USCIS and Consular Processing Plus
EOIR & ICE Detention & Prosecution Update
March 25 / April 23, 2021
Detention and Removal Defense
Our firm has a strong litigation team, representing clients in detention, and defending those facing removal from the U.S. We handle complex legal issues, as well as cases involving complicated criminal matters. We also handle cases in which a removal order has already been entered, and an appeal or motion to reopen is needed. We often coordinate with criminal defense counsel in order to ensure each client has the strongest possible defense.
- Cancellation of Removal
If a foreign national is in removal proceedings, cancellation of removal may be an available form of relief for both lawful permanent residents and non-residents.
Cancellation of Removal for Legal Permanent Residents
Just because one is a Legal Permanent Resident does not mean that their status cannot be taken away and the person removed from the US. If a Legal Permanent Resident is put in removal proceedings in front of an Immigration Judge, Cancellation of Removal may be an available form of relief, but certain requirements must be met.
To qualify, one must:
- Be a Legal Permanent Resident for at least 5 years;
- Have lived in the U.S. continuously for 7 years or more after being lawfully admitted to the country and before you received a Notice to Appear in removal proceedings;
- Have not been convicted of an aggravated felony; and
- Warrant a favorable exercise of discretion.
Once the case is set for a final hearing, we will present documentation and testimony from witnesses to demonstrate eligibility for Cancellation of Removal. The Immigration Judge will then weigh any negative factors, including past criminal offenses, against other positive factors, such as good standing in the community, length of residence in US, service in the armed forces, consistent record of paying taxes, education, proof of rehabilitation, solid family and business ties, and hardship that will be suffered by qualifying family members if one is not allowed to remain in the U.S. It is important to note that the Immigration Judge has complete discretion to grant or deny the application for Cancellation of Removal. If the Immigration Judge grants the application for cancellation, that individual will be allowed to keep their status as a Legal Permanent Resident. However, if the Immigration Judge denies the application, the person will be ordered removed from the US and will lose Legal Permanent resident status. One can appeal the Judge’s decision to the Board of Immigration Appeals. We have experienced attorneys who can help in applying for cancellation of removal, and/or any necessary appeals.
Cancellation of Removal for Non-Legal Permanent Residents
Someone who is not a lawful permanent resident may still be eligible for Cancellation of Removal in removal proceedings before an Immigration Judge. To be eligible for cancellation of removal, one must establish before a Judge that he or she:
- Has been physically present in the U.S. continuously for 10 years prior to being served the Notice to Appear in Immigration Court. It is important that during this 10 year period, one must have not been out of the country for longer than 6 months during those 10 years and no one trip out of the US lasted more than 3 months;
- Has been a person of good moral character for that entire 10-year period;
- Has not been convicted of certain crimes that make one deportable or inadmissible, such as drug crimes, felony theft or domestic violence; and
- Removal would cause exceptional and extremely unusual hardship for one’s US citizen or Legal Permanent spouse, parent or child.
Once a case is set for a final hearing, we will present documentation and testimony from witnesses to demonstrate eligibility for Cancellation of Removal. The Immigration Judge will then weigh any negative factors, including past criminal offenses, against other positive factors, such as good standing in the community, length of residence in the US, service in the armed forces, consistent record of paying taxes, education, proof of rehabilitation, solid family and business ties in the US, and hardship that will be suffered by qualifying family members if one is not allowed to remain in the U.S. It is important to note that the Immigration Judge has complete discretion to grant or deny the application for Cancellation of Removal. If the Immigration Judge grants the application for cancellation, the applicant will become a Legal Permanent Resident. However, if the Immigration Judge denies the application, the person will be ordered removed from the US. One can appeal the Judge’s decision to the Board of Immigration Appeals. Our experienced attorneys can represent individuals in an application for cancellation for removal and/or any necessary appeals.
- Appeals to the Board of Immigration Appeals
Our office has experienced attorneys that can handle all types of appeals to the Board of Immigration Appeals even if we did not handle the case before the Immigration Court. Once an Immigration Judge issues his decision in a case, an individual or the government can file an appeal with the Board of Immigration Appeals. Everything that happened in the case will be transcribed and filed with the Board of Immigration of Appeals and both sides will receive a copy of the transcript to help in writing the appeal. The Board of Immigration Appeals will issue deadlines for the filing all briefs. Once all the briefs are submitted, the Board of Immigration Appeals will issue a decision in the case that will be binding on all parties. In certain cases, the Board of Immigration Appeals’ decision can be appealed to Federal Court. Since there are very strict deadlines as to when an appeal has to be filed, we recommend you meet with the attorneys in our office to see if we can help in the appeal of your case or represent you in case the government appeals a decision issued in your favor.
- Motion to Reopen
Our firm handles Motions to Reopen and/or Motions to Reconsider before the U.S. Immigration Court, the Board of Immigration Appeals (BIA), the United States Citizenship and Immigration Service (USCIS), the Administrative Appeals Office (AAO), and consular offices of the U.S. Department of State abroad. Motions to reopen and/or reconsider are extremely time-sensitive and require immediate action after the negative decision is issued by the agency or court. Various factors such as the material facts of a case, the relief sought, as well as the person’s eligibility for relief under the applicable law are key to determine whether the filing of a motion of this nature is the appropriate course of action to take on a particular case
In some cases, a waiver may be needed in Immigration Court proceedings (removal, deportation or exclusion), or when a person is applying for adjustment of status or a visa abroad. A waiver may be needed if a person is found to be ineligible to enter or remain in the U.S., but there is a waiver available which would allow them to stay. Most common are waivers for fraud or criminal convictions. Eligibility depends on many factors, such as the severity and recency of the offense, whether the person is already a lawful permanent resident, whether the person has U.S. citizen or lawful permanent resident family members in the U.S., and the ability to show good moral character. Our firm handles the full range of these cases, from straightforward to extremely difficult involving serious convictions, complex legal issues, and/or appeals.
Asylum is a form of protection granted to individuals in the United States who have been persecuted or fear they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion. Individuals who meet this definition of a refugee and who are already in the United States or who are seeking entry into the United States at a port of entry may qualify for a grant of asylum and be permitted to remain in the United States. Individuals who are granted asylum are eligible to apply to adjust their status to that of a lawful permanent resident after one year.
If an individual is not eligible for asylum but establishes that it is more likely than not that his life or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion, that person may be eligible for withholding of removal. These individuals may also be eligible for relief under the Convention Against Torture.
Our offices represent individuals in asylum, withholding of removal and Convention Against Torture claims before the USCIS Asylum Office, the Immigration Court, and the Board of Immigration Appeals. Examples of cases we have won include Political Asylum for a Cuban National based on sexual orientation and being HIV+, Venezuelan nationals who worked in the media covering anti-government protests, and Withholding of Removal for a national of Azerbaijan based on ethnic persecution.
- Bond Proceedings
Our office has qualified attorneys who can represent individuals in immigration bond proceedings. An individual who is detained by the U.S. Department of Homeland Security may be eligible to apply for bond and released pending the outcome of the case. The Immigration Judge will look at factors such as the person’s criminal and deportation history, current immigration status, family members in the US, whether the person poses a flight risk and whether the person is a danger to society. Once an attorney from our office determines than an individual is eligible for bond, we will immediately file a Motion or Request for Bond and/or schedule a hearing in front of an immigration judge along with the documentation to establish why the person should be released. Our office will also contact the individual’s deportation officer to see if they will agree to a bond before the individual’s scheduled appearance in front of an Immigration Judge. During the hearing, our office will present evidence to the judge that highlights a detained person’s eligibility for bond, including the ties to family and community, proof of stable employment, property ownership, evidence of good moral character and the ability to pay the bond. If a bond is granted, it can range from $1,500 up to $20,000, and could be more depending on the Judge and the submitted documents. Once the detained person is released on bond, the individual will be required to comply with all the conditions of release which could include supervision through the Department of Homeland Security and attendance at all future court hearings. If for any reason the person does not comply with any of the conditions of release, the bond could be revoked and the person taken back into custody.
- Temporary Protected Status (TPS)
Temporary Protected Status (TPS) is a temporary immigration status granted to individuals from certain countries, so that they do not have to leave the US and can even obtain work authorization. However, TPS does not lead to a green card or any permanent resident status in the US. TPS will last as long as it is authorized by the Attorney General and, once it is no longer renewed, the individual will go back to the same immigration status he or she had before they obtained TPS.
One may be eligible to apply for temporary protected status if he or she:
- Is a national of a country designated for TPS.
- Applies for TPS during the specified registration period.
- Has been continuously physically present in the United States since the TPS designation began, or since the effective date of the most recent re-designation.
- Has continuously resided in the United States since the date specified in the Federal Register notice of designation.
- Is admissible as an immigrant and are not otherwise ineligible for TPS. Two convictions for misdemeanor crimes may make someone ineligible for TPS.
- U Visas
A victim of certain serious crimes and certain family members may be eligible to apply for a U Visa. The U visa is available to anyone who is the victim of specific crimes who have helped or cooperated with the authorities in the investigation and/or prosecution of the individual who committed the crime. One of the most important requirements in order to obtain a U visa is a certification from a federal, state or local law enforcement officer, prosecutor, judge or any other authority who is responsible for the investigation or prosecution of the crime, certifying the assistance provided to them by the applicant. It is important to note that a certifying official may sign a declaration or certification even if the case is closed, or if a prosecution, arrest or conviction was not made. We also do not need to establish that formal charges or the launch of a formal investigation was begun in order to apply for a U visa. There is also no statute of limitations on a victim’s helpfulness to law enforcement. A declaration or certification may be provided for cases that are closed or for investigations for crimes that occurred months or years ago, as long as the victim was helpful to law enforcement. A U visa applicant can include certain family members such as: (1) if the U visa applicant is under 21 years of age, the person can include their parents, spouse, children and unmarried siblings under 18 years of age; or (2) if the U visa applicant is over 21 years of age, then the person can only include their spouse and children.
If the U visa application is granted, the individual and any eligible family members will obtain lawful status to live and work in the US. Once the individual has had a U visa for three years, the person can apply to become a legal permanent resident and obtain a green card.
USCIS and Consular Processing Plus
EOIR & ICE Detention & Prosecution Update
March 25 / April 23, 2021