Maryland Bar Bulletin
Publications : Bar Bulletin : August 2010

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 BAR BULLETIN FOCUS: IMMIGRATION LAW

Immigration lawyers frequently assist clients with the preparation of an application for lawful permanent residence, commonly known as a “green card”. First, numerous forms must be filed with the proper filing fees at the correct office to avoid delays or denials. Forms, fees and filing locations change every few years. Instructions on the forms do not contain useful legal information.   

Taking on Immigration Cases

As an advocate, learn the fundamentals of immigration law. Many organizations provide mentoring in exchange for taking on an indigent client or becoming a member.

Immigration law is highly technical and complex. A poorly prepared case could cost your client thousands of dollars, and it may cost you your license. Familiarize yourself with immigration statutes, regulations and agency guidelines. Some clients can apply for residency after entry into the United States, while others must return to their country for consular processing. Don’t forget – common sense and the sixth sense are innate for good reason. Use both to navigate your cases.

Standard of Proof

In visa proceedings, the petitioner has the burden of proof. The American citizen must prove that the marriage was entered into in good faith with an intention to establish a life together. Visualize what would convince an examiner to recommend an approval of your case then ask your clients for this evidence. Documents generated before or closer to the date of marriage have more weight. Find out everything about your clients at your first meeting – how and when they met, their employment and residences since their first meeting; mutual friends, relatives, pets, educational background, daily routines, division of household chores and finances, employment benefits and details about the wedding ceremony. It’s alright to be intrusive. Additionally, you must prove that the foreign-born spouse is entitled to the benefit. Ask if he or she has ever been arrested, and submit all dispositions of arrest. Find out if a conviction constitutes a ground of inadmissibility. Prepare a checklist of criminal and non-criminal grounds of inadmissibility. Some grounds of inadmissibility can be waived if there is hardship to qualifying relatives, while others, such as a false claim to United States citizenship, most drug convictions or security offenses, cannot. Only clients who are in the United States may file the waiver and adjustment application concurrently to avoid a steep filing fee.

The initial consultation is a good opportunity to weed out fraudulent cases. Red flags are raised, for example, if the client does not know the names and ages of his  step-children who supposedly reside in the marital home. In visa proceedings, your clients may marry for love or money, but it is unlawful to marry solely for immigration benefits.

Evidentiary Burden

Whether you have met your evidentiary burden will depend on the quality of your documents, and some creativity. In the pre-email, pre-Facebook era, the Board of Immigration Appeals lists the types of evidence that establish the bona fides of the marriage to include listing the spouse as beneficiary in insurance policies, property leases, last will and testament, income tax forms or bank accounts, and testimony or other evidence regarding courtship or wedding ceremony, shared residence and experiences. Now, social websites can also support evidence of a courtship and a shared life through posted messages and photographs about the couple. If necessary, share medical records such as evidence of a miscarriage or fertility treatment. Notarized statements from members of the community must contain detailed personal knowledge and may refer to other evidence in the record. Prepare a list of documents you expect to submit at the interview for your clients at your first meeting. Minimalist clients will bring you a shoebox of documents, while hoarders will wheel in a milk crate.

Send e-mail reminders to impress the importance of saving documents. Not all probative evidence is easily discoverable. While clients are reluctant to discuss problems in their marriage, police reports, restraining orders and marriage counseling is valuable evidence of a shared life. Organize original and copies of evidence in the same order for the interview. Create a table of contents with titles, subtitles, tabs and pagination. Always take an identical evidence packet to make the examination process efficient. You will impress your clients. The examiner will thank you – and you will thank your staff should you have to prepare an appeal.

Preparing Clients for an Interview

You are responsible for reviewing formwork with your client before filing. Examine the evidence with your clients. Leave out exaggerated affidavits by overly eager friends. Point out inconsistencies to the clients and have them prepare an explanation in advance of the hearing. If one party frequently interrupts the preparation, remind them that they cannot speak for each other at the interview. If something doesn’t feel right, interview them separately. Withdraw from the case if you discover fraud. Impress on punctuality to avoid denial, delay, and stress at the interview.

At the Interview

Interview delays are sometimes caused by staff shortages, problems with other cases earlier in the day  or an inexperienced examiner. If the delay is unreasonable, ask for a supervisor. Taking detailed notes is highly recommended. Pay attention to ensure your clients get a fair interview. Terminate an interview in which an examiner engages in unprofessional conduct and request that a supervisor be present for the remainder of the interview. Unprofessional conduct may involve intimidation or hostile behavior, bedroom questions, personal attacks, rejection of evidence or a denied request for a bathroom break. If an examiner takes a signed statement from your client, you are entitled to a copy. At the conclusion of the interview, ask if an approval will be recommended.

After the Interview

An approved application for adjustment will generate an alien registration card. If you do not receive a decision within 30 days of the interview, follow up with monthly inquiries. If a notice of intent to deny is issued, calendar the response deadline and advise your clients to explain the derogatory information. Supplement your evidence, if necessary. Challenge any error of fact or law. Where fraud is suspected, a bed check by immigration officers may ensue. Your clients can refuse access to their home if it is unreasonable. You can decline a second and third interview where the record clearly meets the burden of proof. Some clients report post-approval bed checks.

Finally, if the agency fails to make a decision within a reasonable period, consider filing a mandamus action.

Naima Said is an attorney based in Columbia, Maryland. Her practice focuses on immigration law.


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Publications : Bar Bulletin: August 2010

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