Category Archives: immigration

One Seeking Asylum Or Withholding Of Removal Based On Membership In A Particular Social Group (PSF) Must Clearly Delineate The Proposed Group On The Record Before The Immigration Judge (IJ). The BIA Will Generally Not Address A Newly Articulated PSG On Appeal If It Was Not Advanced Before The IJ.

On January 19, 2018, the Board of Immigration Appeals (BIA or Board), in dismissing the appeal of a Honduran citizen, issued a decision which arguably adds to the burden of proof a respondent in removal proceedings who files for political asylum and/or withholding of removal has historically faced.  The instant applicant had entered the U.S. without inspection and before the Immigration Judge (IJ) sought asylum and withholding based on membership in a particular social group (PSG), in this case, single Honduran women aged 14 – 30 who are victims of sexual abuse within the family and cannot turn to the government.

The IJ found this PSG was not cognizable under the law and denied the claim.  On appeal, respondent conceded that her original PSG was not a valid social group but asserted eligibility under a new formulation, articulated for the first time on appeal as “Honduran women and girls who cannot sever family ties.”

In the beginning of its analysis the BIA, in noting that its function is to “review, not to create, a record”, cited to the well-established axiom that it will generally not consider an argument that could have been, but was not, advanced before the IJ.  The decision reiterated that it is an applicant’s burden to establish a claim for relief on the record before the IJ and affirmed that one must therefore “clearly indicate” (on the record before the IJ) what enumerated grounds he or she is relying on; where a respondent raises membership in a PSG as the enumerated ground, stated the Board, he or she has the burden to clearly indicate the exact delineation of any claimed group.

Further, concluded the opinion, the “importance of articulating the contours of any proposed social group” before the IJ is emphasized by the “inherently factual nature” of the court’s social group analysis.  Thus, where as here, an applicant delineates a PSG for the first time on appeal, the IJ will never have had an opportunity to make the necessary factual findings, which the BIA will not do in the first instance.  Further, the new PSG articulated in this appeal is substantially different from that delineated before the IJ, who “did not have the opportunity to make the underlying findings of fact that are necessary to” the Board’s analysis; again, such findings cannot be made for the first time on appeal.

The BIA thus declined to remand proceedings to the IJ for factual findings on the new PSG, affirmed the denial of the applications below and dismissed the appeal.  Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).

What is the process by which someone marrying a U.S. citizen would get a green card?

Determining the green card process depends on whether the noncitizen spouse is in the U.S or not. If he or she is in the U.S. it is possible they can utilize a process called “adjustment of status”. Otherwise, if they can’t use this process the noncitizen spouse is required to immigrant visa process. If adjustment of status is possible, this is often referred to as a “one-step” process because all applications are filed at the same time. Whereas the immigrant visa process requires at least 3 stages and working with 3 different government offices.

Knowing whether or not you can go through “adjustment of status” is therefore important because marriage does not automatically confer a green card. First, the marriage must be proven to be a bona fide marriage. Procuring a green card by marriage to a U.S. citizen is a very complex procedure that must be followed, particularly for those who are applying for a green card within 2 years of their marriage. Of course, there are inadmissibility issues that must be considered when dealing with this process.

It is important to note that even a green card holder spouse may sponsor a noncitizen spouse for a green card. It may take a little longer but this is also a viable path toward lawful residency for the noncitizen spouse.

Learn more about the immigration services provided by Philip Levin & Associates.