World Journal Weekly Q & A - July 8, 2007Can You File For Political Asylum Through Having a Second Child in Violation of China’s Family Planning Policy If You Are in the U.S. for Over One Year?Mai asks: I gave birth to a child in the U.S. (so I have been in the U.S. for over one year). Do I still have legitimate reason to apply for political asylum? I consulted a few lawyers, and some of them said that I could apply after I have 2nd child. If this is possible, will I have a chance to win? Also, do I need to provide a special reason for the judge for having 2nd child? Dear reader: The immigration laws mandate that political asylum applications should be filed within one year of the individual's entry to the U.S. with some exceptions. The U.S.C.I.S. in the past has given examples of circumstances under which it will excuse filings after one year, and has recognized personal change such as recent political activities, conversion of religion, the ending of a person's dependent relationship to the principal in an asylum application, mixed marriage, threats against overseas family members, and new precedential case law. Readers should also be aware that where an exception is allowed, the asylum filing must be done within a reasonable time, and the U.S.C.I.S.'s position is that what constitutes a reasonable period of time depends upon the facts of the case at hand. Possible items for consideration in this circumstance might be when the person discovered she was pregnant, the time that it took for her to find legal assistance, the period to gather up all the necessary materials for an effective filing, and to take care of the child both before and after birth. I note in the past we have made this argument and been successful with it before the U.S.C.I.S. However, we are not aware that there is any stated policy by the U.S.C.I.S. or Executive Office for Immigration Review as to whether a second birth in the U.S. is grounds to excuse an applicant from the one year rule. Insofar as the actual merits of the case are concerned, we note that the Second Circuit Court of Appeals which covers New York, Connecticut and Vermont had taken the position that there now appears to be substantial documentation that Fujian province has exhibited strict adherence to the one child policy and remanded a series of cases to the Board of Immigration Appeals for its further consideration of the evidence being brought up in these cases. Further that the court remanded cases in which there were two children born anywhere in China of Chinese nationals. However, he Board of Immigration Appeals on June 7, 2007, dismissed two applicants' appeals in Matter of J-H-S-, 24 I&N Dec. 196 (BIA 2007), and Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007). In J-H-S-, a case involving children born in Fujian, the BIA set out very stiff criteria for asylum eligibility - that an applicant had to show 1.) there is a specific policy applicable to the applicant's case, 2.) the applicant violated the policy, and 3.) violation of the policy would be punished in the local area in a way that gives rise to an objective fear of future persecution. The BIA cited Department of State reports in finding that the record did not clearly show that the birth of the applicant's second child would be viewed as a violation of family planning policies in Fujian province, and even if the second child's birth would be viewed as unauthorized, the record did not contain persuasive evidence that the birth would trigger enforcement activity in Fujian province. In J-W-S-, a case involving children born in this country, the BIA stated that the evidence of record did not demonstrate that the Chinese government had a national policy in requiring forced sterilization of a parent who returned with a second child born outside of China and that the evidence suggested that if a parent was penalized at all upon return, the sanctions would be fines or economic penalty. The BIA also held that although some sanctions might be imposed pursuant to the local family planning policies in China for the birth of a second child abroad, the applicant had failed to provide evidence that such sanctions in Fujian province or Changle City would rise to the level of persecution. Until and unless there are further reversals of the BIA’s position, the chances of success will depend upon the asylum applicant’s showing very specific evidence of local persecution of birth policy violations. How to Communicate Changes of Circumstances to The National Visa Center and Whether a Child Can Immigrate Before Aging OutWu asks: My brother’s family (of three) lives in Taiwan. I filed I-130
for his family ten years ago. This year we finally received a notice
from NVC requesting to pay $380.00 per person to continue the petition.
But my brother’s wife wanted to give it up due to her job.
So it will only be my brother and their daughter. I would like to
know: Dear reader: 1 It is probably better to write to the NVC to insure that there is no mistake in communications. The address of the NVC is: National Visa Center 2 It is difficult to state how long it will take to receive the interview notice and obtain the immigrant visa. The Department of State's Visa Office comes out with the visa chart every month which lists the dates for which immigrant visas are available. The current availability of F-4 immigrant visas for Taiwan for the month of June 2007 is for those who filed I-130 petitions prior to June 8, 1996. However, the visa chart does not move in sync with chronological time. Sometimes the dates jump forward and other times go backwards. Given the limited information that you have provided (no priority date other than "10 years ago"), my only possible comment is that the daughter possibly has enough time to immigrate prior to ageing out. Green Card Filing For Spouse Can Use $100,000 In Assets Alone For Affidavit of SupportChen asks: I was born in 1932. I became an U.S. citizen in 1982. My wife died in a car accident 5 years ago. In 2006, I married a girl in Mainland China. Immediately afterward, I started petitioning for her to come to the U.S. What followed was the affidavit of support. Since my wife’s passing, I’ve been receiving SSI. My daughter does not live a rich life either, so she cannot sponsor my wife. Recently the court rules that I am entitled to receive over $100,000 in compensation over my wife’s death. Can I use this amount to sponsor my current wife, or id there is other way? Thank you. Dear reader: Under the I-864 affidavit of support rules, you are allowed to
show assets to prove that you can support the spouse for whom you
are petitioning. Where spouses are concerned, the amount of assets
is divided by three to determine the amounts which is available
for support. If you are not supporting anyone else, the $100,000
that you receive in compensation over your former wife's death would
be sufficient to sponsor your current wife. Reader Wishes Refund $400 Fee from USCIS for Senior Friend on SSI Whose Naturalization Application Should not Have Been Accepted As It Was Filed Too EarlyZhang asks: A friend of mine thought the process of applying naturalization through Chinese is the same as the one in English, which was to submit application 3 months before satisfying the residential requirement. So he paid $400.00 and submitted the application 3 months earlier. USCIS later notified him for biometrics and then an interview. However, during the interview, the interviewer told him that he could not take the test as he submitted his application by about 3 months early. My friend had to pay $400.00 again and redo all the processes. He eventually passed the test, got 100 score, and obtained his naturalization paper. My question is, is it reasonable for him to pay $400.00 twice? Should the USCIS refund $400.00 back to him based on his circumstance? He’s a senior citizen who claims SSI, so $400.00 for him is not a small amount. Dear reader: Unfortunately for your friend, the U.S.C.I.S. is very stingy in giving refunds of fees even if it has done no work at all on the case. In one of our recent cases, our client requested us to submit an I-765 application for employment authorization during the time that the I-485 adjustment of status application was pending. The day after we sent out the application, we received notice that the I-485 was approved. We immediately notified U.S.C.I.S. by fax of the situation and asked that it neither fee in nor process the I-765 and to return the fee check of $180. To that, we received the response that "It is Service policy not to issue refunds unless this Service in error solicited the fee. Unless you can provide proof of this error, a fee refund cannot be granted. " We next stopped payment on the check only to receive an invoice from U.S.C.I.S. charging an additional $30 for the stopped check with a warning that failure to promptly submit the fee amount plus penalty would result in "additional charges as required by the Debt Collection Improvement Act of 1996 and the provisions of 31 CFR 901.9. " It also stated a notice of intent to report to credit bureaus, which of course could have adverse effects on credit rating. We wrote two further letters to U.S.C.I.S. disputing the amount, observing that the Service had performed no work on the I-765. To that, we received a further letter from U.S. Immigration and Customs Enforcement that "Pursuant to Title 8 of the Code of Federal Regulations, Section 103.7 and Section 103.2 respectively, filing and fingerprint service fees associated with U.S. Citizenship and Immigration Services applications, where applicable, 'are non-refundable and must be paid when the application is filed.' No refunds or returns will be honored in the event of an application cancellation or withdrawal request." We also received a further invoice from the U.S.C.I.S. Debt Management Center assessing "interest for 18 days at the annualized interest rate of 4.000%". At that point, both we and the client felt that it was not worth the ongoing aggravation to continue disputing the fee amount in this case, and paid the Service its fee. Looking at our client's situation along with that of your friend, it is indeed sad that the agency is reduced to such avariciousness, undoubtedly fueled by an unsympathetic attitude to the financial state of applicants for immigration benefits because of the need to wholly finance itself without assistance from a Government strapped down by the burgeoning national debt caused by the Bush tax cuts and the war in Iraq.
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Copyright © 2003-2007 Alan Lee,
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