by Morgan Granoff, Esq.
Here are two examples that illustrate the difference between “legal” and “illegal presence”:
Here are two examples illustrating the difference between unlawful presence and lawful status:
- First, someone enters the United States without inspection. At that moment, they lack lawful status and begin accruing unlawful presence. If that individual applies for asylum within one year and is granted asylum, they are then lawfully present in the United States. After one year as an asylee, they may apply for lawful permanent residence (a green card). Once granted permanent residence, they are no longer accruing unlawful presence and may eventually pursue U.S. citizenship. In this situation, although the person initially entered without permission, the grant of asylum cures the unlawful presence going forward.
- Second, someone enters the United States without inspection and takes no action to regularize their status. That person remains without lawful status and continues to accrue unlawful presence.
That’s the difference. In the U.S. immigration system, you provide the government with your information and you apply for relief, so the U.S. can determine either in Court or in USCIS, whether you qualify for the relief you’re seeking. U.S. immigration is fully codified in the Immigration and Nationality Act (INA), which establishes a clear legal framework for immigration. The practice of immigration law is entirely legal, and the true illegalities are entering the U.S.A. without permission, or remaining in the country without proper authorization. The INA of 1952 is the primary source of U.S. immigration law, consolidating various statutes into a comprehensive framework. It governs naturalization, immigration, and asylum and is detailed on the USCIS website and online (search Immigration and Nationality Act). Immigration law also draws upon the U.S. Constitution and the Code of Federal Regulations.
While the legal immigration system looks mostly straightforward, there are quite a few gray areas when it comes to immigration law, and so legal guidance is crucial (in my perspective) for the entirety of your immigration journey. None of this is really a do-it-yourself, or do-it-for cheap deal, unless you want it to get messed up. Let’s say you hire a notary to help you with your claim for asylum. That notary is not in court practicing in front a judge. That notary does not know the law. That notary does not know the proper legal standard. And sometimes, they offer little to no help and only help you with filing a case. If your case has no substance, you’re stuck with seeing what happens. And generally, it will not be the result you’re looking for. A notary has not won an asylum trial in front of a judge. Where I’ve won multiple.
Today, asylum immigration law is even harder to win at than before. And detained cases are still at strikingly low rates. Some would say less than 10% win rates. Not only this, but you’re working with tight deadlines, sometimes 10-days to respond to a motion to dismiss. That’s not even generally enough time to hire an attorney. Also, what evidence have you provided from your case to start? Likely nothing. That’s not even the worst of it.
Now, you’re also working with new rules, and new norms. For instance, Asylum Cooperative agreements which let the U.S. government provide to an Immigration Judge that your case should be decided in a third-country “a safe third country.” I’ve written a whole article on these, so find that on my blog page here: https://legalamericandream.com/what-are-my-options-as-an-immigrant-in-the-u-s-a-if-i-get-an-asylum-cooperative-agreement-motion-in-my-removal-court-case/
So, what if you come into the U.S.A. on a legitimate asylum claim, and then the U.S. government says, “ok that’s fine, but pursue that in this foreign country.” And, if you’ve never been there… well, that’s not a good enough argument to get you out of being sent to the third-country. (See Ecuador ACA Agreement, Honduras ACA Agreement, Uganda ACA Agreement, El Salvador ACA Agreement)
Now, there’s also Motions to Dismiss called “Motions to Pretermit,” they’re very technical written by highly skilled Department of Homeland Security Attorneys, to ensure your case does not even go to trial. So essentially your case will get dismissed without even a trial… I wrote a whole article on Motions to Pretermit, so find that on my blog page here: https://legalamericandream.com/the-new-asylum-court-issue-pretermitting-asylum-before-trial/
So, bottom line, even if hiring a notary may be cheaper and better for the wallet, they are not lawyers, and they will not be able to help you the same way as an attorney can at this delicate point in your asylum case. Not to mention, notaries are unable to provide legal advice or advocate for you in court. They’re just glorified preparers.
And, since an asylum application is a once in a life-time opportunity, either your case gets dismissed, or your win your case for asylum…relying on a notary puts your case at even more serious risk, while retaining a licensed attorney gives you a real chance at success. An attorney can help you prepare your case and properly present it so that you have a fair opportunity in Court or in front of USCIS.
For your asylum claim, investing in proper legal representation is the true only way right now to seriously protect your rights, seek to avoid case dismissal, and seek to avoid being sent to a third-country to fight for your aslyum.
Now it’s up to you to hire the right attorney. So hire the right one, and sign up for a free consultation: https://legalamericandream.com/#consultation