Category: Law

Andy Gene Strickland – Right to a Lawyer

Andy Gene Strickland – Your Right to an Attorney

The US Constitution and the Immigration and Nationality Act clearly provide the right for a non-citizen who is detained the right to counsel without expense to the government.

Recently a study was conducted that found:

At over 40, or 20 percent, of the detention facilities called by our researchers in our study, no one ever picked up the phone or operators refused to answer basic questions about attorney access. This took place even after multiple calls during regular business hours to the facility phone number made publicly available by ICE or the facility itself.

At least 58 ICE detention facilities do not allow attorneys to schedule phone calls with a detained client at a certain date and time when the facility will make the detained client available for the call, preventing both routine and time sensitive communications necessary to representation.

Moreover, the ability to schedule an attorney-client call in detention does not guarantee that it will take place: At ICE detention facilities where attorneys reported they can schedule calls with detained clients, survey respondents reported that scheduled calls were not consistently honored at almost half (approximately 46 percent) of the identified facilities.

•Failure to Ensure Access to Legal Telephone Calls. Our study found pervasive issues with access to legal telephone calls in ICE detention:

• Legal calls are prohibitively expensive for detained immigrants. With only limited exceptions, detained immigrants must pay to make outgoing phone calls to counsel at the majority—approximately 85 percent—of the detention facilities for which we received responses.

At some facilities, detained immigrants are charged $0.21 per minute, and sometimes up to $0.40 per minute. These rates are especially burdensome given that many detained immigrants are indigent and the only opportunity to earn money is the “Voluntary Work Program,” where detained people earn $1 per day performing work to maintain the detention facility.

• Attorney calls with detained clients are plagued by poor-quality audio. Attorney surveys for over half of the 58 facilities for which we received responses reported experiencing poor audio quality on legal
calls with detained clients.

•Failure to Provide Access to Legal Video Teleconferencing. It is unclear how many ICE detention facilities actually provide legal video teleconferencing (such as by Zoom or Skype). Of the 68 detention facilities that reported availability of legal videoconferencing, only 12 of these facilities had information available on ICE’s website. Moreover, of those 68 facilities, we were unable to verify the existence of legal videoconferencing at 23 of those facilities, and ICE’s website had no information at all about 33 of those facilities.

Notably, four of the facilities that ICE has designated as having Virtual Attorney Visitation programs were unaware of the existence of the program upon inquiry by phone. Immigrants must pay to make outgoing phone calls to counsel at approximately 85 percent of surveyed detention facilities

•Unreasonable Barriers to Establishing Contact with Clients. Approximately 68 percent (38 of 56) of the facilities for which we received a response for this question have required attorneys at some point to provide an alien number (A-Number) to communicate with detained immigrants, even though ICE’s detention standards clearly state that detention facilities may not require legal service providers to submit a detainee’s A-Number as a condition of visitation.

This condition is problematic because attorneys who contact a client or potential client for the first time are not likely to know the individual’s A-Number.

•Delays in Legal Mail. Attorneys reported that at 11 facilities delayed deliveries of legal mail had caused them to continuously request extensions for deadlines from the court, to miss key filing deadlines, or that they had observed pro se detained immigrants missing deadlines because of difficulties with the mail system.

• No Email or Electronic Messaging Available. Very few ICE detention facilities provide any sort of electronic mail or messaging access to detained people. Of the 173 facilities for which we
have information,19 fewer than one in four (24.3 percent) facilities provided some sort of electronic
mail or messaging access to detained people.

Where electronic mail or messaging is available, it is run by private prison corporations, may be prohibitively expensive, and is not confidential.

• No In-Person Legal Visits. Eleven ICE detention facilities reported that they do not allow any in-person legal visits at all, despite ICE’s claim that “in-person contact visits remain available at the
request of the legal representative” in light of the COVID-19 pandemic.

Although nine facilities reported suspending in-person legal visits because of the pandemic, two did not and merely stated that in-person visits were not allowed or had been “suspended indefinitely.”

•Arbitrary Delays or Denials for In-Person Legal Visits. Attorneys at nearly half (20 out of
42) of facilities for which we received attorney survey responses on this question reported
arbitrary delays or denial of access to their clients at the facility.

In-person client visits were denied or delayed because of failures by facility employees to accurately keep track of detain clients, inadequate staffing, or arbitrary and shifting attorney dress codes. Moreover, at several facilities, pandemic-related quarantine procedures prevented attorneys from being able to visit their clients.

•Lack of Contact Visits. Over a third of facilities do not allow for “contact” visits or have any in-person visits between attorneys and detained clients. Contact visits are important to ensure
clear communication, to support language interpretation, and are the preferred method of in person legal visitation.

•Lack of Confidential Settings for In-Person Legal Visits. Attorney respondents at several facilities reported that in-person visits do not take place in confidential settings, impeding clients’ ability to share sensitive details important to their cases and destroying the attorney-client privilege.

•Prohibitions on Computers and Phones for Legal Visits. About half (56 percent) of ICE detention facilities for which we could gather information allow attorneys to bring laptops for legal visits; only 21 percent of ICE detention facilities for which we have information allow attorneys to bring cellphones into legal visits.

Andy Gene Strickland agrees that these are problems that can be corrected with aggressive lawyering. Get help now!

Contact: St. Petersburg Immigration Lawyer

Non-Immigrant Visa Interview Waivers by Andy Gene Strickland

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Are you eligible to waive your non-immigrant visa interview? By: Andy Gene Strickland

U.S. Embassies and Consulates abroad are suffering from a terrible backlog and scheduling delays. As a result of the COVID-19 Pandemic, the Department of State has expanded the eligibility for a nonimmigrant visa interview waiver.

Andy Gene Strickland suggests that if you believe you are eligible for an interview waiver, you will need to review your local U.S. consulate’s website or appointment scheduling website to determine what is required to apply for a waiver.

Typically, consulates require you to schedule an appointment to drop off or allow you to mail in the following documents: DS-160 confirmation page, a valid passport, pre-paid courier packaging for passport/document return, the fee receipt, two passport style photographs, and the visa petition approval notice (such as Form I-797 approval notice).

Be advised: As procedures will vary from consulate to consulate around the world and the consulate has discretion to require an interview of any visa applicant, you should consult an immigration attorney to discuss how to file and whether you may qualify for a waiver.

As part of the application process for a visa to the United States, typically you have to complete an in-person interview at a U.S. consulate to show that you are eligible for the visa. However, some applicants may be able to get the interview waived.

Using this process is a convenient option for those applying in certain nonimmigrant visa categories or those renewing visas in the same nonimmigrant category and can reduce the hassle and anxiety of an in-person interview with a consular officer.

Andy Gene Strickland states that current timeline for a interview waiver is through December 31, 2022 for the initial nonimmigrant visa application of the following visa categories:

Applicant for F, H-1, H-3, H-4, academic J, L, M, O, P, and Q visas and were previously issued any type of visa; Applicant for a visa category included above, from a country that participates in the Visa Waiver Program, and previously traveled to the United States under ESTA authorization; Applicant for H-2 visa (temporary agricultural and nonagricultural workers).

Furthermore, Andy Gene Strickland asserts that in addition to the described visa types, you also need to apply at the consular post in your country of usual residence, and you were not previously refused a visa in any classification unless the refusal was overcome or ground for inadmissibility was waived

You may also qualify for an interview waiver, indefinitely, for a nonimmigrant renewal visa application if:

You are applying at the consular post of your usual residence; You have a previously issued U.S. visa in the same classification as the visa for which you are applying and your prior visa is still
valid or has expired within the last 48 months; Your prior visa is not annotated “Clearance Received” or “Department Authorization”; Your most recent visa in the same classification for which you
are applying was issued on or after your 14th birthday (For children under 14 years of age, interviews are rarely required.); Your most recent visa in the same classification for which you
are applying was not lost/stolen or canceled; and You were not previously refused a visa in any classification (with some exceptions).

As always, it is prudent to seek the advice of a professional attorney who practices immigration law to review the facts of your particular case.

Contact Andy Gene Strickland

Are You Persecuted? By Andy Gene Strickland

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What is Persecution?

By Andy Gene Strickland

Immigration Attorney Andy Gene Strickland discusses examples of persecution and what it means to be persecuted. Persecution is an often misunderstood word. However, for purposes of US immigration law in in asylum context we will discuss it’s legal definition.

The International Criminal Court defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity” (Art. 7.2.g of ICC Statute). According to Andy Gene Strickland, persecution is a broad term and it is not defined in the Immigration and Nationality Act or the Code of Federal Regulations.

Therefore, immigration attorney Andy Gene Strickland asks that we look to case law and persuasive resources in order to help determine if someone has been persecuted for purposes of qualifying as a refugee. Matter of Kasinga, Int. Dec. 3278 (BIA 1992) states: “While a number of descriptions of persecution have been formulated in our past decisions, we have recognized that persecution can consist of the infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim.”

The United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status (hereinafter handbook), page 51 states:

“There is no universally accepted definition of “persecution,” and various attempts to formulate such a definition have met with little success…[I]t may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights– for the same reasons- would also constitute persecution.”

Immigration Attorney Andy Gene Strickland discusses a number of cases that help us define what persecution is. In, Montoya-Ulloa v. INS , 79 F.3d 930 the court held that “persecution means a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive.”

“Persecution covers a range of acts and harms,” and “[t]he determination that actions rise to the level of persecution is very fact-dependent.” (See Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000). On the other hand, the Seventh Circuit has noted that, “actions must rise above the level of mere ‘harassment’ to constitute persecution.” (See Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7^th Cir. 2000).) And the First Circuit added that the experience “must rise above unpleasantness, harassment and even basic suffering.” (See Nelson v. INS, 232 F.3d 258, 263 (1^st Cir. 2000).) Persecution can definitely include harms that aren’t physical, or immediate threats to one’s life or freedom. (See INS v. Stevic, 467 U.S. 407 (1984); Surita v. INS, 95 F.3d 814 (9th Cir. 1996).

Therefore, based upon these predicate definitions and examples of persecution Andy Gene Strickland asks the following questions:

Are you being persecuted if the media in your county is controlled by a limited group of wealthy people and they all print and say the same talking points, while preventing your voice from being heard?
Are you being persecuted if your government prohibits you from having an internet site or restricts what information you receive? What if the government allows private companies to restrict your sources of information and dissemination of it?
Are you being persecuted if the government enforces the law against you more harshly and more often than it does with someone the government favors?
Are you being persecuted if the government fails to protect your rights under it’s legal code from private citizens who are destroying your home and your places of work and worship?
Are you being persecuted if your government allows people to settle into your area with the intent of weakening your political power and voice and turning you into racial and ethnic minority?
Are you being persecuted if your cultural memorials and holidays are being removed from celebration and memorials to your ancestors are being removed or ruined?
Are you being persecuted if there is one language and set of rules for you, yet a different language and more lenient set of rules for others?
Are you being persecuted if the news media in your country fails to properly identify the perpetrators of criminal conduct against your people while claiming you to be an aggressor?
Are you being persecuted if other less qualified people get job preferences over you?
Are you being persecuted if the nation, culture, history, and institutions created by your ancestors are being cancelled, defamed, destroyed and perverted at your expense?

Immigration Attorney Andy Gene Strickland respectfully submits that if you can answer yes to any of the above, then you might be a victim of persecution! Please check out this article:

Sources: https://guide-humanitarian-law.org/content/article/3/persecution-1/

Asylum Law by Andy Gene Strickland

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Immigration Attorney Andy Gene Strickland blogs about the general framework of US Asylum law:

The Immigration and Nationality Act section 101(a)(42) states that: “The term “refugee” means (A) any person who is outside any country of such person’s nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…” Persecution is a broad term and it is not defined in the INA or the CFR. Therefore we must look to case law and persuasive resources in order to help us determine if the applicant has been persecuted for purposes of qualifying as a refugee and asylum.

In the landmark BIA Asylum case of Matter of Kasinga, Int. Dec. 3278 (BIA 1992)the BIA states: “While a number of descriptions of persecution have been formulated in our past decisions, we have recognized that persecution can consist of the infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim.” (emphasis added) The United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status (hereinafter handbook), page 51 states:

“There is no universally accepted definition of “persecution,” and various attempts to formulate such a definition have met with little success…[I]t may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always is persecution. Other serious violations of human rights- for the same reasons- would also constitute persecution.”

Andy Gene Strickland describes persecution to include threats to life, confinement, and torture. Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997). One of the leading cases on U.S. Asylum law is INS v. Cardoza-Fonseca 480 U.S. 421 (1987). The burden is on the asylum applicant to show that it is “More Likely Than Not” the applicant will be persecuted if returned to their native country. The U.S. Supreme Court suggested that even LESS THAN a one-in-ten chance of suffering persecution would make an applicant’s fear well-founded to qualify for asylum. Id at 440. The persecution feared must be a reasonable possibility. Id

When an applicant has suffered past persecution, there is a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. 1208.13(b)(1). To overcome this presumption, the government must demonstrate, by a preponderance of evidence that, either:

(1) the respondent could avoid future persecution by relocating to another part of respondent’s country of nationality or

(2) since the time the persecution occurred, conditions in the Respondent’s country have changed to an extend that the Respondent no longer has a well-founded fear of persecution of he were to return to his country. See 8 C.F.R. 1208(b)(1).

Andy Gene Strickland states that in order to demonstrate a well-founded fear of return, an asylum applicant must establish that he has both a subjective and objective fear of returning to his country of origin. The subjective component requires that the applicant demonstrates a genuine fear of persecution. “An asylum applicant’s candid, credible, and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard.” The United Nations High Commissioner of Refugees states that “an evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions.” Although not binding law on U.S. asylum applications, the Handbook is persuasive authority.

The test for the objective component is whether a reasonable person in the applicant’s circumstances would fear persecution. The objective element requires credible, direct, and specific evidence that supports a reasonable fear of persecution. A ten percent chance of persecution may result in a well-founded fear sufficient for asylum. As long as the objective component is established by the evidence, it need not be shown that the situation will probably result in persecution. It “is enough that persecution is a reasonable possibility.” The United States Supreme Court has held that a risk of 10% or more of persecution if the asylum applicant is returned to his country is sufficient to warrant a grant of asylum .

UN Convention Against Torture as Described by Andy Gene Strickland

Nonrefoulment under the United Nations Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment prohibits that government of the United States from removing an individual who establishes that it is more likely than not that a person would suffer torture at the hands of the government of the country of nationality or last habitual residence. Article III of the convention protects all individuals from a specific type of violation-torture.

According to 8 C.F.R. 208(b) the standard of relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment differs from that for a grant asylum or for withholding of removal, in that the alien NEED NOT PROVE reason for the torture, nor that he or she has a well-founded fear of it, but only that it is more likely than not he or she will be tortured if returned to a proposed country.

According to Andy Gene Strickland Article I or the Convention defines torture as:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity.”

Immigration Attorney Andy Gene Strickland invites you to review the actual text of the UN Convention Against Torture: https://www.ohchr.org/en/professionalinterest/pages/cat.aspx