|MICHAEL BAKER | ATTORNEYS AND COUNSELORS|
DEPORTATION & REMOVAL PROCEEDINGS AND DEFENSES
The most significant changes in the Immigration Act of 1996 concern those in deportation and exclusion. In fact, the new act removes the terms deportation and exclusion and replaces them with a new term known as "removal proceedings". Formerly there had been a difference between the status of an alien who had physically entered the United States (whether legally or illegally), who would be subject to deportation proceedings, and that of an alien who was apprehended at the border, before entry to the United States, who would be subject to exclusion proceedings. However, the new act does away with these distinctions generally, and now uses the term removal proceedings to describe those whom the immigration service wishes to expel from the United States.
The immigration act still distinguishes between those aliens who are inadmissible to the United States, and those who are in the United States and subject to deportation. Section 212 of the Immigration & Nationality Act lists ten (10) general classes of aliens who are ineligible to receive visas and are ineligible for admission to the United States. Section 237 of the Act lists the general classes of aliens who are deportable from the United States. These contain six (6) main classifications, within which are contained numerous sub- classifications. Both sections 212 and 237 are described in much greater detail in the following portions of the manual.
GENERAL OVERVIEW OF GROUNDS OF INADMISSIBILITY AND DEPORTATION
For many aliens, their first meeting with the immigration service is when they are arriving at a port of entry to the United States. This can be an airport, a seaport, or a border crossing point. Whenever an alien attempts to enter the United States, he or she must convince the immigration officer that the purpose of the entry is lawful, complies with the type of visa that they are carrying, and that they are otherwise admissible to the United States. In other words, if they are not admissible, because of one of the grounds of inadmissibility in section 212 of the Immigration Act, they will not be permitted to enter the United States.
The grounds of inadmissibility are as follows:
(1) Health related grounds: This includes those who have certain communicable diseases such as tuberculosis, and sexually transmitted diseases including the HIV virus and AIDS. A waiver is available to an alien who is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa, or has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, provided they follow any requirements of the applicable health department, including the posting of any bond that may be required. In addition, the Immigration Reform Act of 1996 now requires all persons who are seeking permanent residence in the United States to be vaccinated for a variety of illnesses, including polio, mumps, measles, etc. If the proper vaccine were received, then the ground of inadmissibility would be removed. Furthermore, an alien who is determined to have, or sometimes, have had, a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, is inadmissible, but a waiver is available upon following the requirements of the health department and posting the applicable bond. Drug addicts and drug abusers are inadmissible, and no waivers are provided for under the act.
(2) Criminal and Related Grounds: An alien who has been convicted of a crime involving moral turpitude, or of a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance is inadmissible. Also, any alien convicted of two or more offenses, even if they did not involve moral turpitude, is inadmissible if the aggregate sentences to confinement actually imposed were 5 years or more. An alien whom the consular or immigration officer knows, or has reason to believe, is or has been an unlawful trafficker in any controlled substance is inadmissible. Additionally, any alien who is involved in prostitution or commercialized vice is inadmissible.
An alien inadmissible on criminal grounds may be granted a waiver under section 212(h) of the Immigration and Nationality Act if the alien is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence; can establish that the US citizen or lawful permanent resident relative will suffer extreme hardship if the waiver is not granted; and that the admission of the applicant would not be contrary to the national welfare, safety, or security of the United States. In addition, if the crime were committed more than 15 years before seeking admission, the alien need show only rehabilitation and that the admission of the alien would not be contrary to the national welfare, safety, or security of the United States.
The waiver application is filed on immigration form I-601, with a filing fee, and proof of the qualifying relationship. Also, you must attach whatever evidence you have that extreme hardship will be caused to the US citizen or lawful permanent resident relative if the waiver is not granted.
Under the Immigration Reform Act of 1996, no waiver may be granted under this section if the alien had earlier been admitted to the US as a permanent resident, and since said date had been convicted of an aggravated felony, or the alien had not resided lawfully in the US for at least seven (7) years.
(3) Security and Related Grounds: This ground of inadmissibility is about any alien who seeks to enter the United States to engage in espionage, to import or export any illegal security items, who seeks the overthrow of the US government, who has or seeks to engage in terrorist activities, whose actions will have serious foreign policy consequences for the United States, is a member of a totalitarian party, or took part in Nazi persecution or genocide.
(4) Public Charge: Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible. The factors to be considered in determining whether an alien is likely to become a public charge include the alien's age; health; family status; assets, resources, and financial status; and any affidavit of support given for the alien.
(5) Lack of Labor Certification: Any alien who seeks to enter the United States, on a permanent basis, for performing skilled or unskilled labor is inadmissible unless he or she has first obtained a labor certification from the Department of Labor certifying that there is a shortage of workers in the alien's occupation in the part of the country where the alien will be employed. A labor certification is unnecessary if the alien is entering pursuant to a petition filed in the family preference category, or on a nonimmigrant visa, as an investor, or as a refugee. Aside from the above, certain aliens entering as medical doctors or health care workers are admissible only if they have first passed the required medical or health care exams and have a proper certificate evidencing such compliance.
(6) Illegal Entrants and Immigration Violators: These include aliens who have entered the United States without admission or parole; those who have failed to attend a removal proceeding; those who have willfully misrepresented a material fact, or committed fraud in seeking entry to the US; or have falsely claimed US citizenship; or a nonimmigrant alien who has fraudulently obtained a public benefit; and stowaways and alien smugglers.
A waiver exists for those who are present in the US without admission or parole if they can establish that they are a battered spouse or child. In addition, a waiver exists for those who have committed fraud, or have made a material misrepresentation, if the alien is the spouse, son, or daughter of a United States citizen or lawful permanent resident alien, and that the refusal of admission to the United States will cause extreme hardship to the citizen or lawfully resident spouse or parent of such alien. The waiver application is filed on immigration form I-601, with a filing fee, and proof of the qualifying relationship. Also, you must attach whatever evidence you have that extreme hardship will be caused to the US citizen or lawful permanent resident relative if the waiver is not granted.
(7) Documentary Requirements: This class includes aliens seeking to enter as immigrants or nonimmigrants who do not have the proper entry documents, including valid passports, visas, alien cards, etc. A waiver exists in cases of unforeseen emergencies; or where the alien is a citizen of a country that has a treaty with the US for admission of its nationals without the necessary documentation; or where the alien is proceeding in direct transit through the US.
(8) Ineligible for Citizenship: Any alien seeking to enter as an immigrant who is permanently ineligible to citizenship is inadmissible. This includes those who have evaded the draft, but does not include those aliens who seek to enter the United States only as nonimmigrants.
(9) Aliens Previously Removed: This class of inadmissibility applies to those aliens who have been ordered removed from the United States. Generally, they are ineligible to reenter the United States for a period of five years following the removal order. The period is increased to twenty (20) years if it is a second removal, or it is a permanent bar if the alien were removed for the commission of an aggravated felony.
This section also contains a ground of inadmissibility for aliens who are "unlawfully present" in the United States. This section was added by the Immigration Reform Act of 1996, and is considered one of the most extreme measures in the new act. This provision provides that any alien who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, (after April 1, 1997), voluntarily departed the United States, whether under a removal order or not, and who again seeks admission within 3 years of the date of the departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such departure or removal is inadmissible. Unlawful presence means the alien's presence in the United States after the period of stay granted by INS, or if the alien is present in the United States, without being admitted or paroled. Besides all the above, an alien who has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed and who enters or attempts to enter the United States without being admitted is inadmissible.
Several exceptions exist. These include minors under the age of 18; those who have filed a bona-fide application for asylum; those who qualify for the family unity program; battered women and children; and those who have filed a non-frivolous and timely application for an extension of stay or change of status and have not been employed without authorization in the United States. However, this extension of time while an application is undecided shall not exceed 120 days.
A waiver is available under the three (3) and ten (10) year bars for an alien who is the spouse or son or daughter of an US citizen or permanent resident, and if it is established to the satisfaction of the immigration service that the refusal of admission to such immigrant alien would lead to extreme hardship to the citizen or lawfully resident spouse or parent of such alien. As with many other provisions of the new act, no court review of the immigration decision is permitted.
(10) Miscellaneous Provisions: There are several other classes of aliens who are inadmissible. These include practicing polygamists; guardians who are required to accompany helpless aliens; international child abductors; unlawful voters; and former citizens who renounced citizenship to avoid taxation.
Besides the grounds of inadmissibility mentioned above, an alien can also be removed from the United States based on the grounds in Section 237 of the Immigration and Nationality Act, which is entitled "General Classes of Deportable Aliens". There are six (6) general grounds listed, which include the following:
1. Aliens who were inadmissible at the time of entry or adjustment of status, or who have otherwise violated their status, such as those who have worked without authorization or have overstayed their time in the United States. Also included are aliens whose conditional residence status has been canceled, those who had engaged in alien smuggling, and aliens who have engaged in marriage fraud.
2. Aliens who have been convicted of a crime involving moral turpitude committed within five years after the date of admission, where the maximum sentence, which could be imposed for the crime, is one year or longer, is deportable. Also, an alien who at any time after admission is convicted of two or more crimes involving moral turpitude is deportable. These deportation grounds also include aliens who are convicted of controlled substance violations (other than a single offense involving possession for one's own use of 30 grams or less of marijuana), as well as drug abusers and drug addicts, and those who have been convicted of any firearms violations. The new act also makes deportable those aliens who have been convicted of a crime involving domestic violence, stalking, or child abuse. Also, any alien who is convicted of an aggravated felony at any time after admission is deportable. An aggravated felony is described in Section 101 (a) (43) of the Immigration Act. These are crimes which the Immigration Service considers particularly serious, and which will prevent nearly all forms of relief.
3. An alien is deportable for failure to register a change of address (unless the alien establishes that such failure was reasonably excusable or was not willful); for any conviction related to the use of false documents; or for falsely claiming US citizenship.
4. An alien may also be deported for a violation of security and related grounds such as terrorist activities, engaging in actions which could have potentially serious adverse foreign policy consequences for the United States, and if he or she has engaged in Nazi persecution or genocide.
5. Any alien who becomes a public charge within five (5) years of entry, from a cause that did not arise after entry, is also deportable.
6. Finally, any alien who has voted in violation of any Federal, State, or local law is deportable. Now that you know the reasons the immigration service may arrest you and deny entry to the US, or may seek your deportation from the US, it is important to know whether you can get a bond to be released from immigration custody, as well as your rights to contest the decision made by the immigration officer.
DETENTION AND BOND: When discussing the right to an immigration bond, you must understand the difference between an alien who has been admitted to the United States and one who is simply an applicant for admission. The new immigration act describes applicants for admission as those who are arriving in the US as well as those present in the US who were not admitted.
What happens to an alien who arrives at a port of entry and the immigration officer believes that he or she is inadmissible? One of the most controversial provisions of the new immigration act provides that certain aliens who attempt to enter the US by fraud or misrepresentation, or who arrive without valid documents, may be removed under an expedited process without a further hearing. The alien is no longer permitted to have a hearing before an immigration judge. This new rule, however, does not apply to those claiming to be lawful permanent residents, refugees, or asylees. In addition, those entering without proper documents, who indicate an intention to apply for asylum or express a fear of persecution, must be referred to an asylum officer to determine if the alien has a credible fear of persecution. An asylum officer, usually at an INS detention facility, will conduct these interviews.
For aliens who may be inadmissible on grounds other than false documents or misrepresentations, the immigration service will usually detain these aliens at a detention facility until they can be scheduled for a hearing before an immigration judge. There is no right to a bond for persons seeking admission to the US, and they will be paroled from custody only in a few situations, such as medical emergencies. If an alien can establish a credible fear of persecution, then they will be eligible for parole. At the present time, the immigration service intends to apply the expedited removal proceedings only to arriving aliens, and not to those inadmissible aliens found within the US.
Under the new immigration act, the immigration service must take into custody any inadmissible alien who has been convicted of a crime involving moral turpitude, who has violated any law on a controlled substance, who has been convicted of two or more offenses where the total sentences to confinement imposed is more than five years, who has been convicted of any crime related to prostitution, or who has been involved in any terrorist activity. Also, a deportable alien must be taken into custody if convicted of one crime of moral turpitude committed within five years of his or her last entry if a sentence of one year or more was imposed, or if convicted of two crimes of moral turpitude committed at any time after entry, or if convicted of an aggravated felony, or if convicted of a drug or firearms offense, or is a drug abuser or addict, or if involved in terrorist activities.
Under current regulatory enforcement practice this law allows the mandatory detention without bail of all aggravated felons released after October 9, 1998 regardless of whether they actually pose a danger to the community or whether they are a flight risk. There is no administrative or judicial review of the INS detention. However, any immigrant who completed his or her criminal sentence before October 9, 1998 can be considered for release from detention. If the INS does not release the immigrant, he or she can apply for a bond redetermination hearing before an immigration judge, and can appeal any negative decision to the Board of Immigration Appeals (BIA). The provisions of section 236(c) of the Act "shall apply to individuals released after" October 8, 1998, the date which the Transition Period Custody Rules expired. See, Matter of Adeniji, Interim Decision #3417 (BIA 1999); 8 C.F.R. Sec. 236.1(c)(8)(2000). (.pdf file)
The mandatory detention provisions of section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1226(c) do not apply to an alien who was convicted after the end of the Transition Period Custody Rules-October 8, 1998, but who was last released from the physical custody of state authorities before the end of the Transition Rules and who was not physically confined or restrained because of that conviction. In re Neville George WEST, Interim Decision #3438, October 26, 2000. (.pdf file)
For other aliens who have been admitted and have not been convicted of serious crimes, an immigration bond is available. Usually the arresting immigration officer, with the concurrence of a supervisor, will set a bond at the time of the arrest, in an amount of at least $1,500.00. The amount of the bond will depend upon many factors including the seriousness of the immigration ground of deportability, the length of time the alien has been in the United States, any family ties that the alien has in the United States, the possibility of any relief from deportation, etc.
If the alien is satisfied with the bond, and has the means to post it, (either in cash or through a bail bondsman), it can be posted and the alien will be released from custody. The alien will be provided with a Notice to Appear, which is the official charging document in the case. (This will be discussed in greater detail in the next section.) In addition, the new immigration act prohibits the grant of work authorization to the alien while he or she is on bond, unless the alien is lawfully admitted for permanent residence, or otherwise would be provided such authorization.
If the alien is not satisfied with the bond amount, or if no bond is set, he or she may request a hearing before an immigration judge to set, or to redetermine the bond. While waiting for a bond hearing, the alien will be detained in INS custody. During the bond hearing, the alien may be represented by an attorney. The alien and the attorney may present evidence on the alien's behalf, and they have the right to examine the documentation that the immigration service uses at the hearing. The key determinations in deciding whether to grant bond, and in what amount, are whether the alien is a security risk and whether the alien is likely to appear at all future court and immigration hearings. In that regard, the immigration judge will look at the same factors that the immigration officer looked at when making the initial bond decision. Either the alien or the immigration service may appeal the bond decision of the immigration judge. This appeal must be filed with the Board of Immigration Appeals.
The Basic Rule: If a noncitizen, who is convicted in state or federal court of any common crimes on the "one-year" list, receives a sentence imposed of one year or more (even if execution is suspended), s/he will be considered an aggravated felon by the INS.
The aggravated felony conviction will trigger many adverse immigration consequences. Cancellation of Removal relief is now wholly unavailable to anyone with an aggravated felony conviction. INA sec. 240A(a)(3). And a separate change further narrowed its availability to those permanent resident aliens whose criminal offense still falls below the aggravated felony threshold, because the required seven years' residence must be acquired before commission of the offense. INA sec. 240A(d).
The One-Year List. The following offenses constitute aggravated felonies only if custody of one year or more was ordered by the sentencing court: accessory after the fact, bribery of a witness, burglary, commercial bribery, counterfeiting, crimes of violence, document fraud, forgery, obstruction of justice, perjury, receipt of stolen property, subornation of perjury, theft, trafficking in vehicles with altered identification numbers.
Definition of Sentence. For immigration purposes, a period of confinement ordered by a judge for an offense, "regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part" will be counted as the term of the sentence.
(1) What counts are the formal sentence to custody ordered by the court. If the court orders a sentence of one year in custody is served, but the defendant actually serves only eight months because of good behavior, s/he has received a "sentence imposed" of one year for immigration purposes, and would be deportable as an aggravated felon if the offense is on the list.
(2) The duration of probation does not count as a sentence to confinement for this purpose. Thus, if imposition of sentence is suspended, and the defendant is placed on probation for three years on condition of serving six months in county jail, that is a "sentence imposed" of only six months, not enough to cause a listed offense to be considered an aggravated felony.
(3) If sentence is imposed, and the execution of sentence is suspended; the full sentence imposed nonetheless counts as a sentence imposed for immigration purposes. For example, if the defendant is sentenced to three years in state prison, and execution of that sentence is suspended, and the defendant is placed on probation on condition of serving six months in county jail that counts as a "sentence imposed" of three years.
(4) Getting treatment of the conviction as a misdemeanor under state law does not defeat consideration of the conviction as an aggravated felony if the conviction and sentence meet the definition. In other words, conviction of a listed offense as a misdemeanor, with a sentence imposed of one year, is an "aggravated felony" although the offense is only a misdemeanor under state law.
(5) Deferred entry of judgment, and similar programs, are ineffective to prevent consideration of a conviction as an aggravated felony, if one year of custody or more is ordered by a court after a guilty or no contest plea.
(6) Concurrent sentences are evaluated as the length of the longest sentence. Indeterminate sentences are counted as the maximum sentence.
Criminal Offenses. (A) General crimes:
(i) Crimes of Moral Turpitude. Any alien who - (I) is convicted of a crime involving "moral turpitude" committed within five years (or 10 years for an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.
(ii) Multiple Criminal Convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and despite whether the convictions were in a single trial, is deportable.
(iii) Aggravated Felony. Any alien who is convicted of an aggravated felony (Sec.1101(a)(43) at any time after admission is deportable. ( click on link for pdf document)
(Classes of Deportable Aliens, United States Code, Title 8 - Aliens and Nationality, Chapter 12 - Part IV, Inspection, Apprehension, Examination, Exclusion, and Removal; also, Definitions, the term ''Aggravated Felony'', Sec.1101(a)(43), Immigration and Nationality Act.)
IMMIGRATION COURT PROCEDURES AND ALIENS' RIGHTS
The Immigration Reform and Control Act of 1996 does away with the distinction between deportation and exclusion proceedings, and replaces them with a new "removal proceeding." There are two classes of persons subject to removal proceedings: (1) aliens who were not admitted and, therefore, are inadmissible under Section 212 of the Act; and (2) aliens, who were admitted, but are now deportable under Section 237 of the Act. Admitted means the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
Removal proceedings begin with the issuance of a Notice to Appear. The Notice to Appear will state the charges against the alien and the reasons the immigration service believes the alien to be deportable. It must be given in person to the alien or, if not practicable, through service by mail to the alien or to his or her attorney. The alien must provide the immigration court with a written notice of any change of address or telephone number. The Notice to Appear will also explain to the alien the consequences of his or her failure to appear at all scheduled hearings, including the court's right to hold a hearing, and order deportation in the alien's absence, as well as the alien's right to be represented by an attorney of his or her choice, as long as it is at no expense to the government. A list of pro-bono attorneys, who can represent the alien at no cost, or a low cost, will also be provided. The immigration service will be represented by one of its attorneys known as a trial attorney.
If an alien fails to appear at a scheduled hearing (except under exceptional circumstances, such as a serious illness to the alien or death of an immediate family member), not only can an alien be ordered deported in absencia, but he or she can also become ineligible for further relief later, such as voluntary departure, adjustment of status, and cancellation of deportation.
An alien must be given at least ten (10) days following receipt of the Notice to Appear, before a hearing can be scheduled. A hearing may happen with the alien present; or where agreed to by the parties, without the alien; or through video conferencing; or by telephone as long as the alien has been informed of the right to proceed in person or through a video conference.
At the hearing, the alien will be permitted to be represented by an attorney, as mentioned above. In addition, the alien will be given a reasonable opportunity to examine the evidence against the alien (except for national security information), to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the government. A complete record shall be kept of all testimony and evidence produced at the hearing.
The immigration service has the initial burden of proving that the person in court is not an US citizen. If the service cannot prove this point, then the judge must dismiss or terminate proceedings because of lack of jurisdiction, since a judge can only preside over cases involving non-US citizens. If INS proves that the person is not an US citizen, or if the alien admits this, then the burden shifts to the alien. If the alien is an applicant for admission, then he or she must show beyond doubt that he or she is entitled to be admitted, and is not inadmissible under section 212. If the alien had been admitted to the US, then he or she must show by clear and convincing evidence that he or she is lawfully present pursuant to a prior admission. To meet this burden, the alien is entitled to have access to the alien's visa or other entry document, if any, and any other records and documents, not considered being confidential, about the alien's admission or presence in the United States.
If the person shows that he or she is lawfully present under a prior admission, the burden shifts to the INS to prove that he or she is deportable. The decision of the immigration judges on deportability must be based on reasonable, substantial, and probative evidence.
Either the alien, or the immigration service, may appeal the decision of the immigration judge, which appeal would be filed with the Board of Immigration Appeals in Falls Church, Virginia. Sometimes, the alien or the immigration service may choose to file a motion to reopen or motion to reconsider instead.
RELIEF FROM DEPORTATION/REMOVAL INCLUDING VOLUNTARY DEPARTURE AND CANCELLATION OF REMOVAL
Voluntary Departure: A person subject to deportation or removal from the United States may still be eligible for some forms of relief, even under the harsh provisions of the Immigration Act of 1996. The most common form of relief requested is known as voluntary departure. Voluntary departure is the right to depart the United States at the alien's own expense, and with the concurrence of the immigration service or the immigration judge. By leaving under an order of voluntary departure, the alien does not have an order of deportation entered against him or her and, usually, it would permit the alien to apply for a new visa to enter the United States.
The 1996 act, however, has placed numerous restrictions on the grant of voluntary departure. The new act authorizes th e voluntary departure at two distinct times during the removal process. The first is before the conclusion of removal proceedings, and the other is at the conclusion of removal proceedings.
In addition, the act places new requirements on an alien who is granted the voluntary departure. The regulation provides that the immigration service may attach to the grant of voluntary departure any conditions it deems necessary to ensure the alien's timely departure from the United States, including the posting of a bond, continued detention while awaiting departure, and removal under safeguards. The alien shall be required to present to the service, for an inspection and photocopying, his or her passport or other travel documentation adequate to assure lawful entry into the country which the alien is departing, and the service may hold the passport or documentation for sufficient time to investigate its authenticity.
Before a removal hearing, the immigration service may grant the voluntary departure, and extensions, for a period not to exceed 120 days. A Voluntary departure may be granted only if the alien r equests it and agreed to its terms and conditions. The alien will be notified of the decision on Form I-210, Notice of Action--Voluntary Departure. If voluntary departure is denied by the immigration service, the alien may renew the request before an immigration judge in removal proceedings.
An alien who is granted a voluntary departure, and fails to depart the United States within the time required, shall thereafter be ineligible, for a period of ten years, for voluntary departure, as well as other forms of relief such as adjustment of status, cancellation of removal, change of nonimmigrant status, and registry.
An alien may also be granted a voluntary departure during removal proceedings before an immigration judge. The alien must make the request prior to or at the master calendar hearing, must make no additional request for relief, must concede removability, must waive appeal of all issues, must not have been convicted of an aggravated felony, and is not deportable under security or related grounds. The immigration judge may grant the voluntary departure for a period not to exceed 120 days.
If the request for a voluntary departure is made more than 30 days after the master calendar hearing, the judge may grant voluntary departure for up to 120 days only if it is agreed to by the immigration service. In addition, an immigration judge may grant voluntary departure at the conclusion of a removal hearing only if he or she finds that the alien has been physically present in the United States for a period of at least one year preceding the date the Notice to Appear was served upon the alien; the alien is and has been a person of good moral character for at least five years immediately preceding the application; the alien has not been convicted of an aggravated felony nor is a security risk; and that the alien has the means to depart the United States and has the aim to do so. The Voluntary departure granted at the conclusion of proceedings is limited to 60 days.
The alien must present a valid passport or travel document, and shall be required to post a voluntary departure bond in an amount not less than $500.00. The bond must be posted within five business days of the judge's order, and the immigration service may hold the alien in custody until the bond is posted. In order for the bond to be canceled and returned to the alien, the alien must provide proof of departure to the immigration service. If the bond is not posted within five business days, the voluntary departure order shall vacate automatically and the removal order shall become effective.
A judge's decision denying voluntary departure can be appealed, but no appeal is permitted regarding the length of the voluntary departure granted.
Cancellation of Removal for Permanent Resident Aliens --An alien who is deportable from the United States may still be able to remain if an immigration judge has canceled their departure. The 1996 act created a form of relief for aliens in removal proceedings and named it "cancellation of removal." There are two types of cancellation of removal: the first is cancellation of removal for permanent residents, while the second is cancellation of removal and adjustment of status for nonpermanent residents.
Cancellation of removal for permanent residents, (previously known as 212(c) relief), is available to an alien who is inadmissible or deportable from the United States if the alien: (1) has been an alien lawfully admitted for permanent residence for not less than five years (2) has resided in the United States continuously for seven years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.
Cancellation of removal and adjustment of status for nonpermanent residents (earlier known as suspension of deportation), is available to an alien who is inadmissible or deportable from the United States if the alien: (1) has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of a criminal offense or security or terrorist related crime; and (4) establishes that removal would lead to exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
A special rule exists for a battered spouse or child. In such cases an immigration judge may cancel removal if the alien demonstrates that: (1) he or she has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident, or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent; (2) the alien has been physically present in the United States for a continuous period of not less than three years immediately preceding the date of such application; (3) the alien has been a person of good moral character during such period; (4) the alien is not inadmissible as a criminal or terrorist, and has not committed an aggravated felony; and (5) the removal would result in extreme hardship to the alien, the alien's child, or (in the case of an alien who is a child), to the alien's parents.
Cancellation of removal for permanent resident aliens does not specifically require that the aliens have been continuously physically present in the United States, nor any specific showing of hardship. It also does not expressly require any showing of reformation or rehabilitation. However, based on court interpretations of the previous section 212(c), it must be assumed that these will be factors that the court will consider in deciding whether to grant the relief requested. (A more thorough review of the factors, which a court will consider in deciding whether to grant relief, will be discussed shortly).
Cancellation of removal for nonpermanent residents (formerly suspension of deportation) has been made more difficult to obtain under the new law. For instance, the 1996 Act requires that the hardship be "exceptional and extremely unusual" whereas earlier it had only been "extreme" hardship. Congress clearly stated that the alien must provide evidence of harm "substantially beyond that which ordinarily would be expected to result from the alien's deportation." In addition, the hardship must now be suffered by the alien's US citizen or lawful permanent resident spouse, parent, or child, and can no longer be only the alien's own hardship. Furthermore, the new act restricts this form of relief to any alien who has not been a person of good moral character at any time during the relevant period which, according to the immigration position, is at any time during the alien's stay in the United States.
Another area changed by the 1996 Act is on physical presence and continuous residence. The new law states that any departure of more than 90 days, or aggregate absences of more than 180 days, break physical presence. In addition, the new law provides that physical p resence and continuous residence are terminated upon the earlier of either of two occurrences: (1) when the alien is served with a notice to appear; or (2) when the alien has committed an offense that would make the alien deportable as a criminal or subversive. Therefore, any time spent in the US after either of these occurrences would not add to the time necessary for the alien to apply for a cancellation of removal.
What are the factors that a judge will consider in determining whether the alien has established hardship? The Board of Immigration Appeals in Matter of Anderson, listed twelve factors that it would consider in determining whether hardship existed in a case. These factors include economic hardship; the economic and political conditions in the country which the alien will return; financial status, including business and occupation; the age of the applicant and family; the health of applicant and family; length of residence in the US; family ties in the US; adaptation to the American way of life; attachment to American friends and community; involvement in civic and other community activities; the possibility of obtaining permanent residence in some other way; and the alien's immigration history.
It is important to remember that the alien has the burden of proving that hardship exits. Therefore, the alien should be prepared to bring witnesses to the court with documentary evidence that establishes the key points in his or her case. Where witnesses are not available, the alien should bring affidavits of witnesses. These affidavits should be thorough and completed. You can also request the judge to issue a subpoena for documents or to take a deposition of a key witness. If your case is well prepared, with good documentation and strong witnesses, you will have an excellent chance to get the relief that you are seeking.
The new act also imposes an annual limit of 4000 on aliens who can be granted a cancellation of removal and adjustment of status. In addition, cancellation is not available to anyone whose removal was earlier canceled or whose deportation was suspended under the previous suspension provision, or who was previously granted relief under the former section 212(c). Also, cancellation is not available for ten years to a person who was ordered removed after failing to appear at a removal hearing, unless there were exceptional circumstances for the failure to appear. It also is unavailable for ten years to anyone who failed to depart under the new voluntary departure provisions. Furthermore, aliens who are terrorists, who entered as crewmen, some nonimmigrant exchange aliens, and those who have persecuted others are also not eligible for cancellation of removal.
An application for cancellation of removal, with supporting documentation and filing fee, is filed on form EOIR-42A (for permanent residents) or EOIR-42B (for nonpermanent residents) with the immigration judge having jurisdiction over the proceedings. Other Relief: Besides voluntary departure and cancellation of removal, an alien may also be eligible to apply for an adjustment of status, registry, or asylum and withholding of deportation while in removal proceedings. The requirements for adjustment of status and registry are in the section entitled "Immigrant Visas and Permanent Residence." The requirements for asylum and withholding of deportation is in the following section.
ASYLUM AND WITHHOLDING OF DEPORTATION:
The “Real ID Act of 2005" was signed into law (Pub. Law No.
(Sec. 101) Amends Immigration and Nationality Act (INA) provisions
Lists factors relevant to credibility determinations in asylum cases,
Makes this Act's provisions regarding proof requirements and credibility
Limits judicial review of determinations regarding the availability of
Removes the numerical limit on the number of aliens granted asylum who
Section 208 of the Immigration and Nationality Act provides that an alien who is physically present in the United States, or at a land border or port of entry, may apply for, and be granted, asylum, if the Attorney General determines that such alien is a refugee as defined under the law.
The immigration act defines refugee as any person who is outside any country of such person's nationality or, for a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution because of race, religion, nationality, membership in a particular social group, or political opinion.
Withholding of deportation means that the Attorney General shall not deport or return an alien to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country because of race, religion, nationality, membership in a particular social group, or political opinion.
To be successful on an asylum claim, the alien must prove: (1) that he or she has a well-founded fear of persecution or has suffered past persecution; (2) that such persecution is because of race, religion, nationality, membership in a particular social group or political opinion; and (3) that asylum should be granted in the exercise of discretion.
The US Supreme Court has held that the term "well-founded fear of persecution" means a "reasonable" fear of persecution. The Supreme Court stated that the alien must prove specific facts through objective evidence to prove either past persecution or good reason to fear future persecution. Some factors, which many courts have held constitute persecution, include: murder, torture, prolonged detention, slavery, and cumulative mistreatment. Also, persecution can be economic in nature, but th is must usually be very severe and accompany by some other form of persecution. In recent years, sex-based persecution claims including female genital mutilation, homosexuality, and those with sexually transmitted diseases have been granted an asylum. Factors which have been held not to be persecution include: general harassment, brief detention or incarceration, general economic hardship, general civil unrest in a country, refusal to be drafted in the country's armed forces, or where the applicant will be prosecuted for a violation of the country's criminal laws.
To prove a well-founded fear of persecution, the alien must show: (1) that he or she possesses a belief or characteristic a persecutor seeks to overcome in others by punishment of some sort; (2) the persecutor is already aware, or could become aware that he or she possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien. Also, the government of the country must inflict the persecution, unless the government is unable or unwilling to offer protection against persecution at the hands of other groups. Also, a well-founded fear of persecution includes both subjective and objective elements, and the persecution must be based on one of the five grounds mentioned above.
The burden of proving persecution is on the alien. However, courts realize that a person fleeing their country may not always be able to take with them the evidence necessary to prove their case. Thus, an alien's own credible testimony supported by general documentary evidence of the conditions in the home country may be adequate to prove a claim.
Even if an alien establishes a well-founded fear of persecution, asylum may still be denied because of a statutory bar or as a matter of discretion. For instance, an alien who has been firmly resettled in a third country before entering the US is not eligible for asylum. Firmly resettled means that the alien was offered residence status, citizenship, or some other form of permanent resettlement by another country and traveled to and entered that nation as a result of his or her flight from persecution. Also, if an alien has persecuted others, is a security risk, or has been convicted by a final judgment of a particularly serious crime constituting a danger to the community of the United States, he or she is statutorily ineligible for a grant of asylum. Finally, as mentioned above, asylum may still be denied as a matter of discretion (for instance if an alien has used false documents, has many arrests, although no convictions, has lied to INS, etc.)
Even if asylum is denied as a matter of discretion, withholding of deportation may still be available, since this relief is mandatory, not discretionary. While an applicant granted only withholding of deportation may remain in the country and get employment authorization, this status will not lead to permanent residence, and the INS can still attempt to deport the alien to a third country that might be willing to accept the alien.
There are two ways in which an alien may apply for asylum. The first is known as an affirmative application. In this manner, the alien files his or her application directly with the immigration asylum unit, before their being placed in removal proceedings. The applicant will be interviewed on the asylum application, and may be accompanied by an attorney. The application is filed, in triplicate, on immigration form I-589, with two photographs for each applicant fourteen years and older. Currently there is no fee to file an asylum application; however, the new law permits the immigration service to establish a fee if it desires. You should attach to the application documentation to support your case. This can include affidavits, news articles, country reports, and other proof of persecution.
An asylum officer can adjudicate an asylum application in one of three ways:
(1) the application may be approved. If the application is approved, the applicant who is now called an asylee may apply for the adjustment of status to permanent residence one year after getting asylum status. In addition, the asylee's spouse and children, if included in the asylum application, and otherwise, admissible, may also be granted asylum. If the spouse and children are outside the US, the asylee must file immigration form I-730 with the proper service center. When approved, it will be sent to the consulate abroad where the spouse and children can receive refugee visas.
(2) If the applicant is in status, and the officer wishes to deny the case, the applicant must be sent a notice of intent to deny, which sets out the reasons the officer intends to deny the case, and gives the applicant at least ten days in which to answer the notice. If the rebuttal is not adequate, the application will be denied. However, the applicant can remain in lawful nonimmigrant status.
(3) If the applicant is out of status, the asylum officer will refer the case to an immigration judge for a removal hearing. The applicant can then renew the application for asylum before the immigration judge and have a full hearing on the merits of the application.
Besides an affirmative asylum application, an alien may file an application once they have been placed in removal proceedings. A hearing on the application will be held before an immigration judge. The judge may request an advisory opinion from the State Department if he or she feels that it will assist him or her in reaching a decision in the case. As in any other case, the applicant should be prepared to present whatever evidence he or she has in support of the application.
If the immigration judge grants the application, the asylee is then able to file for adjustment one year later. If the application is denied the alien may file an appeal to the Board of Immigration Appeals. (Please refer to the next section on appeals for a further discussion of the appeals process.)
The Immigration Act of 1996 makes some important changes in the asylum process. The most important change states that a person seeking to file for the asylum must do so within one year of arriving in the United States. In addition, those in the United States, before April 1, 1997, must file their applications before April 1, 1998. The only exception to filing late is if the alien can show changed circumstances in the alien's country which materially affects the applicant's eligibility for asylum, or that the alien couldn't timely file because of extraordinary circumstances.
Furthermore, the new act precludes asylum to anyone who had previously applied for asylum and had the application denied, and for any alien who has been convicted of an aggravated felony. Another provision of the new act states that if the Attorney General determines that an alien has made a frivolous application for asylum, the alien shall be permanently ineligible for any other benefit under the immigration laws. Also, the new act states that an applicant for asylum is not entitled to employment authorization, but the Attorney General may permit it by regulation. Naturally, an attorney may represent an applicant for asylum, if it is at no expense to the government.
Finally, the new act states that there is no judicial review of denials or determinations relating specifically to applications filed after the time limit; determinations on resettlement in a third country; applications filed after a previous denial; and denials related to a finding of terrorist activity.