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.

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

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.


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