Immigration software news and updates.

Exciting news! We've added some highly requested updates to our invoicing this month, we hope you love them. Without further ado:

Global Invoice Numbering

When you create a new invoice, we automatically number it based on the number of invoices previously created for that particularly client. For example, a new invoice for a new client will start from scratch at number 1.

Now we've added a Global Invoice Numbering option to Invoice settings. This will give each new invoice its own unique invoice number based on the number of invoices created for all of your firm's clients.

When you turn on this setting, your existing invoices will be unaffected. However your next invoice will be numbered up from the total number of invoices created by your firm. You can edit this beginning number from your Invoice Settings.

Saved Charges

We've made it easy to create Saved Charges in your account for common types of services or expenses (e.g. Consultation, Adjustment of Status Petition, I-485 Filing Fees etc.). You can save time creating invoices by bulk importing Saved Charges instead of starting from scratch.

Read more about creating Saved Charges on our Help Center.

Dates on Time Entries and Charges

We've added dates to Time Entries and Charges so you and your clients understand when a particular service was performed or fee was incurred. You can edit the dates for past or future services and expenses.

Customize your Firm's Information

You can now choose which information about your firm you want to display in an Invoice. You can choose to hide or show your firm's address, email and phone number from your Invoice Settings.

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Starting anything new is overwhelming, and it may be hard to decide what exactly you need in order to take on your new venture. Luckily, you usually need much less than you think, even when your new venture is a family-based immigration law practice.

We recently hosted a webinar on building a successful family-based immigration law practice, and we wanted to follow up on that webinar with this article that dives into some of the topics discussed during the webinar and introduces new ideas as well. If you’re just getting started with your law firm or simply want to refresher on some important, fundamental topics, this article is for you.

And the reality is that there are thousands of immigration lawyers currently practicing in the US. So if you want to be more than just a name, your first step in building a successful family-based immigration practice is to set yourself apart from the very start.

How can you do that?

Well, there are two high-level principles to keep in mind as well as some specific things you can do to get on the path to success with your family immigration law practice. So let’s dive into some of these high-level principles first and then explore specific best practices.

Build your firm centered around client success and trust

The absolute first thing you should think about is who your ideal clients are and their greatest needs. Is your ideal client someone from a particular part of the world that cares about an attorney who speaks their language? Is your ideal client someone who is looking to file a certain type of case that you specialize or want to specialize in?

After all, your job at the end of the day is helping your clients succeed, and so in order to set your practice apart, it’s important that you create a firm that focuses on your clients’ success first and foremost.

Once you’ve determined your ideal client and what problem you want to solve for them, you have to build your clients’ trust. In an article on building client trust, Thomson Reuters lists five ways to build client trust:

• setting proper expectations,
• responding to client communications,
• making your client feel like you’re in the trenches with them,
• being a great, ethical attorney, and
• advocating for them.

At the end of the day, you have to make sure that your client feels safe with you and truly believes that you will take care of them and their case. Even if you can’t achieve a positive result in their case, a client that feels like their attorney has done everything they could may still come out happy with the representation, even if they aren’t happy with the legal outcome.

Relationships are key when establishing your family-based immigration practice

There are two ways to approach building relationships - locally and in person, and virtually and outside of your local area.

First, looking at the local approach, it’s important to take stock of what immigrant communities may be close to where you live and work. Best case scenario, knowing or sharing the language and culture of these communities can give you an edge in offering your services there.

On the other hand, if there are immigrant communities that can benefit from your services that you may not have much in common with, you can still try and establish a relationship with them by going to community events, providing free value, learning their language, and so on.

At the end of the day your firm is your business, so don’t rule out reaching out to any and all immigrant communities that could benefit from your work.

Next, let’s take a virtual and geographically broader approach. There are so many ways to put yourself out there and make yourself available, whether through your website, a Facebook page, online webinars and more. Since immigration is a federal practice, you can represent clients in all 50 states and around the world.

But prospective clients won’t reach out to you if they don’t know how, so it is important that you provide clear contact information, and instructions on how to reach out to you, and give clients multiple options for how to contact you, such as via social media, WhatsApp, your website, an email address and perhaps even a phone number. And if you have a physical office and take walk-in clients, sharing your address can work too.

One specific hack is joining and being active on Facebook groups. There are seemingly endless Facebook groups centered around languages, ethnic backgrounds, countries of origin and more attributes that you can join and add value to by answering immigration questions that may come up, offering free tips and news updates and more. Be prepared for lots of connection requests and direct messages with questions if you do it right!

There are also immigration lawyer Facebook groups where you can ask questions and connect with others in the field, like Nerdy Immigration Lawyers, an active group with over 5,000 members where immigration professionals ask and answer questions and share insights.

If you’re looking for something more formal, the American Immigration Lawyers Association is a nationwide voluntary association of immigration lawyers with numerous local chapters which focuses on providing immigration-specific professional education and practice development resources to help lawyers build their practices and share their knowledge.

Finally, once you’ve successfully worked with a few clients, you can start taking advantage of the best marketing tool any immigration lawyer could have: word of mouth referrals.

Getting a word-of-mouth referral automatically builds rapport and establishes a relationship between you and your prospective client, which is a powerful way to build your practice. Ask your clients to recommend you to others who may need your help, and take care of every next client that comes in just as you did the previous one. Immigrant communities are very close-knit and referrals from friends and family carry a lot of weight.

The things you need (or don’t need) to run a successful family-based immigration practice

It’s easy to think you need expensive tech tools and a huge office space to seem like a legitimate family-based immigration practice, but the truth is that you don’t. Yes, it’s important to look professional, but it’s more important to focus on being genuinely helpful, listen to clients, and provide solutions they can easily put into action.

So here are a few things to consider when starting your family-based immigration practice that will likely help you succeed.

Do you really need an office?

Ideally, yes, having a physical office can be great for your law practice. Offering in-person consultations makes a difference to many clients, especially because immigration is deeply personal. So if you can, receive your clients in-person as much as possible.

However, a traditional office with a traditional lease may not be necessary anymore. You can have a desk at a co-working space and then use a closed-door office when you need to see clients in person. Alternatively you can share office space with another, perhaps more established firm that has a traditional office. Oftentimes law firms with empty desks or offices are open to sub-leasing them to solo or small attorneys, which can also be a win-win since you can end up co-counseling or otherwise working with that law firm.

And of course in the end, you can also have a fully virtual practice. In 2021 and beyond, with so many people becoming more and more comfortable discussing serious matters on video, having a virtual law firm with no office is possible too. One recommendation here, though, is to be clear about this to your prospective clients. Some people may still prefer to see their attorney in person, so be prepared to either make arrangements for that or turn those clients away.

Ultimately, make sure your clients feel comfortable, whatever your setup. Because if your clients aren’t comfortable, it’s going to be hard for them to trust you, and as you know, trust is one of the most important facets of the attorney-client relationship.

Liability insurance is essential

You need liability insurance in order to protect yourself against malpractice claims. In some states, it’s even required by the bar to buy liability or malpractice insurance. You can check malpractice insurance requirements by state on the American Bar Association’s website, and double check that your policy has litigation support in case of a claim. Do your homework and don't go with the first liability insurance policy you find - shop around and get a policy that fits you and your practice.

Technology is a must in 2021 and beyond

If you’re just starting your firm or looking for ways to make your existing firm more successful, maximizing your use of appropriate tech tools is a must. And we don’t just mean case management platforms - that’s a given. There are a number of other technologies you can leverage to streamline or automate every part of your business. Let’s explore just a few of them.

Google Workspace is very user friendly, and makes it simple to register a domain name and then set up your firm’s email address accordingly. If you want to make a simple and clean website, web hosting platforms like Wordpress and Squarespace have inexpensive plans for businesses that will allow you to build a professional, polished site and connect it with your Google Suite add-on for email and other tools like Good Docs, Sheets and Calendar.  

Client communication is important too. Giving your cell phone to clients is a personal decision, but if you don't feel comfortable sharing your personal digits, set up a business-only phone number. Voice over IP (VOIP) services can be a simple, inexpensive way to set up a phone number without getting a landline. Google Voice is an option here too if you’re already in the Google universe.

Managing your finances is crucial to running a successful family-based immigration practice. Unless you’re also a CPA, it’s probably a good idea to talk to an accountant to go over your options for managing your firm’s finances. Getting bookkeeping and invoicing software like Quickbooks can help you stay on top of your billing and keep all your clients in the same place, and invoicing with tools like LawPay allow you to stay compliant with ABA regulations, manage IOLTA accounts and more.

In fact, Docketwise has integrations with multiple platforms for accounting and credit card processing, including Quickbooks and LawPay. The integration with LawPay creates a link for payment when your invoices go out, giving clients options to pay either on the client portal or through the link sent with the invoice. Payments reflect on the Docketwise invoice and are visible as transactions in the user’s LawPay account. The integration with QuickBooks is available on Docketwise Suite and Docketwise Enterprise versions. Creating an invoice in Docketwise creates a corresponding invoice in QuickBooks, and so when payments are recorded for bills in Docketwise, Docketwise Suite or Enterprise will push the completed transactions to Quickbooks for easy bookkeeping.

Docketwise can help you manage your family-based immigration practice

While the start of your own practice may be a “season of hustle,” make sure you take time to set up your practice the right way from the start. You can only be at your best for your clients when your firm is effective and working for you, not against you.

We designed Docketwise to help you do just that.

From a full library of immigration forms to client questionnaires in multiple languages to an industry-leading set of API integrations, we help you stay up to date on all your cases, communicate easily with your clients, and otherwise build and manage your firm. If you want to learn more about Docketwise, schedule a demo at the link below, or sign up for our Immigration Briefings newsletter for daily and weekly immigration updates!

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USCIS has released new editions of Forms I-765 and I-765WS dated 08/25/2020 which cannot be accepted by USCIS if postmarked before that date.

The 08/25/2020 editions of these forms are now available on Docketwise and have a note next to them identifying them as such in our drop-down list of forms. The existing editions of Form I-765 and I-765WS dated 12/26/2019 will remain available on Docketwise until August 25th.

On the morning of August 25th all I-765 and I-765WS forms created in Docketwise will be automatically converted to the 08/25/2020 editions.

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The immigration policy preferences of the Trump administration are embodied in the Reforming American Immigration for a Strong Economy (RAISE) Act, a piece of proposed legislation which has been introduced into Congress by Senators Tom Cotton of Arkansas and David Perdue of Georgia. The RAISE Act would amend the Immigration and Nationality Act to eliminate the Diversity Visa Program, to limit the President’s discretion in setting the number of refugees admitted annually to the United States, to reduce the number of family-sponsored immigrants, to create a new nonimmigrant classification for the parents of adult United States citizens, and for other purposes. Specifically, the bill would:

• cut legal immigration by half, reducing the number of green cards from more than 1 million to about 500,000
• lower capped family categories from 226,000 green cards presently to 88,000
• remove pathways for siblings and adult children of U.S. citizens and legal permanent residents to apply for permanent lawful residency status in the U.S.
• eliminate all family sponsorship beyond spouses and minor children of U.S. citizens and LPRs
• reducing the age limit for minor children from 21 to 18
• eliminate the “parents of US citizens” category of permanent immigration, instead allowing them to come for five years at a time uner a renewable “W-visa” while requiring U.S. sponsors to demonstrate the parents have health-care coverage and accept full responsibility for their parent’s economic support. Parents would be barred from any public benefit, even provided by a state or local government (a provision that will probably be challenged in the courts)
• create a “points system” for the selection of immigrants coming via employer sponsorship
• impose a cap of 50,000 refugee admissions a year
• eliminate the Diversity Visa lottery
• invalidates any petition in a category being eliminated by the RAISE Act (and any application for an immigrant visa based on such a petition) if the petition was filed after August 2, 2017, the date the RAISE Act bill was introduced into Congress
• prohibits naturalization of a person, if they ever received means tested public benefits while a permanent resident unless the sponsor on their affidavit of support has reimbursed the federal government the cost of such benefits

These changes would be the most significant alterations to the Immigration and Nationality Act since the current version of the Act, which created our present family-based immigration system, was passed in 1965. The RAISE Act is nowhere close to being passed at the time of this writing, and seems to lack enough support at the present time to be put to a vote in the Senate.

James Pittman is co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.

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Military Accessions Vital to the National Interest (MAVNI) was a program that allowed certain foreign nationals who were in the US temporarily, such as through student visas or here as refugees, to join the US Armed Forces if they possessed critical language or medical skills. Most of its participants came from Africa, the Middle East, China, India, and Eastern Europe. Most applicants came from countries for which the U.S. had a need for service members with native-level fluency in certain strategically important foreign languages. The MAVNI program was begun by the Department of Defense in 2009. Over 10,000 military service personnel have come through the program. In 2016, MAVNI recruits were ordered to undergo additional background screening, this decision by the government effectively froze the program. The last MAVNI recruits entered around October 2016, right after the additional background checks were required. Since then, no additional recruits have joined through MAVNI. The program ceased taking new applicants at the end of 2016.

The roughly 1,000 applicants in the program before it was frozen have been left in no-man's land, unable to get cleared to move on to active duty. Some of those applicants are now being discharged from service and the remainder of them are also likely to be discharged if background checks are not completed within three years of the date they signed their military service contract. There is no set time period for completion of such background checks.

Moreover, as enrollment in MAVNI by itself does not provide a legal immigration status, some MAVNI recruits who are awaiting the completion of their background investigations may go out of status. In that case, besides being unable to begin military service as planned, they could be subject to immigration enforcement action against them, up to and including deportation, as their presence in the USA would no longer be considered legal.

It is most unfortunate that the difficulties the government is having with adequately vetting these applicants is leading to the demise of a promising program for attracting talent to the nation's armed forces.\ \ James Pittman is co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.

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Fulfilling promises made during the presidential campaign to get tough on illegal border crossers, the Trump administration acting through Attorney General Jeff Sessions announced in early Spring 2018 that it would implement a zero tolerance policy for those who cross the Southern US border illegally. As such each and every adult who illegally entered would be criminally prosecuted for violating 8 USC §1325(a), a violation of which is a federal misdemeanor.

8 USC §1325(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

Such adults were held in federal custody, prosecuted and then subjected to removal proceedings. However, owing to the existence of a federal court order which outlined the conditions under which juveniles may be held in immigration detention, the administration had to separate the children of these aliens and detain them separately.

The Flores Settlement

In 1997, a settlement was signed in theFlores v INScase which had reached SCOTUS. The terms of the settlement have governed treatment of migrant children in detention ever since. The Flores settlement has been revisited multiple times, most recently in 2015 when the Obama administration sought to carve out an exception for minors who had arrived in the U.S. with their parents. It came amid a surge in migrant families from Central America, and the administration wanted to detain some of them for as long as it took to process their cases. A federal judge in California said no, which brings us to the present when the Trump administration submitted a very similar request on June 20, 2018. And the same federal judge, Dolly Gee, just issued a ruling rejecting the government’s attempt to modify the settlement 33 years after Carlos Holguin first brought suit on behalf of Jenny Flores.

The Trump administration said in a court filing on July 19, 2018 that it has reunified 364 of more than 2,500 migrant children separated from their parents at the U.S. southern border, just one week before a court-ordered deadline. Of 1,607 parents eligible to be reunited with their children, the filing said, 719 have final orders of deportation, meaning they could be removed from the country as soon as they are reunited. Those parents may have to choose between bringing their child back to a violent country or leaving them behind in the care of the government, nonprofits, foster families or relatives in order to seek asylum in the United States.

And the crisis continues….

\ James Pittman is co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.

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As part of its policy push for reducing the number of skilled workers brought to the US under the H-1B program, the Trump admin has made the H-1B more difficult to obtain. A substantial step in this direction took place when Pres. Trump signed the Buy American and Hire American executive order on April 18, 2017 .

The Buy American provision established the policy of the executive branch to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States.

Within 60 days of the date of this order, the Secretary of Commerce and the Director of the Office of Management and Budget, in consultation with the Secretary of State, the Secretary of Labor, the United States Trade Representative, and the Federal Acquisition Regulatory Council, were required to issue guidance to agencies about how to make the assessments and to develop the policies required.

Within 150 days, federal agencies were to report on implementation to the Sec. of Commerce and the Director of OMB, and those secretaries were to report on the impact of implementation of trade agreements to which the US is a party. Further reports would be required at the 220 days mark and thereafter annually beginning in January 2019.

The Hire American portion of the order established the policy of the executive branch to increase enforcement and more rigorously apply standards for issuance of employment based visa categories, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).

(USCIS) Policy Memorandum PM-602-0157

On February 22, 2018, U.S. Citizenship and Immigration Services (USCIS) published Policy Memorandum PM-602-0157, titled "Contracts and Itineraries Requirements for H-1B Petitions Involving third-Party Worksites." Among other things, the memo provides guidance on USCIS' interpretation of8 CFR 214.2(h)(2)(i)(B), a long-standing provision which which states that an H-1B petition "which requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training."

Will Employment Authorization Documents (EADs) for H-4 Visa Holders become a thing of the past?The Trump administration has indicated a desire to rescind the federal regulation allowing employment authorization for H-4 dependents of H1-B non-immigrants, which was issued by the Obama administration in 2015. This intention to revoke eligibility for EADs by H-4 holders was restated by USCIS in aletter dated April 4, 2018 to Senator Chuck Grassley. In June 2018USCIS issued a notice of proposed rulemakingrestating its plan to remove the H-4 visa from the classes of aliens eligible to apply for work authorization. However, as of the end of June 2018, DHS/USCIS failed to meet its deadline for the second time this year to promulgate specific rule language, which would have formally kicked off the process to terminate the EAD eligibility of H-4 non-immigrants. Once proposed rule language is issued there will be a period which may last 60 days for public comment before the rule becomes final.\ \ James Pittman is co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.

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I’ve just returned from the Inaugural AILA Tech Summit, held yesterday at the Washington DC national office of the American Immigration Lawyers Association (AILA). This invitation-only event brought together prominent members of the private bar and AILA staff to coordinate efforts to inform the immigration law community about the advances in technology which are reshaping the ways that immigration lawyers practice. A brief summary of each panel follows.

Artificial Intelligence in Law Firms Today

We first heard from Greg Siskind of the firm Siskind Susser. Mr. Siskind has made great strides in automating his client on-boarding and internal office processes. His firm uses custom-built apps employing artificial intelligence to perform many functions, such as:

• determining if individuals are eligible for specific visa categories
• generating a customized retainer agreement for each case
• soliciting client feedback about their satisfaction with the firm’s services
• performing artificial intelligence-powered legal research

Among other achievements, Siskind Susser, through a partnership with Neota Logic, has automated the process for creating a public access file which employers must maintain for all H-1B employees.

Future of Immigration Case Management Software

A second panel featured executives of several immigration case management companies. The discussion focused on ongoing improvements in the field, in particular an increase in the number of API integrations.

The advances that have been made in integrating processes seamlessly amount to a sea change, allowing us to in the near future to work within an environment where all law firm processes will be automated and seamlessly integrated, including:

• inbound marketing and client on-boarding
• case management and forms production
• compliance functionality that interfaces with E-Verify and I-9 compliance tools

USCIS Transformation to Online Filing

Another session was devoted to the topic of “USCISTransformation” which included discussion of the current state and planned evolution of the USCIS Electronic Immigration System (ELIS), which presently only allows e-filing for a few forms, but is slated for expansion.

Leon Rodriguez, who served as the Director of USCIS from 2014-2017, related the stated current goal of USCIS to have a comprehensive e-filing platform in place by the end of 2020. Given the history of previous attempts at building such a system and the very slow progress to date despite enormous resources being devoted to the task, the reaction from many in the audience was skeptical. Nevertheless, Mr.Rodriguez’s comments provided essential insights into why the transition to a modern e-filing system has been so difficult and slow.

• In creating a comprehensive e-filing system for USCIS, the internal processes within the agency relating to case tracking and adjudication must be modernized
• The task faced by USCIS is not merely deploying a consumer-facing platform but also making sure that the USCIS-facing side is equipped to handle the transition without causing technical glitches or perhaps even a total crash of the platform.
• Were such a crash to occur, the result could be paralysis at the agency and additional months of adjudication time for cases, all of which could have potentially massive negative consequences for the public.

Ethical Considerations of Changing Delivery Models

The ethical rules lawyers must abide by when contemplating making internet-based innovations in their practices were discussed in an afternoon session led by Hope Todd, Ethics Counsel for the District of Columbia Bar. Ms. Todd focused on the topic below.

• Evolution in ethical standards by the 50 state bars has been extremely slow compared to the development of online technologies.
• A historic resistance to advertising and territorialism on the part of local bars has led to a patchwork of standards in the rules regarding online advertising, with a few outlier jurisdictions still requiring such onerous steps as maintaining static screenshots of all advertising done online.
• When doing online marketing, attorneys must not engage in giving referral fees to non-lawyers or fee splitting with non-lawyers.
• The well-known online legal document provider LegalZoom has effectively won all of its battles against the state bars who had accused the company early-on of engaging in the unauthorized practice of law.
• A recent resolved case arising in Florida involved the traffic ticket app TIKD. The Florida bar had accused TIKD of unauthorized practice of law and had prohibited Florida attorneys from the app generate business. TIKD filed a federal antitrust suit against the Florida bar, alleging that state regulators colluded with a traditional private law firm called Ticket Clinic, a competitor of TIKD, to put the tech company out of business. The Florida Bar’s motion for dismissal argued that the bar is immune from antitrust liability under the state action doctrine because it is an arm of the state Supreme Court and an agency of the state. The US District Court granted the bar’s motion to dismiss in December 2018.

Online Delivery of Legal Services

Another afternoon session “Online Delivery of Legal Services” discussed new models through which immigration law firms can become competitive by using web-based applications that automate form preparation and shift the data entry tasks to prospective clients, greatly reducing labor for law firm staff and thereby allowing the firm to substantially lower fees for clients.

Offering limited scope of services in selected cases to provide clients with a partial self-help solution for their case at a reduced fee was another topic explored, including which types of cases could be handled in such a fashion and how firms can compete with non-lawyer tech companies offering purely do-it-yourself form preparation products.

Nonprofits as Technology Leaders

The nonprofit sector was the subject of the second to last panel of the day.

• Technological innovations that immigration service-providing nonprofits are implementing include the use of SalesForce for managing on-boarding.
• Nonprofits are driven by the need to maximally utilize available resources to serve their client bases, thereby demonstrating efficiency to their funding foundations.
• For non-profits, it’s not about technology per se. It’s about using the technology to increase the organization’s efficiency and effectiveness in doing its work thereby more fully realize its mission.

Attendee Forum

The final session of the day-long event was a discussion with AILA Executive Director Ben Nelson. The discussion focused on the types of events AILA should organize to help members become proficient at using the latest technologies and reduce the fear of change felt by some lawyers. The discussion concluded that AILA must work to create an overall vision of immigration practice in the future, a future in which member attorneys can see themselves practicing in the new seamless online environment and using the latest technological tools to maximize their ability to serve clients and flourish as practitioners.

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The case known as Matter of A-B, 27 I&N Dec. 316 (A.G. 2018) which was decided by Attorney General Jeff Sessions, has made Gang Violence and Domestic Abuse Asylum Claims harder to win by narrowing the definition of what constitutes a social group for purposes of claiming asylum, and increasing the burden on asylum seekers to show that they cannot find any safe area in their own country to which they can relocate. In deciding this matter, the Attorney General invoked a rarely used executive power to take an immigration case out of the hands of the Immigration Court system and render a decision on it himself.\ \ Case Background

Ms. AB was a Salvadoran woman who suffered extreme domestic violence from her husband.

She fled to the US and passed her credible fear interview. IJ Stuart Couch at Charlottesville Immigration Court denied her asylum claim, concluding based on perceived omissions in her testimony that she was not credible and thus not eligible for asylum. Judge Couch rejected AB’s proposed social group supported by patriarchal conditions in El Salvador that mirror those in Guatemala (which has been the subject of the Matter of A-R-C-G which allowed asylum claims based on domestic violence claims ).

Ms. A.B. appealed, the Board unanimously reversed the IJ, finding Ms. A.B. eligible for asylum based on her experience of domestic violence. The Board overturned the IJ’s negative credibility finding, concluding that Ms. A.B. had in fact testified credibly and that the minor omissions in her testimony were a result of the traumatic violence she had endured and its lasting psychological impact. The Board also found that Ms. A.B.’s proposed particular social group met the legal requirements for asylum, noting similarities between her case and the Board’sA-R-C-G-decision. The Board remanded to the IJ for a grant of asylum.

DHS completed AB’s background checks, but in a departure from usual practice, the IJ refused to issue a new decision instead attempting to “recertify” the case back to the Board for further consideration. In his order, the IJ questioned the continued “legal validity” ofA-R-C-G-. Seven months later, on March 7, 2018, the Attorney General referred the case to himself for a decision.

Holding

(1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.

(2) An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.

(3) An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.

(4) If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.

(5) The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

(6) To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.

(7) An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

(8) An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.

(9) The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.

Credible Fear

USCIS Memorandum on Processing Reasonable Fear, Credible Fear, Asylum and Refugee Claims in Light of Matter of A-B

\ James Pittman is co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.

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