and the BIA have begun to rely on. The BIA’s reasoning in this case directly conflicts with the U.S. Supreme Court’s decision in Pereira, which we explain in pertinent detail.
Some Immigration Courts have granted attorneys’ Motions to Terminate proceedings following the briefs we have written for them.
EOIR-42A Case w/Aggravated Felony and Possession of Controlled Substance.
One of our more challenging assignments came from an attorney in the 7th Circuit. He wanted a brief that argued that his lawful permanent resident (LPR) client’s felony offense of possession of cannabis (30-500 grams) did not constitute an aggravated felony under the INA.
After hours of research, we found enough support in case law to argue that although Respondent’s conviction was listed as a felony within the state of residence, such conviction was not classified as an aggravated felony under the immigration law. We located a couple of case law examples from Respondent’s own circuit (7th) which stated that although alien’s possession of controlled substance exceeded the 30-gram limit, it can still fall within the “ambit of personal use.” Using this legal research, we wrote a very persuasive pre-hearing brief for the Immigration Judge. The LPR was not ordered removed and was granted the sought relief (EOIR-42A).
I-601A Case of Mistaken Identity
One of our more unusual assignments involved the mistaken identity of an applicant for a provisional unlawful presence waiver. The attorney hired us to draft a “brief” for USCIS demonstrating that his client was not the person of that mistaken identity. The attorney’s client applied for a Provisional Unlawful Presence Waiver (I-601A); he was denied by USCIS because the Service believed that he was not forthcoming in his application. The USCIS database returned information that purported to show that client had unlawfully entered the US on more occasions than what he stated in his Application.
Upon thorough review of the record documents, we discovered that the USCIS database had mistakenly combined two separate individuals with very similar names and birthdates. The attorney resubmitted the I-601A application with our brief that explained the mistaken identity and applicable case law. The USCIS reversed its previous decision and granted the provisional unlawful presence waiver.
Successful AAO Appeal on Marriage Fraud
The USCIS denied the I-130/I-485 (green card) application of an immigrant who is married to a U.S. citizen, based on an allegation that his first marriage to another United States citizen was a sham. The attorney planned to file a form I-290B, Notice of Appeal, to the Administrative Appeals Office (AAO) at USCIS, and asked for IPS LLC’s assistance.
We immediately noticed a flaw in the Government’s argument. Among other things, USCIS’ decision relied heavily on an affidavit from the Beneficiary’s first spouse, in which she claimed she had no knowledge of petitioning for his green card. However, government records also showed that the wife had appeared in person at a USCIS office with her husband for his adjustment of status interview. We wrote, and the attorney agreed, that it “defies logic” for the wife to have attended this appointment but have no knowledge about why she and her husband were there.
We located relevant case law research arguing that “self-serving affidavits are suspect, especially if there is no supporting documentation.” We also pointed out that the government must have actual, “substantive and probative” evidence of fraud in order to deny the application based on that reasoning. Instead, the Government was taking into account what was “missing” from the file.
This couple entered into their marriage with good intentions, but quickly realized they were ill-suited and decided to live apart. The important aspect is their state of mind and commitment at the time the union, not whether it succeeded or not.
Quoting a particularly relevant point from a U.S. Court decision, the brief stated: “Aliens cannot be required to have more conventional or more successful marriages than citizens.” Months later, the attorney wrote to let us know that the appeal had been granted.
I-290B Granted by USCIS
The USCIS unfairly denied an I-485 (green card) adjustment of status application for a woman who was married to a U.S. citizen battling chronic substance abuse. An attorney brought us in to assist with the case.
Drug addiction can make even the most loving person do irresponsible and unexplainable things. In this case, the Petitioner’s substance abuse problem was so intense that he ended up missing his wife’s Adjustment of Status interview. His wife, however, attended the AOS interview. We quoted a 9th Cir. decision which stated that while “the regulations do not explicitly require the spouse to appear or testify on the alien’s behalf, as a practical matter, the INS[DHS] often requests the attendance of both the alien and the spouse at the initial adjustment interview… under the statutory and regulatory scheme governing INS interviews, a good cause may apply to excuse the alien’s or the petitioner’s absence and the interview may be rescheduled.”
In the adjudication process, sometimes the Government goes beyond the legal question it is required to determine—in this case, was the marriage a bona fide marriage at the time it was memorialized—into passing judgment on other aspects of the couple’s lives. That is exactly what happened in this case.
Working with the attorney, we wrote a brief pointing out that several appeals courts have found that physically living apart is not the same thing as a legal separation or the dissolution of a marriage. And the dissolution of a marriage, in and of itself, is not evidence that such marriage was entered into fraudulently.
Practically-speaking, living apart may be a step toward divorce for some couples, but for others it is a step toward individual healing and, ultimately, a stronger marital union. In fact, the U.S. Citizen at issue in this case was holding tightly to his relationship with Petitioner as one of the remaining life-lines he had in battling his disease.
The attorney presented these arguments to USCIS and the motion was granted.
I-601 Waiver with Criminal Record Granted
A U.S. citizen’s husband was deported to his native country. His wife began the process to reunite with her husband in the United States and retained the services of an expert lawyer who contracted with IPS, LLC for support.
At issue was a controlled substances conviction her husband had received while living in his native country, and whether such a record would make him “inadmissible” to the United States. Working with attorneys, we explained that the law provides for a waiver of the relevant “grounds of inadmissibility,” when such conviction represents “a single offense of simple possession of 30 grams or less of marijuana.” See 8 U.S.C. § 1182(h).
At issue in this case was the fact that the penal system in the husband’s native country did not quantify amounts of drugs the way the U.S. system does. Using the information in the record, the USCIS could not prove that the “30 grams or less” exception had been violated. But the lawyer’s client also could not prove that the opposite.
I suggested to the lawyer that the clients go back to the court of adjudication on the husband’s criminal offense and try to obtain more facts. Delving deeper into the husband’s case, the foreign court issued an amended conviction which explained the level of offense in “more American” terms. The client had actually possessed 9.8 grams of marijuana, far less than that 30 grams that would have disqualified him from the waiver of inadmissibility.
Based on this diligence, the client and lawyer were able to respond powerfully to the Request for Evidence issued by USCIS in this case, and the I-601 “Application for Waiver of Grounds of Inadmissibility” was granted, setting in motion this family’s reunification in America.
Mexico Asylum Claim Granted by IJ– 10th Circuit
While individuals from Mexico represent one of the largest groups of people applying for asylum in the United States—both in “affirmative” and “defensive” postures—the percentage of successful asylum applications from Mexico is fairly low. Over the last three years for which the government reported data, grant rates for Mexican asylees in the United States averaged just 3.6%.
A lawyer contracted with IPS, LLC to provide paralegal assistance in preparing his case for a detained Mexican asylum-seeker. The man was targeted by a criminal cartel for being the relative of a police officer who refused to work for this drug operation. The cartel had specifically threatened this police officer’s family.
In researching and writing the draft brief, we identified case law that directly responded to the various tests of this asylum applicant’s qualifications for the benefit, including the immutability, particularity, and social distinction/visibility of his Particular Social Group.
The application was granted. In advising IPS of the successful outcome, the attorney wrote: “I would like to extend my warmest gratitude for all your help. Thanks to your professionalism, and prompt delivery our client was granted asylum because of your excellent workmanship. I truly look forward to working with you in the near future.”
IPS cherishes the successful outcome of many of the cases we work on. Equally important, however, is the satisfaction of our clients—the attorneys—and messages like these are proof that we are doing our job well.
Grant of an EOIR-42A with Firearm Conviction
An LPR who had lived in the United States for over three decades was about to lose his permanent residence status—which he had held for more than twenty years—due to a single conviction for possessing an unlicensed firearm. His lawyer was seeking cancellation of removal in Immigration Court and IPS assisted with preparing the case.
The Government was alleging that this man was an “Aggravated Felon,” a term with a specific legal definition located in the Immigration and Nationality Act. The Respondent’s criminal offense was entered by a state court, and every state assigns different levels of “punishment” to criminal offenses. In order for this offense to lead to Respondent’s deportation, the elements in the state statute would have to match the federal definition for a deportable offense. Recall that he was a green card holder and not deportable for any additional reason.
IPS researched the state criminal code and compared it to the federal statute. We found and argued that the offense was clearly not an Aggravated Felony under U.S. immigration law. Of course, our brief also stressed the other qualifications Respondent had that made him eligible for cancellation of removal, but the fact that he was not actually deportable was paramount.
Cancellation of removal was granted.
I-212 Waiver, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, within a Month
A mother of three U.S. citizen children was subject to an outstanding deportation order that she had received while she herself was a minor child. She had immigrated to the U.S. at a young age, while she was under the care and direction of her parents.
As an adult, this woman tried several times to reopen her original case, but such applications were denied. After 2012 she was able to obtain DACA status, but still lived under constant fear of deportation.
Her husband was also afraid of her deportation to the country that he had fled. His asylum case in the United States had been granted due to his persecution in that country, and he would not be safe having to return there in order to maintain family unity.
The family’s lawyer from within the 6th Circuit jurisdiction contracted with IPS, LLC for support in their I-212 waiver application: permission for the wife to reapply for admission into the United States after being ordered deported or removed.
We prepared a strong draft brief delineating all of the wife’s equities, the hardship on her family if she were to be deported, and the relevant country conditions that would make her life in her native country—and particularly that of her spouse, who had been granted permanent protection from this nation—unbearable. The waiver was approved within one month of filing.
BIA Remanded Motion to Reconsider
An immigrant who had been previously deported and then re-entered without inspection was seeking to have his original case reopened. He is married to a U.S. citizen and they have American children together.
The immigrant had been ordered in absentia, as he had not received notice of this hearing. It was finally carried out after the man had subsequent contact with immigration officials. Due to the prior deportation order, this removal occurred within twenty-four hours of coming into contact with ICE. The man had no opportunity to challenge it or attempt to seek review of his original case.
The man’s attorney filed a Motion to Reopen in Absentia, Motion to Reopen based on Ineffective Assistance of Counsel, and Opposing Motion to Terminate Removal Proceedings with the Immigration Court. The Immigration Judge denied all three of his motions. Respondent filed a Motion to Reconsider, but the Immigration Judge affirmed the decision.
In assisting with the BIA appeal, we wrote a draft brief for the attorney that persuasively explained that the Immigration Judge had failed to provide a rational explanation when denying the three motions. We quoted language from a judicial body: “The denial of a motion to reopen or reconsider a removal order is reviewed for an abuse of discretion. An abuse of discretion can be shown when the Immigration Judge (IJ) offers no rational explanation, inexplicably departs from established policies, or rests on an impermissible basis…”
With regards to lack of notice arguing MTR in absentia, we argued that IJ erred in not considering properly served notice of hearing vs. receipt of notice when considering Motion to Reopen. We argued, and the lawyer agreed, that with motions to reopen based on lack of notice the issue is not notice but receipt because the statute allows an alien ordered removed in an absentia proceeding to reopen the proceeding if he did not receive notice even if the notice that was sent.
The BIA agreed with the arguments contained in the brief, and the case was remanded back to the Immigration Court for a new hearing. We thank the lawyer for hiring us to assist with this challenging and successful BIA appeal.