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This chart gives a basic breakdown of the qualifications, standards, and benefits of asylum, Withholding of Removal under INA § 241(b)(3), Withholding of Removal under the Convention Against Torture, and Deferral of Removal under the Convention Against Torture. When filing an I-589 application with either USCIS or the immigration court, 4 different forms of relief are to be considered. Only asylum can be applied for affirmatively (through USCIS), while the other forms or relief are only available defensively (before an immigration judge).
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When an application for asylum (I-589) is filed with USCIS, it is considered an affirmative asylum application. USCIS can approve the asylum application or refer it to an immigration judge in immigration court. A referral of an asylum application is not a denial of the asylum application. USCIS has referred it to the immigration judge because there may be some outstanding factual or legal issues, for which the immigration judge needs to rule on.
The applicant will receive an official notice from USCIS referring him/her to the immigration judge. The applicant will then later receive a Notice to Appear (immigration court charging document) and then a Notice of Hearing directing the applicant to appear in immigration court on a specific date. Once in immigration court, the immigration judge conducts a “de novo” hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. Additional and supplemental documents can be filed with the immigration court in support of the asylum application. An individual hearing will then be scheduled by the immigration judge. At the individual hearing, the applicant will testify on his/her own behalf, and present any additional evidence or witnesses in support of his/her application. The applicant may be cross-examined by the DHS trial attorney and/or by the immigration judge. At the conclusion of the individual hearing, the immigration judge will render a decision as to the grant or denial of asylum. The immigration judge will also consider and rule on whether the applicant should be granted withholding of removal under INA 241(b)(3), withholding of removal under CAT (Convention against Torture), and deferral of removal under CAT. A denial of asylum, withholding of removal under INA 241(b)(3), and/or withholding/deferral of removal under CAT, by the immigration judge can be appealed to the BIA (Board of Immigration Appeals) within 30 days of the immigration judge’s decision. 1. Purpose of the I-751
When a Green Card applicant has been married for less than 2 years, the applicant is initially issued a Conditional Green Card, which is good for 2 years. Just before the expiration of the conditional period, the I-751 is filed to apply for a permanent Green Card (which is good for 10 years). The purpose of the I-751 is to reaffirm that the initial marriage took place in good faith. 2. When to file The I-751 must be filed with USCIS within 90 days prior to the 2-year anniversary of the issuance of the conditional Green Card. 3. Filing Jointly vs. Filing Single When you are still married to the same person you were married to at the time of the issuance of the conditional Green Card, you will file the I-751 jointly. You will file as a single person in the following cases: a. You entered the marriage in good faith and your spouse has died; b. You entered the marriage in good faith and you are now divorced from the person to whom you were married at the time of the issuance of the initial Green Card (even if you’re now remarried to someone else, you will file as single); c. You entered the marriage in good faith and you have been battered or subject to extreme cruelty by your petitioning spouse; d. Your parent was a conditional resident who entered into the marriage in good faith, but you have been battered or subject to extreme cruelty by your parent’s U.S. citizen or permanent resident spouse or by your conditional resident parent; or e . The termination of your status would result in extreme hardship to you or a dependent child. 4. Standard for the I-751: Good Faith Marriage (see Matter of Soriano) To determine whether a marriage was entered into ‘in good faith,’ “[t]he central question is whether the bride and groom intended to establish a life together at the time they were married.” See Bark v. INS, 511 F.2d 1200 (9th Cir. 1975). To establish ‘good faith’, the court will consider documents such as: a. proof that the spouse has been listed as the beneficiary on the petitioner spouse’s life insurance policy; b. documents showing joint ownership or joint responsibility (e.g. property leases) c. documents showing a comingling of finances (e.g. tax returns, bank statements) d. shared experiences e. marriage ceremony f. birth certificates of any children born as a result of the relationship 5. Common scenarios in which an I-751 matter would end up before an Immigration Judge You never filed an I-751 (whether you’re still married or not) a. If you were issued a temporary Green Card and never file the I-751 to remove the conditions, you can be placed into removal proceedings for having no lawful status once the temporary Green Card has expired. b. If this happens, you can still file the I-751 with USCIS and an Immigration Judge (IJ) can either grant continuances on your removal proceedings while the I-751 is being decided, or the IJ can administratively close your case until USCIS issues a decision on the I-751. If the case is administratively closed until a decision is made on the I-751, the IJ would then re-calendar your case to restart proceedings once USCIS has made its decision. An I-751 was filed and denied by USCIS based on the merits. a. The IJ will hold an individual hearing to review the decision of USCIS. b. You would not be required to re-file the I-751 or pay a new filing fee. • An I-751 was filed and denied by USCIS based on failure to attend interview. a. The IJ will hold an individual hearing to decide whether to grant the I-751. You would not be required to re-file the I-751 or pay a new filing fee. • In all of the above scenarios, the I-751 can be filed jointly or separately. If not filing jointly, the scrutiny is generally higher as to the good faith marriage. Note: I-751 can still be filed if the immigrant spouse is now married to someone besides the spouse for which the conditional green card was obtained through. In that case, the immigrant spouse would apply as a single person because the I-751 is based on the marriage under which the initial Green Card was issued. EOIR Case Status--1-800-898-7180
This is an automated immigration court's case status hotline. By entering an individual's alien #, you can find up dates of upcoming master/individual hearings, the assigned immigration judge, whether a final order has been entered, and other information regarding the individual's proceedings in immigration court. Immigration Court (Individual) Contacts (Website) Here you can find the address and phone number of each immigration court around the country. It also has a listing of all immigration judges in each court. You can speak with an operator for case specific information, such as status of motions and decisions. You will need an alien #. ICE Online Detainee Locator (Website) When ever someone is in immigration (ICE) custody, you can find him/her with this online locator. It will tell you which facility an individual is held at. You will need the alien # and the home country. USCIS Case Status (Website) Check status for all USCIS petitions/applications. Limited information. Will need USCIS receipt number. USICS National Customer Service Center (NCSC): 1-800-375-5283 This 800 number will allow you to check on the status of USCIS petitions/applications. Individuals and attorneys of record can speak with a USCIS customer service representative concerning their petitions/applications. Case Type: USCIS (Citizenship Denial) (N-336)
Country: Vietnam P arrived in te U.S. and received his greencard around the year 1986. In about 2008, P applied for his citizenship on his N-600, he failed to disclose that he was once convicted of domestic violence. After the int ital interview, P's N-600 was denied on the basis of not having "good moral character". Our law firm sought a review on the decision and accompanied P for his second interview. After explaining in detail to the USCIS officer, of P's criminal history, his rehabilitation and his good moral character, P was granted U.S. citizenship. |
AuthorJames C. Tai, Esq. ![]() Categories
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