New Hope For Undocumented Children!!!

Many children live with caretakers who are not their biological parents.  When the child does not have legal immigration status there may seem to be no hope to obtain a green card or citizenship.  Now, through the diligent effort of the law firm of Strickland & Amezola, APC there may be new hope for these children. 

This new possibility comes from a case involving a young boy born in Mexico who was left with his uncle and aunt by his biological mother, who had problems with drugs.  The uncle died and the aunt, who is a United States citizen, brought the child to the United States without any immigration status and raised him as if she were his biological mother.  The San Diego County Superior Court held that the aunt was legally the child’s mother under California law.  This is called a “presumed parent” in California.  Under California law, a child may have two mothers, two fathers or a parent who has no biological relationship to them.  The child may or may not have been adopted by the caretaker.  The Hague Convention which makes the immigration of adopted children very difficult and very costly has no application if a Court finds that a caretaker is the child’s “presumed parent.”

In a ground-breaking decision, Attorney Barbara Strickland, on behalf of the firm, was able to convince Immigration that the California Court holding that the aunt was the “presumed mother” of the child was valid for immigration purposes.  A petition was filed with Immigration as if the child was the biological child of the aunt and was recently approved. 

The caretaker may be the grandparent, older sibling, other relative or the same-sex partner of the biological parent of the child. The biological parents may have been unable to care for the child due to drug problems, deportation or other reasons.  Sometimes the caretaker may have become guardians, but in other cases, the biological parent simply left the child with the caretaker with or without a written letter or power of attorney.  The caretaker becomes attached to the child and the child becomes attached to the caretaker. 

This decision brings new hope for undocumented children who have been cared for a significant period of time by a United States citizen or legal resident who has assumed the place of a biological parent.  If you have a similar case, please call the office for a detailed review of your case at (619) 230-1773 or visit our website for more information at http://myimmigrationatty.com/

By Barbara K. Strickland

Senior Partner, Strickland & Amezola, APC

Abogados de Inmigracion vs. "Notarios"

¿Quiénes son los verdaderos profesionales de Inmigración?

            Todos hablan de la posibilidad de una reforma de la ley de inmigración.  Tal vez entre en vigor una reforma para resolver la situación de los 11 millones de indocumentados en este país pero tal vez no. Pero con o sin la reforma, la gente pregunta: ¿Qué debo hacer?  ¿A quién debo acudir para asesorarme y ayudarme con mi situación? Hay tres tipos de personas que generalmente se dedica a hacer trámites de inmigración:  Notarios, consultantes de inmigración y abogados.  ¿Cuál es la diferencia? ¿Cuál es la mejor opción?

            Los notarios públicos en Estados Unidos NO SON abogados.  Su única función es de autenticar las firmas en un documento.  Ninguno de los formatos de inmigración tiene como requisito ser firmado ante notario público.  Repito:  JAMÁS es necesario firmar un formato de inmigración ante notario público. 

            Los consultantes de inmigración son semejantes a los notarios:  NO SON ABOGADOS. Son personas que pueden llenar formatos de inmigración pero nada más.  A veces se utiliza el término “notario” para referirse a un consultante de inmigración y vice versa. 

Lamentable hay muchos casos de fraude por parte de los notarios y los consultantes de inmigración.  Ninguno de los dos puede asesorarte sobre si calificas por un beneficio de inmigración porque no son abogados.  Si dan asesoría legal sin ser abogados, comenten un delito.  Por eso ni un notario o un consultante te puede decir si puedes arreglar tus papeles o no, si necesitas un perdón o no o si estás al riesgo de ser deportado o no.  No te pueden decir cuáles formatos tienes que llenar, qué información debes de incluir en el formato y no te pueden aconsejar sobre las posibles consecuencias negativas si presentas un trámite determinado.  Nuevamente, si dan este tipo de asesoraría están cometiendo un delito.  Nada más pueden preparar los formatos que tú les llevas con la información que tú les des. Si no sabes qué información poner, ellos no te pueden decírtelo.

Un abogado es una persona que cuenta con una licencia otorgada la Barra de Abogados del Estado California.  Para poder ejercer como abogado la persona debe cumplir una carrera de cuando menos tres años de estudios de leyes.  Además, debe aprobar un examen que dura tres días.  En California aprueban dicho examen aproximadamente la mitad de los estudiantes que lo presenten.  Finalmente, tiene que cumplir con otros requisitos tales como pagar una cuota anual a la Barra de Abogados y cumplir estudios adicionales para mantenerse al corriente. La Barra de Abogados tiene la facultad de suspender la licencia de abogados deshonestos y en algunos casos pueden ayudar a recuperar el dinero pagado. 

A diferencia los notarios o los consultantes no han terminado una carrera en la facultad de leyes, no han aprobado un examen difícil sobre leyes y no están sujetos a la sanción de la Barra de Abogados.  Tal vez te cobran menos, pero hay que recordar  “lo barato sale caro.” No encargues el trámite más importante de tu vida a una persona no calificada para ayudarte como tú lo mereces. 

 Por favor llame a nuestra oficina para programar una consulta al (619) 230-1773 y visite nuestro sitio Web en www.myimmigrationatty.com.

-Por: Barbara K. Strickland, Esq.

The intercept of Prenup's (spousal support) and Immigration Law

Beware of prenuptial agreements and the Affidavit of Support in immigration matters.  

 More and more courts are starting to enforce the affidavits of support signed by the sponsors when they intend to bring an immigrant into the United States.  The scenario works as follows: Husband, a wealthy United States Citizen, wants to marry "the love of his life" who lives in another country and now wants to bring her to the United States.  Before marriage, both parties enter into a prenuptial agreement wherein Husband agrees to pay Wife some amount of spousal support for 12 months only. In his mind, after the 12 months, he believes that he will be free and clear of any responsibility to continue with any support obligation.  Or so he thinks......

The Immigration and Naturalization Act states that any immigrant seeking admission to the United States will not be admitted if they are “likely at any time to become a public charge[.]” This provision is implemented by requiring the Husband in our fact pattern to execute an affidavit of support. Id. § 1182(a)(4)(C)(ii). That affidavit is a contract in which “the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable[.]” Id. § 1183a(a)(1)(A).  A very important factor to consider is that this is a contract legally enforceable against the husband by the wife (or by the Federal Government, any State, local or any other entity providing any means-tested public benefit) and, pursuant to the contract, the husband agrees to submit to the jurisdiction of any Federal or State court for the purposes of enforcement of the contract. Id. § 1183a(a)(1)(B)-(C).

Federal courts have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because the claim involves a federal statute.  Venue is proper in any judicial district where the Husband resides.

Wife can allege that Husband has violated and is violating his obligation to adequately support her financially, per the obligation husband agreed to when he signed the Form I-864. Wife can argue (even if there is a prenuptial agreement) that the Form I-864 remains a valid and executable contract between Wife and Husband.  Husband in this case was advised under the form he signed that that if he or she signs a Form I-864 as part of the wife's application package, “under 213A of the Immigration and Nationality Act these actions create a contract between you and the U.S. Government. The Wife becoming a permanent resident is the ‘consideration’ for the contract.” This obligation of support, imposed by federal law, is separate and apart from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement. The Form I-864 presently makes explicit that “divorce does not terminate your obligations under this Form I-864.”

So the next question should be: for how long am I on the "hock" under this legal contract?  The law lists five circumstances whereby husband's financial obligation terminates: (1) the wife becomes a citizen of the United States; (2) the wife has obtained forty (40) quarters of coverage under Title II of the Social Security Act; (3) the wife ceases to be a legal resident and departs the United States; (4) the wife becomes subject to removal but applies for and obtains a new grant of adjustment of status; or (5) the wife dies.

For those family law practitioners out there in spousal support cases with pre-nups (or even without), if the spouse was "sponsored" the other spouse to immigrate to the United States and his/her obligation has not ended under the law, there is another way to get spousal support for your client. Always ask those questions that you don't think are relevant; i.e., did your spouse sign any contract with the United States saying he/she would support you? If you think you have an issue such as this, contact Strickland & Amezola, APC at (619) 230-1773 to see if we can help.

This is not legal advise, and is merely intended to be used for information purposes only.

Consider perusing through these cases:

•      Ohio: Davis v. Davis, No. WD-04-020, 2004 WL2924344 (Ohio App. 6 Dist. Dec. 17, 2004) - Immigrant wife countersues U.S. citizen husband for legal separation and support. Wife appealed because district court refused to take jurisdiction over I-864 enforcement. Court of appeals found wife had standing and state courts have jurisdiction to enforce I-864s.

•      Louisiana: Ainsworth v. Ainsworth, No. 02-1137-A, 2004U.S. Dis. LEXIS 28961 (M.D. La. May 27, 2004). Immigrant wife sued husband for support under I-864.  Court found wife entitled to specific performance. Husband ordered to pay support at 125% federal poverty guidelines

•      Florida: Cheshire v. Cheshire, No. 3:05-cv-00453- TJC-MCR, 2006 WL 1208010 (M.D. Fla. May 4, 2006)Immigrant ex-wife sued USC ex-husband for enforcement of I-864. Court found for wife, but 125% level should be reduced by income wife receives from other sources

•      Indiana: Stump v. Stump, No. 1:04-cv-253-TS, 2005 WL2757329 (N.D. Ind. Oct. 25, 2005). Immigrant ex-wife sought enforcement of I-864 when she couldn’t find employment. Court found ex-husband liable at 125% poverty guidelines. Court made damages calculation based on contract law to place wife in the position she would have been in if there had not been a breach.

•      Maryland: Younis v. Farooqi, Civil No. CCB-07-1393 (Feb. 7, 2009). Immigrant ex-wife receiving alimony  in the amount o $850 and child support in the amount of $556, sues ex-husband in federal court solely to enforce I-864. Court found that child support amount could not be calculated towards the 125% poverty guideline for wife. Wife got a $20,816 judgment against husband because the past spousal support did not satisfy the 125%  poverty guidelines requirement as he had signed on the affidavit when he immigrated her to the United States. The court held that Mr. Farooqi contractually agreed to support the plaintiff at 125% of the federal poverty level, and he cannot now avoid that obligation because his immigrant ex-wife – who has no driver’s license and only limited education, experience, and command of the English language, in addition to the responsibility of caring for a young child; has been unable to find full-time, paid employment within a couple of years of their divorce.

•      Maryland: Toure-Davis v. Davis  (March 2014) The court found that the Form I-864, affidavit of support, imposed by federal law, is separate from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement.

•      California: Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008). W and H were married in January 1999. The couple separated in October 1999. In 2003, they filed for divorce. In 2005, W and H agreed to a divorce settlement in which H agreed to pay W the sum of $49,000. (no mention of s/s was made). W then sues H for breach of contract under the I-864 affidavit terms claiming that H had failed to ensure that she is supported above the 125% poverty guidelines as he “promised” when he signed the contract. Court Held: the I-864 is legally enforceable but recognized certain set-offs and made husband responsible for certain years of support in the marriage. Remember, this was a 9 month marriage only!

Winning United States Citizenship Case!!!

Two days ago I received the best news for one of my clients. As it turns out, my firm was able to successfully represent her and establish that she was a citizen born in the United States.

My client was born in the United States and was taken to Mexico at a very young age. She utilized her baptismal certificate to enter the United States until the age of 15. At the age of 50, she obtained her birth certificate from the State of California and later obtained her US Passport. 15 years later DHS tried to take this away but due to aggressive advocacy, my firm was able to prove them wrong.

Her odyssey commenced two years ago when her daughter applied for derivative citizenship. After attending their appointment with the American Consulate in Mexico, to my client’s shock, humiliation, and surprise she was wrongfully accused of identity fraud and not being a United States Citizen. The Consulate officer confiscated her birth certificate, United States Passport, Baptismal Certificate and was asked to leave the consul and await a resolution.

Months later, she received her Notice to Appear where the government was alleging that she as an alien, not a United States Citizen and that “evidence” from the Department of State showed the passport presented was not valid. Today, DHS returned her passport and identification card with an apology!

14th Amendment Protection

A United States citizen cannot lose citizen status unless the government can prove that the person intended to relinquish that citizenship. Under the Fourteenth Amendment, all people born in the United States are citizens of the United States. U.S. v. Wong Kim Ark, 169 U.S. 649, 702 (1898). The citizenship defined by the 14th Amendment is one “which a citizen keeps unless he voluntarily relinquishes it.” Afroyim v. Rusk, 387 U.S. 253,262 (1967). This rule has its root in the fact that”[i]n our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.” Id. at 257; see also Nishikawa v. Dulles, 356 U.S. 129, 138-39 (1958) [Black, J., concurring explains that the rule that citizens may not be involuntarily expatriated “results not only from the provisions of the Fourteenth Amendment but from the manner in which the Government of the United States was formed, the fundamental political principles which underlie its existence, and its continuing relationship to the citizenry who erected to maintain it.”]

In Vance v. Terrazas U.S., 252, 260 (1980), the Supreme Court explained that its holding in Afroyim precluding involuntarily relinquishment of citizenship meant that a person losing citizenship must intend to do so, “whether the intent is expressed in words or is found as a fair inference from proved conduct.” The court held that it was therefore not sufficient for the government to prove that, by making a formal declaration of allegiance to a foreign state, Terrazas had voluntarily committed an act designated as expatriating by Congress. Id. at 261. For Terrazas to lose his U.S. citizenship the government had to prove that, in swearing allegiance to Mexico, he “also intended to relinquish his citizenship.” Id. at 261. Thus, under Afroyim and Terrazas, the government has the burden of proving that the Respondent performed one of the expatriating acts enumerated by Congress with contemporaneous intent to relinquish his or her citizenship. Id.

In determining citizenship, it has long been the practice of the U.S. Department of Justice, including legacy INS and Executive Office for Immigration review, to seek out and rely upon the oldest “public” document, be it birth or a baptismal certificate, as the most reliable evidence of the place and date of birth. This practice was so ingrained that it was reflected in pre-printed language in legacy INS requests for evidence where birth facts were at issue. See In re Pagan, 22 I&N Dec. 547, 548 (BIA 1999); In re Bueno-Almonte, 21 I&N 1099, 1030 (BIA 1997). Baptismal certificates were previously considered by the Board of Immigration Appeals (BIA) to carry almost as much evidentiary weight as birth certificates. In re Matter of S.S. Florida, 3 I&N Dec. 111, 116 (BIA 1948).

In the Matter of Villanueva, 19 I&N Dec. 101 (BIA 1984) the Board of Immigration Appeals held that unless void on its face, a valid U.S. passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings but constitutes conclusive proof of such person’s U.S. citizenship.

“Prior to enactment of 22 U.S.C. 2705, a United States passport was regarded only as a prima facie evidence of United States citizenship. Now, however, United States passports are given the same weight for proof of United States citizenship as certificates of naturalization or citizenship.” “Accordingly we hold that unless void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative proceedings but constitutes conclusive proof of such persons as United States Citizenship.” Id., at 102.

In this case, my client was issued a valid United States passport. Under Matter of Villanueva since she was issued a valid U.S. passport Immigration Court had to make a finding that the validly issued passport was conclusive proof of such person’s U.S. citizenship.

The Department of State has Sole Authority on Issuing,
Revoking or Verifying Passports

Further, under 22 U.S.C §211a, the Department of State (DOS) has sole authority to issue and revoke passports. Specifically, the code reads,

The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic and consular officers of the United States, and by such other employees of the Department of State who are citizens of the United States as the Secretary of State may designate, and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.

Through Executive Order No. 11295, 31 Fed. Reg. 10603, the President designated and empowered the Secretary of State with the authority to designate and prescribe the rules governing the granting, issuing, and verifying of passports. DOS revokes passports in accordance with 22 CFR §§51.60-62, and 51.65. There are also several statutes under which passports may be revoked that are incorporated into DOS’s regulations, including: 8 U.S.C. §1504 (the passport was illegally, fraudulently or erroneously obtained). Specifically, that statute reads as follows:

(a) The Secretary of State is authorized to cancel any United States passport or Consular Report of Birth, or certified copy thereof, if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary. The person for or to whom such document has been issued or made shall be given, at such person's last known address, written notice of the cancellation of such document, together with the procedures for seeking a prompt post-cancellation hearing. The cancellation under this section of any document purporting to show the citizenship status of the person to whom it was issued shall affect only the document and not the citizenship status of the person in whose name the document was issued. (Emphasis added). 8 U.S.C §1504(a).

In addition, the regulations, under 22 CFR 51.65(a) require DOS to send written notification of the revocation of a passport to the bearer. See 22 CFR 51.65(a). In this case, my client was issued a valid passport and given a passport number with an expiration date. This passport was issued after my client presented a valid delayed registration of birth certificate issued by the State of California.

The Department of Homeland Security (DHS) lacked authority to strip my client from her passport. DHS failed to follow the regulations and procedures by which a passport may be revoked which authority rests solely on the Department of State. If evidence indicates a person is a USC or if the evidence outweighs contrary evidence, the individual should not be arrested or taken into custody and no NTA should be issued. Further, the immigration court also lacked any jurisdiction to revoke the validly issued passport because that procedure, again, rests solely with the Department of State who before revoking the passport must issue a written notification of passport revocation.

In most cases, documents serving as primary evidence of U.S. citizenship are U.S. Passports and certified birth certificates issued by the State of birth. 22 C.F.R. 51.42(a) states as follows:

Primary evidence of birth in the United States. A person born in the United States generally must submit a birth certificate. The birth certificate must show the full name of the applicant, the applicant's place and date of birth, the full name of the parent(s), and must be signed by the official custodian of birth records, bear the seal of the issuing office, and show a filing date within one year of the date of birth.

Under 22 C.F.R 51.42(b), the Department of States permits proof of citizenship through secondary evidence as follows:

51.42(b) Secondary evidence of birth in the United States. If the applicant cannot submit a birth certificate that meets the requirement of paragraph (a) of this section, he or she must submit secondary evidence sufficient to establish to the satisfaction of the Department that he or she was born in the United States. Secondary evidence includes but is not limited to hospital birth certificates, baptismal certificates, medical and school records, certificates of circumcision, other documentary evidence created shortly after birth but generally not more than 5 years after birth, and/or affidavits of persons having personal knowledge of the facts of the birth.

My client submitted to the State of California copies of the baptismal certificate issued less than a year before her first birthday, an affidavit by her now deceased mother and an additional affidavit by the mother’s friend who was present hours after the birth of Respondent. This was sufficient evidence for the State of California to issue the delayed registration of birth certificate and this birth certificate was sufficient for the Department of state to issue the passport.

Denaturalization & Expatriation Cases

DHS had the burden of proof by clear and convincing evidence to establish that my client was not a United States Citizen by birth. Woodby v. INS, 385 U.S. 276,286 (1966 Administrative deportation hearings accordingly employ the same requirements of proof by "clear, unequivocal, and convincing evidence" as do denaturalization and expatriation cases. Id.; see also Berenyi v. Immigration Dir., 385 U.S. 630, 636 (1967) ("When the Government seeks to strip a person of citizenship already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.'….[T]hat status, once granted, cannot lightly be taken away….").

Under Immigration Nationality Act §349(a)(1)-(7), 8 U.S.C. 1481, citizenship shall be lost by performing any of the following acts with intention of relinquishing U.S. nationality:

(1) Obtaining naturalization in a foreign state …after having attained the age of eighteen years; or (2) taking an oath to a foreign state…after having attained the age of eighteen years; or (3) serving in the armed forces of a foreign state…(4) accepting employment with a foreign government if one has or acquires the nationality of that foreign state or declaration of allegiance is required; or (5) formally renouncing citizenship, either before a diplomatic or consular officer of the United States in a foreign state…(6) making in the U.S. a formal written renunciation of nationality in such before an officer…designated by the Attorney general, …; or (7) Conviction for the act of treason. INA §349(a)(1).

The standard and burden of proof in voluntary expatriation is on the person or party claiming that such loss occurred. INA §349(b). This burden was later upheld by Vance v. Terrazas, 444 U.S. 252, 264-8 (1980). This same person or party has the burden to prove that the individual committed one of the above mentioned acts with the intent to relinquish citizenship. A person opposing expatriation may rebut this presumption by showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily. Id.

In conclusion, the 14th Amendment of the constitution specifically states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” My client was able to establish that she was a United States citizen by being born in California; having been issued a valid U.S. Passport and having a validly issued delayed registration birth certificate by the State of California. In addition, my client had a validly issued baptismal certificate and two affidavits attesting to her nationality. Both the Immigration court and DHS had no authority to revoke the passport as that authority rested solely on the Department of State. Because Respondent had a validly issued passport and birth certificate, DHS did not meet its burden of proof and proceedings against my client were terminated. My client was born in the United States and she will die a United States citizen.

At the end of the day, I think about how even President Obama had to prove he was a United States Citizen and I feel vulnerable to this possible future attack on my own citizenship for being born into the family of two migrant working parents. This fear only makes me stronger each day to fight for my client's rights with aggressive advocacy and to give a voice to those who would otherwise stay quiet.

Cheers to the New Year!

It has been some time since I last posted any comments on this blog. Since the last time I posted anything, I have had some interesting experiences in immigration practice and in family law. My firm focuses primarily on deportation defense; however, having the title “immigration lawyer” implies you can handle other areas in immigration law….right? Well, let me start by saying that I have handled money forfeiture cases with customs, removal of conditional resident status, citizen interviews, federal criminal consulting, state criminal plea consulting, family visas, waivers and board of immigration appeal briefs. Throughout this time I have met some wonderful people with amazing stories. They call themselves “clients.” These are the people that feed my enthusiasm for the law and make me love it each day. I have saved many people from removal from the United States and have assisted many others obtain their visas. My clients have impacted my life with their amazing stories more than they can ever imagine. My office has witnessed many emotions, tears, hugs, and family meltdowns; all along the way my clients have left their mark and I always, must remain professional. Immigration law is very black and white. There is some gray room but it is a very small percentage. Most of the time you must deliver bad news to clients, but it is the delivery of these news what makes the attorney-client relationships stronger. For now, this post is dedicated to all my clients and all the stories I carry as part of my own personal and professional foundation!