Seeking Asylum in the United States
Human rights groups recently filed a lawsuit against the federal government alleging that guards and officials at entry points along the U.S. – Mexico border are turning away asylum seekers using misinformation and even threats. This discouragement of asylum seekers has been alleged to have happened before the asylum seeker is even processed, and before a determination is made as to the validity of a person’s asylum claim.
The kind of discouragement of asylum claims that has been claimed in the lawsuit could act to discourage people from seeking asylum in the U.S. because they are afraid and unsure of what the law says about the processing of asylum cases.
A person may seek asylum in the U.S. if the person can show that he or she has a legitimate fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion. A person seeking asylum has to be physically present in the country or at a point of entry in order to make an application for asylum. If the person is already in the country, he or she has to make the asylum application within a year of arriving in the country, unless he or she can show an exception to this deadline applies.
When a person makes a claim for asylum at the border, he or she may go through an initial screening to determine the credibility of the asylum claim. This can lead to a full hearing later on.
In some cases, a person may claim asylum for the first time once the person is placed in removal proceedings. This is called a defensive claim for asylum, and can be used if the person is in removal proceedings for the following reasons:
- The removal proceeding is initiated by an asylum officer (who has made a finding that the asylum seeker has a credible fear of persecution in a preliminary screening);
- Immigration violations; or,
- Trying to enter the U.S. without proper documents.
In a removal proceeding, the asylum seeker will have to argue his or her case and present evidence that supports the claim for asylum. The asylum seeker is allowed to have an attorney, and because the government is also represent by an attorney in these proceedings, it is best for the asylum seeker to have an attorney present.
While awaiting the final word on an asylum case, the asylum seeker may be held in a detention center. However, if the asylum seeker has family members or other contacts in the U.S. who can provide for him or her financially, he or she may be conditionally released pending the resolution of the asylum claim. In order for a person to be released, he or she has to make an application for release.
Contact an Immigration Attorney
If you are in the U.S. and have yet to file an application for asylum, you need to act fast or miss the deadline for doing so. Failing to file within the appropriate time can interfere with your ability to file for protection even if you have a good claim. For more information on how an experienced immigration attorney can assist you, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Consequences for Overstaying on a Non-Immigrant Visa
Most people who visit the United States do so after applying for and being granted a temporary or non-immigrant visa. Although these visitors enter the country legally, they may then sometimes overstay their visas, and remain in the country in violation of immigration laws.
When non-immigrant visas are granted, they usually have a set date on which they expire, and at that point the person travelling on the visa can no longer use the visa to enter the country. When a traveler uses the visa to travel to the United States, the traveler is required to leave on a set date, if the traveler fails to leave, he or she is said to overstay the visa.
Most people who overstay do so because they were not able to get their visas renewed because it meant leaving the country, they found employment or better opportunities, or because they face hardship by returning to their home country. Asylum applications are not always processed in a short period of time, and so for some people, it is easier to get a non-immigrant visa and then fail to return home at the expiration of the visa. Unfortunately, overstaying a visa is as illegal as crossing the border without a valid visa.
A person who overstays a visa can face some of the same consequences as a person who entered the country illegally. For example, if the person leaves the country, he or she can be banned from reentering the country for three to 10 years. The three-year ban applies if the person was in the country unlawfully for 180 days, but less than a year, before voluntarily leaving the country. If a person overstays a visa for more than a year before leaving voluntarily, then the 10-year ban applies if he or she tries to return. If a person overstays and gets deported, he or she becomes permanently ineligible for reentry.
In some cases, a person who has overstayed may be able to apply for an adjustment of status while in the United States. This is an option that is available to people who overstay their visas, but not to people who entered the country illegally without a visa. Most people applying for an adjustment of status do so because they marry an American citizen and wish to apply for a green card.
In most cases, a person who has overstayed a visa and later applies for a green card is required to leave the country to complete the process, but because of the reentry bans, most people would prefer to file for an adjustment of status and avoid leaving the country. To find out if an adjustment of status is possible in your case, you need to talk to an experienced immigration attorney.
Let Us Help You
If you were granted a non-immigrant visa to travel to the United States as a student, tourist, or an employee, and overstayed beyond the time allowed, you may be limited in your options to legalize your status. For more information on how an experienced immigration attorney can assist you, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
A Criminal History can Affect Your Immigration Chances
When you are an immigrant seeking legal permanent residency or citizenship in the United States, there are many issues and questions that may come up when you are in the process of submitting your application. One issue that may be particularly worrisome is how a criminal record can affect a person’s application for legal permanent residency or U.S. citizenship.
Generally, having a criminal history can affect your application and does lower your chances of being approved for either permanent residency or citizenship. This usually depends on the nature of your crime, and in some cases how long ago the conviction was entered. In addition, as we have noted before, if a person already has permanent residency, being convicted of a crime can lead to the revocation of that status and the beginning of deportation proceedings.
Convictions for some crimes result in a person being temporarily ineligible for U.S. citizenship for a period of time, while others result in permanent ineligibility. If a person is convicted of murder or a crime that is considered an aggravated felony, the person is permanently banned from becoming a U.S. citizen. On the other hand, convictions for less serious crimes may result in a temporary ban of three to five years, after which time the person can apply for citizenship.
Being granted citizenship is still a matter of discretion on the part of the government, this means that even if you were only convicted of a crime that results in temporary ineligibility, you may still be denied citizenship based on your background.
Lawful permanent resident applicants who have been convicted of crimes involving moral turpitude and crimes involving the trafficking of a controlled substance are ineligible to receive a green card. There are other criminal offenses that can bar an applicant from receiving permanent residency. In some cases, applicants who are closely related to a person with a conviction for trafficking controlled substances are also considered ineligible for permanent residency if they received financial support that was from the proceeds of the trafficking.
Immigrants seeking either permanent residency or citizenship should remember that they are required to disclose all their criminal history, even convictions for crimes in other countries. Failing to make the appropriate disclosures, and then signing the application saying you provided accurate information could result in more legal troubles for the applicant.
If your criminal convictions were in another country and a result of political prosecution, you may be eligible for a purely political offense exception from ineligibility. It is important to discuss this kind of criminal history with an attorney. Applicants should remember that for immigration purposes, guilty pleas and other forms of criminal dispositions can count as convictions.
Contact Us for Legal Assistance
If you have been convicted of crimes in the United States or in another country and are thinking about applying for permanent residency or U.S. citizenship, you need to contact an experienced immigration attorney to discuss how the convictions could affect your application. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Motion To Reopen Removal Proceedings Based On Ineffective Assistance Of Counsel
In criminal cases, the accused have a right to be represented by a lawyer. If a person accused of a crime cannot afford a lawyer, the state is required to provide a lawyer at no cost. Immigrants facing deportation may be represented by a lawyer during immigration removal proceedings. However, unlike people accused of a crime, if the immigrant cannot afford a lawyer, one is not provided by the state. This means that in order to have an attorney present at an immigration removal hearing, the immigrant either has to pay for the lawyer or rely on a volunteer lawyer.
Unfortunately, simply having a lawyer during removal proceedings does not guarantee that the lawyer will provide adequate representation. The law recognizes that sometimes lawyers make mistakes that can affect their clients’ rights. Because of this, immigrants are allowed to file a motion to reopen removal proceedings that resulted in a removal order, if the immigrant can show that he or she received the ineffective assistance of counsel in those proceedings. Counsel is another word for lawyer.
The standard for showing ineffective assistance of counsel in immigration proceedings is similar to that required in criminal cases. The affected immigrant has to show there was deficient representation by the lawyer and that the immigrant suffered prejudice. Without a showing of prejudice, the court generally cannot reopen a case even with a finding that a lawyer was ineffective. To show prejudice, the immigrant has to prove that the lawyer’s mistakes materially affected the removal hearing, and if it was not for the lawyer’s actions, the immigrant would not have been deported.
The kind of things that a court may consider ineffective assistance can include:
- Failing to file required paperwork on behalf of the client;
- Telling the client he does not need to show up to hearings;
- Failing to file an appeal on behalf of the client, or
- Threatening to withdraw from a case two hours before the removal hearing if the client did not agree to voluntary withdrawal.
If an immigrant claims that his or her immigration lawyer was ineffective and that this led to deportation, the person is required to notify the accused lawyer and give him or her a reasonable chance to respond to the accusations. If the lawyer fails to respond, the case can still move forward; the immigrant filing the motion to reopen the case has to inform the court that he or she provided the lawyer with the opportunity to respond.
As can be seen from the discussion above, in order to prove the ineffective assistance of counsel, the immigrant client has to prove that there was an objective failure on the part of the lawyer or someone working for the lawyer, and that failure caused the client harm. Losing the case does not always mean that the lawyer was at fault. In other words, just because a client loses, it does not mean he or she had ineffective counsel.
Let Us Assist You
If you believe your lawyer failed to properly represent you in your case, and it resulted in an order for your removal, contact an experienced immigration lawyer for a consultation. You may have reasonable grounds to have your case reopened. Contact our multi-lingual staff to speak to experienced immigration lawyer, Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
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