What Happens If You Fail the Citizenship Test?

2022-09-20 in Blog
US citizenship test

What Happens If You Fail the Citizenship Test?

When you take the US citizenship test, if you fail either the English or the civics portion of this test, you will be permitted to attempt to retake the tests once before US Citizenship & Immigration Services denies your application.

You will be rescheduled to retake the failed portions of the test within 90 days of the initial exam and interview date.  If you fail again, USCIS will deny your application.  You will be required to refile the Naturalization application again, including all forms and fees.

What's in This Guide

What Happens in the US Citizenship Test?

Naturalization interviews involve an assigned officer from USCIS who will ask you questions about your application and your background.

Additionally, you must take and pass a two-part naturalization test with these core components:

  • English Test
  • Civics Test

English Test

The first component of the naturalization test involves a test gauged to determine the extent of your knowledge of the English language.

This three-part English test includes a reading, writing, and speaking test:

  1. Reading: You will need to read out one of three sentences correctly to the USCIS officer to demonstrate your ability to confidently read English.
  2. Writing: You must write three sentences in English. At least one of these sentences must be correct.
  3. Speaking: You will be tested on your ability to speak and to understand English.

Civics Test

The Civics Test is designed to establish whether you have a reasonable understanding of the history and government of the United States.

There are two principal versions of this test:

  • 2008 test: The 2008 version of the Civics Test is an oral test. The USCIS officer will ask you up to 10 questions from an official list of 100 questions related to civics. To pass this test, you must answer at least six questions correctly. If you filed Form N-400 before December 1, 2020, you must take this version of the test. The same applies if you filed Form N-400 after March 1, 2021.
  • 2020 test: Also an oral test, the 2020 version of the Civics Test involves an USCIS officer asking you 20 civics questions from a possible 128 questions on the official list. You must answer at least 12 questions correctly to pass this test. If you filed Form N-400 after December 1 or before March 1, 2021, you can choose whether to take the 2008 or 2020 test.

What Happens if You Fail the US Citizenship Test?

Failure of the citizenship test can occur during either portion of the test.

If you fail either the English Test or the Civics Test, you will be rescheduled to retake the failed component within 60 to 90 days of the initial exam and interview date.

Anyone who fails this test a second time will be ineligible to retake the test. Citizenship will be denied by the USCIS.

What Are the Other Reasons for Failing the US Citizenship Test?

If you fail either part of the US citizenship more than once, you will be denied citizenship. There are other reasons why the USCIS officer might decide to deny citizenship after administering the test.

During the initial application, you may have been asked to provide key documents relevant to your application. If so and if any documents are missing, you will receive Form N-14, a written request to provide the information. This form also outlines how you should correctly respond to that request. You have two options:

  1. Respond in person at your follow-up interview.
  2. Reply via mail within one month of receiving the request.

You should ask your assigned officer for clarification if you are not sure what information the request is demanding. You could also consult an experienced Chicago immigration lawyer.

Can Citizenship Be Permanently Denied for Other Reasons?

There are some other scenarios in which USCIS may have cause to permanently deny an application for US citizenship. If this happens, the person will be ineligible to reapply, and they will be unable to retake the citizenship test.

These are the primary reasons for an officer permanently denying an application:

  • Criminal history: If you have a criminal history involving murder or an aggravated felony, this is liable to cause USCIS to permanently deny your application. Officers will conduct a comprehensive background check for all applicants, meaning there is a strong chance that any prior convictions will be discovered, whether in the United States or abroad. If you have a history of arrests, you should seek guidance from an experienced immigration attorney to check whether you meet the requirements related to criminal background.
  • Failing to satisfy requirements for continuous residence or physical presence: Another common reason for applications for US citizenship being permanently denied is failing to meet requirements for either continuous residence or physical presence in the United States. Before applying for US citizenship, you must first prove you have lived in the US for five consecutive years, assuming you are not the qualified spouse of a US citizen. If you are the qualified spouse of a US citizen, you must reside in the US for three years. You cannot be absent from the US for more than 1 year if you are not married to a US citizen, and if you are, your total absence cannot be more than 18 months.  Either of these situations can result in the application being denied.
  • Lying or making false statements: If you lie at any stage during your application or interview, the USCIS is likely to deny your application permanently. The same applies if you make any false statements.
  • Not paying taxes: If you are applying for US citizenship and you have failed to pay any necessary taxes, you are likely to have your application permanently denied. You may avoid this if you are able to prove that you are actively working to correct the problem and to pay any back taxes due.

Why You Need to Study for the US Citizenship Test

While the US citizenship is not especially demanding, it is nevertheless essential to properly prepare.

You can visit the USCIS website for resources related to the test. Materials provided include:

  • Pocket study guides
  • Flashcards
  • Videos
  • Interactive practice tests

By studying and practicing, you can familiarize yourself with the questions you might be asked and try to fully understand all relevant topics. The more you practice the test, the more confident you will be on the day. If you arrive on the day of the test without any preparation at all, you are likely to find the process intimidating and overwhelming. The more you study, the more relaxed you will feel when test day arrives.

If you fail the test, you should spend more time studying. The most important thing to remember is that failing the test for a second time means that your application for US citizenship will be denied. If this occurs, you will be issued with a denial of citizenship from the USCIS. You should engage the services of a specialist immigration lawyer if you want to appeal this decision.

Reach out to the friendly team today at Chicago Immigration Lawyers by calling (312) 704-8000. We will help you prepare the initial application, ensuring you have all the required documentation, we will prepare you for your interview by providing you resources to study for the civic portion of the test, and we will prepare you for the interview itself.  We can also assist if your application was improperly denied by filing an appeal.

How Long Does a Fiancé Visa Take?

2022-09-20 in Blog, Family-Based Immigration
fiance visa application

How Long Does a Fiancé Visa Take?

Processing times for a K-1 fiancé visa currently average six months. This timeline does not include the period from approval of your application to the date of the interview. This will differ significantly depending on the country you are applying from.

Today’s guide highlights the K-1 fiancé visa timeline so you can more confidently plan ahead.

What's in This Guide

Process for Obtaining a K-1 Fiancé Visa

A foreign fiancé of a US citizen may be eligible for a K-1 fiancé visa. This visa allows the foreign national to enter the United States in order to marry their partner (which must take place within 90 days of the time of entry).

When the fiancé arrives in the United States, they can marry the US citizen as planned. Subsequently, the foreign national can apply for an immigrant visa, also known as a green card, through adjustment of status – see below.

The process for obtaining a K-1 visa begins with the filing of Form I-129F by the US citizen with the USCIS (US Citizenship and Immigration Services). It is imperative to complete this form accurately to avoid delays in the visa issuing process.

Upon approval, your case will move to the National Visa Center for liaison with the US consulate or embassy in the foreign national’s country of residence.

Next, the fiancé will apply for the K-1 visa document itself with the consulate.

The final step of the process is the visa interview at the US consulate.

Assuming that the Petition for Alien Fiancé (Form I-129F) is properly filed, you will receive a notice confirming receipt of your petition from the USCIS. This is known as a Notice of Action (Form I-797C). This will typically arrive two or three weeks after filing.

The purpose of the I-129F Petition for Alien Relative is to:

  • Determine that the relationship between the US citizen and the foreign fiancé qualifies.
  • Pre-screen the fiancé for any criminal background.
  • Establish whether any other issues would conflict with the International Marriage Broker Regulation Act.

If the application is successful, the US citizen will receive another Notice of Action from USCIS, this time an Approval Notice (Form I-797).

Once the case transitions to the US Department of State’s NVC (National Visa Center), the applicant will be contacted for payment of consular fees and any additional processing requirements and forms – submitting Form DS-160 (Non-immigrant Visa Application), for instance.

The embassy will then review the case and subsequently mail a letter to the foreign fiancé. This correspondence will include details of the interview and medical exam required. The applicant then needs to submit some items immediately and prepare other items for the visa interview.

Anywhere from two to eight weeks after the applicant submits embassy documents, they will need to attend a K-1 fiancé visa interview. If any children are joining as K-2 visa holders, they must also attend the interview. Although the US citizen is encouraged to attend the interview, this is not mandatory.

The foreign fiancé should take documents to the interview that prove the relationship. They should also take proof of the medical exam. With proper preparation, the interview should go smoothly and the foreign national should get a decision when the interview concludes.

The visa is typically issued by the consulate or embassy within two weeks.

How Long Will It Take to Obtain a K-1 Visa?

The processing times for K-1 fiancé visas vary significantly. Many applicants find they can successfully enter the United States within six to nine months.

The process involves many steps and multiple agencies, including:

  • USCIS
  • National Visa Center
  • Department of State
  • Consulate in Foreign Country

Submitting a properly prepared I-129F petition is central to a swift application process. Unless this form is accurately completed and all supporting documents are included, you could experience substantial delays. If you are unsure about how to prepare this document, consult an experienced K-1 visa attorney.

Adjustment of Status Via a Fiancé Visa Entry

When a US citizen marries a foreign national, the marriage will not automatically lead to a green card granting legal immigration status in the US.

The foreign national needs to complete an adjustment of status application for permanent residence in the form of a green card.

This process involves completing multiple forms and following a series of steps. Expect the process to take several months. During the waiting period, applicants may get travel authorization and work authorization.

Here at Chicago Immigration Lawyers, we can help you or a foreign fiancé to apply for the K-1 visa. With the right representation and proper preparation, you can initiate a process which should take roughly six months before you are issued a K-1 fiancé visa.

Contact us now by calling (312) 704-8000 or online for a free case evaluation.

What to Expect at Your Spousal Visa Interview?

2022-09-20 in Blog, Family-Based Immigration
spouse visa interview

What to Expect at Your Spousal Visa Interview?

The process for a marriage green card is lengthy and involved. The final step is the spousal visa interview, so what should you expect?

The officer conducting the interview has one main goal: to determine whether the marriage is authentic or in “good faith”. To establish this, the interviewing officer will ask questions focusing on:

  • The history of your relationship.
  • Your daily activities as husband and wife.
  • The comingling of assets and income.
  • Any future plans you have as a couple.

Assuming the interviewing officer is convinced that your marriage is legitimate, they will approve your spouse for a spousal visa, also known as a green card.

What's in This Guide

Preparing for a Spousal Visa Interview

The application process for a marriage green card is lengthy and involved. The interview is the final obstacle between your spouse and an immigrant visa, but it can also be the most stressful and overwhelming element if you are not properly prepared.

Knowing what to expect at your spousal visa interview and making sure you assemble an organized file of documents can streamline the process considerably and reduce stress.

All green card interviews within the US are conducted by USCIS (U.S. Citizenship and Immigration Services).

All immigrant visa interviews outside the US are conducted by the US Department of State.

Most of the evidence mentioned below would likely have been provided already, but here are some easy actions to prepare yourself for a smoother and less stressful spousal visa interview:

  • Gather original documentation: Prepare the following original documents – birth certificates, passports, marriage certificates, any prior divorce documents, court records, and photos or other supporting evidence that illustrates the authenticity of your marriage. The officer will want to compare the originals to the copies you previously submitted.  Note: you should not submit originals of these documents in your application.
  • Provide new documents: The following evidence should be updated prior to the interview; even though you may have already submitted them, you will want to get updated ones from the time of your application to the time of the interview, which can be up to a year – joint bank account statements, joint income tax returns, joint insurance documents, joint property documents, g., lease or deed, recent photos of you together. All of these documents help to prove the authenticity of your marriage.
  • Refresh your memory of key details: Sit down with your spouse or schedule a video call in the week leading up to the green card interview. Go over all key events and dates and refresh your memory of your relationship history.
  • Organize all documentation: Place all photos in an album and put them in chronological order to save fussing around on the day. Ensure that all documents are in place, too.

Questions Concerning the Spouse

On the day of the interview, you can expect the interviewing officer to ask the following questions concerning your spouse:

  1. When is your spouse’s birthday?
  2. Where was your spouse born?
  3. Where do they currently live?
  4. Where do their parents live?
  5. If your spouse has any brothers or sisters, where do they live?
  6. What is your spouse’s profession?
  7. Where do they work?
  8. Describe your spouse’s educational background.
  9. What is the religious background of your spouse?
  10. Is your spouse able to speak and understand English?
  11. Do you speak your spouse’s native language?
  12. What does your spouse do for fun?
  13. What do you most like about your spouse?
  14. Has your spouse ever been divorced?
  15. If so, where did this occur and why did the marriage end in divorce?
  16. If you have met your spouse’s parents or other family members, outline the circumstances of the meeting.
  17. How and when did you first meet your spouse?
  18. When did you first have the occasion to meet in person? Describe this occasion.
  19. Before this interview, when did you last see you spouse?
  20. How often do you communicate with your spouse?

Questions Concerning the Relationship

The following questions form the bulk of the green card interview. The interviewing officer will ask a series of questions about your relationship with your spouse. These are some common examples used in spousal visa interview in the United States:

  1. Have you ever been on vacation with your spouse?
  2. Who deals with the finances?
  3. When is your anniversary?
  4. Do you intend to have children?
  5. Do you or your spouse have children from previous marriages?
  6. Do you currently live together? If not, do you plan to live together?
  7. What mutual hobbies do you enjoy?
  8. Who cleans the house?
  9. Who cooks?
  10. Who does the laundry?
  11. Who does the grocery shopping?
  12. What cars do you each drive?
  13. What do you do together in your free time?
  14. What is your spouse’s favorite food?
  15. Does your spouse take any medications?
  16. What size is the bed in your house?
  17. When is designated garbage day?
  18. Does your spouse drink coffee?
  19. How many rooms are there in your home?
  20. How many bathrooms does your home have?
  21. What is in your yard?
  22. Which side of the bed do you sleep on and which side does your spouse sleep on?
  23. Do you sleep at the same time?
  24. How does your spouse unwind before bed?
  25. Does your spouse prefer taking a bath or a shower?
  26. Do you file your taxes jointly?
  27. Which shows do you watch together on TV?
  28. Does your spouse have any scars or tattoos?
  29. Did you come to this interview together?
  30. What did your spouse have for breakfast today?
  31. Does your spouse play sports? If so, what is their favorite team?
  32. Do you have curtains or blinds in your house?
  33. Do you and your spouse share a closet?
  34. Do you have a gas or electric grill?
  35. Do you attend church with your spouse?

Questions Concerning the Applicant

Finally, in addition to some of the questions above, expect any of the following questions to be directed at the visa applicant (your spouse):

  1. Have you previously visited the United States?
  2. If so, what type of visa were you awarded?
  3. Have you previously been refused a visa?
  4. Have you previously overstayed in the U.S. on a visa?
  5. Have you been arrested?
  6. Does your spouse have any brothers or sisters?
  7. When did you last see your spouse?
  8. Have you met your spouse’s family?
  9. How do you usually celebrate holidays?
  10. Who is your spouse’s best friend?
  11. Do you have any mutual friends?

If you need representation by an immigration lawyer, do not hesitate to contact our offices for assistance by phoning (312) 704-8000 or filling out our intake form here.

What Are Types Of US Immigrant Visas

2022-09-20 in Blog
types of US visa

What Are Types of US Immigrant Visas?

If you are planning a trip to the United States, you will discover that there is no universal visa for all travelers.

There are around 185 different types of US visas which are broadly categorized as follows:

  • Immigrant visas: An immigrant visa permits you to stay in the United States permanently. These visas entitle you to what is informally known as a Green Card and allow you to live and work in the US for as long as you wish.
  • Nonimmigrant visas: This type of visa allows you to stay in the United States temporarily but does not allow you to immigrate to the US

What's in This Guide

Who Needs to Apply for a US Visa?

Citizens of any of the forty countries in the VWP (Visa Waiver Program) are permitted to travel to the US for up to 90 days without requiring a visa. This applies to both tourist trips and business visits. Citizens of Canada and Bermuda enjoy these same visa-free privileges by applying for an ESTA (Electronic System for Travel Authorization). This document is obtainable from the CBP (US Customs and Borders Protection).

Travelers from all other countries must apply for a US visa in advance of travel.

Additionally, every traveler to the United States must have an e-passport containing a machine-readable zone and biometric information.

Application Process for US Visas

Regardless of the type of visa, the US visa application is straightforward and follows a similar procedure. The discussion below presumes that the beneficiary is eligible for the visa; many different factors determine whether someone is eligible, which will be discussed below. This discussion is meant to demonstrate the general process for those who are eligible.

That said, there are differences in the process according to the visa category and type, as well as differences relating to the country from which you are making the application.

What are the Different Types of US Visa?

For the purposes of today’s guide, we will focus primarily on immigrant visas. There are two broad categories of US immigrant visas:

  1. Family sponsored and immediate relative immigrant visas
  2. Employer sponsored immigrant visas

Beyond this, there are also diversity immigrant visas offered to countries with historically low rates of immigration to the US. Here are the specifics of each type of US immigrant visa:

Immediate relative immigrant visas

Any foreign national with an immediate relative who is a US citizen is potentially eligible for an immediate relative immigrant visa. An unlimited number of these visas can be issued each year.The definition of an immediate relative includes a spouse, an unmarried minor, or a parent. Relatives of US citizens can apply for one of the following immigrant visas:

  • Spouse of US citizen (IR-1)
  • Unmarried minor (aged under 21) of a US citizen (IR-2)
  • Orphan adopted by a US citizen abroad (IR-3)
  • Orphan who will be adopted by a US citizen in the United States (IR-4)
  • Parent of a US citizen where petitioner is over 21 years of age (IR-5)

To initiate the process of obtaining an immigrant visa for a beneficiary – a foreign relative – the petitioner (the US citizen) needs to file a Petition for Alien Relative (form I-130) with USCIS (US Citizenship and Immigration Services). The I-130 Petition is the first step and does not entitle the beneficiary to any status; it functions as the way USCIS can verify you are who you say you are, the petitioner is who he or she is, and that you are related in the way you have asserted.If the beneficiary is living in the United States, they will need to file an Application to Register Permanent Residence or Adjust Status (form I-485) in conjunction with the I-130 Petition. Subsequently, they would need to appear in person for collection of biometrics (i.e., fingerprints) and an interview before a USCIS officer. If the beneficiary is living outside the United States, they must wait for an approval of the I-130 and then file for an immigrant visa at the US consulate in their country of residence. Assuming the beneficiary is eligible for the visa and passes an interview and medical exam, the immigrant visa will be issued.

Family preference immigrant visas

It is also possible for more distant family members of US citizens to apply for a family preference visa. This category also allows some permanent residents to apply for their relatives. In this category there are wait times because of the quotas imposed, as will be seen below. The relationship between the relative and the US citizen or permanent resident will determine the visa category as follows:

  • Family first preference immigrant visa (F-1): Unmarried child (aged over 21) of US citizens and any accompanying minor children (23,400 visas issued annually).
  • Family second preference immigrant visa (F-2): Spouse, minor child, and unmarried child (aged over 21) of a lawful permanent US resident (114,200 visas issued annually).
  • Family third preference immigrant visa (F-3): Married children of US citizens, their spouses, and their minor children (23,400 visas issued annually).
  • Family fourth preference immigrant visa (F-4): Sibling of a US citizen, their spouse, and any minor children (65,000 visas issued annually).

Applying for this type of visa involves the same process as when applying for an immediate relative visa.

Diversity immigrant visas

The DIVP (Diversity Immigrant Visa Program) makes provision for foreign nationals residing in countries with traditionally low rates of immigration to the United States to apply for permanent residency. Each year, there is a limit of 50,000 diversity visas. Applicants will be selected randomly according to the allotted number of visas for that region or country. There are eligibility requirements in place. Selection through the DIVP is not a guarantee that the applicant will be issued with a US visa.

Employment-based immigrant visas

The USCIS allows for the issuing of roughly 140,000 employment-based immigrant visas each year. These visas are categorized as follows:

  • First preference employment-based visa (EB-1): Priority workers.
  • Second preference employment-based visa (EB-2): Professionals with exceptional abilities or advanced degrees.
  • Third preference employment-based visa (EB-3): Professionals, skilled workers, and unskilled workers.
  • Fourth preference employment-based visa (EB-4): Specific special immigrants.
  • Fifth preference employment-based visa (EB-5): Immigrant investors.

Each employment-based visa category has unique requirements that must be satisfied before the applicant is awarded permanent resident status.

How Do Nonimmigrant Visas and Immigrant Visas Differ?

With a non-immigrant visa, you will only be eligible to remain in the United States temporarily. You can find a list of all non-immigrant visa categories right here. Those who wish to legally work in the United States must first apply for a specific work visa. As outlined above, all these immigrant visas have different costs, requirements, application processes, and processing times. Contact an experienced immigration lawyer for clarification. Be prepared for a lengthy and involved process when applying for a work visa. The primary requirement is a firm job offer from an employer based in the US. If you are issued a work visa, it will only be valid for as long as you continue working for that specific employer. Those who are ineligible for the Visa Waiver Program who are looking to remain in the United States for up to 180 days can consider applying for a US visitor visa. This allows for longer stays for the purposes of tourism or restricted business activities. Immigrant visas, on the other hand, allow you to stay permanently in the United States without restrictions on employment. Reach out to Chicago Immigration Lawyers today by calling (312) 704-8000 or our contact form, and we will guide you through the visa process.

FAQs

If I obtain a US visa, does this guarantee entry into the country?

No, possessing a valid visa for the United States does not guarantee entry. This decision is made by the border patrol (US Customs Border Protection) at the point of entry into the US. When you go through customs and immigration, an official will verify your documents and check your background. The main reasons for entry into the US being refused involve any threat posed to the safety and security of US citizens by the person attempting to enter the country.

What can I do if my US visa application is denied?

Visa applications can be denied for many reasons, including criminal history or ineligibility for that specific visa type. If you fail to obtain a US visa, the best approach is to make a fresh application. You should also contact an accomplished immigration lawyer.

How long is it possible to remain in the US with a visa?

All nonimmigrant visas permitting travel to the United States are temporary. As such, they have an expiration data that varies according to visa type. Some nonimmigrant visas are valid for three months, while others are valid for three years. If you have an immigrant visa, also known as a green card, you are eligible to remain in the United States indefinitely.

What should I do when my visa expires?

When a US nonimmigrant visa expires, you can renew it by undergoing a similar process to that of the initial application. You are only required to renew this visa when the expiration date has passed.

Tandap v. Barr

2020-09-08 in Cases Won

Tandap v. Barr
825 Fed.Appx. 391 (7th Cir., 2020)
Seventh Circuit Court of Appeals

On September 8, 2020, the Seventh Circuit Court of Appeals rendered a favorable decision on a Petition for Review for a Cameroonian citizen, represented by Christine P. Varghese of Chicago Immigration Advocates Law Offices, whose claim to seek asylum, withholding of removal, and and protection under the U.N. Convention Against Torture was denied by the lower court.

Ms. Varghese was hired after Mr. Tandap was ordered removed by the Immigration Court and Board of Immigration Appeals. Ms. Varghese filed a motion to reopen his immigration proceedings before the Board of Immigration Appeals in order to apply for asylum, withholding of removal, and protection under the U.N. Convention Against Torture (“CAT”) based on the Cameroonian government’s growing mistreatment of the Anglophone minority group to which he belonged. Attorney Varghese successfully persuaded the Court that the Board of Immigration Appeals made serious reversible errors in its decision – namely that the Board improperly used the incorrect standard of proof and improperly ignored the expert report as well the client’s arguments for CAT protection.

Among other reasons for reversing the Board of Immigration Appeals, the Court said in conclusion:

"the Board erred by ignoring Tandap's claim for relief under the Convention Against Torture. In his motion to reopen, Tandap highlighted this claim as the “first and foremost” form of relief upon which he sought reopening. A motion to reopen under the Convention “is distinct from an asylum claim and deserves independent substantive consideration.” * * * The failure to provide any rational explanation for denying this claim is an abuse of discretion."

Chicago Immigration Advocates Law Offices continues to demonstrate, through the efforts of Ms. Varghese, that no matter how complex your case might appear to be, if any lawyers are going to win your case, it will be Chicago Immigration Advocates Law Offices.

Jimenez-Aguilar v. Barr

2020-07-31 in Cases Won

Jimenez-Aguilar v. Barr
977 F.3d 603 (7th Cir. 2020)
Seventh Circuit Court of Appeals
*Precedential Case

On July 31, 2020, the Seventh Circuit Court of Appeals ordered that a new hearing be held for a Honduran citizen, represented by Carla I. Espinoza of Chicago Immigration Advocates Law Offices, whose motion to for a new hearing was denied by the Board of Immigration Appeals.

Chicago Immigration Advocates Law Offices, through Attorney Carla I. Espinoza, represented Mr. Jimenez after the Board of Immigration Appeals denied his motion for a new hearing. Ms. Espinoza filed a Petition for Review with the Seventh Circuit Court of Appeals, asserting that his prior counsel rendered “ineffective assistance of counsel” when he discouraged Mr. Jimenez to seek asylum, despite the fact that his mother previously had been granted asylum. Ms. Espinoza argued that not only was Mr. Jimenez’ prior attorney ineffective, but also that the Immigration Court failed to notify Mr. Jimenez that asylum or withholding were potential benefits under the regulations when he expressed that he would be harmed if returned to Honduras. He asserted that he feared gang violence because his mother received death threats from gangs as a result of her position on a community council.

Ms. Espinoza persuaded the Seventh Circuit that where someone like Mr. Jimenez articulates a recognizable basis for asylum, (1) Immigration Judges have a mandatory duty to advise non-citizens of the availability of asylum and withholding of removal; and (2) where the Immigration Judge fails to do so, the non-citizen is entitled to a new hearing.

The Court said as follows:

"If Jimenez-Aguilar had expressed only a fear of generalized violence in Honduras, as the Board believed, the IJ would not have needed to notify him about the possibility of asylum. But Jimenez-Aguilar told the IJ that he feared persecution at the hands of gangs in Honduras because of his relationship to his mother, who had received asylum based on these threats. The IJ accordingly should have given the regulatory advice, which could have led to further evidence on topics such as whether the government is complicit in private violence."

Ms. Espinoza’s work creates an important legal precedent which has impacted how immigration courts as well as circuit courts throughout the country will adjudicate cases of non-citizens seeking asylum and withholding protection by clarifying the correct legal standards to be applied.

* The case is, first, a published decision (many decisions of the court are not important enough to be published), and, second, its statement of the law is so important that future parties rely upon it in their arguments in their cases before the courts.

New Illinois Marijuana Law Helps Non-Citizens

2019-12-15 in Blog, Crime and Immigration

New Illinois Marijuana Law Helps Non-Citizens

 In Illinois, starting January 1, 2020, the recreational use of marijuana becomes legal. Under Federal immigration laws, however, its use remains prohibited. Even though the Illinois law does not expressly provide relief for non-citizens, a relatively unmentioned provision provides a notable benefit to those non-citizens who have disqualifying marijuana convictions in their backgrounds. This short article will discuss, first, what the pitfalls are in seeking any benefit such as legal permanent residency or naturalization from United States Citizenship and Immigration Services (“USCIS”) in relation to use of marijuana and, second, how the new Illinois law opens the door to vacate all disqualifying marijuana convictions, whether for possession or delivery.

Pertinent Federal laws regarding possession of Marijuana. Under federal law the possession of marijuana remains illegal. Under Title 21, Chapter 841, the federal statute simply provides as follows:

(a) Unlawful acts: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

(21 U.S.C. §841) (West, 2019). Marijuana, or “cannabis,” is considered a “controlled substance” under schedule I of the Act. 21 C.F.R. 1308.11(d)(23).

Under the Immigration and Nationality Act (“INA”), possession of marijuana is a disqualifying offense for those who seek permanent residency as well as those who seek naturalization. For those seeking permanent residency, not only a conviction, but also any “admission” to using marijuana could result in a denial. Likewise, for those seeking naturalization, not only a conviction, but also any “admission” could result in being denied naturalization as a failure to have “good moral character” under the INA.

 Legalization of Possession of Marijuana, New Illinois Law P.A. 101-27 (eff. 6-25-19). Illinois prosecutors do not make a distinction between those who are citizens and non-citizens and, therefore, it is unlikely that anyone, whether a citizen or not, will receive a “conviction” for possession of marijuana in Illinois so long as it is less than 30 grams for Illinois residents, and less than 15 grams for non-residents of Illinois. It is also worth noting that not all use of marijuana is legal: (a) it must not be smoked in public, (b) if transporting it in a vehicle, it must be inaccessible during transport, i.e., in the trunk, and in a sealed container, and (c) one cannot be under the influence while driving.

 The problem for non-citizens is that for any arrest USCIS many times requests a copy of the police report even if there was no conviction. USCIS may require an explanation of what happened during the arrest, usually looking for any clues for whether any violence, drugs, or weapons were involved. If USCIS sees in the police report that marijuana was involved and, at the interview, the non-citizen admits to the USCIS officer having used marijuana, although never charged and convicted for it, it would be a basis to deny relief and, depending upon the circumstances, place the non-citizen into removal proceedings. Thus, it is advisable to retain counsel for any applications for permanent residency or naturalization when there is any arrest for marijuana, despite the recent change in Illinois law.

Time to Commence Post-Conviction Proceedings, P.A. 101-27. Under the new Illinois law, those with marijuana convictions for possession under Section 4 or Section 5 of the Cannabis Control Act, may seek to vacate their convictions, apparently regardless of the date of conviction.

The law states very simply:

Any individual may file a motion to vacate and expunge a conviction for a misdemeanor or Class 4 felony violation of Section 4 or Section 5 of the Cannabis Control Act.

20 ILCS 2630/5.2(i)(3). P.A. 101-27. This provision not only allows for the vacature of possession convictions, but also convictions for delivery under Section 5 of the Cannabis Control Act. It is important for non-citizens to understand that mere expungement is insufficient under Federal immigration law – a complete vacature of the conviction, meeting the requirements under Board of Immigration Appeals case law is required to completely erase any conviction, including controlled substance convictions for marijuana possession and/or delivery. Despite the difficulty in meeting these requirements, the most difficult requirement we have encountered is that the person has allowed more than three (3) years to pass from the date of conviction, which subjects the petition to immediate dismissal in the criminal court. Now, however, the new Illinois legalization law has commenced the clock again for criminal judges to review and vacate these convictions. If you are a non-citizen who has a conviction for marijuana possession or delivery in your background, now is the time to discuss with counsel whether you may qualify to vacate the conviction and proceed to ask for either permanent residency or naturalization with USCIS. Depending upon your circumstances, you may have a very short time to do so, but in most cases it would be about 2 years, until the end of 2021.

Related Link

Andreica v. McAleenan

2019-08-12 in Cases Won

Andreica v. McAleenan,Acting Secretary, Dept. of Homeland Security17 CV 9254Order Compelling Discovery of Notes, PhotographsAugust 12, 2019

The Plaintiff and his wife retained Carla I. Espinoza of Chicago Immigration Advocates Law Offices, to file suit against United States Citizenship and Immigration Services (“USCIS”) for its delays and eventual denial of an Adjustment of Status application, based upon marriage, filed in 2011.

The Plaintiffs were subjected to two interviews, two investigatory visits to their home, two appeals to the Board of Immigration Appeals, and then two denials of their petition. USCIS denied the claim in both instances because it believed that Plaintiff’s wife was still residing with her ex-husband. While the case was pending before the Board, Carla I. Espinoza provided overwhelming evidence that the marriage was in good faith including not only joint utility bills, bank statements, and property ownership records, but also several affidavits from friends and family attesting to the good faith marriage. Despite this, the Board remained steadfast in supporting the improvident decision of USCIS.

The federal lawsuit asserted, first, that USCIS was withholding information from the record when the case was before the Board. Second, and most troubling, USCIS created a memo after the lawsuit upon which it sought to rely to summarize evidence and continue to deny the petition. Federal District Court Judge Joan B. Gottschall found both problems troubling, requiring USCIS to turn over its records by court order, dated August 12, 2019.

In her decision she said:

"To sum up, plaintiffs have made the required strong showing that the record is incomplete and that additional information is needed to facilitate meaningful judicial review. The additional information needed includes an explanation of the date appearing on the FDNS memo, A.R. 54–55. To complete the record, defendants must also add any investigative materials, such as notes, photos, an insurance claim, and the purchase agreement, considered by the Director or the BIA. If no such additional materials exist, defendants must supplement the administrative record with an appropriate affidavit so stating and indicating whether any such documents previously existed and, if so, why they cannot be added to the record."

Regarding the memo created during the litigation, Judge Gottschall said

"The court’s review of the record raises serious concerns about the good faith of the underlying investigation and proceedings. The timing of the FDNS memo’s introduction into the record (so plaintiffs never could present an argument to the Director about it) makes it appear to have been manufactured for litigation purposes (supplementation will clarify this issue)."

If your case was improperly denied, or the Government is taking an inordinate amount of time to decide your case, you may have a claim under the Administrative Procedure Act (“APA”). Give Chicago Immigration Advocates Law Offices a call to discuss your case.

DACA and Adjustment of Status

2018-11-18 in Blog, Family-Based Immigration

DACA and Adjustment of Status

Several people we have spoken to over the last few weeks have inquired concerning their eligibility for Adjustment of Status based upon marriage to a U.S. Citizen if they have received Deferred Action for Child Arrivals (“DACA”). It has been widely discussed that DACA was not meant to be a “path to citizenship.” In some instances, however, it might be, but it is our interpretation that it is limited to those with particular circumstances.

We will start out discussing some concepts in immigration law. First, “Adjustment of Status” is the term for receiving legal permanent residence within the borders of the U.S. In order to be eligible for Adjustment of Status, the person must enter the U.S. legally, i.e., with inspection by a border officer. This is in distinction to “consular processing” where a person obtains legal permanent residency through an immigrant visa obtained outside the U.S. Those who entered without inspection are required to leave the U.S. in order to obtain an immigrant visa and are subject to a 10 year bar when they leave because they have been in the U.S. illegally for over 1 year (a waiver or the “provisional” waiver forgives this illegal presence; if someone elects to do consular processing by the use of the provisional waiver, they need not leave the U.S. for more than a day or two.) The issuance of DACA, in and of itself, is not an admission that can be used for adjustment of status and, therefore, consular processing with either a regular waiver or provisional waiver is a very good option if they have a U.S. citizen spouse. It is important to keep in mind that DACA is merely a directive from the President which permits those who meet its requirements to remain here with work authorization so that they can further their education as well as work, despite having entered illegally and was carefully crafted so as not to confer any status.

Therefore, as discussed above, people with an illegal entry in most instances cannot adjust status. One exception to the legal entry requirement, however, is the amnesty of 2001 where if someone filed an application for an applicant prior to April 30, 2001, they need only pay a $1,000 penalty and they can adjust status despite having entered the U.S. illegally. Therefore, this discussion applies to DACA recipients who (a) entered illegally; (b) are married to a U.S. citizen; (c) never had a work or family petition filed for them or a parent prior to April 30, 2001, and (d) after being here for their first year, did not leave and return to the U.S.

In order for DACA recipients to be eligible to adjust status, they must have obtained “advance parole” to leave the U.S. and, in fact, left the U.S. and returned. Advance parole is a process by which USCIS gives a person permission to re-enter the U.S. for specific reasons. And the entry upon returning creates the “admission” which is required for adjustment of status. USCIS will grant advance parole to people, however, only in limited circumstances enumerated on the website, including humanitarian reasons, i.e., visiting a sick relative, educational purposes, i.e., study-abroad program, or employment purposes, i.e., work conferences. See http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.

Following the 2012 Board of Immigration Appeals decision, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 221, the Department of Homeland Security expressed its intent to adopt the interpretation that leaving the country pursuant to a grant of Advance Parole is not considered a “departure” which triggers the 3- and 10-year bar to re-entry. See, Memo, Jeh Johnson, Secretary, U.S. Dept. Of Homeland Security, “Directive to Provide Consistency Regarding Advance Parole” (Nov. 20, 2014). Therefore, DACA recipients who are granted parole into the U.S. after their travel abroad, who are beneficiaries of a visa petition, and a visa is immediately available, i.e., a U.S. citizen spouse petitioned for them, should be eligible to apply for residency while remaining in the U.S. without having to deal with this particular “bar” under the Immigration Act.

Despite this, it is our opinion that DACA recipients should use the advance parole process carefully. First, there must be a legitimate reason for requesting permission to leave the U.S. and not merely the intent to qualify for adjustment of status. Most importantly, it must be supported by sufficient documentation. Secondly, a person should not seek to use advance parole if he or she left and returned to the U.S. after having originally entered, i.e., you came to the U.S. twice or more. The reason for this is that the person could trigger a different and more strict 10 year bar (different from the one mentioned above) for having illegally remained in the U.S. for more than one year and then left and re-entered or attempted to re-enter. It is our experience that, even in this circumstance, USCIS may still issue an advance parole document and when you attempt to enter on it, U.S. Customs and Border Protection (“USCBP”), will deny entry for having violated this provision. It seems to make sense that USCIS would not issue the document if you are not entitled to return, but that is not the case.

It is important to note that most DACA recipients who are married to U.S. citizens also qualify for the provisional waiver and that should be considered as a good alternative if there are not legitimate reasons to leave the U.S. Further, there may be questions from either USCIS or USCBP concerning one’s marital status. If it is disclosed that one is married to a U.S. citizen, it is likely that the request for advance parole will be scrutinized carefully and, perhaps, denied. And, further, once the advance parole is granted by USCIS, you will also be scrutinized by USCBP upon entry, which has discretion to deny entry. It is possible that USCBP officers could inquire one’s intention to marry after entering the U.S. or whether one intends to adjust status after entering if already married, in which case, could form the basis for a denial of entry. We believe, therefore, that if one is married to a U.S. citizen and is a DACA recipient, one’s reasons for leaving the U.S. under advanced parole must be strong, along with sufficient supporting documentation. Further, if one is not yet married, one should refrain from marrying until after having left and returned on advance parole. In either case, if one’s reasons for leaving are weak, then either USCIS or USCBP will suspect an intent to avoid the immigration laws and will either deny the advance parole request or, worse, deny entry at the border once you have left.

Rivas-Pena v. Sessions

2018-08-21 in Cases Won

Rivas-Pena v. Sessions
900 F.3d 947 (7th Cir. 2018)
Seventh Circuit Court of Appeals/h4>

Chicago Immigration Advocates Law Offices, through Attorney Carla I. Espinoza, represented Mr. Rivas before the Immigration Court as well as at the Court of Appeals on a Petition for Review. Mr. Rivas sought protection under CAT to avoid being killed by one of the Mexican drug cartels if he were removed to Mexico. The Immigration Court said that Mr. Rivas’ claim was merely “speculative” and summarily dismissed his case. The Petition for Review prepared by Ms. Espinoza argued that an Immigration Judge’s mere assertion of “speculation” does not meet the standard under CAT and that the regulation requires any decision must to be supported by “substantial evidence.” The Court found that the evidence, supported by expert testimony from a university professor who studies Mexican drug gangs, was that Mr. Rivas’ loss of nearly $900,000 in contraband would have resulted in his death by the gang if he were returned to Mexico and, thus, reversed the decision of the Immigration Court.

Ms. Espinoza’s work creates important legal precedent which impacts how immigration courts as well as circuit courts throughout the country will adjudicate cases for non-citizens seeking CAT protection by clarifying the correct legal standards to be applied.