Immigration Attorney | Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Deportation and the Notice to Appear

Posted on December 2, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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.

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Try Federal Habeas Corpus to Vacate a Conviction

Posted on November 25, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Try to Vacate a Crime with a Federal Habeas Corpus

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Posted on November 18, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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.

Filed under: Immigration Attorney | Tagged: attorney brian d. lerner, Brian D. Lerner, capital, EB-5 Investment, EB-5 Investment Visa, investment visa | Leave a comment »

Another win for the our Immigration Law Office

Posted on October 30, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

An I-140 Multi-National Manager petition approved for Client from Egypt who is the majority owner of a small health care and medical supply business. Client is in E-2 status (also prepared by our office) and can now adjust status to get permanent residency.

Filed under: Immigration Attorney | Tagged: brian lerner, immigration law office, win | Leave a comment »

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

Posted on October 28, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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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Link to Follow on Linkedin Business Page for Immigration Updates

Posted on October 18, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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Got a Deportation Order because you never received notice?

Posted on October 14, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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.

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How can I come to the United States with my Husband?

Posted on September 16, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: Hello, my husband just got an H-1B to goto the United States. Do I have to remain here in my home country while he is in the United States on a work permit?

Answer. No. You would be considered a ‘derivative beneficiary’. This means that you would only have to prove the relationship that you have with your husband and then you would get a derivative visa. In this case, you would get an H-4. This would allow you to come to the United States.

Question: What about my children and my son who is married and my other daughter who is 32 years old?

Answer: All children who are under 21 and unmarried will be able to obtain derivative status as well. Unfortunately, the son who is married and the daughter who is over 21 years of age will not be able to get derivative status as well.

Question: Can I work on derivative status?

Answer: That will depend on the type of visa you have. For example, H-4 will not permit you to work. However, if your husband were to have received an E-2 for investing in a business or an L-1 for opening up a branch office, then you would be able to easily work with a derivative status.

Question: If I have a derivative status that does not permit me to work, what can I do?

Answer: You could always apply for a change of status when you get to the U.S. For example if you come to the United States on H-4 status, you could always apply for an H-1B yourself or a myriad of other types of status where you are no longer the derivative beneficiary, but the primary applicant.

Question: Will my children be able to goto school if they are here on a derivative status?

Answer: That also will depend on the type of derivative status. E-2 and L-2 will allow going to school without a problem (as long as not college). Otherwise, there has to be a change of status to F-1.

Question: If one of my children is now 20, but my husband got an H-1B for 3 years, will my child also get derivative status for 3 years?

Answer: No. The moment your child turns 21, his derivative status is over. Even if the I-94 states it is good for 3 years, by operation of law, it will terminate the day he is 21 years old. Therefore, it would be in your interest for him to file for a change of status a few months before, such as to F-1 to be a student.

Question: Are derivative beneficiaries also the spouse and unmarried children under 21 years old?

Answer: Actually, that is most of the time. However, there are certain visas which in actuality have a broader range of derivative beneficiaries, and therefore, make it a better choice if you qualify. For example, visas such as the U and T allow a broader range of derivative beneficiaries.

Question: What about the Green Card? Are there also derivative beneficiary’s?

Answer: Yes, in much the same manner. Except when the Green Card or Lawful Permanent Residency is involved, it will result in the Green Card being issued. Therefore, you want to make sure to apply in plenty of time as in some cases, it will take years for the visa number to become current. There might be some ways of getting a derivative Beneficiary if the child is over 21 years old if they fall under the Child Status Protection Act.

In any case, be sure you consult a knowledgeable immigration attorney before the child has aged out and there is no way to get derivative status.

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Another win for the Law Offices of Brian D. Lerner

Posted on August 16, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Permission to Reenter granted after only 3 months after deportation order issued. Now, client is not barred for another 9 years and 6 months from coming back to the U.S.

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