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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.

Parole in Place for Adjusting Status through someone in the Military

Parole in Place: How to adjust in the United States even if you don’t qualify

Question: I am married to a U.S. Citizen and I want to adjust to that of a Lawful Permanent Resident. What can I do?

Answer: Are you inside the U.S.?

Question: Yes.

Answer: Did you enter illegally?

Question: Yes?

Answer: Did you commit any crimes, any fraud or have you been issued any deportation orders?

Question: No.

Answer: Is your spouse in the military?

Question: Yes.

Answer: There is a possibility for the immediate family members of U.S. military personnel. Family members of U.S. military personnel often run afoul of our nation’s complex and dysfunctional immigration laws, and the particular burdens imposed on military personnel by their service makes resolving those problems even more difficult than solving similar problems for civilian clients. You may want to consider an application for one of the more common discretionary remedies, a form of immigration parole that is commonly called “parole in place”.

Question: What Is Parole in Place?

Answer: Parole in place (PIP) is a process by which USCIS assists family members of U.S. military personnel to become eligible to “adjust status” in the United States and thus become permanent residents of the United States. Under Immigration and Nationality Act (INA) Section 245(a), a person cannot adjust status unless he or she has been “admitted or paroled” into the United States. Usually, a person who has not been “admitted or paroled” into the United States cannot obtain lawful permanent residence unless he or she leave the United States and travels abroad to a U.S. consulate. If a person who has not been admitted or paroled into the United States leaves the United States and attempts to undergo consular processing, however, the person nearly always faces an inadmissibility bar that is triggered by departing the United States. Thus, the person cannot obtain his or her lawful permanent residence status easily through consular processing. PIP attempts to avoid the separation of military families by allowing some family members—in meritorious cases only—to adjust their status inside the United States and thereby avoid a lengthy separation that might harm the military member’s morale, readiness, or ability to complete his or her service. PIP is granted in order “to preserve family unity and address U.S. Department of Defense concerns regarding soldier safety and readiness for duty.” PIP is also a remedy that appeals to the views of Americans that in wartime, the government should provide special support to military families; when the availability of PIP was made public, 18 members of the House of Representatives, including nine Republicans, wrote to DHS to indicate their support for the program.
PIP is only available to persons who are present in the United States; it should not be confused with the “humanitarian parole” that is available to persons who are outside the United States.
Question: Who Should Request PIP?
Answer: Under current immigration law, no one who entered the United States without inspection can adjust status unless he or she falls into a category in which special rules apply (such special rules apply to asylees, Cubans, special immigrant juveniles, Violence Against Women Act petitioners, grandfathered aliens, and some others). A PIP request is often proper for immediate military family members who entered the United States without inspection, do not have an eligible visa petition or labor certification filed on or before April 30, 2001, and do not otherwise fall into a special adjustment category.

Question: What if the person requesting PIP is in Proceedings?

Answer: PIP is possible when a person is in removal proceedings. If a military family member is in removal proceedings and is granted PIP, an immigration judge (IJ) would be prevented from adjudicating a follow-on adjustment application. USCIS, however, does have jurisdiction to adjudicate an adjustment application in this situation. Family members in this situation may file a new adjustment application with USCIS—after the PIP is granted—and then request termination of proceedings without prejudice to allow them to pursue administrative remedies. Counsel may explain that whether or not the IJ terminates, the respondent will still be eligible to adjust status, and if the case is not terminated and the IJ proceeds, the IJ may be facing a future Motion to Reopen.
Question: Who Should NOT Request PIP?
Answer: A grant of PIP will not resolve immigration problems that involve issues other than ineligibility under INA §245(a). A grant of PIP will not, for example, lift a permanent bar for false claim to United States citizenship; work to waive a criminal ground of inadmissibility; relieve an immigrant of the consequences of a prior deportation or removal order; or allow an immigrant to adjust status when the immigrant needs a waiver of some other ground of inadmissibility. PIP only cures the problem that an immigrant cannot adjust status without showing that he or she has been “admitted or paroled.” PIP is not a magic solution to every immigration problem. It has very limited application to a specific set of circumstances when the military family member has not been admitted or paroled in a manner that allows adjustment under INA §245(a).

Requesting PIP may also not be advisable when there is no military-related reason to grant the PIP. For example, USCIS may determine not to grant PIP when the military member is about to be discharged from the military; when the military member is serving as an inactive Reserve member; or when a military member is stationed abroad (there, the family member’s presence in the United States is not necessary for a military-related reason).
A military family member also does not need PIP if the military family member was admitted lawfully but has no documentation of the entry.
Question: How Do I Request PIP?
Answer: The PIP program is new, and as of this writing, no formal regulatory guidance has been issued by DHS or USCIS. Practitioners report a variety of different approaches at different USCIS offices.

In most USCIS field offices, a PIP request consists of a hardship letter signed by the service member and supporting documentation, which should be submitted to the local USCIS office having jurisdiction over the service member’s residence or place of duty. An example of the list of requirements from the Los Angeles USCIS Office is reproduced in the Appendix.

The opening paragraph of the hardship letter should state that this is a request for a parole in place so that the particular military family member can file an Application to Register Permanent Residence or Adjust Status (I-485) while in the United States. The body of the letter should describe the circumstances that led the service member to join the armed forces. The letter should then describe the history of the military member’s relationship with the family member seeking PIP; establishing the bona fide nature of the relationship is extremely important, as USCIS is unlikely to grant PIP in any case in which there are indicators of marriage fraud. The family member’s immigration status should be discussed, including the status of any petitions filed for the family member, such as an I-130. The conditions of the family member’s home country at the time he or she came to the United States should be discussed. The current conditions may be mentioned if they are such that a return to the country would pose a danger to the family member’s health or safety. If applicable, the family member’s loss of Commissary and Post Exchange privileges, military housing, access to military family member health care, and assistance from the Family Readiness Group may be mentioned. Finally, the hardship the service member would experience if the family member were deported should be described in detail. If the service member or the service member’s children have special needs that make them especially dependent on the family member for support, these needs should be explained and supporting documentation provided where appropriate. At a minimum, the body of the letter must contain the service member’s name, date of birth, place of birth, rank in military, branch of service, and unit of assignment, as well as the dates and places of birth of the family member and any children. Any upcoming deployments for which the service member is preparing should be mentioned.
Question: What documents should be provided?
Answer: Generally, you want to provide the following: The service member’s birth certificate and proof of U.S. citizenship (if applicable); The family member’s birth certificate; The birth certificates of any children; If the family member is the spouse, the couple’s marriage certificate and evidence of the bona fide nature of the marriage; The family member’s military family member identification card; A copy of Defense Eligibility Enrollment Reporting System enrollment documentation for the family member; Two original passport photos of the family member; A copy of any deployment orders for the service member; and additional documents that substantiate the case of hardship can be enclosed as well.
Question: Will the PIP Request be Granted?

Answer: A Parole in place determinations are made on a case-by-case basis and are purely discretionary. Your client should not assume his or her request is approved until USCIS officially notifies him or her of the approval. Typically, clients are notified to come for an interview with a USCIS officer who is specially trained to handle PIP applications, and that officer will make an initial determination whether to grant the PIP, but the officer’s decision will be reviewed at a higher level before the PIP request is approved.

Immigration Reform may be on the Horizon!

The CSPA new case and how to apply for the Green Card even if you aged out

Can you get the Green Card even if your over 21 years old?

Question: My auntie petitioned my mother when I was 3 years old. However, the visa process is so slow that it took 22 years for the visa number to become current. I was over 21 when my mother got her Green Card and the U.S. Embassy said that I aged out and could not come. Is there something that can be done without me having to wait another 10-15 years for a petition from my mother to become current?

Answer: Normally, in that case, once the child ages out, they cannot qualify to come as a derivative. There are, however, certain instances under the CSPA (Child Status Protection Act) whereby the derivative can show he or she is under the age of 21 (under immigration law.) However, in this case, that would not be applicable. Given that, the question then becomes whether you can still fall under any particular provision of the CSPA.

In this case, there was the BIA case Matter of WANG which specifically denied the priority date retention provision of the CSPA. However, the 9th Circuit Courts of Appeal has just come out with a decision which overruled the BIA and has stated essentially that this provision of the CSPA does stand and needs to be followed.

Question: What is this case and what does priority date retention mean?

Answer: First, it is necessary to understand basic immigration family petitions. You have a petitioner which is either the U.S. Citizen, or a Lawful Permanent Resident petitioning the beneficiary (which is the person who wants to come into the U.S.) Once the petition is filed (assuming it is not an Immidiate Relative) will be put into a visa line and only when the visa becomes current (sometimes many years later), can they immigrate to the U.S.

In many of these cases, the child is eligible to immigrate as a derivative at the time that the petition is filed, but once the visa number becomes current, they “age-out”. This can also occur as a direct occurrence for example from a Lawful Permanent Resident petitioning a child under 21.

Question: What exactly is the provision of the CSPA that was ruled on in the 9th Circuit case?

Answer: Well, first you have to try to do the age reduction calculation to see if the beneficiary is actually under 21 for immigration purposes. This means that even if their real age might be over 21 years their immigration age would be under 21 and they can immigrate. However, for purposes of this new case, it is only for those derivative beneficiaries and beneficiaries that have not only aged out, but cannot have their age determined to be under 21.

The CSPA in those cases under the particular provision of the CSPA, will have a petition that is automatically converted to the appropriate category. In other words, let’s say that in your example that an aunt petitioned your mother and you aged out and you cannot reduce your ‘immigration age’ to under 21. In that case, their application is automatically converted for a petition from your mother to you. This would be a Lawful Permanent Resident petitioning a son/daughter over the age of 21. This would be preference F2B.

Then the next part is the key. The CSPA allows you to then recapture or use the priority date of the petition from your auntie’s petition to your mother. As you stated, you were 3 years old when the petition was filed and you were about 24 years old when the visa number became current. This means, that under the CSPA (and now the 9th Circuit Class Action suit that agreed with the provision of the CSPA) that the priority date of the now automatically created petition is the SAME as the one your auntie filed for your mother. Therefore, the priority date will be basically over 20 years old the very moment the petition is automatically created. Since that number is now current, you can then come into the United States under this petition now. You have the petition and the visa number is current. Therefore, you can process right now to get the Green Card.

Question: So, what did the Ninth Circuit case do?

Answer: In fact, USCIS and other government agencies were denying this provision of the CSPA. They basically stated it was not supposed to do what was clearly in the law. Thus, now with the affirmation of the Ninth Circuit case, we can proceed forward with all of these CSPA cases.

Can I bring in an Orphan to the U.S.?


How can I bring in an Orphan to the U.S.?


Question: I want to petition an orphan. What must I do?


Answer: A USC can petition for an orphan under age 16. In order to be an orphan, both parents must have died, disappeared, or abandoned the child. If there is a sole or surviving parent, he or she must be incapable of providing for the child and irrevocably release the child for emigration or adoption. The child must be under 16 and unmarried at the time the petition is filed on his or her behalf to classify as an immediate relative. The petitioner must be a USC. Natural siblings of the orphan are also eligible to immigrate if adopted abroad while under 18 by the same adoptive parent.


Question: Where must I adopt the child and can I adopt the child in the U.S.?


Answer: That will depend on what country you want to bring in the child as to whether it is a part of the Hague Convention. It would be necessary to understand some parts of the Hague Convention to answer this. Here are some basic rules:


Only USCs—not LPRs—may adopt and immigrate children subject to the Hague rules; The Department of State coordinates with the equivalent “Central Authority” or designee in the child’s home country and this foreign entity is heavily involved in the process; Adoption cannot serve as the basis for the child’s immigration unless they follow certain prescribed steps and sequences; The USC parents are prohibited from contacting the birth parents unless they fall within narrow exceptions; The adopted child must be under 16 when the decree is finalized or the I-800 is filed; there is no exception for children between ages 16 and 18 whose siblings have been adopted while under 16; and the definition of “adoptable” child is broader than orphan and includes those children whose: (1) single birth parent has relinquished control; (2) two living birth parents are incapable of providing care and have released the child for adoption; or (3) unmarried birth father, who can qualify as a “sole parent,” releases the child for adoption after the birth mother has abandoned the child.


Question: What countries are Hague Convention Countries?

Answer: Hague Convention rules apply to children who are “habitual residents” of one of the approximately 80 countries that have signed on to the international treaty. Some of the countries that have not ratified the convention include Kazakhstan, Russia, Guatemala, Ethiopia, and South Korea. Some of the ones that have ratified it include China, India, Mexico, and the Philippines.


Question: What are the procedures for applying, assuming that the child comes from a Hague Country.


Answer: Assuming the Hague rules apply, the following steps must be adhered to in this precise order. First, the prospective adoptive parent(s) obtain(s) an approved home study from an accredited provider, licensed in the state of the adoptive parent(s), and authorized to conduct such studies. The adoptive parent(s) then file(s) Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, with USCIS, along with the home study. USCIS may need to communicate with the designated adoption service provider.


After approval of the I-800A and home study, USCIS forwards these to the adoption service provider and the NVC, which in turn forwards to the Central Authority of the designated foreign country. That Central Authority then identifies a child and refers him or her to the prospective parent(s) along with a report on his or her medical and social background. If the family accepts the referral, they file Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, with USCIS. USCIS then provisionally approves the petition and forwards it to the appropriate U.S. Consulate.


The consular officer screens the child for admissibility and annotates the visa application with the child’s ability to immigrate following adoption. The officer also transmits the “Article Five Letter” to the Central Authority, which basically affirms that the adoptive parents may proceed with the adoption. The family then completes the adoption or guardianship process and submits the official decree to the consulate, which approves the I-800 and issues the immigrant visa (IH-3 or IH-4).


Beginning on September 25, 2008, USCIS expanded its direct mail program to include the forms I-800A and I-800. Applicants must now submit them to the USCIS Chicago Lockbox facility for initial processing using the following address: USCIS, P.O. Box 805695, Chicago, IL 60680-4118. These forms will then be forwarded to the National Benefits Center in Lee’s Summit, MO, which has assumed processing of these petitions.

Why should you hire an Immigration Attorney?

Coffee talk with Immigration Attorney Brian D. Lerner, A Professional Corporation on Immigration and Naturalization Law and specifics on how you can find solutions to immigration problems, visas, work-permits, deportation and other areas of immigration law. Find out about why you should hire an immigration attorney and/or deportation attorney who knows what they are doing. Immigration Lawyer Brian D. Lerner explains this area of immigration law so that it is clear and in normal and plain English. The Law Offices of Brian D. Lerner is happy to give you a free 10 minute consultation at http://www.blerner.checkappointments.com/. Additionally, call us at 562-495-0554 or send a Skype to ‘briandlerner’.

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