Positive Immigration Updates: Good News from USCIS December 2015

December 2015

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

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“Be the change that you wish to see in the world.”
― Mahatma Gandhi

Sharing Good News

Author: New York Immigration Lawyer Alena Shautsova

This past month was very fruitful in terms of positive decisions by USCIS on our cases and we would like to share the good news. We had an I 601 waiver approved for one of our clients, along with Parole in Place for another one, and a PERM certification for a client who was waiting for it for a decade… an application for naturalization for an abused ex-wife of a US citizen, and an adjustment of status based on marriage; employment authorization applications for clients with lodged asylum application and pending SIJ, and an application for administrative stay of removal.

I also met some very nice and considerate USCIS and ICE officers: one was very kind to send a quick email -reminder about an appointment, and one was simply amazing by picking up my client’s lost certificate of naturalization in the nearby shopping mall and delivering it to him when he recognized my client at the USCIS office at the time of an appointment with a different officer!

Of course, I also would like to mention here all those who I was able to help with their employment issues as well…

I wish to all of you to have peace and happiness and enjoy this Holiday Season. I hope that all of you will have a lot of good news to share!

USCIS Reminder: Deadline to Register for Nepal TPS is December 21

It is extremely important to remember that the deadline to register for Nepal TPS is approaching. All persons who qualify, regardless of their status (or absence of status) are encouraged to apply for the TPS. The TPSprovides an opportunity to be protected from the removal and also allows its beneficiary to obtain an employment authorization and permission to travel overseas and return back to the US.

To be eligible for TPS, one must demonstrate that he/she meets all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the U.S. since June 24, 2015. The person must also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS.

To register for TPS, one must submit:

•Form I -821, Application for Temporary Protected Status;

•The Form I-821 application fee (or a fee-waiver request);

•The biometric services fee (or a fee-waiver request) for persons 14 years of age or older;

•Form I-765, Application for Employment Authorization, regardless of whether one wants an

Employment Authorization Document (EAD); and

•The Form I-765 application fee (or a fee-waiver request), but only if one wants an EAD. If one does not want an EAD, no application fee is required. There is no Form I-765 fee for initial applicants under the age of 14 or over 65; these applicants may receive their initial EAD cards for free.

If you have questions regarding eligibility or process, please contact my office at office@shautsova.com.

Particular Serious Crime and Withholding of Removal

Author: New York Immigration Lawyer Alena Shautsova

Withholding of removal often is the only form of relief for those who either missed their one year deadline to file an application for asylum, or those with previous immigration problems and in particular, previous removal. See 8 C.F.R. § 208.31(e) (describing “withholding-only” proceedings).

The burden of proof for withholding of removal relief is higher than for asylum, and the benefits of the status are less attractive than those that an asylum beneficiary can receive. However, withholding remains an option for somebody with no option to return back…

Just like with asylum, there are certain crimes that would disqualify an applicant from this status. A “particularly serious crime,” under the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3)(B), and under the United Nations Convention Against Torture (CAT), see 8 C.F.R. § 1208.16(d)(2), renders a person ineligible for withholding of removal.

Which convictions fall under the “serious crime” category?

The Board of Immigration Appeals outlined the criteria in Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982). However, there is a whole line of cases that also discusses the standard and analysis that the court should follow in determining if a particular offense is particularly serious.

Any non-citizen who has been convicted of an “aggravated felony . . . for which he/she has been sentenced to an aggregate term of imprisonment of at least 5 years” automatically is deemed to have committed a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B); In re Y-L-, 23 I. & N. Dec. at 273. The INA defines the term “aggravated felony” to include “a drug trafficking crime.” 8 U.S.C. § 1101(a)(43)(B). A drug trafficking offense committed in violation of state law automatically qualifies as a “drug trafficking crime” under this section if the defendant was convicted under a state statute that proscribes conduct necessarily punishable as a felony under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. See 18 U.S.C. § 924(c)(2); Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). Therefore, if a person is convicted of a state crime that necessarily would constitute a felony under the CSA, the crime of conviction qualifies as an “aggravated felony…”

Each case is different as facts of each case are different. It is virtually impossible for a person without an attorney to be able to overcome a finding of particular serious offense. Whenever a non-citizen is faced with criminal charges, he/she should contact an Immigration attorney immediately.

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