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Are You Persecuted? By Andy Gene Strickland

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 (7th 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 (1st 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. INS95 F.3d 814 (9th Cir. 1996).

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

  1. 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?
  2. 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?
  3. 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?
  4. 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?
  5. 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?
  6.  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?
  7. 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?
  8. 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?
  9. Are you being persecuted if other less qualified people get job preferences over you?
  10. 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

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

What Is Form I-130? – Andy Gene Strickland

What is form I-130? By Andy Gene Strickland

Form I-130 is a relative petition used to sponsor a qualifying relative to the United States.  Form I-130 is based upon familial “priority” and the date associated with it.  Andy Gene Strickland has filed hundreds of I-130 forms over the last twenty years:  Form I-130 is used for family immigration and broken down into the following categories:

Immediate Relatives (IR):  Husbands and wife’s of the US Citizens, Children of US Citizens, Parents of US citizens.  This category does not have a priority date because the numbers in this category are always available.

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

I-130s petitions that fall into preference numbers 1-4 can have waiting periods because the number of visas available in each of these categories is limited.  Andy Gene Strickland is often asked if he can speed up this process.  The answer is we can’t.  Do not believe someone if they tell you the opposite.  In most I-130 categories the demand is greater than the supply and therefore a back log is created.  For example, the I-130 priority waiting period for the fourth preference is about 12-13 years usually.

And I-130 requires specific detailed information and need to be filled out properly and correctly.  Only an attorney or authorized DHS representative can give advise on these forms.  The I-130 forms the basis and building block for many different forms of immigration benefits and relief.  Do not allow someone who could be violating the law by providing you unlawful advice.  Retained the serviced of Andy Gene Strickland or another qualified individual to assist you.  The I-130 form has grown from just two pages to 12 pages.  Furthermore, form I-130A must be included with some petitions.

What is form I-130?

Check out this info from the USCIS:  https://www.uscis.gov/i-130  

Immigration Law Andy G. Strickland

National Interest Waiver by Andy Gene Strickland

What is a National Interest Waiver?

If you wish to apply for an employment based immigration category (EB-2) and waive the job offer and labor certification requirements, a National Interest Waiver might be for you.  In order to file this type of application we need to show you are a professional with an advanced degree, that you are of exceptional ability, substantially benefit the US (by showing you have substantially benefited your native country).

To prepare this type of petition requires us to substantiate every criteria with solid evidence typically in the form of:

1) documenting your degree

2) Reference letters from people who know you professionally

3) Employment verification letters

4) Publication that you might have published

5) Other evidence, such as government funded projects you were involved with.

Procedurally, we can file the petition and pay an additional fee for premium processing.  The USCIS would take about 15 working days to decide the petition unless they sent an RFE (Request for Evidence).  Then this period would be extended. I don’t recommend filing greencard applications with the petition because of time line issues that will extend your current authorized stay.

What is the Current Standard to Determine an EB2 NIW (National Interest Waiver)Case?

The decision Matter of Dhanasar (released on 12/27/2016) established new standards for obtaining EB2 NIW petitions that the USCIS adopted. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for an EB2 NIW:

  1. Foreign national’s proposed endeavor is of substantial merit and national importance
  2. Foreign national is well-positioned to advance the proposed work, and
  3. On balance it would be beneficial to waive the job requirement for the foreign national

Substantial Merit:

  • In the precedent case Matter of Dhanasar, the AAO stated that endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education
  • Evidence to establish that the beneficiary’s proposed endeavor has substantial merit consists of, but is not limited to, the following:
  1. A detailed description of the proposed endeavor and why it is of substantial merit; and
  2. Documentary evidence that supports the petitioner’s statements and establishes the endeavor’s merit

How is an Endeavor to “National Importance” Defined in this Case?

In determining whether the proposed endeavor has “national importance”, the immigration officers consider its potential prospective impact.

Evidence to establish that the beneficiary’s proposed endeavor has national importance consists of, but is not limited to, the following:

  1. A detailed description of the proposed endeavor and why it is of national importance
  2. Documentary evidence that supports the petitioner’s statements and establishes the endeavor’s national importance. Such evidence must demonstrate the endeavor’s prospective impact, and may consist of, but is not limited to, evidence that shows the proposed endeavor:
  3. Has National or even global implications within a particular field
  4. Has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area: a)Will broadly enhance societal welfare or cultural or artistic enrichment b) Impacts a matter that a government entity has described as having national importance or is the subject of national initiatives.

Please view the USCIS website for further details:  https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2

National Interest Waiver by Andy Gene Strickland

Applying for Asylum by Andy Gene Strickland

People fleeing from persecution are entitled to apply for asylum if they are already physically present in the United States.  Usually this is done, shortly after arrival in the United States or within reasonable time of experiencing changed personal our country conditions that led to the need to apply for asylum.  While persecution is not clearly defined, it usually means one must have a well founded fear that you more likely than not have been or will be persecuted based upon certain reasons like political opinion, national origin, religion, race, or some other characteristic that you are unwilling or unable to change.  Furthermore, the persecution must involve some government action or failure to act.

It is very important that an application for asylum be submitted within one year of entering the United States.  Failure to apply within one year could result in one’s inability to receive asylum.  The application for asylum is filed on USCIS Form I-589 and filled out and submitted with supporting evidence and a statement.  I suggest an attorney or other legally qualified professional review the statement and other issues stemming from filing an application.  Spouses and child can be included in this application if they are currently present in the United States.

The Asylum statement is one of the most valuable pieces of evidence.  It is important that the issues be discussed in the asylum statement and these issues support the elements necessary in asylum law.  Evidence is also important.  While a statement alone can be enough for the USCIS or Immigration judge to grant relief, evidence that supports your claim would make the asylum case stronger.  Birth certificates, marriage certificates, copies of every page in the passport are also included in the filing packet.

Asylum relief might be an option for those who are unwilling or unable to return home.  Every case is different and special.  This post does not replace any legal advice necessary and specific to the reader’s specific legal issues, asylum or otherwise.

This link from the American Immigration Council discusses the asylum process:

https://www.americanimmigrationcouncil.org/research/asylum-united-states

Is a Motion to Reopen Possible? by Andy Gene Strickland

If an immigration judge has ordered an immigrant removed, it might be possible to file a motion with the immigration judge or the Board of Immigration Appeals (BIA).  I have filed many successful motions to reopen.  There are many factors to consider when preparing a motion to reopen.

Depending on when the immigrant was placed in removal proceedings, when the order was issued, and which immigration court and judge issued the order.  Another factor to consider is whether the immigrant was issued an order of removal “in absentia”, meaning, in their absence.  It is important to get as much information about the underlying proceedings as possible before filing.  This can be done by filing a freedom of information act request (FOIA) with the Department of Justice or Department of Homeland Security.

Furthermore, it is important to see if there has been a change in case law or the facts of the underlying case.  In regards to an in absentia order, it is important to get as much information and evidence from the immigrant as to why they failed to attend the hearing.  Many times, lack of notice is an issue or improper warnings given by the Department of Homeland Security.

The notice to appear or “charging document” is very important in terms for formulating an argument for a motion to reopen.  The document should detail when the immigrant’s hearing will be and the charges the immigrant is facing as well as the legal justification for the factual allegations of the charges.  The United State Supreme Court issued a very important decision the end of April, 2021 regarding the government’s (DHS’s) requirements of notice and that this notice cannot be used to deny the immigrant an opportunity to accrue the required time in the United States to apply for a form of relief called cancellation of removal.

I suggest you check out this blog to review the decision:

Court rules against government on technical question of notice requirement in immigration law