OC Immigration Attorney

Gasparyan v. Holder

FACTUAL AND PROCEDURAL HISTORY

On October 24, 2004, Gasparyan fled Armenia (At 19 she was sexually assaulted by a friend, whom she married shortly thereafter to avoid shaming her family. The abuse continued during her marriage and until she fled to the U.S.) and entered the United States on a six-month visa. Sometime upon entering the U.S. a friend of hers (Topalian) wrote a letter to the INS on Gasparyan’s behalf asking for an extension of her visa, but INS denied the request on August 24, 2005. Gasparyan planned for her sister to send money and come visit so she “could hire a lawyer and deal with [her] immigration status.” However, Gasparyan’s sister had a car accident and could not come or send money. When asked during her asylum hearing what she was thinking after receiving the denial of the extension, Gasparyan responded, “I was waiting for money to come so I could apply.” Gasparyan testified before an immigration judge that after her arrival in the United States she felt troubled and unsafe. She suffered from nightmares and other psychological trauma related to the domestic violence she endured.

In August 2005, the brother and sister-in-law of Gasparyan’s husband invited her to live with them in San Mateo, California. Gasparyan agreed to move when her in-laws assured her that they would not tell her husband of her location. Gasparyan testified that her mental health quickly deteriorated because the trauma she suffered as a consequence of the domestic violence resurfaced while living with her husband’s family.

In August 2006, immigration officials took Gasparyan and her in-laws into custody because of an immigration problem that her in-laws had. Thereafter, the Immigration and Naturalization Service initiated removal proceedings against Gasparyan, during which she applied for asylum, withholding of removal, and relief under the Convention Against Torture.

The immigration judge found that Gasparyan was eligible for withholding of removal and CAT protection based on the domestic violence she suffered. However, the immigration judge denied her application for asylum because she did not file within the one-year deadline and she was not so severely mentally disabled as to establish extraordinary circumstances excusing the untimely filing.

Gasparyan appealed the denial of asylum. The Board dismissed her appeal.

ISSUES

1.    Whether the Board correctly determined that Gasparyan did not make a showing of “extraordinary circumstances.”
2.    Whether the Board erred by failing to analyze her extraordinary circumstances claim using the appropriate “three-part test” derived from 8 C.F.R. § 1208.4(a)(5).

RULE
1) Petitioner must establish that her mental illness constituted “extraordinary circumstances directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5)

2) The courts jurisdiction to review mixed questions of law and fact is limited to instances where the underlying facts are “undisputed.”

3) Before assessing the three factors, a court must first determine that the alien’s circumstances were, in fact, “extraordinary.”

4) The three prongs test derived from 8 C.F.R. § 1208.4(a)(5), which states that extraordinary circumstances may excuse the filing of an untimely asylum application if the applicant can demonstrate: [1] that the circumstances were not intentionally created by the alien through his or her own action or inaction, [2] that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and [3] that the delay was reasonable under the circumstances.

HOLDING

1. Petitioner did not establish that her mental illness constituted “extraordinary circumstances directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5)

2.  The court’s jurisdiction in cases where there are questions of law and fact are limited to instances where the underlying facts are, as in this case, “undisputed.”

3. Before assessing the three factors, a court must first determine that the alien’s circumstances were, in fact, “extraordinary,” and in this case the record show’s petitioner did not show “extraordinary” circumstances.

4. Even assuming the petitioner showed “extraordinary” circumstances, the record does not establish she would be able to satisfy the three-prong test under 8 C.F.R. § 1208.4(a)(5).

REASONING

A. Jurisdiction to Review “Extraordinary Circumstances” Determination Based on Disputed Facts.

To excuse her untimely asylum application, Gasparyan must establish that her psychiatric problems constituted extraordinary circumstances “directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5). The court concluded that the though Gasparyan claimed the delay was because of her psychiatric problems, the record indicated otherwise  because she lacked the money to hire an attorney and initiate the process. Similarly, Dr. Good testified that Gasparyan had explained to him that her delay was due to lack of funds and the language barrier, in addition to psychological trauma. Thus, the record reveals that the relation between Gasparyan’s mental disabilities and her failure to meet the one-year deadline was far from an “admitted or established” historical fact. Husyev, 528 F.3d at 1178. Because the record was showed “disputed facts” the court reasoned that its jurisdiction to review mixed questions of law and fact is limited to instances where the underlying facts are “undisputed,” as they are here, the court lacked jurisdiction to review the Board’s extraordinary circumstances determination. Therefore, the court dismiss Gasparyan’s petition challenging the merits of the Board’s extraordinary circumstances determination for lack of jurisdiction.

B. Legal Standard for Analyzing “Extraordinary Circumstances” Claim

Gasparyan argues that the Board erred as a matter of law by applying an incorrect legal standard when it failed to analyze her extraordinary circumstances claim using the requisite “three-part test.” Whether the Board applied the correct legal standard is a question of law, see Rodriguez-Rivera v. U.S. Dep’t of Immigration & Naturalization, 848 F.2d 998, 1001 (9th Cir. 1988), and thus we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D).

The three prongs of the test derived from 8 C.F.R. § 1208.4(a)(5), which states that extraordinary circumstances may excuse the filing of an untimely asylum application if the applicant can demonstrate: [1] that the circumstances were not intentionally created by the alien through his or her own action or inaction, [2] that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and [3] that the delay was reasonable under the circumstances.

While Gasparyan contended that the Board “made no findings” regarding any of the three factors listed in § 1208.4(a)(5) and therefore did not apply the pertinent regulation, the court determined that the extraordinary circumstances are criteria for assessing whether extraordinary circumstances may excuse an untimely asylum application. Also, before assessing the three factors, the court concluded that the Board must first determine that the alien’s circumstances were, in fact, extraordinary. Looking to Section 1208.4(a)(5) of the relevant code, which contains a non-exhaustive list of circumstances that may be considered extraordinary, including “[s]erious illness or mental or physical disability.” 8 C.F.R. § 1208.4(a)(5)(i), an alien’s circumstances are “extraordinary” if they fall within one of the examples listed or are of a similar nature or seriousness. Since the Board concluded that Gasparyan failed to present extraordinary circumstances, it was unnecessary for it to consider the three factors.

Furthermore, the court reasoned that even if the Board was required to consider the three factors, although the Board did not explicitly link each of its reasons for denying her extraordinary circumstances claim to one of the three factors in § 1208.4(a)(5), it did provide reasons that correspond to the factors listed in the regulation (For example, the Board noted that Gasparyan claimed that she delayed in applying for asylum because she was living with her husband’s brother, which rekindled the emotional trauma caused by her abusive husband). Also, the court mentioned that the applicant bears burden of establishing first, second, “and” third factor). Thus, the court concluded, The Board applied the correct legal standard and gave legitimate reasons for its conclusion.

CONCLUSION: The court denied petitioners relief to the extent she seeks.

A new immigration rule takes effect today, March 4, 2013. It will allow immigrants to reduce the amount of time they are separated from their families when applying for their lawful permanent resident card (“green card”).

This is only for applicants with United States Citizen spouses and/or United States Citizen parents. The new I-601A waiver is going to mean a lot to families, especially families with young children or aging parents who are not in the best of health and who need the help of their alien spouse or alien child. I-601A applicants will be able to wait in the United States for their waiver applications to be decided, rather than waiting months outside the U.S. If the waiver is approved, families will only need to spend a few days or a week apart while the alien applicant attends a medical exam and interview at the U.S. consulate abroad.

The new rule is called “Provisional Unlawful Presence Waiver.” The law requires anyone who entered without inspection and is an immediate relative of a US citizen spouse or parent to leave the U.S. to attend the consular interview; however, with the provisional waiver already approved, the wait time outside the U.S. should be minimal.

Beginning March 4, 2013, the foreign national can wait in the US for a waiver decision, instead of waiting up to one year in their home country.

Once the waiver is approved, the person returns to the home country to apply for their immigrant visa. The wait will be approximately one to two weeks instead of one year as required under the old rule.

The unlawful presence waiver remains a difficult process, and potential applicants should strongly consider hiring a competent immigration attorney. The goal with preparing a successful waiver packet is to show the examining officer how the US citizen spouse or parent would suffer extreme hardship if the alien relative is not allowed to live in the United States. We need to keep in mind that the examining officer will never meet with us before making the decision to approve or deny. The officer probably handles several waiver cases each day, so we need to paint the picture clearly and persuasively. Unlike the I-601 process, I-601A applicants can only apply once. If the I-601A is denied, the applicant does not have another chance to apply for relief. We need to pull at the examining officer’s heart strings based solely on the paper evidence we provide.

Form I-601A, Application for a Provisional Unlawful Presence Waiver , will be available for official use beginning March 4, 2013. If you are considering the I-601A process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will help you better understand the process and the strength of your potential case.

We just returned from an interview in the USCIS Santa Ana office. Our client, the wife of a lawful permanent resident, adjusted status to permanent resident based on INA 245i. She lives in Lake Forest with her family, and she has been waiting for over ten years to become a permanent resident. The husband filed a visa petition for her in 2000. She entered the US from Mexico in 1999 and has lived here ever since. Because she entered the US prior to December 21, 2000, and the I-130 was filed before April 2001, she was grandfathered in under 245i.

We filed the I-485 adjustment of status packet in 2012 and included evidence of the couple’s marriage, proof that she entered prior to December 2000 and evidence that she has lived in the US ever since. The USCIS officer was thorough, professional and fair during the interview. The Orange County USCIS officers, in general, are a wonderful group of people to work with. They take their job seriously, remain informed on new developments with relevant laws, and understand that the people in their offices are more than just cases.

The client was well-prepared for the interview as we had discussed the purpose of the interview and what to expect. Although she was nervous, she answered the questions properly and was respectful of the process. We used a translator, one of my assistants, and everything went smoothly. At the end of the interview, the officer informed us that she was approving the case. The client and her husband were pleased with the result and they look forward to being able to finally visit family members in Mexico once her green card arrives.

If you are considering the green card process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the options available to you.

Facts:
Vasquez-Hernandez is a native and citizen of Mexico. He entered the U.S. without inspection in 1988. He was convicted of corporal injury to a spouse in 2002. On August 9, 2002, the Immigration and Naturalization Service (INS) placed him in removal proceedings. Vasquez-Hernandez conceded removability.

In 2004, the IJ rejected Vasquez-Hernandez’s cancellation of removal request and held that he was “statutorily ineligible” because his conviction was for a crime of domestic violence as stated in 8 U.S.C. Section 1227(a)(2)(E).

IJ denied his motion to reopen after ruling that the petty offense exception in 8 U.S.C. section 1182(a)(2)(A)(ii) did not apply to his conviction.

Procedural Posture:
BIA adopted the IJ’s decision and denied Vasquez-Hernandez’ motion to reopen.
He filed a petition for review with the 9th Circuit.

Issue:
Whether the petty offense exception in 8 U.S.C. Section 1182(a)(2)(A)(ii) is applicable to an 8 U.S.C. Section 1229(b) cancellation of removal request if that request is otherwise barred by an alien’s conviction for an offense described in section 1227(a)(2) or section 1227(a)(3).

Holding:
Denied Vasquez-Hernandez’ petition for review of BIA’’s order denying his motion to reopen.

Rule:
The petty offense exception is not applicable to section 1227(a)(2) domestic violence offense for cancellation of removal regardless of whether the conviction may meet the petty offense exception requirements.

Reasoning:
Vasquez-Hernandez was convicted of a crime under the “plain terms of section 1229(b),” a domestic violence crime. The Ninth Circuit reasoned that the petty offense exception statute did not reference section 1227(a)(2) or section 1229b(b). There was no other statutory basis for applying the petty offense exception here.

If you or a loved one is in removal or deportation proceedings in immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you on a confidential basis to help you better understand the options available to you.

We received an approval for a DACA (Deferred Action for Childhood Arrivals) case. The client, who lives in Costa Mesa, Orange County, attended and graduated from Segerstrom High School. Based on the June 15, 2012 announcement from Department of Homeland Security Secretary Janet Napolitano, we filed the application for DACA, along with substantial evidence, with USCIS in September 2012. We included evidence to prove that our client qualified and met all the requirements of DACA deferred action including that our client entered the United States before his sixteenth birthday and was under the age of 31 on June 15, 2012. We proved that our client has lived in the US for more than five years and had no criminal record of any kind.

Along with the I-765 and I-821, we provided proof that our client was in the US on June 15, 2012 by providing orthodontics records and a community college registration document. We proved that our client graduated from a US high school and currently attends school in Orange County. We were happy to receive the approval notice without any request for additional evidence that could delay the processing of the case by many months.

Our client was very happy to receive the news. He still hopes that comprehensive immigration reform will occur in the future, but he is excited to be able to work legally in the United States and not worry about deportation for the next two years. If you are considering the Deferred Action process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the process and whether you are a likely candidate for approval.

Obama administration officials unveiled rules on Wednesday that will allow many American citizens — perhaps hundreds of thousands — to avoid long separations from immediate family members who are illegal immigrants as they apply to become legal residents.

The rules, announced by Homeland Security Secretary Janet Napolitano, create a waiver that bypasses an arcane Catch-22 in immigration law. It had presented Americans with the prospect of being separated for up to a decade from immigrant spouses, children or parents who were applying for the legal documents known as green cards.

Until now, the risks for those immigrants of leaving the United States to return to their native countries to pick up their visas, even ones that were already approved, had been so great that countless families decided not to apply, adding to the numbers of immigrants living illegally in this country.

The immigration authorities will begin accepting applications for the waivers on March 3. Administration officials first announced the policy change a year ago, but they have been receiving public comments and making revisions before publishing the final rules.

It is generally straightforward for American citizens to obtain green cards for foreign-born spouses or minor children, and in some cases for parents. But if the immigrants entered the United States illegally, they must return to their native countries to receive their visas from American consulates there. However, under a 1996 statute, once illegal immigrants leave this country, they are barred automatically from returning for at least three and as many as 10 years.

If you are married to alien spouse that entered the United States illegally, adjustment of status may not be possible; however the new provisional waiver process may be a worthwhile alternative. Contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the strength of your case.

We received an approval for permanent residence for the wife of a US Citizen living in Ladera Ranch. The husband is a natural-born US citizen and the wife is originally from Venezuela. The couple married in 2002 and they have two children – both US citizens. After several years of marriage, they decided to proceed with the I-485 application for permanent residency.

The wife entered legally using a B-1/B-2 visitor visa several years ago. Although she overstayed her authorized period of visitation, she was eligible to adjust status to permanent resident as the spouse of a US citizen. In general, an immigrant may adjust status to permanent resident only if she is in an authorized immigrant status at the time of application for adjustment of status. An exception to this rule allows the spouses and parents of US citizens to adjust status even if they are not in legal immigrant status.

We provided USCIS with evidence to help prove the couple’s relationship and the validity of the marriage. We provided the birth certificates of the children and joint tax returns among other documentation.

At the interview, everything went smoothly and as expected. The I-130, I-765 and I-485 were approved. The wife was approved for permanent residency, and because the marriage is over two years old, she will not be a conditional permanent resident. She will not need to file an I-751 application to remove conditions on permanent residence.

The couple was pleased when they found out that the case was approved. They look forward to living together in the US without worrying about being out of status or deportation. If you are considering adjustment of status for an immediate relative, contact The Nunez Firm to schedule a consultation. We handle many adjustment of status cases every year, and Managing Attorney Jay Nunez will personally meet with you to help you better understand the process and options available to you.

We recently received an approval for adjustment of status to lawful permanent resident for the father of a naturalized US citizen living in Anaheim. The father entered the United States legally using a tourist visa in the 1980s. He has lived here ever since. His daughter became a naturalized citizen a few years ago, and she wanted to petition for him. Even though he was in unlawful status for more than two decades, he was able to obtain permanent resident status because he entered the US legally. In adjustment of status cases, legal entry is normally one of the biggest issues depending on the type of relationship that underlies the visa petition.

The interview went smoothly, the officer asked questions about whether the father had ever left since his first arrival. He asked about group memberships, criminal conviction history and military experience. We had prepared him thoroughly for the interview so there were no problems. The officer was one that I have worked with many times, so the whole experience was friendly and non-confrontational. We provided all the documentation he asked for and the interview lasted only 15-20 minutes.

The clients were extremely happy with the outcome. The father is excited to be able to visit his home country for the first time in decades. He will be able to relax and not worry about being pulled over by police or being deported. He said he wants to learn English so he can apply for naturalization in five years.

If you are considering the adjustment of status process for you or a family member, whether it be a spouse or parent, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you to help you better understand the options available to you.

We recently received the good news that one of our clients would be released from Adelanto on bond. We presented a mountain of evidence proving his ties to the community and record of past attendance at court hearings. We argued that although his crime was serious, he could be counted on to attend all future hearings. Additionally, we provided the court with medical records showing he had substantial health problems that required immediate assistance that could not be provided while in detention.

The judge agreed with us despite the government attorney’s objections. The government reserved appeal, but did not file an appeal. Our client was released a few days later after the family was able to collect the necessary funds.

The Nunez Firm occasionally handles bond hearings on a case-by-case basis. If you require assistance for a detained friend or relative, contact The Nunez Firm to schedule a consultation with managing attorney Jay Nunez.

“In contrast to the defendants in Ruiz-Vidaland Martinez- Perez, Cabantac confirmed three times during his plea colloquy that he was pleading guilty to count one of the complaint. Count one specified that the substance Cabantac possessed was methamphetamine.”

“Cabantac contends that his conviction cannot support the finding that he was convicted of a controlled substance offense because, under People v. West, 477 P.2d 409 (Cal. 1970),a guilty plea to an offense does not necessarily mean the defendant admitted all the facts alleged in the indictment. Where a defendant pleads guilty to a state offense that is broader than the generic federal crime as in Ruiz-Vidal,and not to a count in the indictment as Cabantac did here, Cabantac’s argument makes sense. But here the record is clear that Cabantac pleaded guilty to possession of methamphetamine, a controlled substance offense that supports the order of removal.”