Beach-Oswald Immigration Law Assoc.
Beach-Oswald Immigration Law
News Update
In This Issue . . .

1. Patricia A. Wonder Joins BOILA

2. Recent Grants & Successes

3. Why is April 1, 2014 Important? H-1B Visas!

4. Changes for the Civil Surgeon Application Process

5. Comparison of Benefits for Refugees & Asylees

6. Martinez v. Holder Case

7. New Cases From Fourth Circuit

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clients choice award

 

Patricia A. Wonder Joins the BOILA Team
Patricia A. Wonder, Esq. has been working in the immigration field for more than seventeen years with experience in all areas of immigration and nationality law.  She is passionate about advocating for immigrants and has devoted her career to working in immigration law.  In 1995, she graduated from The College of NJ, Trenton, NJ. In 1996, she began working for the former INS as a District Adjudications Officer in Newark, NJ, where she determined the eligibility of green card applicants. In 1997, she began employment with Fragomen Del Rey Bernsen & Loewy, a prominent full service immigration law firm, as a paralegal, and continued working full time through graduating law school. She attended Rutgers University Newark Law School and graduated in 2002. During law school she volunteered with the American Friends Service Committee in their Immigrant Rights Program, served as a Teaching Assistant for Dean of the law school, was a member of the Constitutional Litigation Clinic working on immigration litigation cases, as well as the Race and Law Review journal. In 2002, upon graduation from law school, she was accepted into the Attorney General's Honor Program and began a judicial clerkship with EOIR (Executive Office for Immigration Review). During this time, from 2002 - 2003, she was employed as a Judicial Law Clerk for immigration court in Newark, NJ, and from 2003 - 2004, she was employed as an Attorney Advisor for immigration court in New York, NY.  From 2004 to 2009, she was employed as an Associate with Fragomen Del Rey Bernsen & Loewy in New York City.  Since 2009, she has been living in Washington, DC, assisting various law firms with immigration litigation matters.  Additionally, she is currently an Adjunct Lecturer for online immigration courses at CUNY SPS, where she has been teaching since 2005. She is excited to begin working with Beach-Oswald Immigration Law Associates, PC.

 

Issue: #1February 2014
Washington DC Capitol in winter snow

Beach-Oswald Immigration Law Associates, PC are Washington, DC immigration attorneys. Our law firm is devoted exclusively to immigration law. We have an AV rating (highest possible rating for lawyers for legal acumen and ethical standards). Practicing law since 1981.

 

Thank you all for your confidence and support as I have been listed again by the Washington Post and have been selected for Washington DC Super Lawyers 2012-2014, representing the top 5% of lawyers in the area as listed by the Washington Post 2014!

 

Please complete a Client Data Form prior to your consultation. We have forms in English, French, Spanish, Korean, Arabic and Russian. If you require a form in another language, please call us at  (202) 331-3074.

 

 Read on!

Recent Grants & Successes by BOILA
success
Grants by the Board of Immigration Appeals (BIA) and U.S. Court of Appeals for the Fourth Circuit 

BOILA is pleased to share that Ms. M, a native and citizen of Cameroon, was granted asylum by the Baltimore Immigration Court. After an appeal on the date of filing and date received and a Motion to Reopen on Changed Country conditions and a remand from the BIA to Judge Dornell.  Since 2006 she had been ordered removed.  We represented her mother and siblings which were all granted later in 2008.  In addition, BOILA assisted Ms. M in establishing that the recent harm to her family members subsequent to her flight from Cameroon established a well-founded fear of future persecution. 

 

Mr. B, a citizen and native of Cameroon, received approval of his I-130 petition, filed on his behalf by his U.S. citizen wife.  Based on the I-130 approval, BOILA is looking forward to assisting Mr. K in being granted lawful permanent residency before the Baltimore Immigration Court so that he may remain in the U.S. with his US citizen wife and their two children. This will be a tough one as he has a final order denial from the Judge from several years ago before we represented him.

 

Ms. D, a native and citizen of Ghana, received the approval of her I-360 Abused Spouse Petition.  Ms. D was married to her US citizen husband for 8 years.  Throughout the course of their marriage, Ms. D's husband subjected her to repeated physical and emotional abuse while also threatening her and using her immigration status in this country as a means of exerting his control over her.  BOILA worked hard to overcome a prior denial of an I-130 petition and allegations by USCIS that the marriage was not bona fide.  BOILA is now able to assist Ms. D in seeking her green card before the Arlington Immigration Court.

 

Ms. A , a native and citizen of Cameroon, received the approval of her I-360 Abused Spouse Petition.  Ms. A was married to her US citizen husband for almost 10 years.  Throughout the course of their marriage, Ms. A's husband subjected her to repeated physical and emotional abuse and used her immigration status in this country as a means of exerting his control over her.  BOILA is now able to assist Ms. D in seeking her green card before the Baltimore Immigration Court.

 

Ms.K, a native and citizen of Cameroon, was granted an INA 212(i) inadmissibility hardship waiver and adjustment by the Houston Immigration Court. She had filed entered on a false passport  on an A-1. 

 

Mr.  M a native and citizen of Cameroon, had his Motion to Reopen granted and his case is scheduled for a master hearing in Texas in June 2014. 

 

Ms. T, a native and citizen of Cameroon, was granted asylum by the Arlington Immigration Court.before Judge Burman. Ms. M suffered past persecution in her country as a result of her human rights activities and political affiliation with the SCNC, an opposition political party.   In addition, BOILA assisted Ms. T in establishing that the recent harm to her family members subsequent to her flight from Cameroon established a well-founded fear of future persecution. 

 

Mr. Y, a native of Cameroon, was granted withholding and relief under the Convention Against Torture by the Arlington Immigration Court, Judge Harris, thereby allowing him to remain in the US with his family.  He had originally been granted asylum in 2000 but had committed several crimes involving theft and bad checks.

 

Ms. Z native and citizen of China, was granted asylum by the Arlington asylum office .  In China, Ms. Z was an open critic of the prevalent corruption and political intolerance that permeated from the Communist regime.  As a result of Ms. Z's political opinion, she was forced to flee the country after being physically beaten on numerous occasions. 

 

Ms.Z , a native and citizen of Sierra-Leone, recently had her Joint Motion to Reopen and Dismiss granted.  Ms. M is no longer in removal proceedings after 10 years of being deported and BOILA looks forward to assisting her file for Adjustment of Status.

 

Ms. IN, a citizen and native of Indonesia, also had been ordered removed several years ago based on her asylum and once we represented her we were able to get her removal proceeding terminated without prejudice by the Arlington Immigration Court.  BOILA looks forward to assisting her in getting her green card approved as the final lapse. 

 

Mr. M, a citizen and native of Honduras, received the approval of his I-130 petition, filed on his behalf by his LPR wife.  Based on the I-130 approval, BOILA is looking forward to assisting Mr. M in being granted lawful permanent residency before the Arlington Immigration Court so that he may remain in the U.S. with his wife.  Additionally, BOILA is looking forward to assisting Mr. M's wife in her upcoming naturalization application. 

 

Ms Coretha Tassi,   a citizen of Cameroon has had a long road.  After having been ordered removed since 2003.  She is in ecstasy as we represented her in getting her case remanded at the 4th Circuit in a Published Decision where we had oral argument and then remanded by the BIA.  Finally IJ Crosland in Baltimore Immigration Court approved her case and she has now been granted asylum and will be able to file for her husband.

 

Ms. D, a citizen of Cameroon, was granted Withholding of Removal based on the Judge's discretion as he did not agree to asylum due to credibility stamp in passport issues. 


To our clients who were granted Naturalization this month.  In particular Mr. Agboola and Mr. Nsimbo who have waited some time.  In particular, several of the Mandamus actions we filed resulted in grants of Naturalization
.

BOILA is pleased to have had the opportunity to help them in their immigration matters.
Why is April 1, 2014 Important? H-1B Visas!


April 1, 2014 is the first day on which U.S. Citizenship and Immigration Services ("USCIS") may receive H-1B specialty worker petitions for the next fiscal year that begins on October 1, 2014. To qualify for the H-1B category, the position offered must be a specialty in which a bachelor's degree or its equivalent is normally the minimum requirement and the foreign national must hold a bachelor's level degree or its equivalent in the specialty defined by the position (this threshold can be met in some cases through a combination of education and work experience).

Due to the overwhelming demand for the annual allotment of 85,000 visa slots, employers who wish to file new H-1B petitions for current or future employees should plan to do so on April 1st. The number of H-1B approvals requested by employers has reached the annual H-1B "cap" every year for over 10 years. In fact, for Fiscal Year 2014 USCIS received 124,000 petitions within the first week of filing. USCIS was required to conduct a lottery to randomly select which petitions would be reviewed and considered for H-1B status. Those petitions not selected for processing were rejected and some foreign nationals were required to leave the United States while others were forced to make alternative plans on an emergency basis.

Are There Certain Employees In Particular Who Should Be Considered? Yes, three situations come to mind:  

  1. Students who hold F-1 visa status and who are working for your organization under a grant of Optional Practical Training work permission
  2. Some L-1 Intracompany Transferees who work for your organization
  3. Candidates who are not yet working for your organization but whom you have an interest in employing in the future (starting between October 2014 and October 2015)


F-1 Students and L-1 Transferees have limited-duration work permission. If you wish to continue employing these individuals beyond their current authorization, the H-1B category may be an option.

Why F-1 Students?

Many F-1 students hold post-graduation Optional Practical Training work permission that is limited to no more than one year. Other F-1 students may be eligible (in some cases) for an additional 17 months of Optional Practical Training work permission.

Why L-1 Intracompany Transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial, or specialized knowledge capacities for at least one year with a commonly-owned foreign company, and who are in the United States to continue providing services to the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years.

Are There any Exemptions from the Annual H-1B "Cap"?

Persons already counted under the H-1B cap and who need an extension of H-1B status are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a different employer are exempt from the cap. The limitation applies only to persons not yet counted against the annual H-1B cap. Also, certain types of higher educational or nonprofit research organizations that file H-1B petitions are exempt from the H-1B numerical limitation.

Contacting Beach Oswald  About Filing an H-1B Petition

If you have not already contacted Beach Oswald  about filing an H-1B petition for an employee who needs to enter the H-1B category, please do so immediately.

Changes for the Civil Surgeon Application Process
Typhoon Haiyan in the Philippines

On January 28, 2014 USCIS announced a change in the application process for earning the civil surgeon designation.  These doctors are selected by USCIS to perform the immigration medical examinations of applicants seeking certain immigration benefits in the United States to ensure that the health of the United States population is protected.  These civil surgeons examine patients to determine whether the applicant has any health condition which could lead to exclusion from the United States depending on health-related grounds of inadmissibility.  The new process requires the physician to complete an I-910, Application for Civil Surgeon Designation and file it at a USCIS Lockbox-National Benefits Center, effective March 11, 2014.  This new centralized approach will create a more efficient and formal process overall whereby managing and tracking the applications will be improved.  Concentrating the new process at the National Benefits center will allow for more consistency and uniformity in the manner in which these applications are adjudicated.  The old process was limited to a more informal, local district or field office dependent on the jurisdiction of the civil surgeon's physical office.   A further announcement updated the Guidance for Health-Related Grounds of Inadmissibility and Waivers, ensuring a more extensive new guidance policy.  All previous related policy guidelines are replaced with this updated policy.    

 

For more complete information, please refer to:

 

USCIS Policy Manual: Volume 8. Admissibility, Part B. Health-Related Grounds of Inadmissibility.

Comparison of Benefits for Refugees and Asylees

In order to provide for the unique needs of recently arriving gavel refugees and those granted asylum in the United States, the U.S government has developed distinct benefit programs for both refugees and asylees. This blog will discuss the available benefits and services for each group and comment on why these benefits are so important to help both refugees and asylees successfully and rapidly integrate into the U.S. economy and culture.

            Individuals who receive asylum grants at the asylum office or immigration court are entitled to various benefits. The most sought after benefits are Employment Authorization and the ability to bring over their spouses or unmarried minor children to the U.S. as Derivative Asylees. In order to bring over their qualifying family members, they must apply for and receive and approved I-730 Refugee/Asylee Relative Petition. Asylees also receive an unrestricted social security card and are eligible to adjust status and apply for the green card one year after the grant date. In addition, asylees are eligible for assistance with job searches, career counseling and occupational skills training through the Office of Refugee Resettlement. These job assistance benefits vary by state and it is entirely the responsibility of the asylee to seek out these benefits. Asylees are not given any sort of case management services and are expected to navigate these services and opportunities on their own.

            Refugees most often arrive from active conflict-zones and are fleeing situations of extreme violence. They have often spent time in refugee camps or shelters and are unable to return to their homes because of destruction, on-going violence or other reasons. After refugees go through screening processes abroad, they are resettled in the United States. This resettlement process entails a variety of benefits and collaboration from various organizations. For the first 90 days of arrival refugees receive case management services and access to assistance with food, housing, employment, education, medical care, counseling and cash assistance to help them make a rapid transition to the United States. Organizations such as Lutheran Social Services and Catholic Charities assist refugees from the moment they arrive in the United States with specialized case management to help them effectively navigate the complex web of public benefits such as food stamps, Medicare and Medicaid. In addition, refugees are also eligible to adjust status to permanent residence after one year of arrival and are able to petition for family reunification for their spouses or unmarried minor children

            Our new Office Assistant, Semir Hasedzic, comments on his own experiences as a refugee and the resettlement process in the U.S.:

"On May 19th of this year I will celebrate the 15th anniversary of having arrived to the United States. I was young, too young to remember the exact details of the complete refugee resettlement process from Bosnia and Herzegovina to Germany and then to the United States, but old enough to remember vividly the assistance my family and I received from a case manager affiliated with the Pilgrim Slavic Baptist Church in Spokane, WA. Through our case manager, and an anchor (sponsor) in Spokane, WA - my uncle and his family - we were able to secure an apartment within the first week of arriving to the US which followed other firsts in the US. Within the next 90 days the case manager helped in securing jobs for my father and mother, enrolling both my brother and I in high school and elementary school, respectively, and figuring out systems from food stamps, bus routes, taxes, social security, and where to buy furniture and household appliances. 

The case manager at the Pilgrim Slavic Baptist Church was an extraordinary woman. With her help, my family and I were able to quickly integrate into the American system of life and create a strong foundation from which to build upon for the future in the US."

Isn't this what we want for asylees also?  They often have no knowledge of how to navigate through our housing, credit card and financing, employment and mental psychological help and would be much more productive and influential members of society if they could benefit from a short term case management.  Many times they come from villages and the city is overwhelming with complexity to them.  Since the program has worked for refugees and their families it would also work for asylees.  

 
Martinez v. Holder Fundamentally Redefines "Immutability" for Former Gang Member

On January 23, 2014, the 4th Circuit Court of Appeals issued its decision in Martinez v. Holder, a case that has generated widespread discussion throughout the immigration community for its relevance in defining, or in this case, redefining the parameters of what properly constitutes a "particular social group" for asylum purposes.  Pursuant to the Immigration and Nationality Act (INA), asylum is granted to those individuals who can aptly demonstrate that they have previously suffered persecution, or have a well-founded fear of future persecution in their country of origin on account of their  race, religion, nationality, political opinion, or membership in a particular social group.  Out of all the aforementioned classifications, "particular social group," due to the broad and ambiguous nature of the term, has presented courts and adjudicating agencies with a unique set of definitional hurdles that have led to an individualized case-by-case analysis 

 

The foundational decision regarding what properly constitutes a particular social group is the 1985 decision by the Board of Immigration Appeals, Matter of Acosta In Acosta, the BIA defined a particular social group as a collection of individuals who share an "immutable characteristic that cannot be changed or is so fundamental to their identity that they should not be required to change."  Since Acosta, women subjected to or opposed to female genital mutilation, homosexuals, members of clans, individuals with extended familial relationships, women who refuse to conform to strict religious codes, and women fleeing from systematic domestic violence have all been recognized as particular social groups for asylum purposes.

 

In Martinez v. Holder, the 4th Circuit considered the case of a man who was initially conscripted into a gang in El Salvador, but subsequently left and was subjected to unrelenting persecution as a result.  Upon leaving the gang, Mr. Martinez was physically attacked on numerous occasions and was aware that gang leaders had formally authorized other members to murder their former compatriot.  In the underlying BIA decision, the Court held true to precedent and found that Congress could not have intended for previous gang membership to create an opportunity for protection under U.S. asylum law and thus, former gang membership could not constitute a particular social group for asylum purposes.

 

On appeal, the 4th Circuit was gifted an excellent opportunity to open the gates of redemption to former gang members by overturning decades of precedent and on January 23, 2014, the court did just that.  The Court concluded that Martinez's proposed particular social group of former MS-13 members from El Salvador is immutable for withholding of removal purposes in that the only way that Martinez could change his membership in the group would be to rejoin MS-13. Therefore, the Fourth Circuit held that the BIA erred in its decision because it failed to recognize the immutability of former members of MS-13 who have renounced their membership in the gang. Additionally, the Fourth Circuit was forced to address the government's counter-argument that claimed that the INA disqualifies groups whose members had formerly participated in anti-social or criminal misconduct. However, the Fourth Circuit quickly dispatched with these concerns by ruling that attaching this condition to qualification as a "particular social group" is untenable as a matter of statutory interpretation and logic.  Nevertheless, it appears that the Court's decision has left plenty of room for argument and future litigation on this issue seems inevitable.

 

In conclusion, the Fourth Circuit's recent decision has monumental implications not only for former gang members seeking asylum, but also for other groups that have previously lacked the immutable characteristic under the particular social group analysis.  Given the widespread effect that this decision will have on U.S. asylum law, coupled with the fact that the Fourth Circuit's ruling in this case creates a Circuit split that fundamentally contradicts one another, it is likely that the Supreme Court may take up this issue.  This of course assumes that the government wishes to appeal the Fourth Circuit's decision.  However, given the drastic changes in asylum law that are implied by this decision, the government will may appeal to the Supreme Court.  Also, it leaves open the question of those who may have joined a gang while in the U.S. and subsequently withdrew.
New Cases From Fourth Circuit 

Implications of Temu v Holder 

 

On January 16 of this year, the Fourth Circuit vacated and remanded for further consideration the Board of Immigration Appeals' denial of Mr. Temu's application for asylum, stating that no rational fact finder could have reached the same conclusion. The Court found that not only did Mr. Temu's proposed social group of persons with medical illness exhibiting erratic behavior constitute a particular social group, but also that he was persecuted on account of this membership and thus qualifies for asylum.

 

Mr. Temu's mental disturbances began when his mother died in a car accident, and as a result he experienced a severe mental breakdown followed by a number of similar mental episodes which were later diagnosed as manifestations of bipolar disorder.  Unfortunately, Mr. Temu's erratic behavior caught the attention of Tanzanian officials who took him to Muhimbili Hospital in 2003.  Since that time Mr. Temu has been to a number of different asylums and prisons suffering extremely violent physical abuse.  The cause of this abuse stemmed fromTanzanian cultural perceptions that those with mental illnesses are demon-possessed, and that its symptoms are contagious. Tanzanians refer to these people as 'mwenda wazimu'translated as demon-possessed. Even medical professionals in Tanzania believe that severe mental illness accompanied with erratic behavior is caused by demonic possession.

Due to this cultural belief Mr. Temu was abandon by his family and severely abused in both medical institutions and prisons.  The nurses at Muhimbili Hospital would tie Mr. Temu's hands and feet for five to seven hours a day, four days a week explaining that this was how to treat people who were mentally ill.  Prison guards also beat Mr. Temu with a club four days a week and picked him out as a 'mwenda wazimu.'  Prisoners with mental illnesses exhibiting erratic behavior like Mr. Temu's were also severely beaten.  

 

       Mr. Temu decided to come to the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).  He argued that since he faced severe persecution on account of his particular social group of individuals with bipolar disorders who exhibit erratic behavior he should be granted asylum.  However, the Immigration Judge denied Mr. Temu's asylum and withholding claims concluding that Mr. Temu's proposed particular social group lacked the three required elements:  immutability; particularity; and social visibility.  However, the Immigration Judge granted CAT relief to Mr. Temu because he was tortured because of his mental illness.  The BIA upheld the Immigration Judge's reasoning.

 

       The Fourth Circuit however disagreed with this reasoning stating that Mr. Temu's proposed group of individuals with bipolar disorder who exhibit erratic behavior does qualify as a particular social group and that Mr. Temu was persecuted because of his membership in this group.

The Court recognized that Mr. Temu's proposed group of individuals with bipolar disorder who exhibit erratic behavior satisfies the social visibility, particularity and immutability requirements necessary to constitute a 'particular social group'eligible for asylum.  The Court used precedent to define social visibility as whether a group is understood by others in society to constitute a social group, and since Mr. Temu and those similarly situated to him are specifically labeled as 'mwenda wazimu,' Tanzanians appear to view these people as a group satisfying the social visibility requirement.  The Court also denounced the BIA's holding that Mr. Temu's group lacked particularity, because it broke the group into two parts (medical illness and erratic behaviors) and rejected each piece rather than analyzing the group as a whole.  The BIA noted that those who have mental disabilities cover too broad a spectrum of behavior to have identifiable boundaries.  It also noted that those who behave erratically also covers too broad a spectrum, and because each part of Mr. Temu's proposed group lacked particularity the group as a whole fails as well.  The Court rejected this theory emphasizing that Mr. Temu's group must be considered as a whole, and that individuals who exhibit erratic behavior and who also suffer from bipolar disorder have well-defined and identifiable characteristics to satisfy the particularity requirement.  Lastly, the Court noted that Mr. Temu's group easily satisfied immutability, since his membership in the group is not something he has the power to change.  That each of the required elements were satisfied, the Court found Mr. Temu's group to be a particular social group eligible for asylum.

 

Second the Court considered the BIA's holding that Mr. Temu was not persecuted on account of his membership in his proposed group.  The Court found that the BIA's reasoning was wholly contradictory, because while the BIA credited Temu's testimony of being singled out and physically beaten because of his mental illness, it still concluded that he was not persecuted because of his mental illness.  Rather the BIA granted Mr. Temu relief under CAT because "he was singled out for more frequent beatings because he was mentally ill."  The Court struggled to see how a rational fact finder could conclude that Mr. Temu was not persecuted because of his membership in a group of persons with bipolar disorder who exhibit erratic behavior, and also in the same breath indicate that he was singled out for beatings because of his mental illness qualifying him for CAT relief.  Because of these conflicting findings the Court vacated the BIAs findings on this issue.      

 

This decision is significant as it establishes the possibility of distinguishing those with a specific medical illness as a particular social group eligible for asylum.  The Immigration and Nationality Act specifically states in 8 U.S.C. 1101(a)(42)(A) that individuals qualify for asylum if they were persecuted on account of membership in a particular social group, but it does not go so far as to define what a particular social group means. 

 

Thus, this term has been defined through BIA case law, and is often times misapplied and misinterpreted.  The Fourth Circuit has specified in its analysis that individuals within a particular social group must have an immutable characteristic that cannot be changed, must have sufficient particularity with defined borders, and must have social visibility that those in society view the proposed individuals as a group.  Through the Court's analysis of how Mr. Temu's proposed group satisfies each of these requirements, a solid framework for others to meet is established.

 

Thus those bringing forth asylum cases in the Fourth Circuit have more specific road map to prove that a particular social group exists. 

 

Secondly, it implies that those who may have erratic behavior but are not mentally I'll does not split the social group much as persons who are persecuted on account of having a Jewish last name would not necessarily mean that the group has no boundary.  This decision also gives hope to those who are persecuted on account of their mental illnesses, who may be eligible for asylum so long their community ostracizes them on account of this illness, and there is a behavioral aspect unique to their illness to cover a specific spectrum of individuals.

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