My Client Is in Removal Proceedings–Now What? Understanding the Terms and the

Corresponding Procedures and Consequences for Removal Proceedings

Maria M. Odom – Odom Immigration Law Group, LLC

Types of Proceedings

• Deportation Proceedings (Order to Show Cause or OSC): Before 4/1/1997

• Exclusion Proceedings: Before 4/1/1997• Removal Proceedings: 4/1/1997 and after

• EOIR line (1-800-898-7180) to verify case information

Types of Proceedings

• INA 240 / 8 CFR 1240.1: Removal Proceedings* What is NOT 240 proceedings and as such, ineligible for IJ review of their removal: – 1. INA 235: expedited removal of arriving aliens– 2. INA 238: expedited removal of aggravated felons– 3. INA 217: visa waivers (except for asylum and

Francis adjustments)– 4. INA 241(a)(5): re-instatement of removal– 5. INA 240(d): stipulated removal

Removal Proceedings

• “Regular” 240 removal proceedings– Notice to Appear (“NTA”) (INA 239)– IJ Jurisdiction—removal v. bond hearings– Right to Counsel (INA 240(a)(4)(A))– Right to an Interpreter (8 CFR 1240.5).

• Cases regarding translations and objections:– HRC v. Nelson, 111 S.Ct.888 (1991)) – Singh v. Ashcroft, 367 F. 3d 1139, 1143-44(9th

Cir.2004).– Cheo v. INS, 162 F.3d 1227, 1230 (9th Cir.1998).

Removal Proceedings

• Burden of proof (INA 240(c))– Deportability– Inadmissibility

• LPRs• Non-LPRs

Asylum Only Proceedings: 8 CFR § 1208.2(c)

• Applies to:– Crewmembers; stowaways; visa waiver

applicants, overstays and status violators; arriving aliens inadmissible on security and related grounds; applicants for or admitted under INA § 101(a)(15)(S). 8 CFR § 1208.2(c)(2)(i)-(vi).

• Rules of procedure are same as removal proceedings. 8 CFR § 1208.2(c)(3).

Asylum Only Proceedings

• Scope of review limited to asylum eligibility and discretion—all parties forbidden from raising other issues.8 CFR § 1208.2(c)(3).

• Rescinding in absentia orders limited to one motion to reopen filed within 90 days. 8 CFR § 1208.2(c)(3)(ii).

Withholding and CAT Only Proceedings: 8 C.F.R. 208.16, 17 and

1208.16, 17• Withholding of Removal under INA and

CAT– Bars: Particularly serious crimes, threat to

national security (INA 241(b)(3))– No one-year deadline as in asylum– Mandatory form of relief, not discretionary– Probable persecution on account of race,

religion, nationality, particular social group, political opinion

Withholding and CAT Only

• Deferral of Removal—Convention against Torture– Bars for withholding do not apply– Mandatory form of relief– Probable torture– Detention by DHS

Expedited Removal (INA 235) Applies to all persons seeking admission

EXCEPT: USC, LPRs & asylum seekers• Primary basis of inadmissibility: 212(a)(6)

(PWAOP at an undesignated place)• and 212(a)(7)(A)(immigrant intent)• No review by IJ• Order cannot be collaterally attacked• Order can form the basis for subsequent re-

instatement of removal action

Expedited Removal

• Withdrawal of application for admission. (INA 235(a)(4); 8 CFR 235.4) May result in the cancelling of the NIV.

(22 CFR 41.122(h)(3); IFM at 17.2) No right to counsel at port of entry.

Access to secondary inspection for assistance. (IFM at 2.9)

Role of counsel at deferred inspection. (IFM17.1(e))

Expedited Removal

• VW entrants waive any right to review or appeal except in;– Credible fear/reasonable fear of persecution

or torture – AOS only when applicant filed for AOS while

in valid VW status

DHS FARO’s (INA 238(b); 8 C.F.R. 238)

• Final Administrative Removal Orders– Applies to non-LPR aliens (including

conditional residents) with aggravated felony convictions.

– Presumes deportability and no discretionary relief available.

– 10 days to respond to I-851. The order can not be executed for 14 calendar days.

– If the non-citizen shows he is not subject to this section, then 240 proceedings can follow.

Judicial Removal (INA 238(c))

• Judicial removal order upon request of US Attorney in federal court proceedings.

• No discretionary relief.

Reinstatement Proceedings(INA §241(a)(5))

• Applies to:– Non-citizens deported at ANY TIME IF:– Illegal reentry AFTER removal or departure under

order of removal• Consequences:

– Prior order of removal is reinstated and cannot be reopened or reviewed;

– Non-citizen is not eligible and may not apply for any relief (except withholding of removal or CAT);

– Non-citizen shall be removed at any time.

Reinstatement Proceedings

• Cannot reinstate if in 240 removal proceedings unless IJ terminates proceedings

• Can apply for all available relief if in removal proceedings

• Reinstatement may have impermissible retroactive effect if non-citizen was eligible for and applied for relief prior to April 1, 1997– No firm answer on what application causes

reinstatement to be impermissibly retroactive (i.e., filing of I-130, labor cert, I-485)

Burden of Proof

• Shifting burden regarding deportability and inadmissibility– Alienage– Deportability– Inadmissibility

• LPR returning from brief, innocent and casual departure

• Burden on non-citizen to prove lawful admission • If not admitted, burden on non-citizen to prove

admissibility

Burden of Persuasion

• On all applications for relief, non-citizen’s burden to show eligibility and that merits exercise of discretion

• In persecution and torture claims, burden on DHS to rebut future persecution or torture where non-citizen has demonstrated past persecution or torture

Criminal Grounds(INA 212(a)(2), 237(a)(2))

• Inadmissibility v. Deportability– Definition of Conviction: INA 212(a)(2)(A), INA

101(a)(48)– Grounds of Inadmissibility

• CIMTs– Petty Offense Exception– Juvenile Offense Exception

• Multiple criminal convictions with aggregate 5 year sentences

• Drugs• Prostitution

Criminal Grounds

– Grounds of Inadmissibility (continued)• RICO• Terrorist activities• Smuggling

– Grounds of Deportability• CIMTs—single v. multiple• Aggravated felonies• Drugs• High speed flight from checkpoints

Criminal Grounds

– Grounds of Deportability (continued)• Domestic violence, stalking, child abuse, child

neglect, child abandonment (exception for DV victims)

• Violations of protection orders• National security violations• Failure to notify DHS of address change

• Post-conviction relief and pardons

Fraud

• Inadmissibility § 212(a)(6)(C)(i) • Deportability:

– § 237(a)(1)(A) (inadmissible at time of entry or AOS) – § 237(a)(3)(C)(subject to final order for document

fraud under INA 274C)– § 237(a)(1)(G) (marriage fraud)

• Applies to alien who has by fraud or willful misrepresentation of a material fact obtained or sought to obtain immigration benefit

Fraud

• Waivers available: – § 212(i) (immigrants)– § 237(a)(1)(H) (LPRs)– § 209(c) (refugees and asylees with AOS)– § 212(d)(3) (for non-immigrants abroad

through DHS)

False Claims to U.S. Citizenship• Defined: Non-citizen falsely represents himself

or herself to be a United States citizen for any purpose or benefit under the INA, or any other Federal or State law

• Permanent bar to admissibility, INA § 212(a)(6)(C)(ii)

• Ground of deportability, INA § 237(a)(3)(D)• Typically found:

– Form I-9– Voter registration – Illegal voting

Lack of Visa or Documentation(INA 212(a)(7)

• INA 212(a)(7)(A): Inadmissibility applies to Immigrants:– With an immigrant visa that is not valid or unexpired, (including

re-entry permit and other such documents); OR– With a visa issued not in compliance with INA 203; OR– Not in possession of a valid and unexpired passport or suitable

travel document.

• INA 212(a)(7)(B): Inadmissibility applies to Non-Immigrants:– Not in possession of a passport valid for at least 6 months; OR– Not in possession of valid non-immigrant visa or border card at

the time of the application for admission.

Medical Grounds• Inadmissibility:

– Communicable disease of public health significance• TB• HIV—status of repealing statute versus list of communicable

diseases– Lack of vaccinations – Mental disorder (and a history of behavior associated

with a mental disorder) that poses a threat to property, safety and welfare of the alien or others and behavior is likely to recur

– Drug abusers or addicts– Waiver: INA 212(g)

• Deportability: INA 237(a)(2)(B) (drug abusers)

Relief from Removal

• Adjustment of Status (AOS)– Must be 245(a) or 245(i) eligible – Immigrant visa must be approved and

available – Not inadmissible (if inadmissible, waivable)– Remand for adjudication of AOS from IJ to

CIS possible with ICE counsel’s agreement.

Relief from RemovalAdjustment of Status (continued)• Arriving aliens:

– Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005)– Zheng v. Gonzales, 422 F.3d 98 (3rd Cir. 2005) – Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005)– Scheerer v. AG, 445 F.3d 1311 (11th Cir. 2006)– AILF Practice Advisory: “Adjustment of Status for

Arriving Aliens under the Interim Regulations,” available at http://www.ailf.org/lac/pa/lac_pa_070416_biaarraliens.pdf.

Relief from Removal

• Adjustment of status (continued)– Arriving aliens: IJ has jurisdiction where a

non-citizen files AOS with CIS, returns to the U.S. with advance parole, is denied AOS by CIS and seeks review of that denial before IJ.

Relief from RemovalPost Conviction Relief:

-vacatur-sentence clarifications-pardons

Relief from Removal

• Persecution and Torture Claims – Asylum

• Frivolity Standard• AOS after one year• Derivative beneficiaries

– Withholding of Removal– CAT

Relief from Removal

• Temporary Protected Status (TPS)– Applications first reviewed by CIS– Where applicant is prima facie eligible, case is usually

continued until application is adjudicated by CIS – Upon grant of TPS, proceedings administratively

closed– Upon denial of TPS by CIS, de novo review by IJ– Can EWI respondents in valid TPS status adjust

status without a parole?

Relief from Removal • U and T Non-immigrant Visas:

– Defined:• U visas for victims of crimes, INA § 101(a)(15)(U)(IV)(iii)• T visas for victims of human trafficking (can include threat of

deportation to induce labor)– Application Process:

• Filed with USCIS• IJ does not have jurisdiction to adjudicate U or T visa applications • IJ can grant motion for continuances to allow for CIS adjudication• Note: Currently, U visa applications for inadmissible aliens with

requests for fee waivers are being accepted by CIS, but not processed until CIS resolves issues regarding fees for waivers of inadmissibility

• Effect of grant of visas:– Grant of T visa cancels, by operation of law, prior order of removal– Grant of U visa renders non-citizen eligible to reopen removal

proceedings if ordered removed and request termination of proceedings

Relief from Removal• VAWA Relief:

– VAWA AOS: INA 245(a)• I-360 Self-Petition and motions for continuance.• VAWA AOS after 245(i): See April 11, 2008

Michael L. Aytes Memorandum, “Adjustment of status for VAWA self-petitioner who is present without inspection.”

– VAWA waivers available for a variety of grounds of inadmissibility that may not be waived for other aliens, such as INA 212(a)(9)(C)(unlawful presence) and consideration of factors considered to be VAWA specific.

Relief from Removal• VAWA Relief:

– VAWA Cancellation of Removal, INA 240A(b)(2)– Requirements:

• 3 years of good moral character• 3 years of physical presence accrued up to the filing of the

application of relief (unlike other cancellation) • Abuse (includes extreme cruelty)

– by LPR/USC spouse (including bigamists) or parent (step and adopted) (abuse to a non-citizen child by a USC or LPR parent may be considered abuse to the non-citizen parent)

• Removal would result in the hardship to the abused alien, abused alien child (or his/her alien parent)

• Favorable exercise of discretion

Relief from Removal• I-751 Petitions to Remove Conditional

Residency– Types:

• Joint petition• VAWA petition• Divorce but good faith marriage• Extreme hardship

– Filing deadlines: • Joint petition—file with CIS within 30 days of the expiration of

the conditional status. • Petitions seeking waivers--file with CIS at any time.

– IJ has jurisdiction to review denied I-751 petitions.– GMC (beware of Section 238(b) expedited removal)

Relief from Removal• 10 year non-LPR cancellation of removal

– Physical presence for 10 years & stop-time rule– 10 years of good moral character– Continuing application for all purposes other than stop

time rule, Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006)

– “Exceptional and extremely unusual” hardship• Discretionary determination, not subject to review

in Circuit Court, BUT possible argument: failure to follow precedent, see, e.g. Aburto-Rocha (6th Cir. 7/28/08)

– Merits a favorable exercise of discretion

Relief from Removal

• LPR cancellation of removal, INA 240A(a)– LPR for at least 5 years– 7 years of continuous residence—stop-time

rule– Not convicted of an aggravated felony– Merits favorable exercise of discretion

Relief from Removal

• Voluntary Departure, INA 240B– QUESTIONS:

• Does the non-citizen want/need VD? • What possible future remedies exist or may come to exist?

– Pre-Conclusion of Proceedings• Exercise of Discretion: GMC not required, no aggravated

felony

– Conclusion of Proceedings• GMC required• Physical presence in US at least 1 year before NTA

Relief from Removal• Waivers

– INA 237(a)(1)(H)• Waives any misrepresentation, whether willful or innocent for

– Spouses, parents, sons, or daughters of a USC or LPR; and– Was in possession of an immigrant visa or equivalent document

and was otherwise admissible except for § 212(a)(5)(A) and (7)(A) OR

– 237(a)(1)(H)(ii) is a VAWA self-petitioner.• No form or filing fee required

– But some IJs require Form I-601and payment of $585• Grant waives removal based on the grounds of

inadmissibility “directly resulting from” fraud or misrepresentation

• Grant is nunc pro tunc to date of admission

Relief from Removal

• 237(a)(1)(H) (continued)• IJ considers all relevant factors:

– nature and underlying circumstances of the fraud or misrepresentation involved;

– criminal record; – other evidence of the alien's bad character or

undesirability; – family ties in the United States; – residence of a long duration; – evidence of hardship to the alien or family if deportation

occurs; – Employment history;

Relief from Removal

• 237(a)(1)(H) (continued)

– property or business ties; – evidence of value and service to the community; – other evidence of the alien's good character.

Relief from Removal

• 212(k)– Immigrant in possession of an immigrant visa

and did not know that ground of inadmissibility existed and could not have known through the exercise of reasonable diligence

– Form I-601– Typical scenarios: petitioner dies while

immigrant is en route to US; spouse lied about US citizenship.

Relief from Removal• 212(c): LPRs only

– 7 years of lawful domicile accrued before or after the offense and until the IJ decision

– Plea of nolo or guilty before April 24, 1996 (AEDEPTA) or April 1, 1997 (IIRAIRA)

• Conviction by jury trial? Circuits are split. See, e.g., Ponnapula v Ashcroft, 373 F.3d 480 (3rd Cir. 2003)

– Incarceration actually served of less than 5 years for convictions entered 11/1990 and after

– 237(a)(2) ground of deportability must have comparable 212 ground of inadmissibility

• Split in circuits and BIA regarding sexual abuse of a minor as CIMT and crimes of violence where non-citizen is not eligible for simultaneous application for adjustment of status under Gabryelsky.

– Balancing of favorable and negative factors

Relief from Removal• 212(h)

– Waives CIMTs, prostitution, simple possession of 30 grams or less of marijuana

– Available to non-citizens who are immigrants:• non-LPRs• LPRs who have lawfully resided in the US for at least 7 years

prior to initiation of removal proceedings and have not been convicted of an aggravated felony.

– Stand-alone waiver.– Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008)– But see Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008)

(finding that a grant of AOS does not constitute an admission and LPR convicted of aggravated felony after AOS is eligible for 212(h) waiver).

Relief from Removal

• 212(h) (continued)• Hardship standard:

– 212(h)(1)(A): No hardship required for prostitution or where activities for which inadmissible occurred 15 years prior to application for a visa, admission or AOS

– 212(h)(1)(B): Extreme hardship to qualifying relative

• Merits a favorable exercise of discretion

Relief from Removal

• 212(i)– Available to immigrant who is the spouse,

son, or daughter of a USC or LPR – Requires “extreme hardship” to the qualifying

relative– Filed on Form I-601– Can be filed as “stand alone” waiver

Relief from Removal

• 209(c): Refugees and Asylees– Filed on Form I-602– File in conjunction with AOS application– Extremely broad standard: humanitarian

purposes, family unity, or public interest– Waives false claims to US citizenship,

aggravated felonies, drug offenses.• Bars: murder, drug trafficking, and genocide

Relief from Removal• Unlawful presence: 4/1/1997 and after

– 212(a)(9)(B): 3/10 year bar• Extreme hardship to USC/LPR spouse or parent.• Merits favorable exercise of discretion.• Does not apply to VAWA applicants for AOS.

– 212(a)(9)(C): Permanent 10 year bar—apply for waiver after residing 10 years outside of US

• Aliens with illegal re-entry (or attempt to re-entry) after removal under any section, or

• Aliens with illegal re-entry (or attempt to re-entry) after unlawful presence for 1+ yrs

• Exception: VAWA applicants

• In re Lemus, 24 I&N Dec. 373 (BIA 2007); In re Briones, 24 I&N Dec. 355 (BIA 2007).

Relief from Removal

• I-829 review: EB-5 equivalent of a Form I-751– Requires conditional resident to show

substantial compliance with requirements of INA § 216A

– De novo review before IJ– Allows for derivatives – Results in removal of conditions