Relief in Immigration Court

2021-03-10 in Immigration Court

Winning your case in Immigration Court requires asking the Court for “relief.” Relief can take several forms but, in essence, you as the non-citizen must show the Court you have a way to remain in the United States. We have listed the usual forms of relief we have sought in the Immigration Courts for our clients.

This list is ordered from least complex to most complex:

1. Cancellation of Removal for Legal Permanent Residents

This form of relief is for those who are already legal permanent residents, but have received a criminal conviction. An Immigration Judge will permit the person to keep his or her green card but he or she must demonstrate the following:

(1) not convicted of an “aggravated felony” as defined by federal law;
(2) have been a legal permanent resident for at least 5 years; and
(3) have resided in the U.S. continuously for 7 years after having been admitted in any status.

2. Adjustment of Status in Proceedings

If you are the beneficiary of a Petition for Alien Relative, i.e., Form I-130, and you entered legally or someone filed an I-130 Petition for Alien Relative for you prior to April 30, 2001, you qualify to get your green card before an Immigration Judge. The same requirements which apply to those who would seek adjustment before United States Citizenship and Immigration Service (“USCIS”) apply in the Immigration Court. The most difficult thing for clients to establish usually is the legal entry. If there was not a legal entry then we must find out if you or one of your parents was the beneficiary of a I-130 petition filed on or before April 30, 2001 when you were a minor, i.e., under 21 years of age. If so, then you would only pay a fine of $1,000 to be able to adjust status and get legal permanent residency. Note, further, that for those who may have an “aggravated felony” you may seek waiver of that offense with an adjustment of status or re-adjustment of status depending upon your circumstances.

3. Consular Processing – Provisional Waiver (I-601A).

In instances where a non-citizen is married to a U.S. citizen and there was no legal entry, then we can ask the Immigration Court to close your case so that you can seek consular processing by means of the “provisional” waiver program initiated by President Obama. The most complicated aspect of this relief is demonstrating “extreme hardship” your U.S. citizen spouse and/or parents. Hardship to children does not count under the provisional waiver program. The non-citizen must also not have a criminal convictions for the provisional waiver program; a non-citizen can obtain a waiver for certain non-serious criminal convictions by way of a conventional waiver.

4. Cancellation of Removal for Non-Legal Permanent Residents.

This is a form of relief which permits a person who has never had any status in the U.S. to obtain status. It allows a person to remain in the U.S. with a grant of legal permanent residency (“green card”). It is the burden of the non-citizen to show the following:

(1) Resided in the U.S. for at least 10 years; if you left the U.S. you did not leave the U.S. during that 10 year period for more than 180 days and not more than 90 days at one time;
(2) you have not committed any serious crimes and you must be a person of “good moral character” which includes not having spent more than 180 days in jail;
(3) you have a U.S. citizen parent, spouse, or child(ren) who will suffer “exceptional and extremely unusual hardship” if you are ordered removed. The most difficult part of this form of relief is establishing “exceptional and extremely unusual hardship.”

5. U Visa

If you can demonstrate that you were a victim of a crime in which you cooperated with the police to arrest and/or prosecute the perpetrator you may be able to obtain this visa. This visa is obtainable either before the Immigration Court or USCIS and permits waivers for serious criminal offenses, including aggravated felonies.

6. VAWA (Violence Against Women Act)

If you can demonstrate that you suffered abuse at the hands of a United States citizen or legal permanent resident, you can request that you be granted legal permanent residency.

7. Asylum

This form of relief permits people to remain in the U.S. where they demonstrate that they will be persecuted on account of race, religion, gender, political opinion, or as a member of a particular social group. It requires that you file the application within one (1) year of entering the U.S. It also requires demonstrating that you cannot relocate within your home country. Cannot be convicted of a “particularly serious crime” which includes an “aggravated felony.”

8. Withholding of Removal / Withholding under Convention Against Torture

This form of relief is usually for our clients who have serious drug convictions or other “aggravated felonies” for whom this is the only way to remain in the U.S. legally. It requires, generally, that a person show that he or she will be persecuted or tortured by someone in the government, or associated with the government, such as a gang with police ties. See, CAT Claims for our success stories concerning our firm’s success in winning these types of cases. [in progress]

9. Post-Conviction Petition in Criminal Court.

This is not a basis of relief in Immigration Court, but so integral to our approach of winning in the Immigration Court it is necessary to mention it here. Some cases presented by our clients cannot be won without vacating the conviction. We will, in most instances, attempt to ascertain whether winning in Immigration Court is possible with a conviction record. But sometimes, due to the seriousness of the conviction, there is no way around the conviction other than to seek to vacate it through post-conviction relief. Pursuing post-conviction relief before the criminal court of conviction is very difficult and time-consuming, but if you prevail, you no longer need to be concerned about having a negative mark on your record both for immigration purposes as well as employment purposes. It usually requires demonstrating ineffective assistance of counsel before the trial court.

10. Other: Voluntary Departure and Return via Consular Processing

Some books and attorneys will refer to “voluntary departure” as a form of relief. For us, it is rarely a form of relief unless you fully intend to leave and can take advantage of returning to the U.S. legally via consular processing. Voluntary departure permits you to leave within a specified period of time, up to 120 days. It prevents you from getting a deportation order which is one less thing you need for which you would seek a waiver. Voluntary departure has several pitfalls. Not only will it convert into an order of deportation if you do not, in fact, leave and report personally to the U.S. consulate within the designated time period, but it bars relief for 10 years for legal permanent residency. For these reasons, we rarely recommend voluntary departure, unless there is good chance you can return by way of consular processing. Like the provisional waiver program mentioned above, consular processing is the processing of regular waivers, for which persons must submit evidence of “extreme hardship” and, in this instance, more evidence since there is likely more to waive. We recommend regular consular processing for clients who do not qualify for the provisional waiver because of certain criminal convictions or immigration violations.

Appeals

2021-03-09 in Immigration Court

An appeal from the immigration judge’s decision must be filed at the Board of Immigration Appeals. This must be done within 30 days of the decision of the immigration judge. There are no exceptions. If you do not file the Notice of Appeal within 30 days, the decision of the judge becomes final and nothing more can be done except in unusual circumstances.

During an appeal, the most important thing a deportation attorney can do, besides attempting to convince the Board that the immigration judge was wrong, is to continue to preserve any issues of fact and/or law for the record so that if your deportation matter is appealed the circuit court of appeals, your immigration attorney can attempt to distinguish your case from previous cases and, thus, obtain a reversal.

The board of judges convenes in Falls Church, Virginia, outside of the nation’s capital in Washington, D.C. These judges are employees of the U.S. Attorney General, so that a decision from this board is, similar to the decision of an immigration judge, an agency decision. In light of the relationship of the board to the Attorney General, it is less likely to reverse a decision of an immigration judge than a Circuit Court of Appeals.

Circuit Courts of Appeals

In this appeal, you are able to bring the case to the attention of judges who are not employees of the U.S. Attorney General. These judges have lifetime appointments to the court and, thus, they are less likely to be swayed by politics and be indebted to anyone in the government. An appeal to this tribunal must be filed within 30 days of the Board’s decision. The record is usually filed by the government within 40 days of the filing of the notice of appeal, unless the government requests an extension. In this appeal, you can expect it to take anywhere from 8 months to 1 ½ years, if you are not detained, and a much shorter period of time if you are detained.

United States Supreme Court

An appeal to this Court is an option, but it is not your right. In other words, the Supreme Court takes cases at its discretion and may reject your case since it may think that it does not carry enough importance. The main factor which the Supreme Court considers in an immigration case is whether if enough circuit courts have decided the same or similar issue and decided it differently, thus requiring a decision that is uniform throughout the country.

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.