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DHS Releases Information on Returning Certain Foreign Nationals to Mexico During Immigration Proceedings

DHS released information about the Migrant Protection Protocols it has begun implementing at the U.S.-Mexico border, whereby certain foreign nationals entering from Mexico may be returned to wait outside the United States for the duration of their immigration proceedings

USCIS to Expand Implementation of New Policy Memorandum on NTAs

USCIS announced it is continuing to implement its June 28, 2018, policy memo on issuance of Notices to Appear (NTAs). Starting November 19, 2018, USCIS may issue NTAs based on denials of Forms I-914, I-914A, I-918, I-918A, I-360, I-929, and I-730, as well as I-485 when filed with these underlying form types.

Got Voluntary Departure? Case just ruled it does NOT break continuous presence for Cancellation

Matter of CASTREJON-COLINO, 26 I&N Dec. 667 (BIA 2015)
(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.
(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.

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.

Why do I need an Attorney in Deportation Proceedings?

Question: I was just placed into deportation proceedings and believe I can represent myself and prepare the forms and petitions myself. Do you see any reason that I should have an attorney?

Answer: First, what you have to realize is that unlike criminal proceedings, you have no constitutional right to an Immigration Attorney. Thus, one will not be appointed to you. Next, you have to realize that the Immigration Judge and the Trial Attorney (who represents the government) are not there to help you. They have thousands of cases in front of you and have thousands of cases behind you. You are just a number to them. While there may exist a duty on the Immigration Judge to let you know what you qualify for in order to obtain relief, the Immigration Judge, nor the Trial Attorney will submit, prepare or help with any petitions that you would submit.

Question: What are the basic phases I must be concerned with in Deportation Proceedings?

Answer: First, you will be served with a Notice to Appear. This is the charging document that basically will list all the charges against you and on what basis Immigration believes that you are removable from the United States. The first hearing could be a Bond Redetermination Hearing if you are in detention. Next, would be the Master Calendar Hearing which is a short, but very important hearing. This hearing will essentially determine the path that the rest of the deportation case will take. It is where the allegations are admitted or denied and the particular form of relief is discussed. If any allegation has been denied, then there will be a follow-up hearing known as a contested Master Hearing where the purpose of that hearing is only to determine whether the allegations in the Notice to Appear should be sustained by the Immigration Judge. Next, assuming removability has been established by the Immigration, then the Immigration Judge will give an opportunity to submit petitions for relief such as Asylum, Withholding of Removal, Registry, Convention Against Torture, Adjustment of Status and/or Cancellation of Removal. Thus, the next Court date will be to submit those packages of relief. Finally, after everything has been submitted and all pre-legal issues are resolved and ruled upon, the case will be set for an Individual Hearing. This is where there will be trial on the matter(s). This is where you will testify and all your witnesses will be present as well as any experts. At the end of the trial, the Immigration Judge will either rule from the Bench or bring you back to another hearing in order to read the Ruling on the case.

Question: What if I do not know what to do?

Answer: Good question. This is why you should retain an Immigration Attorney. The Immigration Attorney should have experience in Removal/Deportation Hearings and not just business visas or family visas for example. Be sure you ask. It would be very important to get a good Immigration Attorney because we are not talking about a debt or minor dispute. We are talking about the fact that if you lose, that ICE can forcibly remove you from the United States.

There is nothing more important than staying together with your family not being removed from the U.S. Do not try to do this yourself. Get someone who is an expert and knows what they are doing. A small investment for the rest of your life.
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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California Bar Board of Legal Specialization and he is admitted to the United States Supreme Court, the California Supreme Court and the U.S. Courts of Appeals for the 11th, 10th, 9th, 8th, 6th, 5th, 4th, 3rd, 2nd and 1st Circuits. Mr. Lerner handles all types of immigration cases, but does a significant amount of deportation cases. As a deportation attorney, he is able to apply for many types of relief in Immigration Court, such as Cancellation of Removal, Asylum, Convention Against Torture, Adjustment of Status and more. Office in Long Beach and clients all over the State of California. Please call (866) 495-0554 for a free consultation or e-mail Brian D. Lerner at blerner@californiaimmigration.us

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