News From CLINIC's Case Files: Issue Four
The following are examples of vulnerable immigrants and developments that negatively impact the population served by the Catholic Legal Immigration Network, Inc. ("CLINIC's") affiliate agencies. These examples represent a sampling of problematic cases and issues from across the country.
August 2004: Issue Four
1. Nearly 1.5 Years After Interview, Asylum-Seeker Continues to Wait for Asylum Decision, Without Work Authorization
Mr. G was interviewed by an asylum officer with the Arlington Asylum Office in February 2003. To date, he has yet to receive his asylum decision. From September 2003 to present, Mr. G's legal representatives at Catholic Social Services (CSS) in Atlanta, GA, a member of Congress, and CLINIC have made multiple inquiries into the status of his case. In most cases, the inquiries went unanswered, or the Asylum Office indicated that the case was "pending with a supervisor".
Making matters worse, the Texas Service Center incorrectly denied Mr. G and his family members work authorization, erroneously finding that Mr. G did not have a pending asylum application. After motions to reopen the employment authorization applications were filed, the two youngest family members (who are not old enough to work) received work permits. The motions to reopen for Mr. G and his adult family members (who are of age and desperately need to work to support themselves) have not yet been completed.
Finally, in late July 2004 the Asylum Office informed CLINIC that a decision was in the process of being mailed to Mr. G. Mr. G continues to await that decision.
2. Outrageous Denial of I-601 Waiver Endangers Family Unity
Mr. and Mrs. L lived in the United States in the early 1980s. During this time, they had one U.S. citizen son and one U.S. citizen daughter. The family returned to Mexico in 1983, with the intent to live there permanently. However, their U.S. citizen son did not adjust well to the harsh Mexican environment and died a few months after their return. Mr. and Mrs. L remained in Mexico for an additional 7 years and had 3 more children. In 1989 Mr. L returned to the United States to find work. In 1990, Mrs. L and the children came to the United States to be with Mr. L. To enter the United States, Mrs. L used a false border-crossing card. The family has resided in the United States since this time. In addition, Mr. and Mrs. L had one more U.S. citizen child in 1994.
When she turned 22, Mr. and Mrs. L's eldest U.S. citizen daughter filed an I-130 visa petition for them. Mr. and Mrs. L were eligible to remain in the United States and adjust their status to that of lawful permanent residents without departing the country due to a special provision of the law known as INA § 245(i). Mr. and Mrs. L went to their USCIS adjustment of status interview on January 26, 2004. While Mr. L was granted adjustment of status, Mrs. L was not.
At the interview, Mrs. L disclosed to USCIS that she had entered the country using a false border-crossing card. Because such an action could exclude her from adjusting status, Mrs. L was instructed to file an I-601 waiver of excludability within 90 days. The I-601 waiver was filed 87 days after the request was made. It was received and date-stamped by USCIS on the 88th day.
Within days of this filing, Mrs. L received a letter from USCIS denying her adjustment of status because she failed to timely file the I-601 waiver. This denial letter was dated 84 days after the date of the letter instructing her to file the I-601 waiver. Mrs. L and her legal representative spoke with a supervisor at USCIS who informed them that the regulations state that applicants are given 12 weeks (84 days) to respond to requests for evidence. When Mrs. L's legal representative pointed out that the USCIS letter / instructions regarding the I-601 waiver stated the applicant had 90 days to submit the completed I-601 waiver, the USCIS supervisor responded that the applicant would "have a strong argument for a motion to reopen." The cost of a Motion to Reopen (MTRO) is $110, a fee Mrs. L should not have to pay since she filed the waiver within the timeframe indicated in the USCIS letter.
Nevertheless, Mrs. L filed a MTRO with the $110 fee, and USCIS cashed her check. Before she received a receipt for the MTRO fee, however, USCIS denied her previously filed I-601 waiver. USCIS made a decision on the waiver after they had denied her adjustment of status for failure to file a timely I-601 waiver. This second denial letter, dated 6 days before the MTRO was submitted, cited lack of proof of extreme hardship to qualifying relatives.
Proof submitted with the I-601 waiver included declarations from Mr. L and their 22-year-old U.S. citizen daughter, proof of income tax filings, and medical records of their 10-year-old U.S. citizen son who has severe asthma and eczema. USCIS contended that the son would not have to leave with the mother, so there would be no suffering on either his or the father's part.
Mrs. L is out of status. The denial letter stated that she should depart immediately and that if she does not, she may be placed in removal proceedings. The family is appealing the I-601 waiver denial.
3. Security Checks Continue to Hold-Up Oath Ceremonies for Citizenship Applicants
CLINIC's affiliate agencies have many clients who have been waiting from 6 months to 4 years from the date of their N-400 interview to be scheduled for oath ceremonies. Most of these applicants were told that they could not be scheduled for oath ceremonies until their "security checks" were completed, while others do not know the reason for the delay, as USCIS has not responded to their case status inquiries. In late June and again in late July, CLINIC sent letters to USCIS Headquarters summarizing more than 25 cases and requesting their intervention in the cases. Although CLINIC continues to press USCIS Headquarters to resolve individual cases, there have been few positive developments regarding this systemic problem. The cases in the letters demonstrate the nationwide scope of the problem. For example:
4. After 6 Months, Refugee Receives Travel Document with Incorrect Name, Must Wait 6 More Months for Corrected Document
- Seven clients of Catholic Charities of the Diocese of Rockville Centre, NY who passed their citizenship interviews between February and December of 2002 are still waiting to receive oath ceremony appointments.
- Four clients from the Refugee Assistance Program of Seattle, WA who were interviewed and passed their citizenship tests between September 2003 and February 2004 continue to wait for citizenship oath ceremonies, despite multiple inquiries to the local USCIS office. In one case, a client received a citizenship oath ceremony date, but five days later received a second notice saying the oath ceremony had been scheduled in error, as USCIS was still waiting for his name check to clear with the FBI.
- Four clients served by Catholic Charities Immigration Services in Santa Rosa, CA who passed their citizenship interviews between May 1999 and October 2003 have yet to be scheduled for oath ceremonies. In one case, the naturalization applicant had become a lawful permanent resident in 1947 and USCIS informed him that his file had to be ordered from microfiche, and that without it they could not decide his case. In another case, the naturalization applicant, who was initially interviewed in May 1999, had to be interviewed a second time (in October 2003) due to lost records. Both applicants continue to wait for oath ceremony appointments.
Mrs. R, an asylee, filed an application for a refugee/asylee travel document at the Nebraska Service Center in December 2003. When she filed the application, Mrs. R filed it under her married name, and included a copy of her marriage certificate (as the filing instructions indicated) as proof of her married name. Without any problems, Mrs. R was issued an employment authorization document and Social Security Card in her married name. However, after waiting 6 months for her refugee/asylee travel document to arrive, when she finally received it in June 2004, the document had been issued in her maiden name. Now Mrs. R must return the travel document to the Service Center and wait for them to correctly re-issue it before she can travel. Officials at USCIS Headquarters have indicated that it does not have an expedited process to re-issue documents that it issues with mistakes that were not the fault of the applicant, and that it could take up to 6 months for a corrected document to be issued.
5. USCIS Failure to Process Change of Address Form & Other Careless Errors Delay I-94 Issuance to Family of Asylees by Nearly One Year
Marla Sell, a caseworker with Catholic Social Agency in Allentown, PA contacted CLINIC to assist her with a family of asylees granted asylum by the Immigration Judge, in need of I-94s. An I-94 is the document that proves an individual's indefinitely granted asylee status.
Despite being granted asylum by the Immigration Judge in February 2003, the family did not receive correct I-94 cards until June 2004. Initially, upon being granted asylum, the family of asylees took completed I-102s (Applications for Initial/Replacement I-94) to the Philadelphia USCIS office, as USCIS local district offices are supposed to immediately issue I-94s to individuals who are granted asylum by an Immigration Judge. In this case, the USCIS did not immediately issue the I-94s. Instead, the officer accepted the I-102 applications and informed the family that she would be sending them to Dover, DE, and that they would receive the I-94s in the mail in three weeks. Eight months and several inquiries later, the family still had not received their I-94s.
CLINIC brought this case to the attention of USCIS Headquarters. USCIS HQ looked into the case and discovered that despite the fact that the family had filed a change of address form, written letters regarding their change of address to the
Dover DE and Philadelphia PA USCIS offices, and used the 1-800 customer service number to change their address, their I-94s had been sent to their old address.
In early May 2004, USCIS sent new I-94s to the family. However, upon receipt of the new I-94's, the family members quickly realized that the date that they were granted asylum was not properly recorded on the I-94s. Because asylees become eligible to apply for adjustment of status one year after they are granted asylum, it is essential that the asylum grant date be properly recorded on the I-94. Moreover, only 5 of 6 family members received I-94s. CLINIC contacted USCIS HQ and the adjudications officer at the USCIS Dover, DE offices. After CLINIC's intervention, the USCIS Dover office finally issued corrected cards to all of the family members.
6. CBP Office in Newark, NJ Refuses to Correct Erroneously Issued I-94 Cards for Asylees
CLINIC is aware of several individuals who, upon arrival as following-to-join or derivative asylees, (the beneficiaries of approved I-730 asylee/refugee relative petitions) at the JFK and Newark International Airports were issued I-94s that were only valid for one year. Because asylum is an indefinite status, pursuant to INA § 208, they should have been issued I-94s for an indefinite period. When these individuals visited the CBP office in Newark, NJ to obtain corrected I-94s, the head of CBP inspections indicated that he needed clarification from his superiors prior to issuing corrected I-94s. After the individuals waited for four hours (from 6pm to 10pm), he informed the individuals that if he were able to issue corrected, indefinite I-94s, he would mail the documents to them. They were forced to leave the office without corrected I-94s and no valid evidence of their asylee status.
As a result of extensive advocacy by CLINIC, CBP recently developed a policy to address the correction of CBP issued I-94s with errors. CLINIC has obtained an excerpt from the CBP Field Inspectors Manual that outlines CBP's authority to issue corrected I-94s to individuals who received I-94s with errors from ports-of-entry. To obtain a copy of this excerpt and list of CBP office locations, send an email to email@example.com
Ultimately, an employee at CBP Headquarters instructed the head of CBP inspections in Newark to send the I-94s to the USCIS Asylum Office, so that the Asylum Office could verify the individuals' asylee status. CLINIC fears that sending the I-94s for status verification to the USCIS Asylum Office will result in only additional confusion. The USCIS Asylum Office will have no record of these individuals, as they were not involved with the grant of asylee status. These individuals were granted derivative asylee status by the U.S. Consulates abroad, and were initially issued I-94s reflecting their asylee status upon initial arrival into the JFK and Newark ports-of-entry. CLINIC recently sent a request CBP Headquarters to intervene in these cases and is hopeful that these cases will soon be resolved.
7. Minor Temporarily Lost in DHS Custody
A detained minor from El Salvador, "Eliceo", was transferred from the Los Angeles area (due to lack of bed space) to Houston, TX just prior to being released into the custody of his mother. Eliceo's mother, who lived in San Francisco, had been instructed by DHS to complete specific paperwork and to travel to Los Angeles so that Eliceo could be released to her custody. Although DHS had been informed that Eliceo's mother completed all relevant paperwork, Eliceo was transferred out of Los Angeles without notice to the mother. Upon arrival in Los Angeles, Eliceo's mother contacted a CLINIC attorney to help her locate Eliceo. Upon inquiry, the CLINIC attorney learned that the Office of Refugee Resettlement (the agency responsible for the care of minors in DHS custody) had not been made aware of the transfer and for 24 hours, was unable to reach someone within DHS who could confirm Eliceo's whereabouts. The following day Eliceo was discovered at a shelter in
Houston, TX. Because the government would not pay the airfare to return Mr. A to Los Angeles to be released to his mother, the shelter, run by Catholic Charities, paid for his airfare to San Francisco to be reunited with his mother. Eliceo was returned to his mother more than two weeks after he was transferred to Houston.
8. Despite CAT Grant, ICE Continues Detention
In October 2003, an Immigration Judge granted Mr. X protection under the Convention Against Torture (CAT). The Immigration and Customs Enforcement (ICE) appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA) and continued to detain him for an additional seven months, contrary to stated ICE policy to favor the release of all individuals granted protection relief (including CAT), where ICE appealed the decision to the BIA and the appeal is pending.
In early May 2004, the BIA dismissed the ICE appeal of the Immigration Judge decision, and Mr. X maintained his CAT protection, however, ICE still refused to release him from detention. On May 26, 2004, CLINIC brought this case to the attention of ICE Headquarters. Headquarters contacted that local jail where Mr. X was detained and instructed local ICE officials to release him. Later that same day Mr. X was released from detention and reunited with family members.
9. Media Coverage and Congressional Intervention Prompt ICE to Release LPR Subject to Mandatory Detention
After 25 years of living as a lawful permanent resident in the United States, Mi-Choong O'Brien found herself in detention and faced with the strong possibility of begin deported to her native South Korea, where she would be separated from her American husband and U.S.-born children. Mrs. O'Brien had already spent one month in jail after she pled guilty to embezzling $70 from a restaurant at which she worked. Unfortunately, her court-appointed attorney was unfamiliar with immigration law and did not realize that the guilty plea would result in her being considered an "aggravated felon" - for purposes of immigration law, a classification that made her deportable under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and placed her in mandatory detention. Even though deportation seemed too severe a penalty for the minor transgression committed by Mrs. O'Brien, there was little that could be done to prevent it from happening. Because the 1996 law lacks a waiver for relief from removal, an Immigration Judge cannot use his discretion in considering the circumstances of individual cases to bring the proceedings to a halt.
CLINIC helped raise awareness of Mrs. O'Brien's ordeal and the unfair policy to which she was being subjected through high-profile media stories. After The Washington Post and The Richmond Times Dispatch ran feature articles about her case, U.S. Rep. Frank Wolf (R-VA) took up the cause and appealed directly to DHS undersecretary Asa Hutchinson and ICE director Michael Garcia for Mrs. O'Brien's release. ICE eventually stated that the circumstances did not merit her continued incarceration, and released her. Without all the publicity that led to the involvement of a member of Congress, it is highly unlikely that ICE would have taken such a step.
10. Brothers Apply for Citizenship Together, After 6 Years and Much Advocacy One Brother Naturalizes, the Other Continues to Wait
Following the Soviet invasion of Afghanistan in the 1980s, the Reangber family arrived in Northern Virginia with refugee status. After adjusting to their new country, the family of eight prospered and now operates a successful business.
Two of the brothers, Satar and Salam applied for citizenship in 1998, but experienced a series of problems because of the poor record keeping and the general inefficiency of the INS/USCIS. The situation was further complicated by the fact that both brothers are deaf and communicate through an improvised sign language. The former-INS denied them citizenship because of their inability to speak English, even though their deafness should have qualified them for a disability waiver.
Finally, through the efforts of CLINIC's Laura Burdick and others, Satar was granted a waiver and was assigned a day to take his oath of citizenship. Incredibly, the notice he received stated the wrong date, meaning that his application could have been denied again if he had not shown up on the correct day. The situation could have been especially disastrous because Satar is now engaged and needs his citizenship to be able to sponsor his fiancé.
As for Salam, he too should have received a disability waiver, but it appears that the former-INS may have lost his application at one point and his case has yet to be reopened. However, there is new hope. CLINIC's advocacy generated a front-page story about the brothers' ordeal in The Washington Post, resulting in the office of Congresswoman Sheila Jackson Lee (D - TX) contacting CLINIC to offer her assistance and bring the process to an end.
About The Author
The Catholic Legal Immigration Network, Inc.'s ("CLINIC") Division of Public Education and Advocacy plans to circulate a compilation of its current cases on a bimonthly basis, in an effort to regularly document and report on problematic developments facing the population served by its network. CLINIC believes that documentation and media coverage of the human impact of our nation's immigration laws and policies are crucial to advocacy efforts to create a more just immigration system. CLINIC relies heavily on the case examples that it receives from its affiliate agencies in order to effectively advocate with officials at the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR). Please contact Vanessa Waldref at
firstname.lastname@example.org or (202) 635-5812 with your examples of backlogs, poor customer service, and other problem cases.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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