Provisional Immigration Waivers May Help Keep Families Together

If implemented, a new proposal to change certain immigration rules by the U.S. Citizenship and Immigration Services (USCIS) may bring relief to immigrant families. The change being considered would allow provisional waivers under the Immigration and Nationality Act prior to leaving the United States for consular processing of immigrant visa applications. To better understand how this works, first you need to understand the current rules.

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Provisional Immigration Waivers May Help Keep Families Together

How prosecutorial discretion relates to cancellation of removal.

Prosecutorial discretion helps cancellation of removal.

DHS deportation policy changes.

DHS deportation policy changes due to deportation escalate.

Can I File My Asylum Application After the One Year Deadline?

Law Publications and Articles by New York Lawyers

Can I File My Asylum Application After the One Year Deadline?

Normally, an application for asylum should be filed within one year of applicant’s last arrival to the United States. INA §208(a)(2)(B). The 1-year period shall be calculated from the date of the alien's last arrival in the United States or April 1, 1997 whichever is later, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The applicant has the burden of proving by clear and convincing evidence that the application has been filed within 1 year of the date of the arrival in the United States. Also, applications with a filing date on or before April 15, 1998, are not subject to the one-year filing deadlines implemented by the Asylum Division. Although April 1, 1998, is the effective date provided by regulation for those who arrived before April 1, 1997, the then-INS extended an administrative 14-day grace period for applications filed with the INS. This 14-day period only applies to those applications filed in the first 15 days of April, 1998. The Asylum Division now calculates the day of arrival as “day zero.” Important, that the Second Circuit has held that the one-year deadline for applying for asylum does not restart if the alien’s “last arrival” in the United States is the result of a brief trip abroad pursuant to advance parole. See Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006). This holding applies to cases in the Second Circuit, (New York!) where the alien took a temporary trip abroad pursuant to a grant of advance parole.

An asylum application, Form I-589 is considered to have been filed on the date it is received by the Citizenship and Immigration Services or Court. If the application was mailed within the one-year period but was not received by USCIS within that period, the mailing date will be considered the filing date if the applicant proves by clear and convincing documentary evidence that the application was mailed within the required time period. However, if the application is filed with the Immigration Judge (“IJ”), the filing date is the date when the IJ receives the application. INA §208(a)(2)(B)(ii). The proof need not be “conclusive” or “unequivocal;” if put on a scale, the clear and convincing standard would be somewhere between the “preponderance of evidence” standard (greater than 50% standard, or “more likely than not”) and the “beyond a reasonable doubt” standard used in criminal trials. Asylum officers should avoid trying to place the clear and convincing standard on a particular point on a percentage scale. Clear and convincing evidence does not fall precisely on any point between the “preponderance of evidence” standard and the “beyond a reasonable doubt” standard. Instead, it is the degree of evidence necessary to create a firm belief that the asserted fact is true.

What if an applicant missed the one year deadline? In this case, an applicant should demonstrate that there are changed circumstances or extraordinary circumstances relating to the delay in filing the application. The applicant, however, only needs to demonstrate that it is reasonable for the Asylum Officer or Immigration Judge to conclude that the exception applies under the circumstances. The application must still be filed within a reasonable period of time after the changed circumstances or extraordinary circumstances occur in order to warrant an exception to the one-year bar. For the changed circumstances the “reasonable time” may start running from the time the applicant learned about the changes: this determination is done by the Asylum Office or Immigration Judge....

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Can I File My Asylum Application After the One Year Deadline?

Who is a Child for Immigration Purposes

Law Publications and Articles

Who is a Child for Immigration Purposes

How One Can Bring Their Children to the US to Live With Them

Generally speaking, a “child” for Immigration purposes is an unmarried child under 21 years old. When the Immigration law refers to a “son” or “daughter”, the law means a son or daughter who is married and/or over 21 years old. It is important to know this difference in order to correctly determine eligibility for Immigration benefits.

Children of the US Citizens

When a parent is a US citizen, he or she can petition for their children to come to the US. If a child is unmarried and under 21 years old, the child is considered to be an immediate relative of the US citizen for whom an Immigrant visa number is immediately available. It means that as soon as US citizen’s petition for his or her child gets approved, the child can apply for an immigrant visa, and will receive permanent resident status shortly.

When a son or daughter of a US citizen is over 21years old and/or is married even if under 21, such a son or daughter will have to wait for the immigrant visa number to become available. The wait time varies, and usually takes years. The information on wait time is provided by the U.S. Department of State on a monthly basis, and can be found here: U.S. Department of State Visa Bulletin.

Children of Permanent Residents

A permanent resident likewise may petition for his or her children. However, the children must be under 21 years old, or if they are older, must be unmarried. The wait time for immigrant visas for these categories of applicants is also very long.

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Who is a Child for Immigration Purposes

Defending The Child Pornography Case

Defending The Child Pornography Case

Law Publications and Articles by New York Lawyers

By Anthony J. Colleluori
Law Offices of Anthony J. Colleluori & Associates PLLC
Melville NY 11747

Child Pornography is defined by 18 USC 2256 as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

• (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
• (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
• (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct."

The Internet has moved the child pornography business into homes and offices throughout the nation. Prosecutions are up in this area and the US Justice Department, with the support and urging of a number of otherwise disparate political groups, is spearheading this effort. Hence the Federal Prosecution of Child Pornography is a new cottage industry in criminal law.

The Federal Sentencing Guidelines in most cases can cause the possessor of such material to actually serve more time in prison than the person who actually commits acts of violent against, or has sex with children. Sentences of 20 years or more are regularly administered throughout the nation and a five year sentence is the mandatory minimum in Federal Court. Further, certain opportunities to reduce prison terms are unavailable to the "Child Porn" possessing defendant due to the very nature of both the crime and the Internet. Unlike most crimes, here the possessor never meets, nor can he actually identify his potential co-defendants. Recently a local prosecutor wrote to the court that with the exception of one case in seven years of leading Child Porn prosecutions in his district, he had never seen a defendant in one of these cases actually provide a lead that led to the prosecution of another individual. In other words a 5k.1 letter (a letter from a prosecutor advising the court of substantial cooperation of the defendant warranting a reduction of sentence below guideline and even mandatory minimum sentences) is usually not seen in these cases.

Finally the crime is sure to land the defendant on the "Sex Registry" listing which could, under certain circumstances, serve to cause the defendant to be placed into a locked down sex offender therapy unit after his sentence is completed. There is no required release from such a unit. ....

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Defending The Child Pornography Case