sjb's guide to immigration law: part i

SJB’S GUIDE TOIMMIGRATION LAW: PART 1

November 2014

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GUIDE TO IMMIGRATION LAWNovember 2014

CONTENTSTABLE OF

1. SECTION ONE 3 What is a Notice to Appear (NTA)? 3 Notice to Appear in Immigration Court 6 Pleading to the Notice to Appear 9 Prosecutorial Discretion 12

2. SECTION TWO 14 Immigration Bonds 14 Appeals and Removal Proceedings 17 What is an I-213? 20 Deportation 23

3. SECTION THREE 25 The Definition of Relief 25 Applying for Relief 28 What Happens After You File for Relief? 31 The Timeline for Immigration Cases 33 Immigration Proceedings 35


SJB’S GUIDE TO IMMIGRATION LAWNovember 2014

3

WHAT IS A NOTICE TO APPEAR (NTA)?

At one point or another, almost everyone has accidentally thrown out an important piece of mail. When it comes to issues of immigration, there is one letter you don’t want to overlook: a Notice to Appear (NTA).

An NTA means that legal charges have been filed against you and you must decide whether you will admit to or deny the charges in an immigration court hearing. Failure to appear will result in a decision in absentia, effectively losing your chance to defend, dispute or appeal the findings of the court. It is very important that an NTA is handled with the utmost care.

IT IS VERY IMPORTANT that an NTA is handled with the UTMOST CARE.

Determining AuthenticityLook at the details in the document. How the letter is organized and signed will be your first clue that it is authentic. It should either be mailed directly from Immigration and Customs Enforcement (ICE) officials, verifiable by signature or the ICE officials will serve you individually. When you open the notice, it will be divided into six sections:

1. Biographical information

2. Nature of proceedings

3. Allegations

4. Charges of removability

5. Date and time of proceedings

6. Signature of ICE officials


4SJB’S GUIDE TO IMMIGRATION LAWNovember 2014


Read through each section carefully to make sure you fully understand what will happen as well as the magnitude of any charges against you. Make note of any inaccuracies, especially those related to how, when and where you entered the United States. Additionally, if your address changes from that listed on the NTA, notify immigration officials immediately as well as the immigration court listed on the NTA.

Preparing And Securing Legal Representation Before The HearingBy law there has to be at least 10 days between when you receive the notice and when you are scheduled to appear in immigration court. Of course, full dockets might mean the timetable is extended somewhat.

This gives you the perfect opportunity to develop a strategy with an immigration lawyer.Chances are that if you knew your student or employment visa was coming to an end, you might have an inkling that the NTA is inevitable, but certain criminal activity could very well warrant removal as well.

The Nature of The ChargesYou can always review the enclosures with a lawyer, but officials do try to explain the reasoning behind actions involving removal and deportation. Look for the NTA sections that are entitled:

• Nature of proceedings

• Factual allegations

You will likely see phrasing like this:

• “You are an arriving alien.” This means that you have been stopped at the border or port of entry and have not yet been admitted to the U.S.

• “You are an alien present in the U.S., who has not been admitted or paroled.” Typically, this box would be checked if you entered the U.S. without being inspected by a border agent or immigration officer.

• “You have been admitted to the U.S., but are removable for the reasons stated below.” This statement refers to non-citizens who were admitted to the U.S. for a period of time, but are no longer authorized to remain. Common reasons for this are overstaying your visa or a conviction for a crime that renders you deportable.


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Always double check to make sure the right box has been selected. The allegations are laid out as follows:

• “You are not a U.S. citizen or national of the United States.”

• “You are a native and citizen of your home country.”

• “You entered the country on a certain date and through a certain city and whether or not your entry was authorized and if so, for what period of time.”

As an immigrant your rights are limited, but they are not non-existent. You can request a Contested Merits Hearing and your lawyer will make a case to terminate the proceedings if the NTA contains inaccurate allegations. If the removal is upheld, you can still fight it through a defense of removal; just make sure to apply for any relief available to you.

Given the nature of the allegations, there may not be many avenues available. No matter the circumstances, you should have the NTA and removal merits legally reviewed.




6

NOTICE TO APPEAR IN IMMIGRATION COURT

A Notice to Appear (NTA) is required by law to begin court proceedings for immigrants who are facing deportation (also referred to as removal), except in limited circumstances. The notice has to be sent at least 10 days prior to the actual hearing. You can receive it in one of three ways:

1. The notice is served directly to you by a Immigration and Customs Enforcement (ICE) official or authorized representative.

2. The notice is mailed to you (by certified or regular mail).

3. The notice is sent to your attorney/authorized agent by your consent.

If you are not on track for a green card or citizenship, it is even more important to keep your contact information current. ICE will contact you with various communications. These documents will be sent to your last known address. This will include hearing notices about immigration court appearance, you are required to attend in person.

THE LESS TIME YOU SPEND TRYING TO represent yourself, the better chance you have of gaining a favorable outcome. FAVORABLE OUTCOMES ARE THE GOAL.

Contesting Or Canceling A Notice to AppearThere are several circumstances where the notice can be canceled. All of these circumstances involve the actions of a third party somehow related to your court case. The government reserves the right to cancel the notice at any time prior to it being put on file with immigration court. Once it is on file, the proceedings have officially begun. If the removal proceedings have already started, the government can still step in and dismiss the case.


http://www.sjblawfirm.com/legal-blog/the-difference-between-a-green-card-and-becoming-a-naturalized-citizen


The only other option remains at the presiding judge’s discretion. Administrative closure canbe used to temporarily remove a case from a judge’s docket. This does not mean that yourcase has been dismissed; it simply means the date of the hearing will be changed or moved toa later time than initially stated and the case will be removed from the judge’s docket until it is recalendared at the request of either party. This is typically done to keep a judge’s docket from getting too full or to allow an alien to seek relief with United States Citizenship and Immigration Services (USCIS). The administrative closure has to meet certain terms and conditions, including no opposition from the government.

An individual can contest an NTA for various reasons as well, including: improper service and incorrect statements of fact or law. This is best done through an experienced attorney.

Failure to Appear for CourtIs an in absentia decision due to non-receipt of NTA a good thing or a bad thing? The best answer here is that it makes your case more complicated. What a lot of immigrants do not realize is that an in absentia decision does not stall the removal process.

If it can be established by clear and convincing evidence that notice was provided and the alienmeets removable status, a decision can be reached by the court whether you are there or not.

There are additional penalties to consider as part of the in absentia order. Once the order is a matter of record, it bars you from seeking removal relief for 10 years and, once deported, you will be given inadmissible status for 5 years.

To stop this from happening, show up to the hearing on time and stay until the hearing is complete.

Proving Non-Receipt of A Notice to AppearThis is where a lawyer is your best and greatest asset. An entry of an in absentia order of removal is inappropriate when the record reflects that the alien did not receive the NTA and the notice of hearing it contains and, therefore, has never been notified of the initiation of removal proceedings or the alien’s address obligations.

The process of rescinding that order starts with reopening the case. For that motion to begranted, your lawyer must demonstrate that you did not receive proper notice, and as such, your case meets the exceptional circumstances condition.

Presumption of receipt is often viewed as an acceptable risk by the courts. This does not make it a loophole for others to find and exploit. Rather, judicial review is only given in critical




circumstances like: the validity of the notice, the removability of the alien and the reasons for the failure to attend the hearing.

It is best to secure the services of a good immigration lawyer in all cases, even if your removal proceedings have already begun. Given their experience, it is more likely than not that they will know of the best avenue to pursue in an individual case. There is usually time to build a solid case before your removal hearing takes place, but the best course of action is to secure legal representation right away.

The less time you spend trying to represent yourself, the better chance you have of gaining a favorable outcome. Favorable outcomes are the goal.




9

PLEADING TO THE NOTICE TO APPEAR

If you go before the court to “plead” your case, it means you are legally and officiallyaddressing the accusations against you. You are formally entering claims and defenses for your actions.

This practice goes back to British common law between the fourteenth and sixteenth centuries. It clarifies each party’s position for the court. Pleading and relief used to be handled by two separate courts. Now, they are handled in a single hearing.

Entering A PleaLegally, the act of pleading serves several functions:

1. To give notice of the claim or defense

2. To reveal the facts of the case

3. To formulate the issues that have to be resolved

4. To screen the flow of cases into a particular court

THE BEST THING YOU CAN DO as an immigrant facing criminal charges is to consult with both a criminal and an immigration lawyer BEFORE PLEADING OR AGREEING TO ANYTHING.

It’s not quite the same as pleading guilty or not guilty in criminal court, but burdens of proof do apply on both sides of the aisle. It opens the door to discuss an individual immigration case in greater detail. The government’s burden in your case depends on whether you have ever



been lawfully admitted to the U.S. or not. If not, then the government must show that you are a native of another country other than the U.S. Immigration court has very different evidence standards than criminal court to meet these burdens. The burden also shifts back and forth between the government and the alien in immigration court, unlike in criminal court well.

You will have a chance to speak to the allegations listed in the Notice to Appear (NTA). That opportunity starts with saying true or not true. Pleading “not true” means the government now has to prove that you are removable with clear and convincing evidence.

Watch your step if the reason for these proceedings is related to record of criminal activity. Criminal law and immigration law work very differently.

Can “criminal activities” weigh on the removal decision even if there is no conviction or the records were expunged? Yes. At first glance, that answer may be unsettling or shocking, but it is the truth. Not only can these activities affect your visiting immigration status, but they can also affect your chances of getting and retaining a green card.

A criminal attorney might encourage a client to either plead guilty, no contest or take a plea bargain to avoid a trial and reduce any possible jail time. While this is standard practice for that vein of the law, it is very bad advice from an immigration standpoint. Actions like this can trigger removal hearings, even if you are not convicted of a crime.

Convictions are looked at through a different lens where immigration is concerned. Firstly, getting arrested is not considered a conviction, but it can affect your application when you have to demonstrate “good moral character,” as arrests have to be disclosed during the process. There are three plea scenarios that still count as a conviction in the eyes of the immigration court:

1. You plead guilty.

2. You plead no contest.

3. You admit to a degree of wrongdoing that leads to a punishment, penalty, fine or restraint of liberty.

Even if the plea is withdrawn later and you complete the court-ordered requirements, it is still considered a conviction in immigration court. Expunged records are NO EXCEPTION. Deferred probation with dismissal upon completion is NO EXCEPTION. You have to disclose all criminal information to Immigration and Customs Enforcement (ICE) and/or an immigration judge.



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Fighting Or Overturning A Conviction in Immigration CourtUnderstand that once your criminal case has been resolved and you are in immigration court, you cannot try to “re-try” your criminal case in front of the immigration judge. It is NOT a good policy to claim actual innocence of the underlying criminal conviction at this point. The best case scenario is not to have a criminal record, but barring that, you MUST understand the immigration consequences of your criminal plea before pleading to ANY charge. At the crux of these programs is the fact that you don’t have to enter a plea, which keeps immigration out of it. Understand, however, that if you do not plead in your criminal case, you could be convicted by a jury and still face immigration consequences. If facing a criminal charge, you need both a good criminal and a good immigration attorney (or one well versed in both areas of law).

It is very important to understand the law on a vacated conviction. In some states, immigration courts can still use a conviction against you if a conviction is vacated. This varies by jurisdiction; however, it is the general practice that if a conviction was vacated on constitutional violations, it will not be used against an individual in immigration court.

Relief is any form of judicial benefit granted by the court. The cession of removal proceedings definitely qualifies. Of course, on the flip side of that coin, if the government proves their case against you, you have to provide your own relief; it is no longer the responsibility of the court.

Bottom line: The best thing you can do as an immigrant facing criminal charges is to consult with both a criminal and an immigration lawyer before pleading or agreeing to anything. Taking that extra step is in your best interest for preserving your current immigration status.




12

PROSECUTORIAL DISCRETION

In the simplest terms, prosecutorial discretion refers to the enforcement decisions made during the case, or how the case is legally pursued. This discretion is applied at several points during an immigration case. It does not stop with the involvement of a Immigration and Customs Enforcement (ICE) officer; that’s actually the first decision of many — the one that gets the ball rolling.

Other opportunities to exercise prosecutorial discretion include deciding whether to:

• Issue a Notice to Appear (NTA)

• Start removal proceedings

• Target enforcement resources and efforts on particular violations or conduct

• Stop, question or arrest someone

• Detain or release someone on bond, supervision or their own recognizance

• Settle or dismiss a removal case

• Stay a final order of removal

• Pursue an appeal and/or execute a removal order

Speaking broadly, the goal for an immigrant is to see a favorable application or action born from prosecutorial discretion, something that would terminate or close removal proceedings or stop the process from starting all together.

Making The Initial DeterminationEnforcement begins with the actions of the ICE officer who decides to pursue an individual inremoval proceedings in immigration court. Since the court takes action partially based on thedetermination of that officer, it is vitally important the decision is weighed carefully.

Since 2011, officers and agents have had the authority to use this discretion as a determiningfactor in issuing an NTA. Once the notice is issued, it must also be approved by a supervisory



officer who also has discretion. It must then be approved by an ICE attorney with the Office of the Chief Counsel. When the immigration court has a case on file, it has hit a new discretionary level, and the judge cannot dismiss a legally sufficient case, but can make discretionary determinations on relief.

Taking It to The Next LevelThere can be an assumption that prosecutorial discretion is exercised on a case by case basis; this assumption is only half right. The reforms to immigration policy affect agency-wide actions as well as holding water in individual cases.

The agency-wide aspect can be a very good thing. It has a definite impact on the direction of favorable winds in an immigration case. Those winds could start to blow your way due to social changes or a decision not to implement a particular policy.

On the practical side of things, prosecutorial discretion supplies an argument for why a casewasn’t pursued. Resource limitations make it nearly impossible to pursue every case that could be pursued by law.

Seeing as they cannot remove every person who has entered the U.S. illegally, immigration officials who practice discretion must also couple it with other factors. There are many factors that apply, but here are some of the biggest:

• Criminal history of an individual

• Immigration violations of the individual

• Military service

• Whether the immigrant is trying to get an education

• Circumstances of arrival

• Duration of time in the States

• The presence of relatives

• Any relief status granted

There are some variations by jurisdiction in immigration law, but it is all governed federally,rather than on a state by state basis like criminal law. Different offices and jurisdictions havebeen known to proceed differently with discretionary review.

In short, prosecutorial discretion is about exercising good judgment. Good stewardship of select government resources, a balancing act of priorities, and general humanitarian concerns are all legitimate reasons for exercising discretion — and all merit more consideration in the current debate over immigration.

PROSECUTORIAL DISCRETION


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14

IMMIGRATION BONDS

If you are detained and facing deportation, the best initial outcome you can hope for is to be released on immigration bond. That said, this is not a simple process and it does require the services of an experienced immigration lawyer.

Each year, tens of thousands of people face deportation, and the majority of these detaineesmake the mistake of trying to represent themselves. What they fail to realize is deportationcases that involve self-representation only find in favor of the detainee about 14% of the time.Getting an immigration bond is so complex that the outlook is equally bleak if you attempt to do so without a lawyer.

You can seek an immigration bond through Immigration and Customs Enforcement (ICE) or through an immigration judge once officially in immigration custody. If you have an “ICE hold” or “ICE detainer” while in custody on a criminal case, it is only possible to seek a bond through ICE directly, and not an immigration judge.

CASES THAT INVOLVED SELF-REPRESENTATION only find favor of the detainee about 14% OF THE TIME.

It’s A Question of EligibilityThe burden of proof in an immigration case starts with meeting the eligibility requirements for your bond. It’s about more than just requesting and receiving what you ask for; the presidingauthority will look for any red flags before even considering your request.


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What do those red flags look like? There are two big ones that could bring the bond process to a halt before you even apply:

1. You can’t have a history of committing serious crimes.

2. Arriving aliens (i.e. aliens at the border or here on parole) are not eligible.

You should discuss and fully disclose any criminal activities with your lawyer. This includes any and all records that were previously dismissed or expunged, as they still have legal applications and bearing on immigration cases.

The next bend in the road is where representation makes all the difference.

Time to Appeal And Apply: Working Through The UnknownsThe first missed opportunity might present itself during the eligibility process. Many detainees simply assume they will not be eligible for bond or they will get denied for bond and stop trying to obtain one. This is a mistake. Never forego the chance for a bond hearing if you can help it.

Your case will likely be pre-set at “no bond” if you have a criminal background or convictionhistory. There is often room for some legal negotiation. This negotiation should be handled by your attorney. It involves taking some very specific steps, starting with arguing for a reasonable bound amount.

If the bond amount has not yet been set, the request acts as an excellent preemptive step.On the other hand, if the bond has been set too high, this is the perfect moment to push the reasonable reset button. Once that reset button is pushed, the presiding judge will require two things:

1. Documentation that you pose no threat to yourself or others

2. Evidence that you are not a flight risk

Having dealt with several of these cases, your lawyer can act as an instrumental asset during the evidentiary process.

Presenting The Strongest CaseAfter the request for a bond hearing has been filed, detainees have a VERY LIMITED time to gather all of the evidence required by both immigration services and the court; immigration courts will set your bond hearing on the first available detained docket as quickly as the following day.

IMMIGRATION BONDS



Unlike other legal cases, immigration status is handled very quickly — a fact that catches a lot of detainees off guard and under-prepared.

With the right guidance, you can enter court on the day of your hearing and have a solid understanding of the proceedings, as well as increased confidence in the merits of your request. Generally, the preliminary question of eligibility is answered first. Assuming you are given the right to apply, your application will be reviewed simultaneously. This is where an immigration lawyer can shine a spotlight on your good name and other lawful actions. That can demonstrate:

• You do not have a serious criminal history.

• You are financially stable.

• You have strong ties to your family and your community.

• You have not committed immigration violations habitually.

• You have lived in the U.S. for many years.

• You have honored all requests by the court.

All of this goes to establishing your strength of character and it also supplies the court with a legal risk assessment.

The final bond amount will be negotiated before you are released. Since there is a limited time in which to file an immigration bond request, it is recommended you hire a lawyer and get it done right the first time. Mistakes can prove to be irreversible.

If an immigration judge denies your bond, you can appeal to the Board of Immigration Appeals (BIA); however, you will remaine detained during the appeal process.

IMMIGRATION BONDS



17

APPEALS AND REMOVAL PROCEEDINGS

Denial is a scary prospect, especially when dealing with removal proceedings. If a judge does not grant your request for relief, it may feel like all hope is lost, but this is not true. You still have recourse, limited though it may be. Do not give up hope. Work with your immigration lawyer so that you can explore and exhaust all possibilities before you are deported.

Continuing The Search for ReprieveTo avoid deportation, you must act fast, but not irrationally. Meaning, if you plan to file an appeal regarding the presiding judge’s decision, you have a limited time in which to do so. How limited? Try 30 days. In fact, your appeal must be RECEIVED in Virginia in 30 days, not just mailed in 30 days.

That’s right; you have one month from the day that the original determination is made to file your appeal with the Board of Immigration Appeals (BIA), located in Virginia. Government officials are offered the same window of time to raise issue with the BIA. As you might expect, there is a catch to this process: Your case has to have merit.

Not every immigrant who is denied relief has grounds for an appeal. If you file one, it has to be based on something solid, such as a traceable error the board can validate in order to overturn an order of removal. Examples could be new evidence that has come to light about your immigration status that was not available the first time around, or some form of judicial misconduct, or a legal error, which led to an erroneous decision.

Judicial MisconductThis misconduct can take many forms, but the most common one goes back to the qualityof your representation. Representation, or the lack thereof, is a particularly sore spot inimmigration law.




Many immigrants either attempt to represent themselves or take the least expensive defense available through a third party. The outcome of their case can suffer as a result since their lawyer may not be well-versed in the nuances of immigration law. If you can prove that you were ineffectively represented, the order for removal can be rescinded. However, if you do not hire a lawyer the first time around, you cannot claim you were prejudiced by your own failure to do so.

DO NOT GIVE UP HOPE. Work with your immigration lawyer to EXPLORE and EXHAUST ALL POSSIBILITIES before being deported.

Presenting Your Argument to The BIAThe arguments are usually presented in writing along with any supporting documentationthat proves your case. However, you cannot “re-try” your case to the BIA with new evidence or evidence not in the record. There may be some back and forth between the BIA and your lawyer, but as long as you respond quickly and comprehensively, it shouldn’t take too long to reach a determination.

It’s also important to note that the right to appeal does not end with the BIA. If you continue to disagree with the BIA’s decision, you can take your case as high as the Federal Circuit Court. They make appeals and special consideration decisions in immigration cases about 500 times a year.

Other OptionsThe closer you get to an upheld deportation order, the more your options decrease, but they still do not disappear entirely. There are a few things that you should do immediately after receiving a Notice to Appear (NTA) in immigration court.

Find an experienced immigration lawyer and file for all forms of eligible relief; this does not include asylum, which should be on file within your first year in the U.S., unless you have been here less than one year when place in proceedings.

One of the lesser-known options is something called deferred action. You can requestadministrative closure to seek deferred action if you qualify.



The permits last two years and cost upwards of $465 apiece. This form of relief is only open to immigrants within a certain age group and you have to meet all of the qualifications to apply. Apply early; the process is documentation-heavy.

The last and final form of relief still involves removal, but it is voluntary. Voluntary removalmeans you accept and choose to honor the court’s deportation decision. By applying for this relief, you agree to leave U.S. soil voluntarily by a pre-set date. In doing so, you retain your right to return at a later time.

Official orders of removal usually come with penalties attached. Immigrants are barred fromentering the U.S. for 5 to 10 years. Voluntary removal allows you to avoid these penalties.Retaining these rights means you don’t leave empty-handed.




20

WHAT IS A FORM I-213?

The best way to categorize the form I-213 is in an evidentiary capacity. This form is used inimmigration court to establish the facts of your case. There can be other pieces of supportingevidence, of course, but this form outlines your immigration status for the judge and court officials involved in making a ruling.

Consider the basic information you were required to provide when you entered the U.S. The facts collected from your initial interviews with Immigration and Customs Enforcement (ICE) officers go on record. That record becomes the bones of the I-213 form. It will tell an immigration judge when, where and how you entered the country. It will also contain certain biographical information, like:

• Name

• Date of birth

• Address

• Family members/household size

• Employment or student status

• And more

It is the job of an immigration attorney to fill in the black and white facts with individualism and color by presenting your case to the court, whether you are on track for asylum, citizenship or assistance regarding removal.

YOU ARE NOT ALONE IN THIS PROCESS unless you choose to be. LOOK FOR LEGAL ASSISTANCE PROGRAMS that can help you secure the proper representation for your case.




Why A Form I-213 MattersA Form I-213 has been created not only to keep track of immigrants under an alien status, but also to expedite any legal processes involved in these cases.

For instance, neither you nor an ICE officer are required to be in court for the form to bereviewed. It is admissible in court without any testimony or input from any witnesses. That has significance because it means a decision in an immigration case can still be reached even if the immigrant in question fails to appear in court (referred to as “in absentia”).

It is also extremely important to realize that unless new evidence or an outstanding request is entered by your attorney or an ICE officer, these decisions can be reached very quickly. How quickly? In one district, the docket is so overloaded with cases that a single immigration judge may rule on as many as 1,500 cases a year. That works out to spending about 7 minutes deciding on each case!

By contrast, you could be waiting for your day in court for up to 24 months, depending on the circumstances. It is of the utmost importance that you spend this waiting period building a clear, concise and solid case, one that can be pared down to the essential facts and presented deftly.

Is it the wisest course of action to allow an immigration case to be determined in absentia? Absolutely not. Even if the facts of your case seem relatively cut and dry, you should never count on how the case looks in black and white.

There may be additional questions that need to be addressed or facts that require legal clarification. Additionally, it is your burden to prove eligibility for any form of relief. If you do not show up to testify you will be denied any form of relief, including voluntary departure; additionally, pieces of legal strategy that can be brought into play on your behalf are useless if you are not present for the judge to rule in your favor. The only way to know that is to show up with your attorney at every required hearing.

Also, whenever possible, do not represent yourself. Immigration law is complex and it changes constantly. The odds are set against you without the help of an attorney. Who knows if one misrepresented fact on your I-213 could make a difference in the way a judge rules on your case? A question like that should be tackled by a well-versed attorney.

Don’t Be Afraid to Ask for HelpYou are not on your own in this process unless you choose to be. Look for legal assistance programs that can help you secure the proper representation for your case. Yes, it will likely



take time. Yes, it will likely involve a waiting list and a lengthy selection process. However, remember that you will probably have the luxury of some time on your hands.

Using that time to obtain legal help and strategize about your case is one example of employing that time wisely. True, there is little guarantee of knowing just how much time you will have, but do you really want to waste it considering the alternative? Probably not.After all, an attorney can strengthen and even expedite your case when it is court-ready. They may not be able to have much control over the court docket, but they can minimize unnecessary delays and help track the case-valuable assets indeed.




23

DEPORTATION

There comes a point when you have exhausted all of your options and chances to remain in the U.S. You are now facing deportation. More than 3,500 immigrants a year receive a removal order; however, 800,000 seek and are granted voluntary removal or departure.

Voluntary Removal vs. Ordered Removal How bad is it if I fail to deport? This is a very bad decision. Failing to deport does not give you a free pass to remain in the U.S. Initially, it may seem that way, but you will learn very quickly that appearances can be deceiving.

One of the first big differences between an ordered removal and a voluntary one is that whenyou volunteer your departure is not monitored by immigration officials. Yes, it is deportation,as if on the honors system. That all changes the minute you decide to abuse the privilege that you’ve been granted.

If you fail to self deport on the pre-set day as agreed, your voluntary removal status is revoked. It automatically transfers to a removal order. No, a judge does not need to sign off on this change. No, you do not get another day in court. Unless you have a justifiable reason for missing your departure, immigration officials can forcibly remove you at any time.

Forcible removal comes with the following penalties:

• A $1,000 to $5,000 fine

• An automatic 10-year ban from entering the U.S.

• Additional bans from relief like: cancellation of removal, adjustment of status, change of status, registry and further voluntary departure

• A momentarily “free” ticket back to your home country

• A deportation stamp in your passport and on your record



Believe us when we tell you, failure to deport on your voluntary departure grant just isn’t worth it. These penalties follow you wherever you go. You have to pay the fine, repay the cost of the ticket, bide your time and hope that the deportation stamp in your passport doesn’t raise any red flags in other countries. Spoiler alert: It will.

Don’t Count on Exceptions to The RuleUnfortunately, the rules changed in this regard as of 1996. There used to be exceptional circumstances that could extend your departure date. They included: a serious illness affecting the non-citizen, a death in the family and/or circumstances beyond your control. Since the rules changed, immigrants are now expected to prove these circumstances exist during their removal proceedings, not afterward. There is still one exception remaining; it has to do with voluntary readiness.

In some cases, immigrants do not find out about voluntary removal or departure until it’s too late. Due to the fault of their attorney, they may not be notified of this option. Should this occur, they will be given the option to leave the country without penalty after the fact. The idea is that only immigrants who willfully fail to deport should face such harsh consequences.

Preparing to DeportExceptions are rare and narrow, even when your departure is voluntary. Do not apply for this form of relief unless you intend to comply with all required steps.

First, you will be set a voluntary departure bond. This will allow you to stay in the country until your departure date. Until that day comes, spend the time preparing your family. Get all of your documentation sorted out, make arrangements for your belongings and help family members accept what is about to happen. If you have applied for the ability to return in the future, make sure you have all the documentation in a safe place.

Report as agreed on the day of departure or earlier. Do not delay, as it could result in a forcible removal. You’ve done all of the leg work to avoid penalties, so why throw it all away now? Make the most of the relief you’ve been granted.

On the surface, voluntary removal may look like a small consolation in immigration law, but it is much more than that. This form of relief saves you on expenses and safeguards the merits of your status not only in the U.S., but around the world. This status makes it possible to be deported on your own terms, and it makes it easier to return in the future if a legal avenue exists for you or becomes available.

There’s something to be said for leaving under your own power, on your own terms. You canremain a lawful, trustworthy traveler.

DEPORTATION



25

THE DEFINITION OF RELIEF

Legally, relief is defined as assistance, redress or benefit given by the court to an individualinvolved in a legal action. As vague as that sounds on the surface, where immigration is concerned, this principle is very specifically applied.

Gaining the Right to Stay in the U.S.Relief doesn’t always change your status from removable to non-removable, but it does grant you the ability to stay in the U.S. even though you are technically deportable or inadmissible.

How is this possible and how do you qualify? That depends on the type of relief that you’re seeking. You have to qualify under specific statutes.

No matter which category a relief request falls into, you have to actively seek it. Nearly all forms of relief are only available on a discretionary basis (meaning there is a case by case analysis). Relief isn’t automatic. You have to request and apply for it. In many cases, you will also have to prove that you need or deserve it. We will review each type of relief individually:

Cancellation of Removal: This is available to lawful permanent residents and non-permanent residents alike. If sought by a non-permanent resident, it changes their status from non-immigrant or illegally present to “lawfully admitted for permanent residence.” The status change has to be applied for during the hearing and be backed up with proof that the status is deserved or a judicial mistake was made that voids the proceedings. If sought by a permanent resident, usually on the basis of a removable criminal conviction, it gives the permanent resident one final chance to stay in the United States with his or her green card.

Asylum: This is also referred to as “refugee” status. It means that an immigrant feels they are in imminent danger should they return to their home country. They have to base this argument on evidence of past persecution and/or a well-founded fear of future persecution. Persecution can be based on race, religion, nationality or certain community memberships and affiliations.


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Generally, this relief status has to be applied for quite early, within the first year of residence in the U.S. The burden of proof is very high and very specific in asylum cases. They take a long time to settle and to prove. This status change is not a guarantee.

If individuals waited longer than one year to apply for asylum, they may be eligible to prevent deportation by seeking withholding of removal or protections under the Convention Against Torture (CAT). These forms of “relief” are not discretionary if an individual can prove they would be harmed or persecuted based on a protected ground discussed above or tortured if returned to their home country.

IMMIGRATION LAW IS SO COMPLEX that it is highly recommended you find a WELL-VERSED IMMIGRATION LAWYER to represent you.

Adjustment of Status: Highlights the transition from temporary non-resident to permanent resident. The transition is usually started by a family member or employer acting on an immigrant’s behalf to start the visa or green card process. Sometimes it can take a while for the change to reach the judicial system and unnecessary removal proceedings commence. This is why it is always good to have information on your current status available for review. An important side note: Immigrants who participate in criminal activity, fail to appear at hearings and proceedings or do not depart when granted a voluntary departure status will face penalties in addition to not being eligible for an adjustment of status.

Voluntary Removal: This is relief of the last resort. If all attempts to halt, dismiss or cancel your removal orders have failed, you can still apply for voluntary removal. This means your removal will not be formalized. In other words, if you honor the departure date sanctioned by the court, you can leave without penalty.

Choose to forego voluntary removal and you will be ineligible for most relief programs or adjustments in status, and may be barred from entering the U.S. for 10 years. Accepting this form of relief allows you more freedom of travel as well as future assistance.

Other highly specialized forms of relief also exist for immigrants from certain countries like Cuba, El Salvador, Honduras, etc. An experienced immigration attorney can discuss options like Temporary Protected Status, the Cuban Adjustment Act, Nicaraguan Adjustment and Central American Relief Act (NACARA), and other options with individuals who may qualify



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based on time in the U.S. and country of birth.

A World of DifferenceBy comparison to the forms of relief listed in the previous section, judicial relief is akin to the appeal process. If an immigrant disagrees with the ruling made in their case, they have 30 days from that decision to file for judicial relief.

A specific board will review the facts of the case and come to a determination. This form of relief can reach as far as the federal court before it is fully resolved.

As a general rule, immigration law is so complex that it is highly recommended you find a well-versed immigration lawyer to represent you. An experienced attorney is a valuable asset in any case, especially during the appeal process. As you move through options on the relief scale, things can get increasingly difficult. Getting proper representation matters.




28

APPLYING FOR RELIEF IN IMMIGRATION COURT

Applying for relief is a multi-step process:

• First, you file an application for the appropriate form of relief and obtain a filing receipt if needed for payment of any fees.

• Second, the application is sent to an immigration judge and to the government attorneys for review.

• While the application is under review, you, in conjunction with your attorney, are responsible for taking the third step: filing any supporting documents with the court.

• Finally, the immigration judge will have a hearing on your application, which is like a bench trial (a trial without a jury).

MAKE SURE YOU UNDERSTAND both WHAT you are doing and WHEN to do it.

It’s best to get all of your ducks in a row before submitting the initial application so lack of documentation does not slow down the process. Of course, judges are expecting a whole new rush of relief renewals, in part because of executive actions taken by the President and in part because of a large influx of unaccompanied minors entering the U.S.

Applying for Deferred ActionThis is a separate form of relief outside of legal removal proceedings. Much like the other types, it doesn’t apply to all immigrants. These permits are for individuals commonly labeled as “Dream Act” or “Dreamers.” However, Congress never officially passed such an act, and the President has only created Deferred Action by executive order, meaning that such relief is not guaranteed to stay around indefinitely. This type of “relief” is meant to offer a temporary stay


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to individuals who came to the U.S. before the age of 16, attended school here and who meet other strict qualifications.

There are strict eligibility qualifications for immigrants who wish to apply. Among the qualifications are:

• The program is open to immigrants older than 15 and who were under age 32 at the time the executive order was issued in 2012.

• Living here continuously at least since June of 2007 and physically present in the U.S. when the executive order was issued in 2012.

• They must not have serious criminal convictions.

• Be enrolled in or have completed high school, or have served in the U.S. military.

• Those enrolled in GED programs and certain training programs also qualify.

Extensive documentation is required to prove that you qualify for a permit, essentially establishing you have upheld the rules for applying and can provide proof of continuous residency. This can include:

• School records

• Tax receipts

• Bank records

• Property or rent records

• Church confirmation

• Other religious records

U.S. Citizenship and Immigration Services (USCIS)has an updated list of the supporting documents on their website. You can also find similar lists of required documentation for other aforementioned types of relief.

When to Expect A ResultDuring this first round of renewals (the permits are good for 2 years), things may work a little differently than before, but decisions may not come swiftly. USCIS reviews a large number of deferred action requests, in addition to numerous other forms of relief, which means you may be looking at a long wait for renewal approval.

Be sure to look into other types of relief while your status is in a holding pattern. There may be several avenues available to you until the final decision is made. Have an experienced immigration lawyer help you with your case, so that you can develop an effective legal strategy to obtain or maintain your permit.

APPLYING FOR RELIEF



Withdrawn Or Revoked Deferred Actions HappenImmigration laws change all the time, and this program garnered both praise and criticism in almost equal amounts. Lawmakers on Capitol Hill are discussing various types of immigration reform bills. We are talking about the largest proposed plans for immigration reform since amnesty was granted back in the 1980s. That’s another reason to talk to a lawyer about your circumstances.

Reform is a fact in immigration matters. People can say the changes will be tough, fair and practical; that’s easy enough to say, especially if the person saying it isn’t directly affected by the reforms. The truth is, before you put $465 toward your renewal, you should get sound legal advice about how these permits work and what to do in the event that they are pulled and whether you are eligible for any other form of relief.

Preparing for all eventualities is part of what applying for immigration relief is all about. Make sure you understand both what you’re doing and when to do it.

APPLYING FOR RELIEF



31

WHAT HAPPENS AFTER YOU FILE FOR RELIEF?

There are more than 3,500 removal orders issued every year. This number does not count the more than 800,000 voluntary departures that occur in that same timeframe. Fewer than 300 immigration judges in 59 courtrooms across the country are responsible for making these determinations. To say the odds are stacked against you as an immigrant is an understatement.

Relief stands as your best hope of staying stateside, not only during the proceedings, but hopefully as a lawful resident or non-resident in the eyes of the court. Once you’ve applied for this benefit, the big question is: What happens next? We will offer the clearest possible answer to this question.

Preparing for The HearingsThere will be at least two hearings, possibly more, if the case is a complex one. It all starts with that Notice to Appear (NTA). Assuming the issue isn’t dropped, the notice is also put on file with the immigration court, initiating the process.

Your first appearance in court will be for something called a Master Calendar Hearing. You may already be aware of what you did in violation of immigration law, but it is the responsibility of the judge to formally review the charges against you. By this point, you should have already applied for discretionary relief if possible and available.

All other relief applications will be reviewed as part of your removal proceedings in an individual hearing with the judge. You can expect these proceedings to be tentatively scheduled during the Master Calendar Hearing. If you are not eligible for any form of relief other than voluntary departure, you will not be scheduled for an individual hearing and your case will be concluded at the Master Calendar Hearing.

We say tentatively because the hearing could likely be pushed back several times, due to the fullness of the judge’s docket. Regardless of how much time you are given, do not waste it. Investigate and apply for all forms of relief for which you might be eligible.



Relief RestrictionsCertain types of illegal or criminal activity may leave you ineligible for relief. Your ineligibility can also carry penalties, like not allowing you on U.S. soil for a specified number of years and/or leaving you unable to apply for other forms of relief.

Cancellation of Removal is a determination that a lot of immigrants hope for, but it comes with some pretty hefty qualifications. For starters, it has length of residency requirements (10 years for non-permanent residents and 7 years of lawful presence for permanent residents). At a minimum, permanent residents should be able to prove 5 years of having a green card in the U.S. and at least 7 years since their first lawful admission. Additionally, LPR’s must have gone without being convicted of an aggravated felony.

Non-permanent residents are expected to prove residency of at least 10 years. They also have to show that they are of good moral character. Any criminal history can affect eligibility for this form of relief and the individual must prove exceptional and extremely unusual hardship on a qualifying relative to be granted relief.

Character witnesses are typically used to testify on your behalf and prove your character and moral standing in front of a judge. They also have to stand up under cross-examination by an official who represents the government at these proceedings.

It is a good idea you have an immigration lawyer representing you to balance the scales during these proceedings. They can help apply for relief and justify your standing in court.

The Possibility of DeportationIf the determination of the judge leads to a deportation, there are two avenues left open to you:

1. Apply for voluntary removal.

2. Appeal your case to the Board of Immigration Appeals (BIA).

As hard as it is to accept, if you don’t have strong grounds to appeal, voluntary removal will allow you to leave the country on your own accord by a pre-set date. Do this, and avoid penalties.

On the other hand, if an appeal is warranted, you must act quickly. You only have a 30-day window to file your case with the BIA. The government can also file an appeal with the BIA, but that’s where their influence stops. If need be, you can pursue an appeal all the way up to the federal level. The Court of Appeals for the Federal Court makes the final determination in about 500 immigration cases a year. The outcome isn’t set in stone.

WHAT HAPPENS AFTER YOU FILE FOR RELIEF?



33

THE TIMELINE FOR IMMIGRATION CASES WHERE, WHEN AND WHY

An immigration case is heard in one of two places:

1. In one of more than 50 immigration courts across the country

2. Federal Court if deemed necessary

These cases generally stay out of the Supreme Court.

The tricky thing about immigration is its limits. For instance, the courts are located in 29 states, not all 50. What this amounts to is that cases remain in the jurisdiction determined by Immigration and Customs Enforcement (ICE). In other words, where you are encountered by ICE is likely where your case will be heard. As complicated resolutions go, this is the tip of the iceberg.

A Stark ContrastThe picture of immigration litigation has changed drastically. It now takes months, or even years, to reach a resolution in an immigration case.

Overcrowded dockets leave immigration judges (IJ’s) with only minutes to decide the fate of a detainee. The limits of federal funding keep state courts from hiring more IJ’s or clerks, often leaving five judges to handle the caseload for an entire region; all supporting duties resting on the shoulders of a single clerk.

This is probably not what you had in mind when your immigration case was entered into queue. Cases for citizenship status and deportation that were supposed to get a day in court in 2010 have been continued to as far out as 2015, with asylum cases expected to be resolved by 2017.

The average IJ presides over 1,500 cases a year; Federal Court determines about 440 cases a year. IJ’s have appealed to Congress to try and improve and expedite the process. Any



improvements due the court system are slow in coming. This is good news for immigrants with the weaker cases in the lot, but for strong cases or cases awaiting bond, relief, asylum and a change of venue, the wait can be an agonizing one. This is where the services of an experienced immigration lawyer make a substantial difference.

Languish in Court No LongerThe 14% success rate for self-represented immigration cases might be considered the final nail in the legal coffin that guarantees removal, even if that removal happens years from now. Detainees are looking at spending much of that time away from their loved ones, as well as away from sound legal advice, unless they act quickly.

One of the best early steps to take is to hire experienced representation. Immigration lawyers can give detainees a chance to make their statement in court through their attorney rather than via video recording. In-person statements have more of an impact on your case. That is just one ace up a good lawyer’s sleeve.

While a lawyer will not be able to stop all of the delays, he or she can minimize them greatly. Just like any other case, there is a fair amount of paperwork to file, paperwork relating to immigration status, employment privileges, bond, and removal; just to name a few. Why risk proving you are not a flight risk or that you need asylum all on your own? An immigration lawyer has an average success rate of 80%.

Beyond accuracy, knowledgeable representation and success, a lawyer also provides a sense of security throughout the process. This is especially helpful in cases concerning removal or asylum. Often you need an experienced voice to strengthen and prove your case, even if the window in which to do so is limited to minutes.

Do not take the gamble and go unrepresented; you may not get another chance to state your case. Until the process itself improves, make the most of the time you have and get a lawyer before you get your day in court.

THE TIMELINE FOR IMMIGRATION CASES



35

IMMIGRATION PROCEEDINGS: DO YOU NEED A LAWYER?

Do I need an immigration attorney in court or for filing petitions? For many immigrants, this is the equivalent of the million dollar question. Why? Representation is not required or guaranteed by law, so it is an investment. They want to be sure that the investment is one worth making. As a rule of thumb, it is.

There are a limited number of scenarios in which you can proceed without representation, but it is generally not advisable for you to use pro se (self) representation in an immigration case.

Looking at Both Sides of The Legal CoinThere is one thing that all immigrants, regardless of status, must understand: U.S. immigration law is purposely designed to be complex.

Multiple changes to the law are made every year. When faced with these complexities, it can feel like standing on shifting sands. Essentially, that’s exactly what you are doing, legally speaking. This truth is of particular importance if immigration proceedings are already underway.

One situation where pro se representation might be an option is when an individual has discussed their options with an attorney or accredited representative, and they have been told that no relief is available to them. If the individual is seeking only voluntary departure and has no criminal history, it may be possible to adequately represent oneself in immigration court.

Results are generally favorable in immigration court if:

• The case is straightforward.

• The applicant is clearly eligible for the benefit they’ve applied for.

• There is no criminal history to consider.

• There is no record of run-ins or negative involvement with immigration authorities.



The difficulty arises in cases because it usually takes an experienced immigration attorney to inform an individual which types of relief are available and how to apply for them. If an individual is eligible for relief, an attorney is advisable to help the process go smoothly.

The Benefits of Getting Sound RepresentationThat advice may be difficult to hear, but it’s not as difficult as facing the future without experienced representation. Removal (deportation) proceedings and asylum cases are at the discretion of an immigration judge. Case dockets are so full, immigrants are waiting several months, or even years, for a decision.

Do not leave the entire outcome of your case in the hands of the court. Even after the proceedings are over or in appeal, you need the services of a lawyer to find out if the outcome affects your status or any pending application process.

Assuming you are found either inadmissible or deportable, you need a lawyer immediately. It is possible to fight the grounds for the case against you, even if you have a criminal past or negative involvement with Immigration and Customs Enforcement (ICE), but you need an experienced attorney to make your case to the court.

Unfortunately, with dockets as full as they are, delays will likely be part of the process. There isn’t a way around that, but there is a way through it: a lawyer. Especially in cases of asylum, which are extremely difficult to prove, a lawyer may be able to use the delays to your advantage and strengthen your case. Otherwise, they can at least get additional information on why these delays are occurring, shorten the duration of unnecessary ones and track the case so the appropriate attention is brought to it.

The security afforded you by a lawyer isn’t available everywhere you may look for help. It is important to understand that while United States Citizenship and Immigration Services (USCIS) employees are generally helpful and can answer questions concerning your case, they are not employed to represent your interests. Feel free to call the office for procedural advice, to find out where to get and send forms, but do not try to review the facts of your case with these representatives. Misinformation is not a legally recognized immigration defense, so do not risk the possibility.

If you need or desire a second opinion, always make sure it’s a legal one. There are enough pitfalls you can be victim to thanks to immigration regulations; don’t add to them unnecessarily. Navigate things legally, not blindly, to ensure the optimum outcome.

For questions involving your or a loved one’s immigration case, contact the law firm of Stockard, Johnston & Brown, P.C. in Amarillo, Texas. Our immigration attorney on staff,

IMMIGRATION PROCEEDINGS: DO YOU NEED A LAWYER?



Cindy Goodman, is a seasoned immigration and criminal lawyer who formerly worked for the Department of Homeland Security. She has also fostered professional relationships with area judges and government attorneys. Her experience in court and knowledge of U.S. immigration law is invaluable. Contact Stockard, Johnston & Brown today for a free consultation to discuss your case at 806.372.2202.

If you have questions that require an explanation in Spanish, please contact Cindy Goodman’s paralegal, Pam Cervantes, at 806.373.3000.

For more information about immigration law, check back for the second part of SJB’s Guide to Immigration Law eBook, coming soon, or request a free consultation with Cindy Goodman.


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