Press Release: U.S. Immigration Policy Causes Michael’s Frozen Custard to Close Location

By: Shabnam Lotfi - Published on August 21st, 2019

For Immediate Release, August 21, 2019

Contact: Jessica Slind, jessica@lotfilegal.com

U.S. Immigration Policy Causes Michael’s Frozen Custard to Close Location

Owner May Be Forced to Move Abroad After His Spouse Was Denied U.S. Visa

MADISON— The owner of Michael’s Frozen Custard, a Madison, Wisconsin institution, is closing one location on September 9th and may have to shut down the business entirely after his spouse was denied a U.S. visa. Michael Dix opened the first Michael’s Frozen Custard location in Madison in 1986. More than three decades later, Michael’s Frozen Custard has expanded to two more locations; has been featured on the Food Network and written up in the New York Times and New York Post; and has earned a place in the hearts of Madisonians of all ages.

But the community is now in danger of losing this fan favorite: Michael Dix’s spouse, Sergio De La O Hernandez, an undocumented Madison resident, was denied a visa that would have allowed him to gain legal status in the United States and rejoin Michael in their Wisconsin home. The two are currently in Mexico, Sergio’s country of origin, evaluating their options.

Michael and Sergio were married on New Year’s Eve of 2015 in an intimate ceremony at their home just outside Madison. Sergio had previous experience working in the frozen custard business, so it was natural for him to assist his new spouse in running Michael’s Frozen Custard. Sergio quickly began directing daily operations, and under his management, their business saw a period of exceptional growth and expansion.

After their marriage, Michael sponsored Sergio for a U.S. visa so that Sergio could acquire legal status and come out of the shadows where so many undocumented people are forced to live their lives. But when Sergio traveled to Mexico to attend his visa interview in August of 2018, he was told that he would neither be given a visa, nor would he be able to rejoin his spouse in Wisconsin, the only home he has known for the last thirty years.

Due to Sergio’s absence, Michael’s Frozen Custard has suffered significant losses in revenue. Michael explains his decision to close one of the business’ locations: “It is with a heavy heart that I will be closing the Monroe Street location—the first Michael’s location—on September 9th to prevent additional losses to our business. My separation from Sergio has been extremely painful for both of us and has been disastrous for my business.”

“We are all extremely disappointed with the government’s decision to deny Mr. Hernandez’s visa,” said Attorney Jessica Slind, an immigration attorney with Lotfi Legal LLC, a Madison-based immigration law firm, who is handling Michael and Sergio’s case. “He has lived in the United States for over 30 years. He has spent that time working hard and contributing to this community, he has a spouse and a daughter here, and he has no criminal record; Mr. Hernandez’s case is more than deserving of an approval under our laws. The denial of his visa is causing this family an enormous amount of pain. And the effects will reverberate throughout the entire community. The closing of Michael’s directly translates into losses for the local economy and the people of Madison.”

Attorney Slind continued, “We are not done fighting for Mr. Hernandez and Mr. Dix. Mr. Hernandez should not be barred from the United States. This family needs to be together in Wisconsin. The cruel immigration policies and rhetoric of the Trump Administration are causing needless suffering to this family and to families around the country. These policies are bad for people, bad for families, and bad for business.”

For Immediate Release, March 13, 2018

Contact: Shabnam Lotfi, info@lotfilegal.com

Lotfi Legal LLC Sues Trump Administration Over Implementation of Travel Ban

The Government’s Blanket Denial of Visas Violates the APA, the INA, and Fifth Amendment

SAN FRANCISCO— Attorneys Shabnam Lotfi and Veronica Sustic, of Lotfi Legal LLC, an immigration firm based in Madison, Wisconsin, filed a class action lawsuit in federal court today over the Trump Administration’s travel ban practices. The proposed class includes U.S. citizens, U.S. lawful permanent residents, and citizens of the Muslim-majority countries who are subject to the travel ban and whose visa applications were denied; many are seeking to be reunited with family members, and many are educated and looking to continue their professional paths in the U.S. Defendants include President Donald Trump, Attorney General Jeff Sessions, Secretary of Homeland Security Kirstjen Nielsen, Secretary of State Rex Tillerson, Acting Director of National Intelligence Dan Coats, and the various agencies they head.

In 2017, President Donald J. Trump attempted to institute three travel bans via executive order and presidential proclamation. Each ban applied mostly to Muslim-majority countries. Federal courts have already found the first two executive orders unlawful. The constitutionality of the third travel ban is currently being litigated at the U.S. Supreme Court. But on December 4, 2017, the Supreme Court decided to allow the Administration to execute the third travel ban while the case was heard on its merits.

Plaintiffs allege that Defendants’ implementation of that interim-permitted travel ban has violated the Administrative Procedure Act (APA), the Immigration and Nationality Act (INA), and the Plaintiffs’ right to due process under the Fifth Amendment to the U.S. Constitution.

Specifically, at issue in this suit is Section 3 of Trump’s third travel ban, which allows for case-by-case waivers under a non-exclusive list of circumstances for visa applicants from the banned countries. To qualify for a waiver, an applicant must prove that: (1) a denial of entry “would cause the foreign national undue hardship”; (2) his or her “entry would not pose a threat to the national security or public safety of the United States”; and (3) his or her “entry would be in the national interest.” Defendants have refused to consider such waivers and have instead issued blanket denials of visas, regardless of personal circumstances and without giving applicants the opportunity to argue their cases, thereby violating the APA, the INA, and Plaintiffs’ right to Fifth Amendment due process.

The State Department has revealed that, as of March 6, 2018, only about a hundred waivers had been granted out of thousands of visa applicants from the banned countries, with a rejection rate of more than 98%.

Attorney Sustic explained, “The government has insisted that the waiver process acts as a safety valve on the travel ban to make sure that deserving people can still get through. The Supreme Court stayed the lower courts’ decisions striking down the travel ban with the understanding that the government was looking at people’s individual circumstances on a case-by-case basis. The Court did not give the government a green light to reject nearly every applicant.”

In light of the government’s practices, Plaintiffs are asking the court to retract past and cease future visa denials pursuant to Trump’s Proclamation. They assert that such intervention is needed to prevent ongoing and future harm to affected applicants and to protect the integrity of the U.S. visa process.  Plaintiffs have suffered significant and irreparable harm, including both opportunity and actual costs.

“The government’s conduct has been reckless. It has had an entire year to figure out how to implement the travel ban and come up with a waiver process, and it has utterly failed,” said Attorney Lotfi, lead Plaintiffs’ counsel in the case. “This case does not need convincing. The Trump Administration’s practices constitute an all-out travel ban.”

Lotfi continued, “We cannot afford to wait for the Supreme Court to rule on the travel ban, because the harm is immediate. People are suffering every day. They need their voices heard now and we intend to make that happen.”

Lotfi Legal LLC is co-counseling with Luis Cortes Romero and Alma David of Immigrant Advocacy & Litigation Center, PLLC and Mark Rosenbaum and Judy London of Public Counsel.

برای دوستانی که فارسی ترجیح می دهند.

WAIVER APPLICATION

United States Embassy

ADDRESS ABROAD

RE: Application for Waiver from “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”

Applicant’s First Name: Maryam

Applicant’s Last Name: Mohammadi

Applicant’s DOB: JAN 1, 19XX

Case number: ABC##########

Dear Consular Officer,

I submit this waiver application because I seek admission to the United States. As this letter explains, denial of the visa would cause me undue hardship. It is in the United States’ national interest to allow me to (Give your reason here: join my American citizen-family in the United States, accept the offer of employment from XYZ Company, etc.). My entrance would not pose a threat to national security or the public safety of the United States. I respectfully request that you grant my waiver application and grant me a visa.

FACTUAL AND PROCEDURAL BACKGROUND

(You should go into some details about your case here: what your relationship is to the US, when you applied for a visa, when you received a receipt notice, when you had an interview, how long you have been waiting, etc.)

Sample: I have a son named Amir Mohammadi, a researcher at the University of Wisconsin, who recently had a baby girl. As an American citizen, Amir applied for me to immigrate to the United States in July 2015. His petition on my behalf was accepted by USCIS and, on April 25, 2016, Amir received a letter from NVC, informing him that they had received his request from USCIS and would schedule a visa interview for me. I traveled to my interview at the American consulate in Yerevan, Armenia, on November 29, 2016. At the interview, the consular officer requested no additional information, and I was told that my visa would be issued in a few months. Although this process generally takes about 3 to 6 months, more than 12 months have now elapsed since my interview, and I still have not heard any news regarding the status of my visa.

APPLICABLE LAW

On September 24, 2017, President Donald J. Trump issued a “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (hereinafter “Proclamation”), and made it effective as of 12:01 a.m. eastern daylight time on October 18, 2017. Proclamation, Sec. 7(b). The Proclamation imposed a suspension or limitation on the entry of, or issuance of visas to, “nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen” beginning on the effective date, but made provision for “case-by-case waivers” for individuals from those seven countries. Sec. 1(h)(ii); Sec. 2.

Under Section 3(c), the Proclamation specifies the following examples of situations when granting a waiver, and issuing a visa, is appropriate:

• (You should only include the bullet points that apply to your situation. For example, if you are not a Canadian permanent resident applying for a visa within Canada, you can delete that bullet.)

• “[T]he foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date . . . of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;”

• “the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date … of this proclamation for work, study, or other lawful activity;”

• “the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;”

• “the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship …;”

• “the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;”

• “the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government;”

• “the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;”

• “the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;”

• “the foreign national is traveling as a United States Government-sponsored exchange visitor; or”

• “the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.”

A waiver may be granted under the Proclamation if, in the consulate’s discretion, a foreign national has demonstrated that (1) a denial of entry “would cause the foreign national undue hardship”; (2) his or her “entry would not pose a threat to the national security or public safety of the United States”; and (3) his or her “entry would be in the national interest.” Sec. 3(c)(i).

Because I meet the three requirements for a discretionary waiver under the Proclamation, the American Embassy in Armenia should exercise its discretion and grant me a waiver and, ultimately, a visa so that I may enter the United States and (rejoin my family, begin my employment with XYZ Company, etc.).

ANALYSIS

A denial of entry would cause undue hardship to me and to my American family.

(Explain here why a denial of your visa would cause you and your family or employer undue hardship.)

Sample: This situation has already caused me immense hardship. I have incurred substantial costs in traveling back and forth to Armenia. As a law-abiding person, I also went through the proper channels and paid all of the required fees to apply for my visa. These costs can be a significant burden, and because I am a retiree, they are costs that I can never recover. My 12 months in limbo has also taken a great emotional toll: I have been separated from my son and have not gotten to experience the joy of meeting my infant granddaughter. I want desperately to join my family and enjoy my retirement with my grandchild.

My son and his wife and daughter have also experienced significant hardship. Amir and his wife are both researchers; my infant granddaughter needs constant care and attention, which is very difficult to provide with their grueling schedules at the University of Wisconsin. All of their lives would improve immeasurably if their grandmother were there to provide love and support.

My son also suffers from asthma, which puts him in the emergency room every now and then. I have enclosed medical documents demonstrating the severity of his condition. It is an ongoing hardship for him to not have me by his side for support.

More examples of hardship that may apply to your situation:

• Medical hardship: Health considerations, including inability of your home country to provide treatment, which can be argued on the basis of prohibitively high costs or inadequate/substandard treatment, hospital conditions, or availability of medicine

• Education and professional development

• Financial

• Family and emotional support

• Safety and future family

• Best interests of children directly affected by decision

• Family violence considerations

• Factors in home country, including adverse country conditions, e.g., war; natural disasters; unfair treatment of minorities; political instability; lack of employment; widespread violence; discrimination based on race, political affiliation, or religion

• Hardship for the employer: XYZ Company went through the process of obtaining a labor certification from the Department of Labor because it recognized that my skill in mechanical engineering is unique and is not found among American workers and that it would benefit the business to secure my expertise.

My entry would not pose a threat to national security or public safety.

(Explain why you are not a threat.)

Sample: I am a law-abiding person. I am older than 60, and have never had a single encounter with law enforcement. I have no criminal record and no ties to any terrorist organizations. I have made trips to the United States in the past—in 2002, 2005, and 2012—and I have always respected the laws of this country and left the United States as required. Further, I am a retired teacher who dedicated my life to nurturing young people. I in no way pose a threat to national security or public safety.

My entry would be in the national interest.

(Explain why your entry would be in the national interest.)

Sample: I seek to enter the United States to be reunited with my son and granddaughter and to provide the support that my American son and daughter-in-law need to continue contributing to the United States through their work as researchers and that my granddaughter needs to grow up happy and loved. It would be in the national interest to allow me to reunite with my family so that we may continue to contribute and find success in the United States.

My unique skill set will benefit XYZ Company and, in turn, the local economy. Because I already have a job lined up with XYZ Company, I will not require government money in the form of social services.

CONCLUSION

For all the reasons stated above, I am deserving of favorable discretion. I respectfully request that the consulate grant my waiver application and grant me a visa.

Sincerely,

                                                                                    Maryam Mohammadi

The Diversity Immigrant Visa Program (DV Program) allows the US government to issue up to 50,000 immigrant visas annually. In order to qualify, an applicant must be a national of a country that is not well represented in the US. Individuals apply in November of each year and are selected in May of the following year. Then, applicants are given less than 1 year to complete the DV program requirements. This includes submitting all required documents to the US Department of State and attending an interview at a US embassy abroad. The tiniest error in an application is grounds for denial. For example, if the applicant mistakenly uploads a photo of themselves that does not meet the legal requirements, they have just lost their opportunity.

Sometimes though, an applicant can meet all the legal requirements and submit a perfect application and still be denied. In this video, we discuss such a case.

This informational video was created to inform US green card holders about the risks associated with international travel, particularly for those who have criminal records. As always, we try to provide the most important pieces of information in the least amount of time. We recognize that our audience members live busy lives, and we respect their time. We also pride ourselves on providing top level information and cutting out unnecessary legal jargon. Our goal is to make the law easy for people to understand, not more complex.

Please also note that this video is for information purposes only. It does not create any attorney-client relationship.

A diversity lottery winner received this letter from the US Embassy in Yerevan today. He was told to either provide documentation regarding his “bona fide” relationship, or to come back in 90 days. He was given this letter.

There are a number of things wrong with this letter. First, it doesn’t address the fact that the person may have a bona fide relationship with the US in the form of employment, schooling, or investments. The letter only mentions family relations and neglects other ways of establishing a bona fide relationship.

Secondly, the letter doesn’t mention that the individual may also apply for a waiver. The second executive order allowed for applicants to apply for a waiver  “if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest.”

We strongly recommend that applicants who believe that they have a “bona fide relationship” with the US – whether in terms of family, employment, or school – to provide the embassy with this documentation. Such documentation may include birth certificates, marriage certificates, job offers, photos, leases, business investments, bank accounts, property ownership, etc…  If applicants do not meet this criteria, they should be prepared to ask the consular officer for a waiver.

Our office is always happy to assist you. Please email info@lotfilegal.com to schedule a consultation.