Voluntary Departure

2021-03-09 in Immigration Court

“Voluntary Departure” is an option offered by the Immigration Court which, essentially, is an agreement that you will depart the United States within a specified period of time, usually between 60 – 120 days.

Voluntary departure is usually not helpful. It may be helpful if there is a way to return to the United States, such as when you may have entered illegally and, through an immediate relative such as a spouse or child over 21, qualify for conventional consular processing, but not provisional consular processing. Accepting voluntary departure from the Immigration Court, in most other circumstances, is unadvisable compared to taking an order of removal. At Chicago Immigration Advocates, if we review your case we can inform you whether you should accept voluntary departure or not.

Conditional Permanent Residency

2021-03-09 in Immigration Court

People who are granted their legal permanent residency less than 2 years from the time that they were married will receive what is called “conditional permanent residency.” This type of permanent residency is the same as regular permanent residency in all respects, i.e., right to work, right to travel, etc., with one important exception: the legal permanent resident must apply to remove the conditions within three months before the two years expires from the time that he or she initially received permanent residency. This application is done on a form I-751 and requires that the applicant provide information and supporting documents to demonstrate that he or she is still married.

Waivers if Separated or Divorced

If the conditional permanent resident is no longer married, or is separated, United States Citizenship and Immigration Services (“USCIS”) provides several “waivers,” or forgiveness provisions, under which the conditional permanent resident may still keep his or her permanent residency. One requires that you demonstrate that, if you are still married, that your marriage was in good faith and your removal from the United States would cause you extreme hardship. The second requires you to demonstrate that your marriage was in good faith only, but only if you are divorced. The third waiver requires demonstration of battery or extreme cruelty. It is advisable, therefore, to obtain the second waiver, which requires divorce, since it requires only that you demonstrate a good faith marriage.

The provision of law controlling conditional legal permanent residents requires the USCIS to place in immigration proceedings any persons whose I-751 application for removal of conditions is denied. Therefore, if you have filed an I-751 and you have divorced, or are now separated, it is likely that you may be placed in immigration proceedings. Your status as a legal permanent resident is extended during the time that your I-751 is adjudicated or while your case is pending.

Inadmissibility vs Removability

2021-03-09 in Immigration Court

The Immigration and Nationality Act (INA) divides deportation in two separate categories:

Deportation for those who are seeking to enter the U.S. This category of deportation is called an “inadmissibility” proceeding under the section 212 of the Immigration and Nationality Act (“INA”); you may be seeking to “enter” even if you live in the U.S., but are merely returning from a temporary trip out of the U.S., e.g., a returning Legal Permanent Resident.
Deportation for those who are already in the U.S, i.e. those who have been “admitted or “inspected” – this category is now called a “removal” proceeding under section 237 of the INA.
There are significant differences not only between these two categories but also between each category’s basis for deportation. For example:

The “inadmissibility” conditions under section 212 (section which deals with people who have not yet entered the U.S.) do not contain any prohibitions against people who have committed gun crimes.
Conditions under section 237 (section dealing with people who are already residing in the U.S.) do contain prohibitions against people who have committed gun crimes and certain waivers available for persons in inadmissibility proceedings are not available to those in removability proceedings.
It is also critical to know that in inadmissibility proceedings the burden of proof in the case is on the non-citizen to demonstrate that he or she is entitled to remain in the United States. On the other hand, in removal proceedings, the burden of proof is on the government to demonstrate that the non-citizen committed a criminal offense, or violated the immigration law. This difference can have a substantial impact on how your case is decided by the judge and can mean the difference between being deported or not.

If you are being charged, you will receive a “Notice to Appear” which will state which section applies to you.

Both “inadmissibility” and “removal” proceedings are often simply referred to as “deportation” proceedings.

Hearings

2021-03-09 in Immigration Court

Detained Cases

If you are detained, you can expect to have your case decided in anywhere from 2 weeks to 2 months; this is of course, depending upon the issues involved. If you are not detained you can expect that the case will take approximately 6 months to 2 years to be decided; again, the length of the case will vary depending upon the issues involved and the particular judge’s calendar.

Types of Calendar Dates

There are two types of dates given by the immigration court: a “master calendar” date and an “individual calendar” date. The “master calendar” is merely a status date and the “individual calendar” hearing is usually the final hearing date in the case. The “individual calendar” date is usually the date that the case is set for trial where testimony is heard by the Court.

Master Calendar Date

Master Calendar or Status Date: During a status date, you can expect that preliminary matters of the case will be discussed. The master calendar hearing gives your deportation attorney the opportunity to prepare for the individual hearing or trial date.

During a master calendar type of hearing, the judge will usually familiarize him or herself with the issues involved in the case and your immigration attorney will discuss with the judge what type of proof may be necessary. Further, your attorney may discuss with the judge whether any sort of waiver relief may be available for you, the Respondent. This type of date may also be given to allow your deportation attorney time to file motions or briefs. In certain cases this date may allow for you to get fingerprints completed.

Individual Calendar Date

Individual Calendar or Trial Date: In an “individual calendar” hearing, the court will expect the government to be ready to prove its case against you. At the same time, you must be ready to present testimony from witnesses, any another other evidence upon which you will rely to dispute the charges, and/or seek waiver relief if the charges are established by the government. Usually, at this hearing, the judge will render a decision and, thus, conclude your case.

How to Defend the Case

There are two primary goals of the deportation attorney defending a removal case.

First, and obvious to most immigration deportation attorneys, is to try to find a way to win the case based upon your situation. But not all deportation removal cases are easy to win. Therefore, a more complex strategy for winning the case becomes necessary.

In this instance, a good immigration deportation attorney will have a second goal in mind. This goal is to preserve any issues of fact and law for appeal in the event that, on appeal, your case can be distinguished from previous cases. This strategy requires your immigration deportation attorney know what legal issues are unsettled in the particular circuit in which the case sits and in what way they are unsettled.

Issuance of Notice to Appear

2021-03-09 in Immigration Court

After an arrest, usually in several days, a USICE officer issues a document called a “Notice to Appear” which sets forth the reason(s) why you ought not to be permitted to remain in the United States. If you are here illegally or if you have committed a serious criminal offense – which as explained here, can be misdemeanors – you will be issued a “Notice to Appear” and will be required to address any defenses and/or waivers with an immigration judge.

Mandatory Detention

2021-03-09 in Immigration Court

The following classes will be deemed ineligible for bond under the law’s “mandatory detention” provision, if the non-citizen was convicted of the following after October 10, 1998:

  • An aggravated felony,
  • Two or more crimes of moral turpitude,
  • Controlled substance offense of more than 30 grams of marijuana,
  • Firearms offense,
  • Certain miscellaneous crimes, or
  • Single crime of moral turpitude if you were sentenced to a term of imprisonment of at least one year.
  • In addition, irrespective of any criminal convictions, a non-citizen can be held during the course of the proceedings if he or she is (a) an arriving alien, (b) a person with a previous order of deportation or (c) a person subject to deportation on terrorist grounds. A person whose case is pending while detained is referred to as a “detained” case, while a person who is able to make bond and is free during proceedings is referred to as a “non-detained” case.

A detained case will be usually completed within 6 – 12 weeks from the date of the arrest unless we can successfully challenge the mandatory detention. It is important to you that the non-citizen be released during the pendency of the immigration case, there are numerous challenges that can be made against mandatory detention that have not been fully evaluated by the appellate courts and may be worthwhile to pursue through a habeas corpus lawsuit against the USICE. It is critical, however, that you consult with an experienced deportation lawyer to determine various options available to you.

Release from ICE Custody – Bond Determinations

2021-03-09 in Immigration Court

If a non-citizen is eligible for bond, the non-citizen may give the government money in exchange for being released from detention during the time that the case is pending.

Note that with respect to the posting of bond United States Immigration and Customs Enforcement (“USICE”) requires that the person posting the bond be either a U.S. citizen or Legal Permanent Resident. In some instances, although non-citizens are informed that they have a bond, ICE supervisors have revoked or increased the bond before the money is posted, making a bond motion necessary before the immigration court. The person posting the bond must bring proof of citizenship or residency and a cashier’s check or money order made payable to United States Immigration and Customs Enforcement.

The bond money acts as security for the government to ensure that the non-citizen will appear in court and, consequently, it is refunded at the end of the case so long as the non-citizen appears in court and complies with all the other conditions of release. For instance, if voluntary departure from the U.S. is ordered by the Court, the money will be refunded after the non-citizen has left the U.S. In some instances when voluntary departure is granted, the Court may order that additional funds be posted as security to ensure that the non-citizen departs the United States.

Bond Motions in Immigration Court

A bond determination is initially made by a USICE officer after an initial interview and can later be challenged in immigration court, but it may only be challenged once. In many instances where the non-citizen has been convicted of a criminal offense, USICE will not issue a bond and the person will remain detained throughout the case because of “mandatory detention.” See, Mandatory Detention.

If the USICE officer refused to issue a bond or issues a bond that is too high, it is recommended that your deportation defense lawyer file a motion for bond in the immigration court. This can be done even before a Notice to Appear is issued. However, access to the immigration court is limited by the large number of cases; therefore, the motion cannot usually be heard until 7 – 21 days from the date it is filed.

USICE Detainers

2021-03-09 in Immigration Court

When the local police arrest a non citizen for a criminal offense, they will inform USICE that they have a non citizen in their custody depending upon the nature of the offense and the policies of the local police force. USICE will, in turn, file a “detainer” against the person which, under the regulations, requires the jail to not release the person for 48 hours from the time that the person is required to be released in order to give USICE time to take custody of the person. This presents a complex situation in which the case must be evaluated by an experienced deportation lawyer because in some instances it is recommended to pay the bond, which will trigger an arrest by USICE, and other instances, it is not recommended.

Deferred Inspection

2021-03-09 in Immigration Court

Deferred Inspection is the process by which an officer from the USCBP (“United States Customs and Border Protection”) inspects and assists USICE with inspecting you prior to being permitted to enter the country, usually at the airport (in Chicago) or at the border.

If you are a non US citizen and seek entry into the U.S., you will be required to have valid entry documents. If you are a returning non citizen in any status, including a Legal Permanent Resident (“green card” holder), and have any number of arrests in your background, you will be placed in what is called “deferred inspection.”

In this instance, you would be questioned at the airport about the arrests and allowed to enter the country (i.e., “paroled”) in order to permit USICE to conduct a further inquiry. The reason the inspection is “deferred” and not completed at the border or port is because the USCBP does not have all the information concerning the arrests and, second, it is within USICE’s jurisdiction to determine whether you will be admitted.

Deferred Inspection Appointment

The USCBP officer will ask that you obtain certified copies of the dispositions for all your arrests to determine:

Which ones resulted in convictions; and
Which of those convictions, if any, may constitute an inadmissible offense(s).

During a deferred inspection, an experienced immigration attorney will be able to assist you to ensure that the correct interpretation of the offenses is made by the USCBP officer. For example, in some cases, there are offenses which are considered felonies under state law, but under federal law, may actually be misdemeanors. If this is addressed by your immigration attorney at the deferred inspection, sometimes it can prevent you from being issued a Notice to Appear in Immigration Court.

Waivers for Crimes

2021-03-09 in Crime and Immigration

Waiver of Criminal Offenses under §212(c)

Section 212(c) of the INA allows a judge to waive a crime committed before April 1996 but only if the Respondent’s “equities” outweigh the seriousness of the crime. This waiver will apply to any number and type of offenses, even “aggravated felonies”, so long as the total amount of time served for all crimes is not more than five (5) years.

In order for a Respondent to be eligible for this waiver, s/he must plead guilty to the offenses in the criminal court. Sometimes, even crimes committed as late as April 1, 1997 might be covered under this waiver, but that depends on the type of the offense. The judge will consider the seriousness of the offense, but a Respondent cannot be found ineligible for the waiver based on the type of the offense.

On April 24, 1996, the Congress enacted a more restrictive waiver in which the Respondent has a more difficult burden than a section 212(c) waiver. This means that if a Respondent has a conviction after April 24, 1996, then his or her deportation defense lawyer must help him/her determine his or her eligibility under section 240A, discussed below. The §212(c) waiver is available for both types of proceedings: removal and inadmissibility proceedings.

Waiver of Criminal offenses under §240A, “Cancellation of Removal”

Congress placed greater restrictions on who may be eligible for this waiver compared to the 212(c) waiver. The biggest restriction is that a respondent will not be eligible for this waiver if he or she has committed an “aggravated felony,” as discussed above. A respondent will be ineligible for a 240A waiver if s/he has committed a non-petty offense during the first 7 years of his or her legal residency in the U.S. The offense can be either a felony or a misdemeanor.

Waiver of Criminal Offenses under §212(h)

This section is applicable if the offenses were committed after April 24, 1996 and if the Respondent is charged with being “inadmissible” or “removable.” Â It allows for the waiver of most crimes, but usually not aggravated felonies. An “aggravated felony” may be waived under this section, however, if the respondent has committed an aggravated felony but has not been yet admitted to the U.S. as a legal permanent resident. In a recent development, if the person was given legal permanent residence while in the United States, he or she still qualifies for this type of relief even for “aggravated felonies.” Â And, further, he or she can obtain relief under this section if he or she had never before had legal permanent residence, i.e., is currently out of status. Â To take advantage of this waiver, the Respondent must have someone to sponsor him or her.

Pardons and Expungements

A presidential or governor’s pardon may waive certain offenses, but only during removal proceedings. The offenses that can be waived by a pardon are:

  • felony crimes of moral turpitude
  • aggravated felonies
  • multiple crimes of moral turpitude
  • An expungement, however, will not help you in immigration court; if USICE knows about your offense, expunging state’s records does not in any way cover the fact that it is a conviction. Similarly, if a respondent has plead guilty to an offense and received a sentence of supervision – at least in the State of Illinois – it may also constitute a basis to deport, since the guilty verdict has already gone on record.