The Great S-Visa Hoax

by Jason Dzubow on May 18, 2016

The S visa–colloquially known as the “snitch” visa–is a visa available for aliens who cooperate with law enforcement officers. The S visa is a non-immigrant visa, but it can lead to a green card once “the individual has completed the terms and conditions of his or her S classification.” “Only a federal or state law enforcement agency or a U.S. Attorney’s office may submit a request for permanent residence as an S non-immigrant on behalf of a witness or informant.”

The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).

The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).

In other words, when an alien cooperates with the government in a criminal investigation, the government can apply for the alien’s lawful permanent residency–the alien himself cannot independently apply for the green card.

The number of S visas available nationwide is quite limited. According to the Justice Department, 200 visas are available each fiscal year for “aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year [are available] for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State’s rewards program.”

While the visa is rarely granted, it seems to be regularly promised. The result: Many aliens who cooperate with law enforcement expect to receive an S visa, only to be left with nothing. I’ve recently witnessed this phenomena in a few of my own cases.

In one case, a young women was enlisted by her boyfriend to transport heroin from her country to the U.S. She was captured on arrival and immediately cooperated with American law enforcement. Thanks to her assistance, several drug traffickers were arrested and prosecuted. In the course of the criminal investigation, law enforcement officers promised her an S visa. Once the investigation was complete, the government failed to deliver the S visa. My client was eventually released from jail, married, and started a family. DHS left her alone for a while, but eventually placed her into removal proceedings. She now fears (quite reasonably) that the drug traffickers she informed on will seek revenge against her if she returns to her country. We applied for deferral of removal under the Convention Against Torture (the only relief she was eligible for after her conviction). However, because she was such a low-level member of the conspiracy, she was unable to identify specifically who might harm her in her country. DHS fought hard to have her deported, and the Immigration Judge ultimately found that we could not demonstrate a more-likely-than-not probability of torture, so she now faces deportation. What particularly bothers me about this case is that my client’s cooperation led directly to her fear of harm, but the U.S. government didn’t care. When they got what they wanted from her, the law enforcement agents dropped her like yesterday’s news.

In a second case, my client discovered that his attorney was operating a scheme to file fraudulent employment-based immigration petitions and false asylum claims (and no, I was not his attorney at the time – sheesh). He reported the fraud to law enforcement and actively participated in the investigation. In the end, the attorney was sentenced to prison and disbarred. Throughout the investigation, DHS and the FBI repeatedly–and in writing–promised the client an S visa and told him that the visa was being processed. Once the investigation ended, law enforcement suddenly changed their mind and informed my client that they would not pursue an S visa for him. The client had a legitimate claim for asylum, but he failed to file a case because he was relying on the U.S. government’s promise of an S visa. As a result, he missed the one-year filing deadline to submit his asylum application (an asylum applicant must file his case within one year of arrival in the U.S. or meet an exception to the one-year filing requirement; otherwise, he is ineligible for asylum). We litigated the case in court. In the end, the Immigration Judge denied asylum because the client had not filed within one year of arrival. The Judge found that reliance on the government’s promise of an S visa did not qualify as an exception to the one-year bar. Instead he granted my client withholding of removal, a less-desirable form of relief.

In both these cases, the government promised something, my clients relied on the promise, and the government failed to deliver. I understand the government’s need to obtain cooperation from witnesses, even to the extent that government agents lie to witnesses to secure their assistance. However, in the case of the S visa, some cooperating witnesses (like my clients) face real harm–including possible persecution or death in the home country–when the government breaks its promise.

So what can be done?

It seems to me that any alien who relies on the goodwill of the government in an S visa case is being taken for a fool. The offer of an S visa is not enough–cooperating witnesses need an attorney to press the government to keep its word. And this is not something that can be done after the criminal investigation is complete. Once the government gets what it wants (i.e., cooperation), there is nothing to prevent it from reneging on its promise.

Aliens with potential asylum claims are particularly vulnerable. For them, I would want a letter from the ICE Office of the Chief Counsel agreeing that the S-visa process constitutes “exceptional circumstances” excusing the one-year asylum bar. That way, in the (likely) event that the S visa does not come through, at least the alien will not be barred from seeking asylum because she missed a deadline.

In short, if law enforcement officers promise you an S visa, you should understand that in many cases, they will not follow through with their promise. But if you take steps to compel the government to issue the S visa, and you have a back-up plan in the event that the S visa does not come through, you will maximize the chance that your cooperation will lead somewhere other than a dead end.

{ 58 comments… read them below or add one }

Elias Zakarias July 20, 2017 at 12:35 pm
Jason Dzubow July 21, 2017 at 6:22 am

Thank you – More evidence that people should be cautious when they are offered an S visa, and that they should probably get a lawyer to represent them. Take care, Jason

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Ashish August 11, 2016 at 3:38 pm

confused, what if some one is under pending asylum applicant and waiting for individual court hearing which is 4 years after applied date(already crossed 2 yr now 2 yr left) but he have a girlfriend whom he love a lot in back home country. she is 3 elder than him. but she is waiting due to true love and so do he. but while filing application he mention single and is still single ;-( .

in some country there is still one believe that ladies should marry in the age 22 to 27.

i am 25 and she is 27. till now we were fine but what if she got pressure to marry from parents?

she cant even apply for tourist visa, cause her brother is citizen of USA and serves Navy and have filed for i-130 for siblings . filed date was 2007 I guess , but long to go still.

above * him is me. 🙁

what might be done.?? lots of question mark on his mind.

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Jason Dzubow August 14, 2016 at 9:22 am

She can apply for a tourist visa. Maybe she should try. Also, you can ask to expedite your asylum case (it is called a Motion to Advance). Depending on the Judge, this might make your case faster. Even if you win, unless you are married, you cannot file for her, but if win, you could travel to meet her somewhere (not the country where you fear persecution) and then get married. If you can somehow get married before you have a final decision in your asylum case, and you win, she can also get asylum – that would be the quickest way for her to get here and stay. If you get married after you win asylum, you will have to wait for your green card, and then you can file for her. This will take a few years. I do think it is worth a try for her to apply for a tourist visa or other visa to the US. Even with her brother’s application pending, she may have a chance. Otherwise, she can immigrate here once her brother’s petition is current, but that will be a few more years. Good luck, Jason

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Ashish August 19, 2016 at 12:00 pm

She applied to tourist visa but not granted.Her intention was not to live here until i get settle but marry and go back silently.

counselor asked two question.

intent:she clearly says for visit and for festival that is coming near to celebrate that with her brother who is serving as military here.
and annual income of her.
she is doing master and almost complete so she was not dong job right now so she said somehow like “I am a student and last semester to complete”

Then counselor said nope,you cannot get visa.
that’s all.
and she says “they even didn’t ask the document file to give them”-was that pre-plan through DS 160 form??

Now what might be best option, I am waiting her cause i love her.

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Jason Dzubow August 22, 2016 at 10:21 pm

I think you would need to talk to a lawyer who helps people get visas to the US. I do asylum cases for people who are here. Maybe that lawyer can find a way for her to come here. Good luck, Jason

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ashish October 26, 2016 at 11:19 am

Hi,

recently TPS is extended for Nepali. last year i did not applied for it but now on USCIS website they have said if all condition is true you can apply for TPS.

so my asylum is pending and it’s on court.my question is,
(note: below question is related also with above previous question asked:)
1) am I ok to file TPS?

2) If TPS is granted , can i go third country and call her to get married there with travel doc/advance parole?

3)will it be issue on re-entry to us?

3) how to bring her here after that?

Thank you,

Ahmed May 31, 2016 at 11:57 am

I interviewed for my asylum case before the 150 days finished. I applied for work authorization through my TPS case and asylum case pending.
I am waiting for work permit 5 months from my TPS work permit submission and 2 months from my asylum work permit submission.
I did not receive any thing until now.
Do you think I was wrong because I submitted two authorization work application and this is the reason why they pending my work permit?

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Thomas May 31, 2016 at 2:11 pm

Yes, you are definitely wrong for filing for employment authorization twice.

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Jason Dzubow June 1, 2016 at 5:59 am

I doubt that this is the problem. Normally, the work permit through asylum takes 4 months, and sometimes the TPS work permits are delayed due to security checks (or other reasons). You can inquire with the USCIS Ombudsman (a link is at the right), but my guess is that you will receive one of the work permits in the next couple months. Take care, Jason

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Ahmed June 1, 2016 at 11:08 am

The work authorization for TPS is in Vermont while for asylum case in Nebraska center. From the beginning they inform us that the TPS will not effect asylum case. So, I decided to apply for TPS and get work approved before wiating 150 + 4 months.
This is why I apply for TPS work permit.
When TPS is delayed and I find the processing time in Nebraska center for pending asylum case is only 3 weeks I applied for work permit.
So now can I withdraw my TPS or what shall I do?
I wrote to Ombudsman and waiting his reply.
Thank you

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Jason Dzubow June 2, 2016 at 6:14 am

The Ombudsman will probably take a few months to reply. The 3-week processing times is false. That is what USCIS posts, but it seems to me to be completely untrue. I think I have never seen an EAD processed that quickly. If you decided to withdraw the TPS, I doubt it would help, but I suppose you can send a letter to USCIS with copies of your receipts and ask to withdraw the case. Take care, Jason

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A Khan May 30, 2016 at 9:00 am

Thanks Jason.

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A Khan May 28, 2016 at 8:09 am

Hi Jason,

Good morning.

I am an asylum seeker waiting for my interview date. I have one question that my husband name is in my asylum case .
can my husband apply for USA visa? if yes…
He has / has not to tell them about me.

if he tell them about me then he will /will not be denied due to our asylum case.

Thanks.

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Jason Dzubow May 30, 2016 at 7:36 am

He can apply for a visa, but it may be more difficult to get. I did a post about this on April 18, 2014, which may be helpful. Take care, Jason

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Abram May 26, 2016 at 6:34 am

Hi Jason ,
I came here in F1 visa and I applied for asylum before I leave my school , my wife won the DV lottery 2017 in home country she not here with me so I have some questions please help me ( I visited 3 Lawers in spite of this I didn’t find similar answer )
The first question I cant come back to my country to attend the interview with my wife so can the Immigration office set a date for interview me in United States? Or can I go to the third country ?
The second Questions: the embassy Can be refused to give her the visa because I applied for asylum ?
Please tell me know what will be happening
Thanks

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Pilot May 27, 2016 at 12:28 am

dear Abram
your situation is depending on your current status. did your F1 visa valid or expire? if it’s NOT, you are good to go for interview where ever you want, but you have to drop your asylum case first before you move.
unfortunately the DV lottery visa is NOT grantee.
my idea is stay here and let here go through the DV lottery process if she win and come over then you can find way to be adjustment status, if she loss you will be still have your chance to win the case and bring your wife later… good luck

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Abram May 27, 2016 at 5:35 am

Dear Pilot
Thank you so much, for your interest in my case , Unfortunately my F1 visa was canceled after I applied for asylum case so I can’t to get an interview in United States
The last attorney advice me you will have to apply for an immigrant visa in a 3rd country if this is available I will try , if is not available I will Stay here for waiting what will be happen.?
Thanks a lot

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Adnan May 25, 2016 at 4:36 pm

Hi Jason. Sir you doing great job for asylum seekers. Sir I have a question. I applied asylum in October 2014 and I’m still waiting for my interview. So ny office is interviewing now sep 2014 and I’m in October 2014 so still I’m waiting for my 2nd finger print because after 15 months finger prints are expire so before interview my finger print are due but my lawyer says that now USCIS are not taking fingerprints 2nd time because they change the rules he told me they will send me the interview notice. No fingerprint before interview. So kindly tell me that now USCIS is not fingerprint 2nd time? Waiting for your reply thanks Jason.

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Thomas May 25, 2016 at 7:29 pm

Don’t worry. USCIS keeps changing the rules frequently. The important thing is that it doesn’t matter. If they send you a letter, go to the appointment. If they don’t send a letter, don’t panic about them not sending a letter, and get on with living life. Hopefully your asylum interview is soon. Good luck with that.

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Adnan May 25, 2016 at 7:55 pm

Thanks Thomas

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Jason Dzubow May 26, 2016 at 6:31 am

It seems like sometimes they do, sometimes, they don’t. When you get to the interview, if you need to be fingerprinted again, they will give you an appointment for that. If you want, contact (or go) to the local asylum office now to ask them – you can find contact info if you follow the link at right called Asylum Office Locator. I think this will not work, but there is no harm in trying. Take care, Jason

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Pilot May 27, 2016 at 12:36 am

Adnan
why did you worry about fingerprint again and again… did you know you may be require for fingerprint if you apply for some jobs.
don’t panic your self and I think any request by the USCIS regarding your file is good, means you have some movement in your case … good luck.

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Adnan May 29, 2016 at 5:40 am

Thanks pilot for ur comments. Iam not panic about fingerprints I just want to know that before interview they call for finger print again or not because my friend was called for finger print before there interview. And what do u mean by any request from USCIS Iam not understand so plz reply thanks. I just want to know that are they take fingerprints again for every one before interview because my two friends got fingerprint before interview Thanks

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Jason Dzubow May 30, 2016 at 7:44 am

USCIS seems to be a bit inconsistent about fingerprints. Some people get them more than once; others do not. I do not think it makes much difference in terms of delays or decisions, so I think it is not something to be concerned about. Take care, Jason

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Waleed May 24, 2016 at 10:35 pm

Hi.Plz guide:
1.One person from india who applied asylum in England,if he do back his application and can come u.s.a and apply asylum here,he can?
2.Another person in England who is on travel visa to England,if he come to u.s.a and apply asylum here,can he do?
plz reply both th questions.thanks.

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Jason Dzubow May 25, 2016 at 6:23 am

If a person has status in England, he will generally be denied asylum in the US, though there might be exceptions to this. If the person only have a travel document to England, but did not go there, or only went for a short time, it generally will not affect his case. However, in both the instances, there are exceptions and it is a good ide to talk to a lawyer about the specifics of the case. Take care, Jason

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Julio Villars May 23, 2016 at 12:17 am

Jason I got a couple good ones for you 12-cv-04586 US District Court Northern District of Illinois if you want to take a look here is the other one, 13-363 C U.S. Court of Federal Claims. As you can see is been a hard road but I that my hard work pay.

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Jason Dzubow May 23, 2016 at 6:34 am

Sorry – I’m not sure what this refers to. Take care, Jason

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Humam Imesh May 22, 2016 at 12:05 am

Hello Jason,

I had submit my I-589 in LA office on August 2014 & still waiting as all people. My firm where am working on offered me an EB2 vise. Can I drop my asylum case & apply for an EB2 or what shall I do ?

Thanks in advance !

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Jason Dzubow May 22, 2016 at 10:11 am

If you are still in status (meaning in the US on a valid H1b visa or other visa), you should be able to do it. If your only status is asylum pending and you have an EAD based on asylum, I think you cannot do that without leaving the US and re-entering. This may be possible, but you need to be careful. I recommend you talk to a lawyer to assist you. Take care, Jason

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Humam Imesh May 23, 2016 at 9:24 pm

Thanks Jason, you’re helpful all the time.

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Daniel May 23, 2016 at 10:33 pm

Remember that asylum is normally independent of any other immigration benefit you apply for. You don’t have to withdraw a pending asylum application to apply for an EB-2 or any other kind of visa. Likewise, if you’re ineligible for an EB-2, because you’re out of status or for any other reason, withdrawing your asylum application won’t suddenly make you eligible.

The only effect your asylum application does have on other applications is if you commit fraud. If there’s anything materially fraudulent in your asylum application, and the government catches it, that can make you ineligible for any other visa or immigration benefit. This can potentially happen even if you withdraw your asylum application. So, as always, don’t commit fraud, which is the first thing any good immigration lawyer will tell you.

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Jason Dzubow May 24, 2016 at 6:34 am

Also, be careful that your EB-2 application is consistent with your asylum application – if there are inconsistencies between the two applications, this can create problems for both applications. Take care, Jason

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Cris May 21, 2016 at 12:25 am

Hi Jason,

Thank you for all your unselfish deeds! God bless you.

My question is on the form I-589. There is a question that asks whether you returned back to the country where you suffered harm after leaving the country.

I have been out for a visit and for a brief temporary assignment by my company for a total of 4 to 5 days to different countries and went back to the country before things get worse in the last few months and i was forced to leave.

So how should i consider to answer the question? After i finally came to the USA i had never returned to that country. So should i say NO considering the question refers to your trip after you FINALLY leave your country of persecution? Because conditions were never so worse as the final time l left the country .

I am filling my asylum case myself due to financial issues.

Thanks

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Thomas May 21, 2016 at 10:02 am

Were you a permanent resident of a third country at that time and went back for a short visit? If so, state that you have went back. That question was intended to see if you have returned after being a habitual/permanent resident of another country (U.S. or any other country other than the country you fear prosecution from). From what you said, your “boss” made you “go back” for work. State that, and state where you and your boss were residents. You need to explain to the asylum officer how the situation got worse and led to you fleeing.

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Jason Dzubow May 22, 2016 at 9:51 am

It probably doesn’t matter how you answer the question, as long as you explain your answer and the US government does not think you are trying to hide the trip back home. The safer approach is probably to say “yes” and then explain. If conditions changed after your return trip and it is now more dangerous, that is generally a good explanation for why you returned home. Take care, Jason

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Cris May 23, 2016 at 7:17 pm

Thank you Jason! I guess your explanation works even if i left for a short visit and came back to the country where i fear mistreatment ?
Does the question have anything to do with permanent residency as answered by Thomas above? I mean if it was a visit can i say NO?

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Jason Dzubow May 24, 2016 at 6:32 am

I think permanent residency is one aspect of the question, but it is broader than that. In reality, what you answer for that question is basically not relevant, as long as you explain what you actually did. I see no advantage to saying “no” on the question – if you think the answer might be “yes”, you can say “yes” and then explain. The explanation is the key. Take care, Jason

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Cris May 24, 2016 at 8:28 pm

Thank you Jason!

Marcos May 20, 2016 at 9:09 pm

These two cases are very sad to hear. Unfortunately, when some immigrants are sometimes in desperate cases, they tend to listen to any “representatives” of the U.S. who promise them that upon cooperation everything will be great and they will obtain whatever they need.

I think people in this situation should hear what the IJ said “reliance on the government’s promise of an S visa did not qualify as an exception” in other terms when it comes to immigration do not rely on anybody.

Thank you for this great article.

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Jason Dzubow May 22, 2016 at 9:38 am

Thanks – I think people in such a position (to be offered an S visa) need to get a lawyer. If they do not protect themselves, they will likely end up like my clients. Take care, Jason

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Ali abbas May 19, 2016 at 2:27 pm

Mr.Jason
I’m now in the US in an F1 visa, Due to personal circumstances i can’t go back to my country and i’ll file for asylum, But i want my wife to be with me when i file it, She already has a multiple entry B-2 visa which she used it to come to the US for a short holiday about 3 months ago, If i ask her to come using her visa and apply for asylum with her as my spouse, Will that jeopardize our case, Because i’m afraid she’ll be accused of visa fraud, Or does it not apply in such particular situation, Please help me.

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Jason Dzubow May 19, 2016 at 2:46 pm

I doubt she will be accused of visa fraud just for coming here on the B visa (I’ve never seen that in any of my cases). There is a BIA case called Matter of Pula which provides some guidance on this issue, if you want to Google that case. If she has the visa and comes here, she should be able to be part of your asylum case as the dependent. If you are worried about something specific to her coming here, you might want to talk to a lawyer just to be safe. Take care, Jason

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Ali abbas May 19, 2016 at 3:30 pm

Extremely grateful for the quick reply, You’re a great person Mr.jason.

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Wendy Lyon May 19, 2016 at 1:08 am

Sounds like this should be colloquially known as the “sucker” visa. Is there any hope for your client in the first case? What a horrible thing to do to someone.

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Jason Dzubow May 19, 2016 at 6:35 am

I was hoping the ICE lawyers would have been more merciful with her, as she has many equities, and I thought that might be one way to reach a fair outcome of the case (given her cooperation) and let her family stay together in the US. Unfortunately, I spoke to them before trial and they took a hard line (deporting criminal aliens is an ICE priority). Had they been more flexible, my impression is that the Judge would have gone along with it. Where we are now, I am not optimistic, and it is a real shame, but we will keep trying. Take care, Jason

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Wendy Lyon May 20, 2016 at 9:07 am

Well, very best of luck with it. I know how hard it is to lose cases that you really believe in.

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Jason Dzubow May 20, 2016 at 2:18 pm

I will console myself with a Guinness…

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Daniel May 18, 2016 at 11:08 pm

That’s terrible. And doubly terrible that an IJ would not find extraordinary circumstances when an alien misses the filing deadline because he relies on the government to keep its promise to apply for an S visa. What does that say about the government – police lying to aliens is so routine that it doesn’t qualify as extraordinary?

Is it even safe to rely on a letter from ICE Chief Counsel? As a Justice Department official, Is an IJ bound by the commitment of a Homeland Security official? Wouldn’t it be safest just to file the I-589 before the one-year deadline anyway? In the unlikely event that the government keeps its word and the client receives an S visa, the I-589 can always be withdrawn.

Or is the idea that if an alien has already missed the deadline, you request the ICE chief counsel letter in return for the client’s testimony? That might work for guys in your second client’s position, but ladies like your first client don’t have much leverage; with a long prison sentence hanging over her head, they can pretty well force her to testify.

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Jason Dzubow May 19, 2016 at 6:30 am

I like your point – unfortunately, police lying to aliens is pretty routine. Also, your idea of filing the I-589 makes sense. One could do that and then withdraw if the S visa falls through. My second client actually did file an I-589, but it was through the fraudulent lawyer and was done under the control of DHS, so it did not count (somehow). And finally, it is also a good point that these aliens are in a tough spot. The government often can compel their testimony with the threat of a prison sentence; the S visa is just one aspect of the case. Thank you for the comments, Jason

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Cefteldore May 24, 2016 at 3:20 am

This unjust situation with the S visa is reminiscent of Iraqis who assisted the US soldiers in the war with a promise of a green card, then only to be later ignored while Taliban threatens them for cooperating with the Americans.
Also, I agree that the police lie to the immigrants or people in general. Heard of the vanity license plate saying “copslie?” And then there are “notarios” or fake-immigration lawyers lying to the people.

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Jason Dzubow May 24, 2016 at 6:36 am

The SIV program is another program that I view as a national embarrassment. We promised to help people who served with our soldiers, and in many cases, we did not help them. Instead, we led them to believe we would help, and so they were left in uncertainty for many months until their cases were rejected. The bottom line is that if a person expects to gain an immigration benefit from the US, he should be very careful and do everything he can to ensure that the government follows through on that benefit. Take care, Jason

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Cefteldore May 24, 2016 at 1:48 pm

Nice talking to you, Jason. I feel the same grief for military canines who were deployed with the US soldiers then discarded in Iraq to be captured and tortured by the insurgents instead of being brought home.
By the way, what triggered your first client’s (the one who tried to smuggle drugs) removal process? You wrote that DHS left her alone for a while as she was released from jail, married, and reproduced a family.
Was it a traffic stop gone wild or other criminal offense that triggered it?

Thomas May 18, 2016 at 12:59 pm

Its actually kind of funny. The entire point of this visa is to get people to talk about things the U.S. government can’t get by itself (which we both know is a very limited amount of info thanks to the FBI and the CIA and the NSA etc…), yet these people talk, and don’t get to stay. If anything, they should grant a temporary S visa before the person talks, and if the info was sufficient enough to lead to arrests, then that visa would turn into a permanent one. Sounds fair for both the alien/foreigner and the U.S. government.

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Jason Dzubow May 18, 2016 at 9:30 pm

That would be more fair, but if course, that is not how it works, and since the aliens tend to rely on the US law enforcement officers and trust them, it is easy for the officers to toke advantage of them. Take care, Jason

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Jason Dzubow May 25, 2016 at 6:14 am

I think nothing triggered it. They put her on hold during the time they needed her, and I think at some point after they were done with her, they initiated removal proceedings. Take care, Jason

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Jason Dzubow October 27, 2016 at 11:10 am

I do not do many TPS cases, so I cannot tell you much. If you are eligible to apply, you can apply for TPS and for asylum. I do not see why you cannot travel to a third country if you get the travel document. I do not know whether you can bring her here based on your TPS, but I do not think so. If you win your asylum and you are married at the time you win, you can file to bring her here. I recommend you talk to a lawyer about your TPS questions before you travel, just to be safe. Take care, Jason

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