Posts made in June 2014

Asserting Forced Marriage as Grounds For Asylum

Significant ground is being gained in recognizing forced marriages as grounds for asylum in the United States. There is some grey area in the law on forced marriages but steady progress is being made towards accepting forced marriages as a harm that makes the victims eligible for asylum in the United States. While there is case law that makes it very clear that forced marriages may be grounds for asylum, some federal courts and immigration judges in the U.S. have denied the relief. There is however, evidence that the law is progressing towards wider acceptance of domestic abuses as providing grounds for asylum. Despite the challenges, a person who is a victim of a forced marriage should NOT hesitate to raise this as a grounds for asylum if the need arises.

Forced marriages is receiving consideration as grounds for asylum because as the UN Commission on Human Rights points out, it “can involve threatening behavior, abduction, imprisonment, physical violence, rape, and in some cases, murder”. It can be argued or should be expected that a forced marriage would result in other involuntary conduct such that a forced marriage may result in a life time of forced sex or rape and forced pregnancy.

It is commendable that U.S. law has started moving steadily in the direction of recognizing forced marriages as grounds for asylum. Among the U.S. jurisdictions that have determined that forced marriages may be grounds for asylum are the Second Circuit, Sixth Circuit, and Seventh Circuit appeals courts. The Second Circuit Court of Appeals held that a woman who had been sold into forced marriage is eligible for asylum in the case of Gao v. Gonzalez. The Gao case was cited with approval by the Sixth Circuit in Qu v Holder.

There are other federal jurisdictions in the United States that haven’t quite recognized forced marriage as grounds for asylum. The Third Circuit for instance has been reluctant to take a definitive position on the issue while the Fourth Circuit affirmed a denial of forced marriage as grounds for asylum. A number of immigration judges are also denying relief in such cases.

The resistance to grant forced marriage victims asylum is in large measures based on the argument that forced marriage victims are NOT a cognizable group because it is not particularized or socially visible.In Goa v Gonzales, however, the Second Circuit held that forced marriage constitutes a particular social group which is part of the requirement for asylum. There is therefore, some disparity among courts in the U.S. as to whether forced marriages constitute a particular social class.

Courts in the United States and Federal agencies are however, increasingly leaning towards recognizing forced marriages as a particular social class for purposes of an asylum application. The United States Citizenship and Immigration Service (USCIS) is one of the agencies that recognizes forced marriage as a form of persecution for purposes of asylum. In a 2011 lesson plan used to train asylum officers, USCIS noted “Forced marriage constitutes a human rights violation and may constitute persecution where the applicant experiences it as a serious harm. Way back in 1995 the Office of International Operations issued a memorandum directed to asylum officers in which it listed “forced marriage” as a harm that may make an alien eligible for asylum. The US Department of State also considers forced marriage as a violation of basic human rights.

In light of the developments in this area of the law, victims of forced marriage should NOT shy away from raising it to assert a claim for asylum.

Vivian Williams, P.C. is a New York based law firm that engages in extensive immigration research and litigation. The firm has a vibrant immigration division

New York Considering Citizenship for Undocumented

Lawmakers in New York are seeking to create a path to citizenship for undocumented immigrants living in New York. If granted the new proposal which was introduced in Albany on June 16, would allow documented immigrants who are NOT US citizens and undocumented immigrants living in New York to vote and run for office in New York among other benefits. The proposal requires anyone seeking the benefit to provide proof of identity and New York residency for at least three years during which period state taxes must be paid.

The proposed legislation which is called the New York Is Home Act would provide benefits such as Medicaid coverage, professional license, tuition assistance, driver’s licenses, and state grants to persons who are granted New York citizenship even if that person is NOT qualified for Federal citizenship or U.S. residency.

Any immigration benefit conferred by a state would however, be preempted by federal law to the extent their is a conflict. Even if the long-shot measure is passed any undocumented person who obtains legal New York State residence would still be excluded from federal immigration benefits that he or she is NOT qualified for. For instance, an undocumented person who obtains legal residence in a state would still be governed by federal law which prohibits aliens from working in the United States without a work permit.

Obtaining legal residence in a state is however, expected to significantly bolster the chances of adjustment of status for some categories of persons who are illegally present in the United States. The federal government may also have a harder time deporting an undocumented immigrant who carries New York citizenship. It is expected that an undocumented immigrant who has been granted state citizenship and does NOT have a significant criminal record would have a greater standing and would be a lower priority for deportation enforcement.

Already, several other states are extending immigration benefits to undocumented immigrants in a piecemeal manner. 10 states, already are making driver’s license available to undocumented immigrants and at least 18 states have extended in-state college tuition rates to undocumented high-school graduates.

Condo Owner Seeks Return of Deed Conveyed in Alleged Foreclosure Rescue Scam

VMW LAW, New York, March 2010: The Bronx Supreme Court in New York views it as a case of an alleged "foreclosure rescue scam" or "deed theft". Deed theft is the description given to the situation where property owners are solicited with offers of private, nonqualifying, short term financing to pay off a delinquent debt with the requirement that the property owner conveys title to the property as collateral in order to finalize the short-term financing. The property is then sold by the fraudster for its fair market value and ALL of the equity is retained by the fraudster.

FACTS

In Diallo v, Grand Bay Assoc, Enters., Inc., plaintiff Ibrahim Diallo ran into financial difficulties in 2001 and needed urgent financial assistance to rescue the condominium unit her purchased in 1994. In the process he met Alvin Merrifield. The Complaint alleges that Merrifield proclaimed he was in a position to help Diallo refinance and avoid foreclosure. Plaintiff alleges that Merrifield then placed him in contact with Kathleen Bradshaw, an attorney, who allegedly convinced Diallo to convey title to the property to defendant Grand Bay Associates Enterprises, Inc. (Grand Bay).

Diallo claims that his understanding of the agreement was that: (1) Merrifield to pay off his $22,000 mortgage; (2) plaintiff to pay the maintenance arrears; and (3) plaintiff to make $700 monthly payments to Merrifield, $350 of which was to be applied to the unit’s monthly maintenance fee. Diallo further alleges that the arrangement was to last four to six months, during which time Merrifield would obtain refinancing on plaintiff’s behalf. Plaintiff alleged that Merrifield paid off the mortgage, but failed to obtain refinancing for plaintiff as agreed. Nevertheless, plaintiff continued to pay Merrifield the agreed upon $700 monthly installments, which from 2001 to 2004 added up to $20,844.23.

Problems developed when in 2003, a condominium’s management started foreclosure proceedings against Grand Bay for failure to pay the unit’s monthly maintenance fees. Diallo claims that he stopped making the $700 monthly payments to Merrifield and as a result GBA Enterprises, Inc. instituted eviction proceedings against him. During the eviction proceedings Diallo alleges that he discovered that Kathleen Bradshaw, the attorney Merrifield referred him to, was representing GBA Enterprises, Inc. in the eviction action.

Diallo then commence proceedings in Bronx Supreme against Grand Bay seeking a declaratory judgment of ownership of the condominium unit in fee simple or, in the alternative, to void the deed conveyance based on fraudulent inducement.

Court Amended Plaintiff’s Complaint Sua Sponte

The case becomes even more interesting with the court’s sua sponte amendment of the complaint, a rear action taken by courts in New York. In amending the complaint the court interposed additional defendants noting that there were business entities involved: (1) Grand Bay Associates Enterprises, Inc., to which plaintiff conveyed ownership of the condominium, and (2) GBA Enterprises, Inc., which interposed an answer in response to the suit and commenced eviction proceedings against plaintiff. Mr. Merrifield was the President of both entities the court found. Further the court found that Bradshaw had served as the attorney for all of the parties at various points. The court therefore amended the complaint in the interest of justice.

The case is Diallo v. Grand Assoc. Enters., Inc. No. 15044/04, 2010 NY Slip Op 50214[U]

Voluntary Payment Doctrine Bars Recovery of Alleged Rent Overcharges

New York, New York, February 2, 2010: Citibank got a wake-up call from the New York State Appellate Division, First Department. The court affirmed an order of the supreme court dismissing Citibank’s complaint which sought to recover some half a million dollars in rent overcharge.
The court ruled that the complaint for alleged rent overcharges was barred under the voluntary payment doctrine. The Plaintiff was Citicorp North America, Inc. It alleged that Fifth Avenue 58/59 Acquisition Company, LLC overcharged the bank for a period of about 10 years. The court that it was undisputed that Citicopr was highly sophisticated and did not question for approximately nine years the amount of rent they were paying, and did not compare the rent provisions of their lease to the rent amounts billed by defendants.

Determining that the plaintiffs demonstrated a clear lack of diligence and paid the amounts without protest or inquiry and without being under a material mistake of fact, the court applied the voluntary payment doctrine.

The case was Citicorp North America, Inc. v. Fifth Avenue 58/59 Acquisition Company, LLC, No. 2084, 2010 NY Slip Op 00725, 2010 BL 23107 (1st Dep’t Feb. 2, 2010)

New York Landlord to Pay $1 Million for Tenant Harassment

VMW LAW, New York, New York, February 15, 2010: A New York City landlord has agreed to pay $1 million to compensate tenants who suffered harassment by the landlord. Vantage Properties LLC also agrees to set up reforms to stop "frivolous" eviction actions, according to Bloomberg Law which quoted New York Attorney General Andrew Cuomo.

The tenant harassment settlement came after Cuomo announced on Jan. 28 that he planned to sue Vantage for harassing tenants in rent-regulated units. Vantage purchased more than 125 buildings containing 9,500 units since 2006 with private-equity funding from Apollo Real Estate Advisors, according to Cuomo. About 1,500 of the units have been vacated.

According to details of the settlement $750,000 would towards paying damages to tenants who can prove they were subjected to unjustified rent demands or unwarranted Housing Court proceedings. Bloomberg Law is reporting that Vantage is promising better investigations before serving legal notices, and will pay $250,000 to fund nonprofit organizations that provide legal help to tenants. Vantage also agreed to compliance audits.

When is a Person Admitted Into The United States Through Inspection

What is the meaning of enter through inspection? This is a question that confronts every foreigner who seeks adjustment of status in the United States. It is a critical step in the process of adjustment of status. Surprisingly, it is a question that aliens answer incorrectly to their own detriment.

Many aliens and their U.S. citizen sponsors believe that to enter through inspection one must receive a stamp in his or her passport, questioned by an immigration officer, enter with a valid visa and in a particular status. This perception is wrong.

In Matter of Graciela Quilantan, the Board of Immigration Appeals made it crystal clear that “for purposes of establishing eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8. U.S.C section 1255(a) (2006), an alien seeking to show that he or she has been “admitted” to the United States… need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status.”

In Matter of Graciella Quilantan, the Respondent was a Mexican national who was a passenger of a car driven by her United States citizen friend to the U.S. border where an immigration inspector asked the driver if he was an American but did NOT ask Quilantan who was seated in the back seat anything. Quilantan did NOT have a valid document to enter the United States and did NOT receive a stamp in her passport but the car in which she was a passenger was allowed into the U.S. The Board of Immigration Appeals found that she was admitted through inspection and was eligible to adjust her status after she married a U.S. citizen.

The term admitted does NOT require you to be lawfully entitled to enter the U.S. This is so because of the 1960 amendment to section 245(a) of the Immigration and Nationality Act which replaced the earlier requirement that the alien be admitted as a bona fide nonimmigrant, i.e. that an alien’s admission be substantively lawful, with a requirement that the alien simply be inspected and admitted or paroled into the United States.

The Board of Immigration Appeals thus stated in Quilantan “as long as an alien’s entry into the United States as a nonimmigrant was procedurally proper” (i.e., the alien underwent an inspection by an immigration officer, who subsequently admitted the alien), the alien could seek adjustment of status under section 245(a).

Aba Study Finds Self-Representation Resulting In Worse Outcome In Cases

An American Bar Association (ABA) study finds that more people are representing themselves and are doing a poor job at it.
In a survey of nearly 1,200 state trial judges around the country the ABA found that the weak economy has increased the number of litigants representing themselves in foreclosures, domestic relations, consumer issues and non-foreclosure housing matters. The judges surveyed believe the self-represented litigants are doing a poor job as well as burdening courts already hurt by cutbacks.
According to the ABA the judges interviewed in the study say case filings increased in 2009. The greatest increase is in foreclosures, domestic relations, consumer cases and housing matters.
The report released by the ABA finds that Self-representation is resulting in worse outcomes for litigants, according to 62 percent of the judges. According to 94 percent of the judges who participated in the survey, the greatest problem is failure to present necessary evidence.