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.

Can’t get the H-1B? Try the O-1.

Can’t get an H-1B? Try the O-1.

The O-1: An alternative to the H-1B.

Question: I have years of experience, but cannot get an H-1B as they are used up. Are there any alternatives to the H-1B?

Answer: There is the option of the O-1. I normally do not used this as a first resort, but it most definitely is an option The O nonimmigrant visa is for people of “extraordinary ability.” The regulations also provide for O-2 visas for supporting workers. Eligibility for O visas is based on nonacademic achievements. There are no numerical limits on the O visas issuable each year and O petitions may be valid for up to three years, with extensions in one-year increments.

Question: What are the procedures for O-1 Visas?

Answer: An application for an O visa requires a U.S. employer to file a petition with a U.S. Citizenship and Immigration Services (USCIS) service center on Form I-129, with an O supplement, a “consultation,” an employment contract or letter describing the activities to be performed, documents proving the foreign national’s career achievements, and the filing fee. An itinerary is required for services to be performed in numerous locations. If the beneficiary will work concurrently for more than one employer, each employer must file a separate petition.

Question: Can I self-petition for the O-1?

Answer: A foreign national cannot self-petition for an O-1 visa. A U.S. employer is required. USCIS regulations permit an “agent” to act as an employer to sponsor the foreign national. The petition must be accompanied by a summary of the employment agreement’s terms (i.e., a letter from the petitioner). A Notice of Action (Form I-797) approving the petition is issued by the USCIS service center.

A foreign national outside the United States submits the approval notice to an American consulate with Form DS-160 5 (or DS-156 and, if necessary, DS-157 and/or DS-158), and the visa fee. If in legal status in the United States, the foreign national, at the time of filing the petition, may apply for change of status using Form I-129.

Question: What are the advatages of the O-1?

Answer: When a foreign worker does not qualify for an H-1B visa because he or she lacks a college degree or equivalent work experience, the job is not a specialty occupation, the salary is below the prevailing wage, or an H-1B visa number is not available, the O-1 visa may be a viable alternative. For example, a violin maker’s occupation is not an H-1B specialty occupation, as it does not require a degree. A violin maker of extraordinary ability, however, may be able to obtain an O-1 visa. Similarly, a chemist with a Ph.D., patents, and publications may be granted an O-1 visa when H-1B visas are not available. A foreign national who has exhausted the time permitted in H or L status may apply to change status to O-1 to remain working in the United States. Further, J-1 visa holders subject to the two-year foreign-residency rule under Immigration and Nationality Act (INA) §212(e) may be able to obtain an O-1 visa, which is exempt from INA §212(e) restrictions.

Question: What do you have to show to get an O-1 Visa?

Answer: There are several items that must be shown, but all of the following is not necessary. However, you should be able to provide at least three that are on the list:
(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; (4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; (5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field; (6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media; (7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; and (8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

Thus, it is not easy to get an O-1, but is a very viable alternative to the H-1B and is always available.

Got a deportation order you never knew about?

Got a Deportation Order because you never received notice?

I never got notice of my Immigration Court hearing. Now what?

Question: It seems years ago I supposedly received a notice to go to court, but never went because I never really received the notice. What can I do?

Answer: An in absentia order may be rescinded by the immigration judge upon the filing of a motion to reopen if the respondent did not receive proper notice of the hearing.

Question: Where to File the Motion to Reopen?

Answer: The motion should be filed with the immigration court having administrative control over the record of proceedings. Typically, this will be the court where the in absentia order of removal or deportation was entered.

Question: What is the Time for Filing the Motion to Reopen?

Answer: A motion to reopen based on lack of proper notice can be filed at anytime. This also means that a motion may be filed even after a person has departed the United States.

Question: Will I get deported if I file the motion – or have a risk of deportation?

Answer: An automatic stay goes into effect when the motion is filed and remains in effect pending disposition of the motion by the immigration judge. In deportation cases, the stay remains in effect during the appeal to the Board of Immigration Appeals (BIA).

To alert the court and the U.S. Immigration and Customs Enforcement (ICE) to the applicability of the automatic stay provision, motions may indicate (in bold letters on the cover page and on the front page of the motion) that an automatic stay applies.

Question: What factors are considered in this type of motion?

Answer: Consideration of many different factors goes into this type of motion, especially that you did not have notice of the proceedings against you.

Question: What does proper notice mean?

Answer: Proper notice means that ICE must properly serve the respondent with a charging document at the outset of proceedings. The charging document is an Order to Show Cause (OSC) in deportation and exclusion proceedings and a Notice to Appear (NTA) in removal proceedings. Also, the court must properly serve the respondent with written notice of all hearings.

Question: What Information Must the Government Put in the Notice?

Answer: The charging document must include: the nature of the proceedings, the legal authority for the proceedings, the acts/conduct alleged to be in violation of the law, the charges against the respondent, notification of the right to be represented by counsel, and the requirement that the respondent must provide a change of address or telephone number. The notice also must inform the respondent of the consequences of not providing a change of address (i.e., that the he or she may be ordered removed or deported in absentia). The notice of hearing, whether contained in the charging document or as a separate notice, must state the time and place of the proceedings and must inform the respondent of the consequences of failing to attend the hearing.

Question: What are Proper Methods of Service?

Answer: There is a presumption of effective delivery where the evidence indicates that the notice was properly served. However, if the respondent can show that the notice was not served properly, the presumption of effective delivery should not apply and thus there is no need to rebut the presumption. The following are the service requirements:

The nature of the requirements have chnged over time. However, for Removal Proceedings Filed On or After April 1, 1997, the NTA and notice of hearing may be served in person or by mail, but there is no requirement that the NTA be mailed by certified mail. Regular mail is sufficient. Consequently, signatures of receipt are not required.

Question: How Does the “Change of Address” Requirement Affect Proper Service and Can the Notice Requirements Be Satisfied Without Actual Receipt?

Answer: ICE may mail the NTA to the last address on file for the respondent. This may be the address that was included in an affirmative application that was filed with U.S. United States Citizenship and Immigration Services (USCIS). However, respondents cannot be ordered removed or deported in absentia until they are warned (by receipt of the NTA or OSC) that they may be ordered removed or deported in absentia as a consequence of failing to inform the government of a change of address. Thus, individuals who failed to report a change of address and do not receive the NTA or OSC as a result, cannot be ordered removed in absentia.

Question: How Can the I Prove that I Did Not Receive Notice Even If the Record Shows that It Was Mailed to the Correct Address?

Answer: Some of this will depend when the deportation notice of your hearing was mailed. However,
the presumption of effective service can be overcome if the respondent demonstrates non-delivery or improper delivery by the U.S. Postal Service. Non-delivery or improper delivery can be established by submitting substantial and probative evidence, such as documentary evidence from the Postal Service and affidavits. For example, if there were ongoing problems with the mail delivery, you may want to provide details about the problems and affidavits from people with direct knowledge of the problem.

In determining whether the respondent has overcome this presumption, the immigration judge must consider both circumstantial and corroborating evidence, and may consider a variety of factors, including (but not limited) to: Respondent’s affidavit; Affidavits from family members and other individuals who are knowledgeable about the relevant facts; Respondent’s actions upon learning about the in absentia order and whether he or she exercised due diligence in seeking redress; Any prior affirmative application for relief or application filed with USCIS or prima facie eligibility for relief (to help establish an incentive to appear); Previous attendance at immigration court hearings; and Other circumstances or evidence indicating possible non-receipt.

Thus, there is a significant amount of work to be done on a Motion to Reopen a deportation order issued in absentia, but if done properly, it can work and proceedings can be reopened.

DOMA and the Updates to Immigration Petitions

DOMA and now Same Sex Immigration Petition Updates

DOMA and now Same Sex Immigration Petition Updates

Question: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign
national. Can I now sponsor my spouse for a family-based immigrant visa?

Answer: Yes, you can file the petition. You may file a Form I-130 (and any applicable
accompanying application). Your eligibility to petition for your spouse, and your spouse’s
admissibility as an immigrant at the immigration visa application or adjustment of status stage,
will be determined according to applicable immigration law and will not be denied as a result
of the same-sex nature of your marriage.

Question: I am a U.S. citizen who is engaged to be married to a foreign national of the same
sex. Can I file a fiancé or fiancée petition for him or her?

Answer: You may file a Form I-129F. As long as all other immigration requirements are
met, a same-sex engagement may allow your fiancé to enter the United States for marriage.

Question: My spouse and I were married in a U.S. state or a foreign country that recognizes
same-sex marriage, but we live in a state that does not. Can I file an immigrant visa
petition for my spouse?

Answer: As a general matter, the law of the place where the marriage was celebrated
determines whether the marriage is legally valid for immigration purposes. Just as USCIS
applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply
all relevant laws to determine the validity of a same-sex marriage.

Question: Do I have to wait until USCIS issues new regulations, guidance or forms to apply for
benefits based upon the Supreme Court decision in Windsor?

Answer: No. You may apply right away for benefits for which you believe you are eligible.

Question: My Form I-130, or other petition or application, was previously denied solely
because of DOMA. What should I do?

Answer: USCIS will reopen those petitions or applications that were denied solely because of
DOMA section 3. If such a case is known to us or brought to our attention, USCIS will
reconsider its prior decision, as well as reopen associated applications to the extent they
were also denied as a result of the denial of the Form I-130 (such as concurrently filed
Forms I-485). USCIS will make a concerted effort to identify denials of I-130 petitions that
occurred on the basis of DOMA section 3 after February 23, 2011. USCIS will also
make a concerted effort to notify you (the petitioner), at your last known address,
of the reopening and request updated information in support of your petition. To alert USCIS of an I-130 petition that you believe falls within this category,
USCIS recommends that you send an e-mail from an account that can receive
replies to USCIS at USCIS-626@uscis.dhs.gov stating that you have a pending
petition. USCIS will reply to that message with follow-up questions as necessary to
update your petition for processing.

Question: What about immigration benefits other than for immediate relatives, family preference
immigrants, and fiancés or fiancées? In cases where the immigration laws
condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,”
will same-sex marriages qualify as marriages for purposes of these benefits?
Answer: Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits
depends on the meanings of the terms “marriage” or “spouse.” Examples include (but
are not limited to) an alien who seeks to qualify as a spouse accompanying or following to
join a family-sponsored immigrant, an employment-based immigrant, certain
subcategories of nonimmigrants, or an alien who has been granted refugee status or
asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an
opposite-sex marriage.

Question: If I am seeking admission under a program that requires me to be a “child,” a “son
or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful
permanent resident, could a same-sex marriage affect my eligibility?

Answer: There are some situations in which either the individual’s own marriage, or that of
his or her parents, can affect whether the individual will qualify as a “child,” a “son or
daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent
resident. In these cases, same-sex marriages will be treated exactly the same as opposite sex
marriages.

Question: Can same-sex marriages, like opposite-sex marriages, reduce the residence period
required for naturalization?

Answer: Yes. As a general matter, naturalization requires five years of residence in the
United States following admission as a lawful permanent resident. But, according to the
immigration laws, naturalization is available after a required residence period of three
years, if during that three year period you have been living in “marital union” with a
U.S. citizen “spouse” and your spouse has been a United States citizen. For this purpose,
same-sex marriages will be treated exactly the same as opposite-sex marriages.
Inadmissibility Waivers
Q9. I know that the immigration laws allow discretionary waivers of certain
inadmissibility grounds under certain circumstances. For some of those waivers, the
person has to be the “spouse” or other family member of a U.S. citizen or of a lawful
permanent resident. In cases where the required family relationship depends on
whether the individual or the individual’s parents meet the definition of “spouse,” will
same-sex marriages count for that purpose?

Answer: Yes. Whenever the immigration laws condition eligibility for a waiver.

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