Immigration Attorneys in Marietta, GA
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Klinke Immigration Blog

A Great Injustice

I will be haunted by her eyes. Dark, scared, full of tears that won’t come out.

But she didn’t always look like that. There were moments of hope when she smiled when she allowed herself to think about what life in the United States would look like. Those smiles are gone now, thousands of miles away.

Nearly two years ago, I met this young woman. She came from a country in the Middle East and entered the U.S. legally on a tourist visa. Within a few weeks of being here, she met a young man, fell in love, and was promised marriage.

When he had a change of heart, he turned bitter, called ICE and reported her as a visa overstay.

An ICE officer came to her house, left his name and number, and asked her to visit him in his office later in the week. She followed the rules and went to talk with him. He listened to her story but had to do his job.

He created a Notice to Appear (NTA). That’s the document that says someone has violated U.S. immigration laws. The NTA then goes to an ICE Attorney who decides whether or not to move forward with the charges and start deportation proceedings by filing the NTA with the Immigration Court.

After she left the ICE office she came to see me. We talked about her fears to return home – as a single woman in her country, her rights were extremely limited and she was afraid of what her future would look like under her abusive father’s control. Asylum was her only option.

Her case was tricky. Did we file for affirmative asylum because the NTA hadn’t been filed with the Court? Not every NTA gets filed with the Court, so we could be waiting for something that may never happen. Or did we wait to see if the NTA was going to be filed and then file a defensive asylum case?

We talked about the options and decided to do affirmative asylum. If the NTA got filed later, so be it.

After 18 months, she had her affirmative asylum interview in Atlanta. Her NTA still hadn’t been filed in the Immigration Court. I talked about it with the Asylum Officer and explained that the Asylum Office, not the Court, had jurisdiction over this case. The Asylum Officer agreed and the interview went on as planned. My client explained her story, crying as she explained why she needed our country to protect her.

A month later, the Asylum Office returned the entire asylum application to me. The cover letter said they could not make a decision on the case because of the NTA. They said only an Immigration Judge could decide her asylum case.

I worked through liaison and explained why this interpretation of the law was incorrect. She was not in proceedings because the NTA hadn’t been filed with the Court. The NTA was only a piece of paper floating in a file somewhere – it had no power until it was in the court system.

Within two weeks, the NTA was filed with the Court. Was it a coincidence? Did someone make it a priority to have this particular NTA filed with the Court after all of this time to make my argument moot? If so, it was a lousy, rotten move.

I had to explain to my client that all the waiting and work she had done was now for nothing. Because the NTA was filed and she was now in deportation proceedings, it was as though the affirmative asylum case had never happened. She wasn’t even eligible for a work card while she waited for her first hearing before the Immigration Judge – scheduled for November 2019.

She was tired – tired of fighting, of being on shaky ground, of relying on others for financial support, tired of having her life stalled. I told her we could continue to fight – that she had been wronged and that I wanted to tell her story to anyone who would listen. But she had lost hope and didn’t have the energy to continue. She decided to return home.

I don’t know if she would have been granted asylum. But I do know that the system failed her. She should have had her case decided on the merits. Instead, she had her life placed in jeopardy because of where a piece of paper may or may not have been nearly 20 months after someone put her name on it.

That’s not justice – it’s a mockery of our immigration laws and ideals.

– Tracie

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