The Notice to Appear and Removal Proceedings

Deportation and the Notice to Appear

I’m in Deportation Proceedings. Now What?

Question: I have been served with a Notice to Appear and been put into Removal Proceedings. What do I do?

Answer: The Removal Proceedings begins with issuance of a Notice to Appear and there are very specific requirements that must be included in Notice to Appear. If they are not included, you can try to ask for proceedings to be terminated.

Question: What type of requirements are supposed to be in the Notice to Appear?

Answer: The following items are required: In removal proceedings under section 240, written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the foreign national (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any). Thus, the first item is that it must be properly served on the foreign national in order to give notice of the hearing.

It must specify the following:
“(A) The nature of the proceedings against the alien.
“(B) The legal authority under which the proceedings are conducted.
“(C) The acts or conduct alleged to be in violation of law.
“(D) The charges against the alien and the statutory provisions alleged to have been violated.
“(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel
“(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted. The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number and the consequencesof failure to provide address and telephone information.

Next, there must be the time and place at which the proceedings will be held and the consequences of the failure, except under exceptional circumstances, to appear at such proceedings.

There must be listed the time and place of the proceedings.

Question: Will an attorney be appointed for me?

Answer: No. However, you do have the ‘right’ to have an immigration attorney of your choosing. Therefore, the first hearing will usually be continued in order to give you an opportunity in which to obtain an immigration attorney to help you.

Question: Should I admit the crimes listed on the Notice to Appear?

Answer: You should never admit the crimes. It is the burden of the government to prove that you are removable by clear and convincing evidence and that burden cannot be shifted because you simply admit to the crime.

Question: What about the grounds of removability? Should I admit to those as well?

Answer: First, you should make certain that you have an immigration attorney who is familiar and an expert in deportation and removal proceedings. In any event, some items of removability you could not realistically deny. However, many you can deny. For example, if you are being charged as an aggravated felon, there is a possibility that you can fight this and show you are wrongfully being classified as an aggravated felon.

In any event, it is very important to plea properly to the Notice to Appear and to fight the issuance or contents of the Notice to Appear if they are not properly served or placed in the Notice to Appear.

Try Federal Habeas Corpus to Vacate a Conviction

Try to Vacate a Crime with a Federal Habeas Corpus

I have been deported outside the U.S. Now What?

I have been deported outside the U.S. Now What?

Question: About 3 years ago, I was deported outside the United States, and I feel it was not done properly and that I was improperly deported. What can I do?

Answer: There are several things that may be done, but a Habeas Corpus is available in certain circumstances. Habeas corpus review can be used to determine whether: (1) petitioner is an alien; (2) petitioner was ordered removed under such section; and (3) petitioner is an LPR, or was granted refugee or asylum status. In determining whether the person has been ordered removed, the court’s inquiry is limited to whether such an order was in fact issued and whether it relates to the petitioner.

Therefore, if you believe you were a lawful permanent resident, but it was wrongfully determined you were not, this option is available to you.

Question: What is I committed a crime and that is why they took away my residency? Can I used Habeas Corpus in that event? I tried to vacate the crime in State Court where I committed the crime, but it was denied.

Answer: There has been lots of case law, motions and documents filed to try to vacate or reduce the conviction so that you would either not be considered deportable or removal and/or so you would not be considered an aggravated felon. However, when the State Court remedies have failed, there is the option (depending on your jurisdiction) of doing a Federal Habeas Corpus in order to try to vacate a State Crime. AEDPA §§101-06 substantially reduced the ability to use 28 U.S.C. §§2254 and 2255 to attack State and Federal convictions. There is now a one-year statute of limitations for filing a habeas petition in federal court attacking a state conviction, §2244(d)(1), or federal conviction, §2255.

Thus, if your crime occurred many years ago, this option will not be available. Unfortunately, AEDPA also strengthened the presumption of correctness of the convictions and restricted successive petitions. However, petitions have been granted to vacate a conviction where the court would not have accepted the plea had it been aware of the immigration consequences.

Question: What if I applied after being released from custody? Will the Court have Jurisdiction?

Answer: Jurisdiction exists for habeas even where alien is released from incarceration. Certain states permit a vacatur of a plea only if filed within a limited time period. For example, Florida permits a party to vacate a plea only if it is filed within 2 years of the conviction.

Question: What is I am time barred from bringing this type of post-conviction relief?

Answer: Where a defendant is time-barred under state post-conviction procedures, he or she may be able to bring a Padilla claim under federal habeas. Ineffective assistance of counsel may be raised under certain circumstances in light of state procedural bars.

The defendant must allege and prove that she would not have entered into the plea if informed of the possibility of removal. Vacation of a plea will vacate the conviction for immigration purposes as long as it was not pursuant to a rehabilitative statute or because of immigration hardship. Unlike a vacatur of a conviction, a vacatur of a sentence may be done for any purpose, including immigration avoidance.

Question: What is I only needed a couple days less on my sentence not to be considered an aggravated felon?

Vacating a sentence is different than vacating a conviction. A party may vacate a sentence for any reason, including immigration avoidance, and it must be given full faith and credit by the Immigration Judges and the Board of Immigration Appeals. There is case law where a sentence was modified nunc pro tunc expressly to avoid deportation as an aggravated felon, IJ and BIA must recognize it.

Question: What about ineffective assistance of counsel?

Answer: If not properly raised previously and depending on your jurisdiction, you many be able to bring this claim under a Federal Habeas Corpus to challenge the State Conviction.

It will not be easy, but may be the difference between coming back to the U.S. versus never coming back.

What evidence do you need for the EB-5 Visa?

 

Question: I have the $1,000,000 to invest in the EBp-5 Visa, but I don’t know exactly what evidence is needed. Can you describe?

 

Answer:  There are many requirements needed to show and provide evidence.

 

Question: What about the actual business or the commercial enterprise?

 

Answer: First, you have to show that it is a valid commercial enterprise. To qualify for EB-5 classification, an investor must show that an investment has been made in a qualified commercial enterprise. The applicant should include:  An organizational document for the new enterprise, including articles of incorporation, certificates of merger and consolidation, or partnership agreements; A business license or authorization to transact business in a state or city, if applicable; and for investments in an existing business, proof that the required amount of capital was transferred to the business after November 29, 1990, and that the investment has increased the net worth or number of employees by 40 percent or more.

 

Question: What about the capitalization or investment?

 

Answer: You must show different items regarding the actual investment itself. The EB-5 Petition must be accompanied by evidence that you have placed the required amount of capital “at risk.” A mere intention to invest will not demonstrate that the petitioner is actively in the process of investing. The investor must show actual commitment of the required amount of capital. Such evidence may include: Bank statements showing deposits in the U.S. account of the enterprise; Evidence of assets purchased for use in the enterprise;  Evidence of property transferred from abroad; Evidence of funds invested in the enterprise in exchange for stock, except for stock redeemable at the holder’s request; Evidence of debts secured by the investor’s assets and for which the investor is personally and primarily liable.

Simply putting the $1,000,000 into an account will not suffice.

 

Question: Is there anything else I must show with the funds invested?

 

Answer: You must show the  legal origins of the capital. The regulations require filing the following types of documentation, as applicable, to establish that capital used in the new enterprise was acquired by legitimate means. Foreign business registration records; Personal and business tax returns, or other tax returns of any kind filed anywhere in the world within the previous five years;  Documents identifying any other source of money; or  Certified copies of all pending governmental civil or criminal actions and proceedings, or any private civil actions involving money judgments against the investor within the past 15 years.

Question: What about the employment creation requirement?

 

Answer: To show that a new commercial enterprise will create at least 10 full-time positions for qualified employees, the petition must be accompanied by: Photocopies of relevant tax records, I-9 forms, or similar documents for 10 qualifying employees; or  a comprehensive business plan showing the need for at least 10 qualifying employees, and when the employees will be hired. The plan should include a description of the business; the business’s objectives; a market analysis, including names of competing businesses and their relative strengths and weaknesses; a comparison of the competition’s products and pricing structures; a description of the target market and prospective customers; a description of any manufacturing or production processes, materials required, and supply sources; details of any contracts executed; marketing

 

Question: How about my abilities to run the company?

 

Answer:  You must show that you have managerial capacity to run the company. An EB-5 immigrant must be involved in the management of a new commercial enterprise to qualify for a visa. The petitioner must be involved in the day-to-day managerial control of the enterprise, or manage it through policy formulation. Compliance with this requirement may be evidenced by  a comprehensive job description and title for the position occupied by the investor; evidence that the petitioner is a corporate officer or on the board of directors; or evidence that the petitioner is involved in direct management activities or policy-making activities of a general or limited partnership.

 

There are many strict requirements for the EB-5, so make sure it is done properly prior to investing.

Committed a crime? Maybe you should not be deported due to retroactivity.

Military Naturalization. How to become a U.S. Citizen.

In the Military? See if you qualify to become a U.S. Citizen.

I’m in the Military. Can I naturalize?

Question: I’m in the military and I know somebody who was in the military years ago. Can we become U.S. Citizens?

Answer: Members and certain veterans of the U.S. armed forces may be eligible for naturalization through their military service under a couple of different sections of the Immigration and Nationality Act (INA). Additionally, the INA provides for posthumous naturalization if that particular person in the military has died.

Question: What branches of the armed services will qualify for military naturalization?

Answer: Qualifying military service is generally in the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, and certain components of the National Guard and the Selected Reserve of the Ready Reserve. The general requirements for naturalization may be diminished or waived for qualifying service member.

Question: I am still in the military and have served for two years. What do I qualify for under the INA?

Answer: You may qualify for naturalization through serving at least one year of qualifying service during “Peacetime”. Of course, if you have served during a time of designated hostilities, you may qualify for the other provision of military naturalization which waives even more provisions to allow you to become a U.S. Citizen. However, under the peacetime provisions, a person who has served honorably in the U.S. armed forces at any time may be eligible to apply for naturalization. The military community sometimes refers to this as “peacetime naturalization.”

Question: What are the requirements for ‘peacetime naturalization’ for somebody in the military?

Answer: You must be age 18 or older, have served honorably in the U.S. armed forces for at least 1 year and, if separated from the U.S. armed forces, have been separated honorably; be a permanent resident at the time of examination on the naturalization application; be able to read, write, and speak basic English; Have a knowledge of U.S. history and government (civics); Have been a person of good moral character during all relevant periods under the law; and have an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the U.S. during all relevant periods under the law.

Question: What about the residency and physical presence requirements? I have been serving outside the U.S for my tour of duty and do not have physical presence requirement.

Answer: If you are filing this naturalization application under the peacetime provisions, and you are still serving or have been honorably discharged no more than 6 months ago, you are not required to meet the residence and physical presence requirements. Otherwise, you are required to meet those provisions.

Question: What about my friend who served years ago, but was serving in a period of hostility?

Answer: Generally, members of the U.S. armed forces who serve honorably for any period of time (even 1 day) during specifically designated periods of hostilities are eligible for naturalization under this provision of the Immigration and Nationality Act.
Question: What are the requirements for naturalization for people who served under a period of hostility?

Answer: In general, an applicant for naturalization under this provision must have served honorably in active-duty status or as a member of the Selected Reserve of the Ready Reserve, for any amount of time during a designated period of hostilities and, if separated from the U.S. armed forces, have been separated honorably.

Question: My friend was never a lawful permanent resident. Is that a requirement?

Answer: Generally, the answer is yes. However, your friend would not be required to have been a resident if that person has been physically present in the United States or certain territories at the time of enlistment or induction (regardless of whether that person was admitted as a permanent resident).

Question: Does a person under this section have be a certain age?

Answer: There is no minimum age requirement for an applicant under this section.

Question: What are the designated periods of hostility?

Answer: The designated periods of hostilities are: April 6, 1917 to November 11, 1918; September 1, 1939 to December 31, 1946; June 25, 1950 to July 1, 1955; February 28, 1961 to October 15, 1978
August 2, 1990 to April 11, 1991; September 11, 2001 until the present. Therefore, any military personnel serving anytime from September 11, 2001 until now can apply under this provision of naturalization during hostilities if they qualify.

Question: What about if the person died while serving in the military?

Answer: There is what is known as Posthumous Citizenship for Military Members. Generally, individuals who served honorably in the U.S. armed forces and who died as a result of injury or disease incurred while serving in an active duty status during specified periods of military hostilities, as listed above, may be eligible for posthumous citizenship.

This application must be filed within 2 years of his or her death. If approved, a Certificate of Citizenship will be issued in the name of the deceased veteran establishing posthumously that he or she was a U.S. citizen on the date of his or her death.

Don’t even think about filing a frivolous asylum application.

Don’t even think about filing a frivolous asylum application!

Don’t even think about filing a frivolous asylum application!

Question: I have a friend who came into the U.S and filed a fake asylum application. Is there anything that can happen?

Answer: Yes. This would be one of the worse things that your friend could do. In fact, the consequences for filing a frivolous application are extremely severe. If such a ruling is made, then the law states that this person will NEVER be able to obtain immigration benefits for the rest of his or her life.

Question: How do we know if this ruling is properly made?

Answer: There are three parts to getting a ruling of a frivolous application on an asylum application. First, the application must be frivolous. Second, it must be knowingly filed. Finally, the foreign national must have been given the proper advisals on the consequences of filing a frivolous application.

Question: On the first item, what does frivolous mean?

Answer: This means that the application was simply fake and had absolutely no basis in truth. Essentially, it was a fraudulent application.

Question: If the asylum application is denied, does that mean that it is frivolous?

Answer: No. Having an asylum application denied is far better than having a frivolous application. Getting denied might be for a wide variety of reasons such as there was not sufficient proof or that there was an adverse credibility finding, or that the legal basis for the asylum application is not applicable. These matters could be appealed or a motion to reopen could be made.

Question: How do you know if the foreign national ‘knowingly’ made the frivolous application?

Answer: This is a question of fact. However, if for example, the person came into the United States and did not speak a word of English and a ‘notario’ or somebody claiming to be an expert in Immigration Law simply filled out a fake application so that the foreign national would get a work-permit, then it is arguable it is not knowingly submitted. Especially if the foreign national was just told to sign everywhere without reading the application or understanding the application or what is said.

Question: What types of advisals exactly must be given in order for this section of law to be applicable?

Answer: The law specifies two major advisals that must be given: 1) the right to counsel and 2) what happens if a frivolous asylum application is filed. Specifically, if the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice, the alien shall be permanently ineligible for any benefits under the Immigration and Nationality Act.

Question: What is the ‘notice’ you referred to above? Specifically, how does the foreign national have to received the notice?

Answer: It has to be given at the time the asylum application is submitted. Therefore, if the frivolous asylum application is filed and is knowingly filed, but no advisals given, then the person does not fall under this area of law. It should then be immediately withdrawn.

Question: If somebody got this ruling, but years later marries a U.S. Citizen and has children and no crimes, can he adjust?

Answer: No. The bar against immigration benefits is for life. Therefore, I would have to go back to the original ruling and determine if it was incorrect and/or whether one of the elements necessary for the permanent bar to take effect has not been properly complied with by the government. I would then make a Motion to Reopen to try to get this ruling vacated.

In any case, it is an extremely harsh ruling and must be avoided at all realistic costs.

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