World Journal Weekly Q & A - July 8, 2007
Q & A 1. 2. 3.
4.
Q&A 1.
Can 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.
Q&A 2.
How to Communicate Changes of Circumstances to The National Visa
Center and Whether a Child Can Immigrate Before Aging Out
Wu 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:
1. Should I inform NVC about my sister-in-law’s intention
to give up and pay only the fees for my brother and niece? Should
I write or call?
2. After paying the fee of $380.00, how long does it take to receive
interview notice and obtain the immigration visa? His daughter is
already 19.5 years old, so is there enough time to process the petition?
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
32 Rochester Avenue
Portsmouth, NH 03801-2929
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.
Q&A 3.
Green Card Filing For Spouse Can Use $100,000 In Assets Alone
For Affidavit of Support
Chen 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.
Q&A 4.
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 Early
Zhang asks:
As my understanding, the law states, for people who use Chinese
to take naturalization tests must live in the U.S. for at least
15 years and for the recent 5 years, the person must reside in the
US more than half of the time before filing.
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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