REMOVAL/ DEPORTATION PROCEEDINGS

HELP! I just RECEIVED a Notice To Appear (“NTA”) in Immigration Court, what does this mean? Will I be Deported?

If you receive a Notice to Appear, (“NTA”), before an Immigration Judge, it means that you have been placed into Removal Proceedings (formerly referred to as Deportation Proceedings). It does not mean that you are going to be removed from the U.S. immediately. Rather, it is your opportunity to prove to an Immigration Judge that you are entitled to some form of relief from removal. The type of relief that is available to you is complicated and requires a thorough review of your immigration history by an experienced immigration attorney. Below is an overview of the different kinds of relief from removal that the attorneys at The Shapiro Law Firm have successfully obtained for our clients. We have represented clients in Immigration Courts across the United States, including Immigration Courts in: New York, NY, Newark, NJ, Atlanta, GA, Hartford, CT, Orlando, FL, Boston, MA, Charlotte, NC, Cleveland, OH, Arlington, VA, Philadelphia, PA, Detroit, MI, and more. If you are in Removal Proceedings or are concerned that you will be placed in Removal Proceedings, CONTACT US TODAY BEFORE IT IS TOO LATE!

What are Removal Proceedings & why is someone placed in them?

Formerly referred to as “deportation proceedings,” Removal Proceedings are carried on before an immigration judge, who decides whether or not an immigrant will be allowed to remain in the country. While, generally, a person cannot be expelled without first going through a removal hearing, someone arriving at the border, or other port of entry, can be forced to leave without a hearing or appearance before a judge. If an immigrant is found removable, she can be deported or forced to leave the United States.

The United States government can force a non-citizen to return to his or her home country for a number of reasons, including:

• Committing fraud or misrepresenting a material fact in order to get a Visa, Green Card, etc.
• Narcotics Conviction
• Murder Conviction
• Illegal Trafficking of Firearms
• Money Laundering
• Crime of Violence that carries at least a sentence of 5 years or more.

Relief from Removal/Deportation

You just received an NTA and now you want to know what you can do to stay in the United States or leave the country without ruining your ability to return in the future. The good news is that there are several avenues of relief available. Listed below are the main forms of relief of removal. Keep in mind this is not an exhaustive list; there may be other options out there for you and a careful review of your immigration file will help assist you in finding the best option.

CLICK ON THE “+” BELOW TO LEARN MORE ABOUT THE DIFFERENT FORMS OF RELIEF OF REMOVAL

ASYLUM & WITHHOLDING OF REMOVAL +

• ASYLUM

Asylum may be granted to individuals who have been persecuted or who fear future persecution in their home country due to one of the following grounds:

• Race;
• Nationality;
• Religion (religious persecution, such as against Indonesian Christians & members of the Baha’i faith in Iran);
• Political belief or opinion, and/ or;
• Membership in a Particular Social Group.

• Affirmative Asylum Application

An Affirmative Asylum application is filed with USCIS before an applicant is issued a Notice to Appear and placed in Removal Proceedings. Affirmative Asylum applicants are interviewed by an Asylum Officer. If the Asylum Officer does not approve the application, the case is referred to Immigration Court and the applicant is placed in Removal Proceedings.

• Defensive Asylum Application

A Defensive Asylum application is filed with USCIS after an applicant is issued a Notice to Appear and is placed in Removal Proceedings. A Defensive Asylum application is litigated before an Immigration Judge at an Individual or Merits Hearing.

• 1 Year Rule

You MUST* file for Asylum within 1 year of your last entry into the U.S. This rule was enacted by Congress to prevent fraud. Congress reasoned that if an individual is truly afraid to return home, he or she should be filing for Asylum immediately upon arriving in a safe heaven, i.e., the United States. One year is supposed to give potential applicants ample time to file the appropriate forms and evidence. In practice, however, there are many reasons that individuals fail to file within the 1 year deadline and there exist statutory exceptions to the 1 year rule.

Proving your eligibility for an exception to the 1 year filing deadline is very difficult. It is thus extremely important that you file within a year of entering the United States if you have a genuine fear that you will be persecuted if you are forced to return to your native country.

*How do I calculate the 1 year for an asylum application? Here is a simple example of how to calculate the 1 Year Asylum filing deadline:

Date of entry into U.S. = May 18, 2016

1-Year Asylum Deadline = May 17, 2017

• WITHHOLDING OF REMOVAL

Withholding of Removal or Deportation can be granted for reasons similar to Asylum. There is no 1-year bar limiting a judge from granting an order of withholding, however, the standard of proof is higher than Asylum. Unlike individuals granted Asylum, an individual granted Withholding of Removal cannot apply for Permanent Residence and can possibly be deported to a different country than the home country or the home country if conditions improve.

Torture = severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.

• WITHHOLDING UNDER THE CONVENTION AGAINST TORTURE (CAT)

CAT protection is found in Article 3 of the United Nations Convention Against Torture Treaty, ("CAT"). The purpose of this international treaty obligation is to protect aliens from torture in their home countries if it is more likely than not that they will face torture.

Torture = severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.

CANCELLATION OF REMOVAL +

Every year, Immigration Judges, ("IJ"), are given the authority to issue visa numbers for up to 4,000 non-Permanent Residents. If the cap is reached before your hearing before the IJ, the IJ will hold off making a decision on your case until a visa number becomes available in subsequent fiscal year(s). An applicant who is granted Cancellation of Removal can then apply for a Green Card. Permanent Residents placed in Removal Proceedings are also eligible for Cancellation of Removal and are NOT subject to the 4,000 visa number cap. Even if you meet all of the requirements, the IJ still retains discretion regarding whether or not to grant Cancellation of Removal in each particular case.

• Lawful Permanent Residents 7-Year Cancellation

If you are in Removal Proceedings and you are a Permanent Resident, you must prove the following requirements to be eligible for Cancellation of Removal:

1. 5 Years in U.S. as LPR;
2. 7 Years of Continuous Physical Presence in U.S. BEFORE being issued a NTA & without committing certain crimes;
3. 7 Years of Good Moral Character BEFORE being issued a NTA;
4. No convictions for an aggravated felony, AND;
5. You have not previously been granted Cancellation or certain other waivers in immigration proceedings before.

• Non-Lawful Permanent Residents 10-Year Cancellation

If you are in Removal Proceedings and are NOT a Permanent Resident, you must prove the following requirements to be eligible for Cancellation of Removal:

1. 10 Years of Continuous Physical Presence in U.S. BEFORE being issued an NTA;
2. 10 Years of Good Moral Character BEFORE being issued an NTA;
3. No convictions for criminal offenses that will subject you to additional grounds of inadmissibilities, AND;
4. In the event of your removal, your U.S. Citizen or LPR Spouse, Parent and/ or Child will suffer an exceptional and extremely unusual hardship.

VOLUNTARY DEPARTURE +

Voluntary Departure is usually granted by an immigration judge after issuing an Order of Removal or Deportation to an individual who agrees to leave voluntarily, rather than ordering forced removal or deportation.

!WARNING!

IF YOU ARE GRANTED VOLUNTARY DEPARTURE AND YOU DO NOT DEPART BY THE U.S. BY THE AGREED UPON DATE, YOU WILL BE SUBJECT TO ADDITIONAL IMMIGRATION BARS.

DO NOT REQUEST VOLUNTARY DEPARTURE IF YOU DO NOT PLAN TO ACTUALLY LEAVE THE UNITED STATES!

GREEN CARDS IN IMMIGRATION COURT +

Are you married to a U.S. Citizen or are you eligible for a family-based Green Card as an immediate relative of a U.S. Citizen? If so, you may be able to adjust your status to that of a Lawful Permanent Resident before the Immigration Judge. See, our Green Card page for more information on family-based visa eligibility requirements.

237(a)(1)(h) “Fraud Waiver” +

The Fraud Waiver was created by Congress to waive deportation for immigrants who committed fraud but who have significant family ties to the United States.

If you were placed into Removal Proceedings as a result of fraud or misrepresentation, you may be eligible for a Fraud Waiver. There are two categories of the Fraud Waiver available; one for Conditional and Permanent Residents, the other for VAWA battered spouse self-petitioners.

1. A Conditional or Permanent Resident must prove the following to be eligible for a Fraud Waiver: You are a Conditional or Lawful Permanent Resident; You were otherwise admissible at the time of admission or at the time of adjustment of status, except for any inadmissibility that was a direct result of the fraud and misrepresentation; You are the spouse, parent, son, or daughter of a U.S. Citizen or Lawful Permanent Resident, and;Your case warrants a favorable exercise of discretion.
2. A VAWA battered spouse self-petitioner, must prove the following to be eligible for a Fraud Waiver: You were admitted into the United States, or adjusted status in the United States; Your admission or adjustment involved fraud or material misrepresentation, and; Your case warrants a favorable exercise of discretion

OTHER AVENUES OF RELIEF +

Contact us today to review your immigration file to see if any other avenues of relief exist.

Administrative Closures & Motions to Recalendar

On May 17, 2018, Attorney General Jeff Sessions (AG) issued a decision in Matter of Castro-Tum, I&N Dec. 271 (A.G. 2018), a case that he had certified for review, regarding the issue of administrative closure. In this decision, the AG determined that Immigration Judges do not have the general authority to administratively close cases, removes the requirement that “good cause” must be shown by the party seeking to recalendar an administratively closed case, and essentially instructs the Department of Homeland Security (DHS) to begin recalendaring all cases that were administratively closed without the requisite authority.

WHAT DOES IT MEAN FOR A CASE TO BE ADMINISTRATIVELY CLOSED? +

If your case is administratively closed, this means that you are STILL IN REMOVAL PROCEEDINGS, but you do not have a future court date scheduled. In other words, your removal proceedings are suspended indefinitely, but can always be placed back on the court’s calendar upon motion by either side.

Since the 2011 Morton Memorandum, DHS and the Immigration Judges used administrative closure as a docket-management tool to control resources by only focusing on “enforcement priorities.” If your case was administratively closed, it is most likely because you did not have any relief from removal immediately available to you, you are not a criminal and you are a person of good moral character.

HOW DO I KNOW IF MY ADMINISTRATIVELY CLOSED CASE HAS BEEN RECALENDARED? +

If DHS seeks to recalendar your case, it must first file a Motion to Recalendar and serve it on you and your attorney (if you had one representing you in Removal Proceedings) via first class mail. The Immigration Judge must then grant DHS’s Motion to Recalendar and serve on you (and your attorney) a Notice of Hearing in Removal Proceedings.

Make sure that you have complied with the requirement to notify the Immigration Court and DHS of your address if you have moved, or you may not receive the notice. Service by first class mail at your last known address is all that the law requires, and you will be ordered removed in absentia if you fail to appear at your recalendared hearing.

I JUST RECEIVED A MOTION TO RECALENDAR FROM DHS, WHAT DO I DO? +

Contact Us IMMEDIATELY to determine if you are eligible for any relief from removal.

I AM NOW ELIGIBLE FOR RELIEF FROM REMOVAL BUT DHS HAS NOT SOUGHT TO RECALENDAR MY CASE, WHAT CAN I DO? +

You can file a Motion to Recalendar your case. Contact Us today to find out how and to make sure that you are in fact eligible for the relief from removal that you are seeking.

I Have An Order of Removal, Can You Help Me?

If you already have been issued an Order of Removal, there may still be relief available to you depending on the circumstances surrounding the Removal Order. We will need to make a Freedom of Information Act (FOIA) Request in order to obtain your immigration file before we can know what, if any, relief from removal may be available. There are different ways to get your case back before the Immigration Judge:

I-212 WAIVER +

• INFORMATION COMING SOON

MOTION TO REOPEN +

A Motion to Reopen seeks to reopen proceedings so that new evidence can be presented so that a new decision can be entered on a different factual record — normally after a further evidentiary hearing. A Motion to Reopen will not be granted unless the Immigration Judge is satisfied that the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.

MOTION TO RECONSIDER +

A Motion to Reconsider requests that the original decision be reexamined in light of additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked. A Motion to Reconsider must specify the errors of law or fact in a previous order and must be supported by pertinent authority.

ORDER OF REMOVAL IN ABSENTIA +

If you fail to personally appear at any of your scheduled immigration court dates, the Immigration Judge will immediately enter an Order of Removal in absentia against you. In order to have the in absentia removal order vacated, you must:

1. File within 180 days of the entry of the removal, AND;

2. Prove that you failed to appear due to "exceptional circumstances."

The 180-day filing deadline does not apply if you failed to appear because you:

1. Did not receive proper notice as required, OR;

2. Were in federal or state custody.

APPEALS TO THE BOARD OF IMMIGRATION APPEALS (“BIA”) +

The BIA hears all appeals from orders of the Immigration Judges, as well as a few direct appeals from USCIS decisions. Generally, you have 30 days to appeal an adverse decision. There are a very limited number of issues that may be appealed. Appeals cannot be used to argue facts. There must be a legal question at issue.

FEDERAL APPEAL - U.S. COURT OF APPEALS, 2ND CIRCUIT +

The U.S. Federal Circuit Courts have the statutory authority to review specific BIA decisions. The 2nd Circuit Court of Appeals hears all decisions made by Immigration Judges in New York and Connecticut.