Understanding U.S. Immigration Laws: Tips and Insights

September 2014

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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International Travel Rules

Author: New York Immigration Attorney Alena Shautsova

US citizens and permanent residents, as well as asylees who hold valid Travel Documents have to be aware that different countries have different rules regarding entry and exit documents during international travel.

For example, when a person leaves the US, the person does not have to go through exit passport control, which exists in most countries of the world. Such exit passport control verifies if a person who visited the country was there legally, and if there was a violation of the internal laws, the person may have to pay fines and penalties before he/she exists the country, even if he/she is a US citizen.

It means that somebody who holds valid US entry documents, may still not be able to leave a foreign country if the laws of that country were violated.

To enter the US, a person has to be in possession of a valid US passport, or a valid passport of the foreign country and a US permanent resident card; or of a valid Travel document issued by the US; or an advance parole; or a valid passport and a valid US visa… The rules for entry documents for those who are coming to the US can be found here: https://help.cbp.gov/app/answers/detail/a_id/572/~/entering-the-u.s.—documents-required-for-foreign-nationals-%28international.

Holders of the US issued asylee Travel documents usually must obtain visas before entering foreign countries. However, there are countries that allow US asylees to enter without a visa: Germany, Panama, and Costa Rico do not require visas for those who hold US issued asylee Travel document. Please note that rules may change, and independent verification is required before travelling to these countries. US asylees should also remember that they may not use any other documents for international travel, except for the US issued travel documents.

Further, in case of expired US issued travel documents, if the documents expired recently, and their holder had a good reason for not renewing the documents in time, US authorities may help to enter into the US. For example, a boarding foil may help a holder of the expired permanent resident card to come back home to the US. An advance parole may help to return those who left the country without prior due authorization, but have a right to come back to the US.

Asylum For Victims of Domestic Violence

Author: New York Asylum Attorney Alena Shautsova

A person may successfully seek asylum in the US if he/she can demonstrate that the asserted claims are based on political opinion, religious beliefs, race, nationality or membership in a particular social group.

This last category is the most open one for interpretation. In the past, it has been recognized that members of the same family may constitute “particular social group.” In recent cases, BIA and Federal Court clarified the legal analysis that the courts should be using in determining whether a certain organization or a group of people can pass the test for asylum- worthy social group. For legal analysis of social visibility standard see: PLEASE POST on the website SOCIAL VISIBILITY DOCUMENT ATTACHED

For years, victims of domestic violence who escaped their abusive societies and families had hard time showing that they are entitled to the protection of the US laws. In case of an abuser being a US citizen or permanent resident, the laws would allow such persons to use a U visa or VAWA self-petitions. Asylum applicants, however, often were met with a denial and explanations that their claims did not fit into the International and US asylum law system.

However, in the recent BIA decision Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) it was held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012). The BIA notes, however, that fact specific analysis is required in each case to determine if a person’s claim can be interpreted as the one worthy of consideration. Please note that the definition of the “group” in this case was carefully crafted by the attorneys, because the group cannot be defined by the fact that the applicant is subject to domestic violence. See Matter of W-G-R-, 26 I&N Dec. at 215 (noting that circuit courts “have long recognized that a social group must have ‘defined boundaries’ or a ‘limiting characteristic,’ other than the risk of being persecuted. As such, for a lay person who found himself/herself in a terrible situation and is applying for asylum, it is almost impossible sometimes on his/her own to present a winnable claim.

It is not enough to present the facts and evidence of one’s case; one’s claim must also be recognizable by courts and be based on the recent case law developments.

Please also see Asylum TIPS: AVOID NOID! (see attached)

Discovery in Employment Discrimination Cases

Author: New York Employment Discrimination Attorney Alena Shautsova

Majority of employment discrimination cases are filed in Federal courts, and hence the disclosure of the information by the both sides would be governed by the Federal Rules of Civil Procedure. Sometimes, a question of whether to file a case a state or federal court is a strategic one, as there are difference in statute of limitations; preferred forum; case law; and, of course, rules of evidence. Attorneys choose the filing forum, mostly, based on availability of attorney’s fees and statute of limitations.

After the parties exchanged pleadings, a stage of the case called discovery comes into play. Discovery is very important as it helps both sides to understand the case better, and often leads to settlements. In Federal courts, there is something called an automatic disclosure: basic information about the case that parties must exchange, often prior to the initial court conference. Then, the parties exchange discovery demands which usually consist of interrogatories (written questions that must be answered under the oath) and document demands.

While a party in federal court may pose only 25 written questions to its opponent; the state courts do not have such limitations. There is no limit for document demands in either state or federal court.

Discovery should be tailored so that an asking party has an opportunity to clarify certain issues of her claim. A plaintiff in an employment case would probably want to see her personnel file together with the managers’ notes; records of similar employees who were or were not disciplined for the same actions; records of the company’s anti-discriminatory trainings; records of the company’s efforts to resolve the issues the plaintiff complained about (such us records of internal investigation)… The defense is usually seeking documents proving damages and mitigation of damages; as well as records of engagement in a protected activity: copies of employee’s previous complaints.

It is important to know that now all the information requested will be disclosed. It is so because the laws protect privacy and confidentiality of both sides of the process and limit discovery to relevant information.

In a state court, discovery stage may take years; in a Federal court it is usually controlled by a Magistrate judge and often is finalized within a year.

One of the main stages of the disclosure is examination before trial or depositions: verbal questions under oath with the court reporter present that opposing side through its counsel is asking the other side. Depositions play the key role in the discovery process: it is the first time the attorney for the opposing side may speak with the witness (even though with limitations) and may actually get a feel of the witness’ personality and candor. Questions at the depositions should be crafted carefully. For example: a question such as “What did your attorney tell you regarding this matter?” cannot be posed at all, and the witness have to decline answering it if it did, because communications between a client and an attorney are protected by the privilege. At the same time a question like “Did you consume any alcohol within the past 24 hours?” should not be regarded as offensive and is permissible because it helps to clarify if the witness’ ability to testify is impaired.

Discovery closes in a state court with filing of the note of issue and in federal court with pre-trial order.