Wednesday, May 14, 2014

Religious conversion, along with changed country conditions, supports motion to reopen

In a recent decision, the Ninth Circuit Court of Appeals announced that motions to reopen an immigration petition can be granted when there is both a change in the applicant's personal circumstances and a change in the country conditions.

Mr. Cipto Chandra initially applied for asylum because he feared persecution on account of his Chinese ancestry if he had to return to his home country of Indonesia. That petition was denied, and Mr. Chandra was ordered to leave the United States. Mr. Chandra did not leave, but instead remained in the U.S. and converted to Christianity. Four years later, he filed a motion to reopen his asylum claim. He provided evidence that conditions for Christians had worsened in Indonesia. Because Mr. Chandra had become a Christian, he would be subjected to the increased persecution if he returned to Indonesia.

I believe... I can stay.
Photo credit Kristina D.C. Hoeppner on Flickr.
Used under Creative Commons license.
Motions to reopen are generally very difficult to obtain, especially if the petitioner misses the deadline of 90 days after the decision. A petitioner must show that there are changed material circumstances in his or her home country, and that evidence of the circumstances was not available during the previous hearings. Arguing only that a petitioner's personal circumstances have changed is not sufficient.

In the Chandra decision, the Ninth Circuit joined other courts (the 6th, 7th, and 11th circuits) in saying that a change in personal circumstances, when combined with changed country conditions, can support a motion to reopen. The First Circuit has suggested this, but has never actually decided it.

Religious belief is only one type of personal circumstance that can lend support to a motion to reopen. In a case called Jiang v. U.S. Att'y Gen., the petitioner showed that she had a second child while living in the U.S., and that harsh enforcement of China's one-child policy was on the rise in her home province and home town. Because Ms. Jiang was able to show both changed personal circumstances (the second child) and changed country conditions (increased mistreatment of people who had more than one child), she was able to succeed on her motion to reopen. Other types of personal circumstances might also qualify.

The court dismissed the idea that Mr. Chandra's conversion could be self-serving. It cited religious freedom as "one of our oldest and most foundational policy interests... The timing of one's religious choice is not determinative of one's rights."

To read the full decision in Mr. Chandra's case, click here.

Friday, May 9, 2014

The Supreme Judicial Court Punts on Religion in Public LIfe

Continuing what appears to be a national judicial trend, today the Supreme Judicial Court of Massachusetts affirmed a lower court's decision that the daily recitation of the pledge of allegiance in a public school does not violate art. 1 of the Massachusetts Declaration of Rights. See Doe vs. Acton Boxborough Regional School District.  In a moderating and concurring opinion Justice Lenk left the door open for future challenges by noting  that the "presence of the phrase "under God" in the pledge of allegiance creates a classification that is potentially cognizable under the equal rights amendment of the Massachusetts Constitution ... although not on the record in the present case. Our opinion rightly notes that recitation of the Pledge, in whole or in part, is entirely voluntary. But the logical implication of the phrase "under God" is not diminished simply because children need not say those words aloud. A reference to a supreme being, by its very nature, distinguishes between those who believe such a being exists and those whose beliefs are otherwise. This distinction creates a classification, one that is based on religion. Theists are acknowledged in the text of the pledge, whereas nontheists like the plaintiffs are excluded from that text, and are, therefore, implicitly differentiated. To be sure, as our holding makes clear, the plaintiffs here did not successfully allege that their children receive negative treatment because they opt not to recite the words "under God," or that the inclusion of that phrase in the pledge has occasioned "the creation of second-class citizens." .... Absent such a showing, the plaintiffs' claim must fail."

In a 5-4 decision this week, the US Supreme Court upheld the authority of the a city counsel to open its monthly meetings with a prayer delivered by clergy.  See Town of Greece vs. Galloway.   Justice Kenendy wrote the majority opinion that the practice does not violate the Establishment Clause of the US Constitution. Justices Kagan, Ginsburg, Breyer and Sotomayor dissented, arguing that the "practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government."  In other words, while US citizens have the freedom to practice any religion, we also have the right to be free from religion in our government activities.

Thursday, May 8, 2014

Could you and your spouse pass an immigration interview?

What time is it?
Photo credit @Matt Metz on flickr.
Used under creative commons license
How well do you know your spouse? Buzzfeed has compiled a list of possible questions that an immigration officer might ask at an interview for marriage-based green card applicants.

Please note that this is not an exhaustive list, and it won't tell you whether or not you are actually eligible for a green card. Buzzfeed says: "The following are potential questions that could be asked, culled from newspaper articles, immigration lawyers, and testimonials. So, you know, don’t treat this an official preparation of any kind because there are a lot of different factors that go into that interview." 

Although it's not official, it's still fun. To take the quiz, click here.

And if you have any questions about family-based immigration, please contact us to see if we can help!

Friday, May 2, 2014

TPS Extended for Haitians

Port Salut Beach, Haiti.
Photo credit @MichelleWalz on flickr.
Used under Creative Commons license

Haitian nationals who have Temporary Protected Status (TPS) now have until July 22, 2014, to "re-register" for status for an additional 18 months.

If you are a Haitian TPS beneficiary who wants to re-register, you should apply as soon as possible. The necessary forms are Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization. The Form I-821 application fee is not required; however, anyone 14 years of age and older must pay a biometric services fee or submit a fee waiver request. For work authorization, the Form I-765 fee (or a fee-waiver request) is required. If you do not want work authorization, you must still submit a completed Form I-765 but do not need to submit the I-765 fee.

For more information, please see the USCIS website here