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

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

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.

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.

How to pass immigration reform and the reasons for the Government Shutdown

How to get back to the U.S. after a Deportation Order

Been Deported? Apply for the Permission to Reenter.

I was deported. Now what?

Question: I was previously deported and want to come back to the United States. Can you let me know what I can do? I heard I have to do a Waiver for the crime and Consulate Processing through my wife. Is there anything else?

Answer: Since you have mentioned you are doing the Waiver and the Consulate Processing, I will concentrate on what must be done that you are missing. It is called a Permission to Reapply and is necessary because of your deportation order.

Question: OK, but what exactly is a Permission to Reenter?

Answer: The opportunity to apply for relief for inadmissibility is scant for the vast majority of foreign nationals subject to this ground, due primarily to the rule that the foreign national must have spent 10 years outside the United States before applying for relief or 5 years depending if it was an expedited removal order or even up to 20 years. However, there are exceptions to this rule. One must apply for the Permission to Reenter in order to essentially erase the ‘deportation’ bar. It does not erase grounds of inadmissibility of which a Waiver would be needed, but is critical to successfully coming back to the U.S. Any alien who has been deported or removed from the United States is inadmissible to the United States unless the alien has remained outside of the United States for five consecutive years since the date of deportation or removal. If the alien has been convicted of an aggravated felony, he or she must remain outside of the United States for twenty consecutive years from the deportation date before he or she is eligible to re-enter the United States. Any alien who has been deported or removed from the United States and is applying for a visa, admission to the United States, or adjustment of status, must present proof that he or she has remained outside of the United States for the time period required for re-entry after deportation or removal. The examining consular or immigration officer must be satisfied that since the alien’s deportation or removal, the alien has remained outside the United States for more than five consecutive years, or twenty consecutive years in the case of an alien convicted of an aggravated felony as defined in section 101(a)(43) of the Act.

Basically, sn alien who is inadmissible because of a prior deportation order under the Immigration and Nationality Act (INA) files Form I-212 to obtain “consent to reapply for admission” that is required before the alien can lawfully return to the United States. “Consent to reapply” is also called “permission to reapply.”

Question: Is it just the form that must be used?

Answer: No. That is only the beginning. There must be a cover letter explaining eligibility and convincing the officer to grant the Permission to Reapply along with declarations, medical documents, hardship documents and all supporting evidence.

Any alien who does not satisfactorily present proof of absence from the United States for more than five consecutive years, or twenty consecutive years in the case of an alien convicted of an aggravated felony, to the consular or immigration officer, and any alien who is seeking to enter the United States prior to the completion of the requisite five- or twenty-year absence, must apply for permission to reapply for admission to the United States as provided under this part.

Question: Can I just stay in the United States for the required period of time and then get the visa to come back?
Answer: No. This is time outside the United States. Therefore, if you have not been outside the United States for the requisite period of time you need to apply for the Permission to Reapply.

Question: How long must I wait to apply for this?

Answer: You can apply the day after you get the deportation order. There is no statutory time to wait to apply. However, it is not easy to get approved, so it must be prepared completely, fully and with all types of supporting evidence.

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