I recently saw someone in my San Francisco office who was interested in applying for political asylum because there is a civil war raging in his country. Unfortunately there are a number of civil wars raging around the world today so there is no shortage of strife. The general answer is that a fear of civil strife by itself is an insufficient basis for applying for political asylum unless you can link the persecution to one of the five protected grounds: race, religion, nationality, membership in social group or political opinion.
Due to the numerous conflicts around the world, a fear of being conscripted into the military is often a claim that arises in political asylum cases. Recently, the United Nations High Commissioner on Refugees (UNHCR) issued some guidelines for persons who have been harmed or fear harm in the future if they were required to serve in their country’s military. The Guidelines are known as, “UNHCR Guidelines on International Protection No. 10.” U.S. asylum law is based on international law as described in UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (“UNHCR Handbook”). The guidelines expand topics in the Handbook by further describing a claim of refugee status based on military conscription so they are worth reviewing in preparing an application for asylum.
First, the Guidelines note that countries have a right of self-defense under both the UN Charter and customary international law. Countries are allowed to require citizens to perform military service for military purposes and this does not in itself violate an individual’s human rights. Thus, it is not enough for a person to say that he does not want to serve in the military because he does not want to learn how to shoot a gun. There has to be a basis for it under refugee law which is described further in the Guidelines.
The Guidelines describe that there is a right to conscientious objection and there is an absolute prohibition on child soldiers and their participation in hostilities. The Guidelines describe five situations in which claims may relate to military service:
1.Objection to State Military Service for Reasons of Conscience (absolute or partial conscientious objectors)
2.Objection to Military Service in Conflict Contrary to the Basic Rules of Human Conduct
3. Conditions of State (Country) Military Service
4.Forced Recruitment and/or Conditions of Service in Non-State Armed Groups
5. Unlawful Child Recruitment
When preparing my clients for their green card interviews based on marriage, they often ask me whether they can just show the USCIS officer their Facebook page to prove that they have a real marriage. The answer is “no,” at least not during the interview. USCIS officers do not have time during the interview to log onto the internet and look at your Facebook page. It is a better practice to bring in the evidence in paper to show them. (See next paragraph for examples of documentation you should bring in.) However, USCIS officers do have access to the internet. At a recent liaison meeting between USCIS and representatives of AILA (American Immigration Lawyers Association) USCIS representatives indicated that they may look up something on the internet in the course of adjudicating a petition or application. You do not want them surfing the internet to find out information about you. It is best to give them what you want them to see. You should set your Facebook settings to private and make sure there is no derogatory information about you on the internet before filing any type of application or petition with USCIS. Continue reading →
On Saturday, June 7, 2014, at 10:00 a.m., I will be giving a talk on Immigration Law. The talk will be given in the virtual world of Second Life©. My talk is sponsored by the Second Life Bar Association (“SLBA”). I will be speaking on Family Based Immigration focusing on fiance visas and marriage to US Citizens. I will be giving an update on immigrating on the basis of a same sex marriage. I will also talk about DACA (Consideration of Deferred Action on Childhood removals) and give an update on the renewal process. Finally, I will talk about H-1B visas and other strategies to immigrate to the United States on the basis of employment.
Second Life is a virtual 3-D world which is created by users. Users create avatars who then interact with other avatars in the virtual world. (The picture above is a picture of my avatar in front of the Second Life Bar Association Building.) To hear the talk, you must first download the Second Life viewer and create an avatar. This all takes some time so allow some time to do it before 10:00 a.m. There is no charge to join Second Life.
The Second Life Bar Association is an international group of attorneys and others interested in the law and in virtual worlds. We hold monthly discussions on law related topics. We just remodeled our Bar Association headquarters on Second Life so take some time to look around after my talk. To find the location of the talk, log on to Second Life and then teleport here: http://maps.secondlife.com/secondlife/Justitia/76/127/952.
The consulate of Mexico located in San Francisco will be holding a “mobile consulate” day in Fairfield, California on June 14, 2014. The consulate will process applications for passports and Mexican identification cards “matriculas.”
The event will take place at:
Armijo High School
824 Washington Street
Fairfield, CA 94533
It is necessary to schedule an appointment in order to obtain services. You may schedule an appointment either by telephone: 1-877-639-4835 or via the internet at: (sreweb.mexitel.com.mx/mexitel_web/)
This is a great opportunity for Solano County residents to obtain services locally instead of having to drive to San Francisco.
The California Department of Motor Vehicles (“DMV”) has launched a new website to provide information on the implementation of AB 60. AB 60 is the law which permits an undocumented individual to obtain a driver’s license in California, after passing the required exams, beginning on January 1, 2015. (The website is also available in Spanish.)
There are currently no regulations yet on the implementation of AB 60. The law allows the DMV one year to issue the regulations. The DMV is working on them and they have held several public workshops seeking comments on the type of documentation they should require to prove identity and California residency given that the population this law will help has no documentation.
While the DMV works on drafting the regulations, they are encouraging people to start studying to pass the written driver’s exam. The AB 60 implementation website has links to the written handbook and sample tests in 11 languages including Russian and Spanish.
I will write a future update on the implementation of AB 60 when the DMV publishes regulations.
It is rare that issues relating to affidavits of support are litigated so it surprising to see a case that made it to the federal court in San Francisco. In an unpublished decision, a judge from the U.S. District court in San Francisco reaffirmed that divorce does not terminate an obligation pursuant to the affidavit of support (I-864). Also, in this case, the defendant had met his obligation.
In Erler v. Erler, the plaintiff, Ayla Erler, claimed that her former husband, Yashar Erler, failed to support her as she believed he was required to do so pursuant to the affidavit of support. The two were married on April 15, 2009. Prior to their marriage, they signed a premarital agreement in which they agreed that in the event of a divorce, neither party would be able to seek or obtain any form of alimony or support from each other. Two weeks later Yashar Erler signed an affidavit of support. As background, the affidavit of support (Form I-864) is signed by a sponsor when sponsoring an individual who is immigrating to the United States. The affidavit is between the sponsor and the U.S. government and by signing it, the sponsor promises that he or she has sufficient income to maintain the immigrant at 125% above the poverty guidelines.
The couple separated on March 25, 2011 and divorced on March 22, 2012. The plaintiff sued her former husband claiming that he has failed to meet his contractual obligation pursuant to the affidavit by maintaining her income at no less than 125% of the poverty guidelines. Continue reading →
In a recent San Francisco district court case, Judge Richard Seeborg ruled that a wait of almost six years was too long to wait for United States Citizenship and Immigration Services (“USCIS”) to adjudicate an application for adjustment of status (“green card.”) In Islam v. Heinauer, the applicant was a citizen of Pakistan who had previously been granted political asylum. On May 27, 2008, he applied for permanent residence. As of the date of the Judge’s decision, the case was still pending.
This was not a case in which the delay was due to security checks. Rather, USCIS indicated that his case was going to be denied and so they were holding the application to determine whether he might be granted pursuant to a discretionary exception. Essentially, Mr. Islam had admitted in his asylum application that he was a member of MQM-A. This is a considered to be a Tier III terrorist organization. Apparently the Secretary of Homeland Security has discretion in individual cases to exempt certain terrorist-related grounds as they relate to individuals and to exempt certain Tier III organizations from being considered terrorist organizations. Mr. Islam’s case was on hold while the Department of Homeland Security was considering whether he was applicable for an exemption.
In 2010, Mr. Islam filed a petition in District Court seeking adjudication of his adjustment application. The District Court at that time indicated that the delay had not been unreasonable. Almost two years later, on Mary 21, 2013, Mr. Islam submitted a new petition to the District Court and indicated that his adjustment application was still pending. Continue reading →
This will be the first part of a multi-part blog series on obtaining a green card if you are a physical therapist. In this post, I will discuss the education and licensing requirements. I will discuss nuts and bolts in subsequent blog posts.
To practice as a Physical Therapist in California, you must either:
- Obtain a Physical Therapist Degree from a Commission on Accreditation in Physical Therapy Education (“CAPTE”) physical therapist education program and pass the California state licensing exam. (As will be discussed in a future blog post, it is not necessary to have the license at the time you apply for a green card but you must be in the process of obtaining one.) OR
- If your education is from abroad, you must obtain a credential evaluation from a credential evaluation service to show that your education is equivalent to that of a degree in the United States and then you must register/take the licensing exam.
In the United States, there are currently three different types of degrees that are offered to become a physical therapist:
- Doctor of Physical Therapy (DPT)
- Master of Physical Therapy (MPT) or
- Master of Science in Physical Therapy (MSPT
PT education programs are gradually transitioning to the DPT degree and all schools will be compliant by 2017. For now, possession of any of the three degrees permits an applicant to sit for a state licensing exam. The typical length of a DPT program is three years and one generally must have a bachelor’s degree or the equivalent to be admitted into a program. The education required to become a physical therapist places an applicant for a green card into the Employment Based, 2nd preference category (known as EB-2), a member of the professions holding an advanced degree or equivalent. This is advantageous for most people applying for a green card because the quota, as of today, is current. This means that there is no wait (other than for the processing time) to obtain a green card. Continue reading →
It seems we hear about bipolar disorder more and more these days. Personally, I do not think it is because more people have it; my belief is that we have better diagnostic tools and the stigma against mental illness is fading. Our law, 8 U.S.C. Section 1182(a)(1)(A)(iii), prohibits certain individuals with mental illness from immigrating to the United States. These individuals include persons who:
- Have a current physical or mental disorder with associated harmful behavior;
- Have a past physical or mental disorder with associated harmful behavior if the harmful behavior is likely to recur or lead to other harmful behavior in the future.
Not everyone with bipolar disorder is inadmissible. Your illness has to meet the definition such that it makes you inadmissible. The determination of whether or not you have a mental illness is made by a physician at the time you have a medical exam. (A medical exam is necessary for every immigrant who is entering the United States and is performed by a panel physician – a physician authorized by the State Department (abroad) or by USCIS (in the United States) to conduct these examinations.
As part of the medical evaluation, panel physicians are instructed to
- identify and diagnose any physical or mental disorder;
- identify any harmful behavior associated with a disorder;
- determine the remission status of any disorder previously diagnosed;
- determine the likelihood of recurrence of harmful behaviors associated with a mental disorder.
A harmful disorder is defined as an action with a mental or physical disorder that is or has caused -
- Serious psychological or physical injury to the applicant or to others (e.g., a suicide attempt or pedophilia);
- A Serious threat to health or safety (e.g. driving while intoxicated or verbally threatening to kill someone);
- Major property damage.
The Centers for Disease Control and Prevention recently published technical instructions to assist physicians in evaluating physical and mental disorders.
To determine if a person is engaging in current harmful behavior, the physician is instructed to ask about harmful behavior and determine if it has continuously occurred and seems ongoing. If so, the physician is required to evaluate whether the actions may be indicative of a mental disorder.
To determine if a person is likely to engage in future harmful behavior, the physician has to determine whether the behavior is likely to recur. According to the guidance issued by the CDC, harmful behavior is less likely to recur when a mental disorder has a favorable prognosis and is in remission or under control and if there was harmful behavior, it has been more than 12 months since the harmful behavior occurred.
Remission is defined as a period of 12 months in which no mental disorder-associated behaviors have occurred.
The best way to handle this issue is to argue that your bipolar disorder does not make you inadmissible. If you have not already sought mental health treatment, you must do so. If you have current harmful behavior, I would advise you to wait 12 months before applying. At the time of your medical exam, I would encourage you to obtain a letter from your current mental health professional which you can give to the doctor. Your letter should indicate the diagnosis, what treatment you have received, whether you are compliant with treatment and the medications you are taking. If everything is under control and there have been no harmful episodes within the last 12 months the letter should say so.
If USCIS determines that you are inadmissible despite your doctor’s letter, you may file a waiver (Form I-601). It would be better not to have to go that route so I would advise you to build a good case before you apply so as not to be considered inadmissible at all.