• Hours & Info

    3233 E. Broadway,
    Long Beach, CA 90803
    (562) 495-0554
    M-F: 8:00am - 6:00 p.m.
    Sat: 9:00 a.m. - 12:00 p.m.

  • Past Blog Posts

  • https://api.whatsapp.com/send?phone=13104885414

Title: New Hope for Aliens in Removal Proceedings

Posted on December 23, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The Board of Immigration Appeals issued a decision, In re Ariadna Angelica Gonzalez, et al. (23 I & N Dec. 467, Interim Decision #3479, BIA 2002) on September 19, 2002 that seems to ease some of the restrictions on applying for cancellation of removal.

When an alien is placed into removal proceedings (previously referred to as deportation proceedings), there is a type of relief known as cancellation of removal. If the Immigration Judge grants the relief, then the alien will be granted lawful permanent residence in the United States. To qualify for this relief, one must show that he or she has been physically present in the United States for at least ten years prior to being placed into removal proceedings. Next, the alien must show they have good moral character and have not been convicted of certain crimes. Finally, the most difficult element to prove for this type of relief is to show that an immediate family member who is either a United States citizen or Lawful Permanent Resident will suffer exceptional and extremely unusual hardship if the he or she is removed from the United States.

Prior to In re Gonzalez, it appeared as though only those aliens in removal proceedings who had a United States son or daughter who suffered from some type of sever medical trauma would be granted cancellation of removal. Naturally, most people in proceedings could never meet such a high standard. This type of standard was not only restrictive, but unrealistic for most people to meet. Congress has allowed aliens without legal status in removal proceedings to apply for this type of relief. They have intended that long term residents should be given a real chance to be able to continue their lives in the United States without having their families torn apart and separated for years or for the rest of their lives.

The problem is with the term ‘exceptional and extremely unusual hardship.’ Clearly, any family who is separated by removal of one of its members from the United States will suffer hardship. However, for those who want to win the cancellation of removal cases, they must present facts showing that they will suffer exceptional and extremely unusual hardship. When this law was passed under the Immigration and Nationality Act section 240, there were no precedent decisions as to what constitutes this type of hardship. In reality, each Immigration Judge could have their own interpretation as to what type of hardship will fall under this standard. Previously, the Board of Immigration Appeals has issued very harsh decisions as to what constitutes this high standard of hardship. Subsequent to the issuance of those decisions, it has been practically impossible to ever get a grant of cancellation of removal from an Immigration Judge.

In re Gonzalez moves the pendulum back and gives the attorneys and the judges some realistic direction on what constitutes ‘exceptional and extremely unusual hardship’. In this case there was a single mother of six children and no family ties in Mexico. Four of her children were United States citizens. She has lawful permanent resident parents and five of her siblings are United States citizens.

The factors the Board of Immigration Appeals considered in assessing the hardship included the heavy financial burden imposed on her by having to support all of her family in her native country, the lack of any familial support for her children, the lack of any family in her native country, the children’s unfamiliarity with the Spanish language and the unavailability of any other means of immigrating to the United States.

In re Gonzalez makes it clear that ‘unconscionable’ hardship need not be shown. In deciding a cancellation of removal case, the age, health, and other circumstances of the relative must be considered if they are to live in a country with a lower standard of living.

The financial hardship on the alien was a determinative factor. The Board of Immigration Appeals noted that her children were not receiving any type of financial assistance from their father. Additionally, the Board of Immigration Appeals noted that should she be removed from the United States, it would be unlikely that she would be able to legally return to the United States in the foreseeable future.

The Board of Immigration Appeals stated that they must consider the ‘totality of the burden on the entire family’ that would result from the removal of the mother from the United States. Thus, a cumulative analysis must be made as to all of the factors relating to the hardship.

Prior to this decision, getting the Immigration Judge to grant a cancellation of removal was rare. Now, aliens in removal proceedings can present a myriad of evidence to meet the high standard of hardship that their families will suffer if they are removed from the United States.

Filed under: Cancellation of Removal, Immigration Law, immigration provisions, Removal Proceedings, USCIS | Tagged: , | Leave a comment »

New Hope for Aliens in Removal Proceedings

Posted on December 23, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The Board of Immigration Appeals issued a decision, In re Ariadna Angelica Gonzalez, et al. (23 I & N Dec. 467, Interim Decision #3479, BIA 2002) on September 19, 2002 that seems to ease some of the restrictions on applying for cancellation of removal.

When an alien is placed into removal proceedings (previously referred to as deportation proceedings), there is a type of relief known as cancellation of removal. If the Immigration Judge grants the relief, then the alien will be granted lawful permanent residence in the United States. To qualify for this relief, one must show that he or she has been physically present in the United States for at least ten years prior to being placed into removal proceedings. Next, the alien must show they have good moral character and have not been convicted of certain crimes. Finally, the most difficult element to prove for this type of relief is to show that an immediate family member who is either a United States citizen or Lawful Permanent Resident will suffer exceptional and extremely unusual hardship if the he or she is removed from the United States.

Prior to In re Gonzalez, it appeared as though only those aliens in removal proceedings who had a United States son or daughter who suffered from some type of sever medical trauma would be granted cancellation of removal. Naturally, most people in proceedings could never meet such a high standard. This type of standard was not only restrictive, but unrealistic for most people to meet. Congress has allowed aliens without legal status in removal proceedings to apply for this type of relief. They have intended that long term residents should be given a real chance to be able to continue their lives in the United States without having their families torn apart and separated for years or for the rest of their lives.

The problem is with the term ‘exceptional and extremely unusual hardship.’ Clearly, any family who is separated by removal of one of its members from the United States will suffer hardship. However, for those who want to win the cancellation of removal cases, they must present facts showing that they will suffer exceptional and extremely unusual hardship. When this law was passed under the Immigration and Nationality Act section 240, there were no precedent decisions as to what constitutes this type of hardship. In reality, each Immigration Judge could have their own interpretation as to what type of hardship will fall under this standard. Previously, the Board of Immigration Appeals has issued very harsh decisions as to what constitutes this high standard of hardship. Subsequent to the issuance of those decisions, it has been practically impossible to ever get a grant of cancellation of removal from an Immigration Judge.

In re Gonzalez moves the pendulum back and gives the attorneys and the judges some realistic direction on what constitutes ‘exceptional and extremely unusual hardship’. In this case there was a single mother of six children and no family ties in Mexico. Four of her children were United States citizens. She has lawful permanent resident parents and five of her siblings are United States citizens.

The factors the Board of Immigration Appeals considered in assessing the hardship included the heavy financial burden imposed on her by having to support all of her family in her native country, the lack of any familial support for her children, the lack of any family in her native country, the children’s unfamiliarity with the Spanish language and the unavailability of any other means of immigrating to the United States.

In re Gonzalez makes it clear that ‘unconscionable’ hardship need not be shown. In deciding a cancellation of removal case, the age, health, and other circumstances of the relative must be considered if they are to live in a country with a lower standard of living.

The financial hardship on the alien was a determinative factor. The Board of Immigration Appeals noted that her children were not receiving any type of financial assistance from their father. Additionally, the Board of Immigration Appeals noted that should she be removed from the United States, it would be unlikely that she would be able to legally return to the United States in the foreseeable future.

The Board of Immigration Appeals stated that they must consider the ‘totality of the burden on the entire family’ that would result from the removal of the mother from the United States. Thus, a cumulative analysis must be made as to all of the factors relating to the hardship.

Prior to this decision, getting the Immigration Judge to grant a cancellation of removal was rare. Now, aliens in removal proceedings can present a myriad of evidence to meet the high standard of hardship that their families will suffer if they are removed from the United States.

https://cbocalbos.wordpress.com/tag/cancellation-of-removal/

https://cbocalbos.wordpress.com/tag/deportation-or-removal-hearings/

https://cbocalbos.wordpress.com/tag/removal/

https://californiaimmigration.us/removal/

Filed under: Removal Proceedings | Tagged: , , , , , , | Leave a comment »

Preventing Removal through Habeas Corpus

Posted on December 23, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that the government is trying to deport people to their countries even if the foreign government does not want them back. Is this true?

Answer: Yes. However, in a recent 9th Circuit decision, Ali vs. Ashcroft, 2003 U.S. App. LEXIS 19213 (9th Cir. 2003), this issue was addressed.

In this case, the man was from Somalia and he had a final order of removal against him. The Bureau of Customs and Immigration Enforcement (BICE) had plans to deport this person (Ali) to Somalia. He filed a Writ of Habeas Corpus in the District Court to prevent BICE from deporting him to Somalia (a country without a functioning government.)

First, Ali was not merely contesting the removal order. Instead, he was primarily arguing that BICE could not remove an alien to a country without a functioning government. Here, the Ninth Circuit held that administrative exhaustion is not required where they are not ruling on the merits of the removal, but rather, a practice of constitutional or statutory violations.

Next, this case held that if it would be futile to exhaust the administrative remedies, and the issue revolves around a legal question, that the appellant is not required to exhaust his administrative remedies.

This is a very critical ruling. Primarily, the reality of being removed from the United States is weighed against exhausting administrative remedies. What usually happens is that when a person is in imminent danger of being deported or removed from the United States, a Motion for a Stay of that Deportation can be filed with the Board of Immigration Appeals. In the vast majority of the cases, they will deny the Stay of Deportation, or simply not rule on the matter prior to the person being deported.

BICE will always try to make these jurisdictional arguments based upon the fact that the alien has failed to exhaust their administrative remedies. However, if the alien did not file the necessary Habeas Corpus to get a real chance at getting the stay of deportation issued, he would be deported and the issue would be moot. In this case, the alien was from Somalia and he faced a real likelihood of being killed or tortured by being returned to a country whereby there is no organized government. Thus, not only would it have been futile to try to get the stay of deportation issued by the BIA, it could have resulted in his death.

Thus, the Ninth Circuit ruled that judicial review was not barred in this case because of a lack of exhaustion of administrative remedies.

In Ali, supra, the Ninth Circuit goes through an analysis of how the government determines which country a person will be deported. The Immigration and Nationality Act §1231 deals with the procedure that must be used in order to designate the country of deportation. It essentially states that a country which the alien designates (or which the government designates if the alien is unwilling to do so) will be the country of removal if the government of that country gives their approval to accept the alien within thirty days. If the foreign government does not give their approval within 30 days, then the subsequent provisions of the statute must be followed to determine which will be the country of removal.

The subsequent provisions also make clear that it is necessary to have the foreign government’s approval in order to deport and remove the alien to that country.

Failing the first two sections, the government must look to a third section to determine the country of removal. In this third section, there is a litany of different provisions that are stated as to where will be the country of removal. All of the provisions do not require the foreign governments consent as do the prior provisions. Here, the BICE was arguing that the statute in the third set of provisions does not require that they have the governments consent, and therefore, they do not need any consent to deport aliens under this provision.

The Ninth Circuit adopted the reasoning of the District Court. In essence, they stated that the consent requirement of the foreign government was implicit in the third section. Otherwise, it would render the first two sections superfluous. For example, the government in the first section could deny the Attorney General permission to deport the alien to their country. Then, the Attorney General could go down to the third section to give themselves authority to deport the person without the consent of the foreign government which was specifically required in the first section. In fact, to allow the third section to stand without an implicit approval by the foreign government would make the first two sections meaningless.

Unfortunately, we are facing more situations similar to this case where the government will try to bootstrap a particular provision as giving them authority to perform an action when other provisions do not give them such authority.

Thus, this case has stood up to the fairness of aliens in this particular situation. The law has shown that BICE cannot try to deport an individual to a country who will not accept this alien and whom will torture and/or kill him upon his return.

After concluding that it was not legal to deport a person to a country where the foreign government has not given their authorization, the Ninth Circuit then addressed the issue of indefinite detention of the alien. Here, where there is no likelihood of removal in the foreseeable future, the alien must be released.

This particular case is not only a win for this particular alien, but for all aliens in his similar situation across the U.S. It is a ruling that shows that basic humanitarian considerations need to be followed.

Filed under: Habeas Corpus, Immigration Law, immigration provisions, Removal Proceedings, USCIS | Tagged: , | Leave a comment »

PERM: Am I an ‘Arriving Alien’?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am married to a U.S. Citizen and just entered the U.S. Unfortunately, I have a crime in my past. The Immigration Judge denied my case and stated that because I was an arriving alien that I do not qualify to adjust my status in the U.S. Is this true?

Answer: Actually, in a majority of the U.S. you would not be eligible to adjust status to that of a Lawful Permanent Resident because you are considered to be an arriving alien. This is when a person basically enters the U.S. and is immediately put into deportation or removal proceedings. However, there was issued just recently a decision in the First Circuit Court of appeal a case that deals with this very issue. This case raises issues of first impression in immigration law as to the validity of a regulation promulgated in 1997 by the Attorney General, 8 C.F.R. § 245.1(c) (8). The regulation redefines certain aliens as ineligible to apply for adjustment of status to lawful permanent residents. Under that regulation, the Attorney General will not consider an application for adjustment of status from the entire category of aliens who have been granted parole status (permitted to enter the U.S.) but have been placed in removal proceedings.

Question: What was the reasoning of the court?

Answer: First, 8 U.S.C. Section 1255 specifically states who is eligible to adjust status. Previously, in 1997, the Attorney General carved out an exception to this (through implementing new regulations) that arriving aliens are not eligible to apply. First, the actual code 8 U.S.C. Section 1255 (made by Congress and signed by the President) specifically permits persons whom are paroled into the U.S. (and therefore an arriving alien) to adjust status in the U.S. Therefore, the actual Immigration and Nationality Act is not silent on the issue to which the Attorney General made the regulation.

Next, the Court ruled that Congress has specifically stated where the Attorney General had the authority to issue discretionary decisions as to eligibility for adjustment of status. Here, there was no authority given to the Attorney General (John Ashcroft at the time) to issue such a decision to bar people from adjusting status when the Immigration and Nationality Act specifically permitted those people to adjust. Basically, Congressional intent in making the policies of who can adjust status takes precedence over what the Attorney General thought that he could do.

Question: So, what was the final outcome?

Answer: The First Circuit Court of Appeals sent the case back down to the Immigration Court for Adjustment of Status proceedings after ruling that the regulation promulgated by the Attorney General making arriving aliens (or those paroled into the U.S.) ineligible for adjustment proceedings unconstitutional.

Question: Does this rule apply all over the U.S.?

Answer: Unfortunately, it does not. It only applies if you happen to be living in the 1st Circuit. This would be in the Northeastern part of the U.S. Thus, in all other areas of the U.S. an arriving alien cannot adjust status in removal proceedings. However, this ruling from the First Circuit is very powerful and can be used to convince the Immigration Judge to permit such an adjustment. If he/she does not, you can take it up on appeal to the Board of Immigration Appeals. After, if you lose, you can appeal this up to the Circuit Courts of Appeal in your jurisdiction. Finally, if you lose there, take it all the way up to the U.S. Supreme Court.

Filed under: Immigration Law, immigration provisions, Removal Proceedings, USCIS, Visa | Tagged: , | Leave a comment »

Removal Proceedings – What is it?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I am now in removal proceedings. I also have many friends who are in the same type of removal proceedings. However, all of us have different situations. Under what basis can we be put into removal proceedings?

Answer: The Executive Office for Immigration Review (EOIR), an agency of the Department of Justice, oversees three components which adjudicate matters involving immigration law matters at both the trial and appellate level. Under the Office of the Chief Immigration Judge, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual cases. The agency includes the Board of Immigration Appeals (BIA), which hears appeals of Immigration Judge decisions, and the Office of the Chief Administrative Hearing Officer, which handles employment-related immigration matters.

Immigration Judges conduct removal proceedings, which account for approximately 80 percent of their caseload. Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. Beginning April 1, 1997, the distinction between exclusion and deportation proceedings was eliminated, and aliens subject to removal from the United States were all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal. The Department of Homeland Security (DHS) is responsible for commencing a removal proceeding.

Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien’s removability from the United States, and (2) thereafter deciding whether the alien is eligible for a form of relief from removal.

Usually at the beginning, an Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. The person in proceedings makes a request to the Immigration Judge to lower or eliminate the amount of the bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed by either the alien or by DHS to the BIA.

Question: One of my friends actually already has their Green Card. Why would he be in removal proceedings?

Answer: An Immigration Judge can conducts a rescission hearing to determine whether a lawful permanent resident (LPR) should have his or her residency status rescinded because he or she was not entitled to it when it was granted. Additionally, it is possible for someone who is an LPR to commit a crime making them ineligible to keep their Green Card.

Question: What about someone who fears going back to their home country?

Answer: An asylum-only hearing will be used to determine whether certain aliens who are not entitled to a removal hearing but claim a well-founded fear of persecution in their home country are eligible for asylum. In normal circumstances, asylum claims are heard by Immigration Judges during the course of a removal hearing.

Thus, there are many different types of hearings that can be conducted. There is many times relief from removal proceedings, so you need to fight hard during the proceedings and do not let anyone walk over your rights.

 

Filed under: Immigration, Immigration Law, immigration provisions, Removal Proceedings, USCIS | Tagged: , | Leave a comment »

« Previous Page

  • Brian D. Lerner

    Immigration Lawyer

  • Blog Stats

    • 304,176 Visitors

  • Categories

  • Recent Posts