A Scam, Or Not A Scam

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Recently, there have been a lot of rumors in the undocumented community about the “ten-year green card”, and whether it is for real.

An answer cannot clearly be made either way. What is the “ten-year greencard”? It is a complicated set of complex applications based on lengthy government processing times and changing (not always for the best) government procedures. The central idea is to get an application for cancelation of removal before an Immigration Judge who can make a finding of extreme and unusual hardship to an immediate family member if the principal would be removed from the U.S.

Although ICE could issue a Notice to Appear before an Immigration Judge upon the principal’s request, it rarely does so. Therefore, the procedure has evolved for the principal to file a request for political asylum (with a showing of potential persecution). The asylum application must be filed within one year of entry, or a showing of changed circumstances must be shown. For an undocumented individual, this showing, or the exception are usually impossible to prove. Therefore, the asylum application is denied, and a Notice to Appear is issued. Incidentally, the filing of an asylum application will also generate an EAD. As already noted, at the Removal Hearing the Application for Cancellation can be made, although the extreme and unusual hardship burden of proof is very difficult to achieve.

Now, the variables that may, or may not make this series of applications viable. Processing times for asylum applications can be lengthy, as can processing times for scheduling hearings before Immigration Judges. Sometimes, and in some places up to 4 to 5 years before an Immigration Judge can hear a case on its merits. Considering the fact that approximately 850,000 TPS cases could, theoretically come into the pipeline, delays may be longer.

Why does time matter? Under the Obama administration, there was a positive use of “Prosecutorial Discretion” to not continue with a Removal Hearing to a conclusion of removal if the discretionary results were negative for either asylum or cancellation. Therefore, the process had little risk, but a very positive result in a green card, if either application was successful. Under the present administration, Prosecutorial Discretion to put a case on hold has been eliminated. There is, therefore, a significant risk of removal if unsuccessful. Thus, the time factor. What if there is a new administration in 2+ years with more favorable immigration policies? The risk of removal, may once again be manageable.

Is this a “scam” or not? If the asylum or cancellation applications are filed with the knowledge that they have no substance, and are frivolous-the attorney who files them may be acting unethically and perpetuating a fraud, for which the principal will be held responsible by USCIS/ICE. The “New York Times” of May 5th carried a story “Immigrants Facing Deportation Sue, Saying They Were Tricked”. The article discusses litigation recently filed by 26 unsuspecting principals and a Not for Profit organization called “Make the Road New York” in the U.S. District Court in Manhattan against a law firm which filed applications of these types. There are a myriad of issues here (even beyond legal ethics). Is there fraud by an attorney against individual plaintiffs if the process and risks had been fully explained (both in writing and understood?) Would there still be a viable charge of fraud by the government against the principal and the lawyer-if either knew that the asylum and/or cancellation claims were not true? Would a fraud charge be mitigated if it could be shown that filing an Asylum claim was the only way to get a cancellation application before an Immigration Judge because ICE refused in bad faith across the board, to permit proactive request for a Notice to Appear? (This position is not one I would like to have to defend.) Then, as it is the case reported in the “Times”, there is potential civil liability for the lawyer. Only time and the courts will tell. Meanwhile, the undocumented should fully be made aware of just what they may be getting into.


About The Author

Eugene Goldstein is the Managing/Senior Attorney at Goldstein and Cheung LLP.