What is Adjustment of Status?

Adjustment of Status is the process used by certain people already in the United States to apply for a green card without having to leave the country. It allows an applicant to move from a temporary nonimmigrant status to lawful permanent resident status inside the U.S., instead of completing the process through a U.S. consulate abroad, which is known as consular processing.

EWI stands for “Entry Without Inspection.” It describes entering the United States without going through an official port of entry or being inspected by an immigration officer. Even if a person later encounters or is processed by border officers, the original entry is still considered EWI. This is a specific legal concept and is not the same as simply saying someone entered the country “illegally.”

What is Consular Processing?

Consular processing is the procedure used when a person applies for U.S. permanent residency through a U.S. embassy or consulate outside the United States. A qualifying family member or employer files a petition, and once it is approved and a visa is available, the applicant completes the immigrant visa process at the consulate in their home country. After entering the United States on that immigrant visa, the person becomes a lawful permanent resident.

Why Do I Have to Consular Process?

Some applicants must complete their green card process outside the United States because of how they entered the country or their immigration status at the time they apply. People who entered without inspection and certain individuals who are out of status on the filing date are often required to leave the U.S. and apply at a consulate in their home country. There are limited exceptions, such as qualifying for relief under section 245(i), that may allow processing inside the United States.

What is the Ten-Year Bar?

The ten-year bar applies to individuals who accrue more than one year of unlawful presence in the United States and then depart. Once they leave, they become inadmissible and are generally barred from returning for ten years. In some cases, a waiver may be available. If the applicant can show that a U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if they had to remain outside the country, they may qualify for a waiver such as Form I-601 or I-601A.

What are PERM Applications?

PERM is the employment-based labor certification process that many U.S. employers must complete before sponsoring a foreign national for permanent residence. The employer first obtains a prevailing wage determination from the Department of Labor and then conducts specific recruitment steps to see if there are qualified U.S. workers available for the position. If no qualified U.S. workers are found and all requirements are met, the employer can file a PERM application. An approved PERM allows the employer to move forward with sponsoring the employee’s green card.

Habeas, short for Habeas Corpus, is a legal procedure used to challenge unlawful or excessively long detention by the government. In the immigration context, it is often used for people who have been detained for a long time, frequently after receiving a removal order, when the government has not carried out the deportation. Through a Habeas Corpus petition filed in federal court, a judge reviews whether there is legal justification for continued detention and can order the person’s release if the detention is found to be unreasonable.

What Are Removal Proceedings?

Removal proceedings are the formal court process in which the Department of Homeland Security seeks to deport someone it believes is in the United States in violation of immigration law. During these hearings, an immigration judge decides two main questions: whether the person is removable and, if so, whether they qualify for any form of relief that would allow them to stay in the United States. The judge hears evidence and arguments from both sides and issues the final decision.

What is a Master Calendar Hearing?

A master calendar hearing is the first hearing in most immigration removal cases. It is a preliminary hearing where the immigration judge handles scheduling and procedural issues, such as confirming the charges, taking pleadings, identifying any applications for relief, and setting future hearing dates. The judge may also make important decisions at this stage, including whether to schedule an individual merits hearing, deny certain applications, or in some cases order removal if appropriate.

What is Writ of Mandamus?

A writ of mandamus is a lawsuit filed in federal court asking a judge to order a government agency or official to perform a legal duty that has been unreasonably delayed. In immigration cases, it is often used when an application or petition has been pending for a long time without a decision. To succeed, the applicant must show that the agency has a clear duty to act, that the applicant has a right to a decision, and that the delay is not reasonable. If the court agrees, it can order the agency to make a decision on the case.

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Jul 31, 2018

By Kriezelman Burton and Associates

Sessions Overrules BIA in Controversial Decision

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In a move that has surprised few people, Attorney General Jeff Sessions has overturned a decision issued by the Board of Immigration Appeals (BIA). This decision could negatively affect other people seeking asylum in the United States because of domestic violence or gang violence.

Ms. A-B’s Case

The facts of the case are easy enough to understand. An El Salvadoran woman applied for asylum in the U.S., alleging that she had suffered more than a decade of abuse in her home country at the hands of her husband. Even when she tried to get away, her husband followed her and raped her. In 2015, a Charlotte, North Carolina asylum judge denied Ms. A-B’s claim for asylum, consistent with this judge’s very low approval rate.

In December of 2016, the BIA overturned the immigration judge’s decision, finding that it was clearly erroneous. According to the BIA, Ms. A-B had shown that she suffered group-based persecution. In particular, she was an El Salvadoran woman who could not leave a domestic relationship because she had children in common with her abuser.

Usually, BIA decisions end the matter. However, Attorney General Sessions referred the case to himself, giving him the power to either reverse or affirm the BIA’s decision. As soon as Sessions issued the referral, observers expected him to overrule the BIA, which is exactly what he did.

According to Sessions, domestic violence and gang violence are crimes, but the fact that they are not effectively policed in foreign countries does not provide sufficient reason to grant asylum. In fact, he disparaged awarding asylum to those suffering from “private violence.” “The asylum statute does not provide redress for all misfortune,” he continued.

Controversial Ruling

Sessions’ decision did not pass unnoticed by practitioners and experts in immigration law. According to NBC News, a group comprising 15 former members of the BIA and other immigration judges have denounced the decision. Calling it “an affront to the rule of law,” they emphasized that awarding asylum to victims of domestic violence was the result of over 15 years of litigation and should not be overturned so breezily. They also called on appellate courts or Congress to change Sessions’ decision and reinstate asylum for people like Ms. A-B.

How This Might Affect You

The United States can grant asylum to those suffering persecution on account of their race, religion, nationality, and political opinion. There is also a catch-all category for those persecuted because they belong to a “particular social group.” This last category is undefined and leaves some leeway for the government to give asylum to a wider range of people—such as those suffering domestic violence or gang activity.

With the Attorney General’s intervention, however, immigration judges are less likely to find that domestic violence victims will qualify under the “particular social group” category. This, unfortunately, could lead to denials of worthy asylum applications—at least for the duration of the Trump Presidency.

Chicago Immigration Advice You can Trust

At Kriezelman Burton & Associates, we handle asylum claims and are here to discuss your situation. We have decades of combined experience and are anxious to put it to work for you. Please contact us for your consultation.

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I recently had the privilege of working with Attorney Brittni Rivera of Kriezelman, Burton & Associates on a habeas corpus case. From the very beginning, she demonstrated exceptional knowledge, integrity, and attention to detail. She was consistently responsive—always just an email away—and made me feel supported through every step of the process. Her guidance brought clarity during a very difficult time, and I am truly grateful for her dedication and…

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Our family is sincerely grateful to attorney Nicole M. Provax from Kriezelman Burton & Associates, LLC for her professionalism, dedication, and support, as she guided us through every step with care and understanding. Thanks to her guidance, our case reached a positive outcome. We truly appreciate everything she has done for our family and highly recommend her and the firm.

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312-332-2550

312-332-2550

312-332-2550

Sessions Overrules BIA in Controversial Decision

Looking for A Specific Post? Search Below

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Ms. A-B’s Case

Controversial Ruling

How This Might Affect You

Chicago Immigration Advice You can Trust