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Immigration Article: What did we celebrate on July 4th?

Posted on August 28, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I became a Lawful Permanent Resident several years ago, and am very grateful. However, there are several persons that I know that are not so lucky. They are still fighting to obtain legal residency in the U.S. Some are in deportation proceedings. Some are hiding in the shadows of America. Some are fearing everywhere they go. Are there any new leaders in Congress and should we give thanks of an elusive freedom that is so difficult to obtain?

 Answer: Recently, the President of the American Immigration Lawyers Association (AILA) wrote on this subject. I think it best to simply quote him. He states:

‘From the moment that terrorists attacked the United States last September, AILA has consistently supported measures legitimately required to guarantee our national security without eroding the fundamental rights guaranteed by the Constitution.

 AILA gratefully recognized President George W. Bush’s leadership when he reminded the nation that neither the Arabic community in the United States, nor the members of the Islamic faith throughout the world, are in any way responsible for the terrorist acts of criminals. And AILA called on leaders from both sides of the aisle to put the national interest above partisan considerations.

 Midterm Congressional elections are eminent, and the siren song of perceived political advantage has started to separate the opportunists from the statesmen. Events of the last few days have, as they say, given opportunism a bad name.

On June 20, the Dallas Morning Herald quoted Representative George Gekas, Chair of the House Subcommittee on Immigration, Border Security, and Claims (noting Census Bureau estimates that the undocumented population tops 8 million), as saying: “There are thousands among those millions, perhaps millions among those millions, who have exactly that kind of mind set . . . to become terrorists.”

Term limits resulted in Lamar Smith relinquishing the Immigration Subcommittee Chair in 2000. While never an immigration advocate, George Gekas, it was said, was no Lamar Smith. Could he possibly believe that there are millions of terrorists lurking among us? Had the Chair misspoken or had he unearthed an opportunist’s play book and thus signaled a sea change? Perhaps significantly, Mr. Gekas retained Smith’s subcommittee staff. And, to Mr. Gekas’s evident surprise, reapportionment has made his District more competitive, thus resulting in a serious challenge; he now must fight to win an 11th term.

Our answer came soon enough. On June 26, 2002, Mr. Gekas introduced the “Securing America’s Future through Enforcement Reform (SAFER) Act” (H.R. 5013).

SAFER is a cynical amalgam. It is over 200 pages long, but much of it can be categorized as: (1) piling on (in increasing penalties for offenses that may already be substantial); (2) redundant; and (3) grandstanding (taking credit for proposals that may eventually be enacted in other legislation). To be sure, SAFER contains some novel twists that are more than a little offensive and more than a little dangerous. (Mr. Gekas’s summary of SAFER was posted on the News Flash section of InfoNet and will remain available as Doc. No. 02062731; the text of the full bill will be posted as soon as it becomes available.) Legislatively, SAFER is irresponsible, but as its sponsors well know, it is also DOA. However, that is not the point. The point is that the political calculations were made and Representative Gekas cast his lot; he has bought FAIR’s agenda of Fear and Loathing wholesale.

 This week we celebrate our independence. The first July 4th after September 11, 2001 promises to be especially poignant. It is a particularly appropriate time to rejoice in America’s liberty and diversity and to remember the sacrifices of our people, who for four centuries, have come to these shores from every corner of the world to cultivate, nurture and defend our freedom and way of life. America is immigrants and the children of immigrants. This year a second day is just as important as July 4th to validate and affirm our nation’s freedom: our election day, Tuesday, November 5.

 I trust that on this July 4th we will hear and think a lot about fundamental American values. Between now and November 5 we must redouble our efforts to preserve these values. No one is better equipped to rebut anti-immigrant rhetoric than AILA attorneys. Don’t let mindless or hateful rhetoric go unchallenged. Write Opinion pieces and Letters to the Editor and be proactive in encouraging your clients to do the same. Go back to the basics–actively support candidates who have the courage to stand up for fundamental American values, immigrant rights and the rule of law. Encourage each of your eligible clients to naturalize, to register, and to vote. (A brochure, in both English and Spanish, with state-by-state voter registration information can be found on the InfoNet–go to “Advocacy Center,” then click on “Take Action” followed by “Vote Drive”). And oppose the politicians who have cynically chosen to use this moment of national crisis to undermine our heritage as a nation of immigrants, who would curtail the fundamental freedoms guaranteed by the Constitution. Write a check, support our friends and be sure that our foes pay the price. The tools you need are at your fingertips, through InfoNet.

The late North Carolina Congressman Richardson Preyer would began a campaign by telling the troops “It’s bumper sticker, door bell ringing time again.” So it is. Let us begin.’

Let us never take for granted the freedoms which we enjoy. There are people in our very backyard who will attempt to limit those freedoms and take them away from us.

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HOMELAND SECURITY. WHAT DOES IT MEAN?

Posted on August 26, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have different petitions going through for my family. Other relatives are unfortunately in Removal/Deportation Proceedings. I understand that government is planning on restructuring certain departments. Will they restructure INS, and if so, what does that mean for us?

Answer: It appears as though either some or all of INS will be part of the new cabinet level division of the government. It will be known as Homeland Security. However, if it is done in a rash manner without giving the immigrants their rights, then it will hurt those immigrants trying to get her legally and to become legal in the future.

An effective, efficient, and fair immigration system is crucial to our national security and is fundamental to which we are as a people and as a nation of immigrants. Our immigration system must be reorganized. Our immigration system needs to be restructured on the basis of longstanding principles outlined by lawmakers, policy experts, and immigrant advocates.

These principles include: coordinating the separated enforcement and service functions, placing a strong leader in charge of both functions, and adequately funding enforcement and services.

If our immigration functions are included in the new Homeland Security Department, they must be reorganized within a separate division headed by a strong leader.

Question: What exactly will this new department do?

It is unclear at this time exactly what will happen and when it will happen. However, a new division, Immigration Services and Security, should be created within the Department of Homeland Security, headed by an Undersecretary who is knowledgeable about both services and enforcement. Immigration Services and Security should be made up of three sections: Immigration Services, Border Security, and Interior Security.

To enhance our security and support our border functions, a Transportation and Commercial Goods Security division also should be created. This division, along with the Immigration Services and Security division, would replace the proposed Border and Transportation Security Division.

The proposed Homeland Security Department must address concerns about civil rights, oversight, privacy, due process, and visa processing. The new agency must include an office to ensure that the constitutional and civil rights of all persons are protected as the agency carries out its national security mandates.

Policy development for visa issuance needs to remain a function of the State Department to avoid the chaos that would result from separating policy and process and to best address our foreign policy and U.S. business interests.

The Executive Office of Immigration Review (EOIR) must remain outside of the Department of Homeland Security, and be constituted as an independent agency in order to guarantee the impartiality and checks and balances of our justice system. Otherwise, it will be as though the Prosecutor is both the opposing attorney and the judge on the same case.

In order for any reform to be effective, Congress must take the time to get it right, overhaul our immigration laws, and protect both our nation and our values and traditions.

Creating a Department of Homeland Security is an enormous undertaking, and Congress must take the time to get it right. We cannot afford the mistakes and oversights of a hasty examination. There is too much at stake.

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A new way to beat Deportation

Posted on August 21, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been here in the U.S. since I was six years old. About 12 years ago, I committed a drug crime of possession for sale. I was sentenced to 4 months. Now, all these years later, I have been put into removal proceedings where INS is trying to deport me. I have been told that I am an aggravated felon and there is nothing I can do. I have further been told that I will most likely be deported away from my family including my U.S. Citizen spouse and three U.S. Citizen Children. I have never done anything else criminally and it was just a stupid mistake when I was young. I have changed, have a good job, a family with U.S. Citizens and many community ties. Is there anything I can do?

Answer: As the law stands now, there is very little you can do. This is a result of the 1996 laws which increased dramatically the laws on what was considered to be an aggravated felony. It has torn families apart for many years since 1996. People who have become long term residents in the U.S. and have their Green Cards found out it did not make any difference. They were still deported. Furthermore, they found out that they were barred from coming back into the U.S. for the rest of their lives. Congress has seen all the suffering caused by the unfair and anti-immigration laws of 1996 and just this week the House Judiciary Committee passed the 2002 Due Process Reform Bill. While it still must be passed by the Senate and signed by the President, it is an excellent step in giving back some of the due process rights lost by long term residents who were put in deportation proceedings because of various crimes.

Question: How does this particular bill help me?

Answer: Please note that the Senate might change some of the provisions, or the President might require some alternate items in the bill. However, as the bill stands now, it applies specifically to people who previously had their Green Cards. They were or are going to be placed into deportation or removal proceedings because of a crime they committed. They are considered to be an aggravated felons and do not qualify for the normal Cancellation of Removal.

Question: What is Cancellation of Removal?

Answer: Prior to this bill there was a section of the bill referred to as Cancellation of Removal for Certain Lawful Permanent Residents. Generally, you had to have your Green Card for at least five-years and be physically present in the U.S. for at least seven-years. Finally, and this is the item that disqualified numerous people, is that you cannot be convicted of an aggravated felony.

Question: What does the new bill allow?

Answer: Basically it deals with the Cancellation of Removal for people who have committed aggravated felonies. In the new bill, it expands the Cancellation of Removal so that it allows people whom have been convicted of aggravated felonies to still keep their Green Cards and stay in the U.S. It deals with three different scenarios. First, people who have been convicted of a non violent aggravated felony. Second, people who were convicted of a violent aggravated felony. Finally, people who have been convicted of an aggravated felony and came to the U.S. as a young child. Each of these provisions allows a person to remain in the U.S. and to not be deported if the Judge grants the Cancellation of Removal. Therefore, this is a very big step toward restoring some of the harsh anti-immigrant provisions of the 1996 law. Hopefully, this trend will continue so that families can be reunited and the tearing apart of immigrant families will stop. .

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Title: The BIA. Just a stepping stone.

Posted on August 17, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I lost my case at the Immigration Court. I understand that I have many issues that I can appeal and that there is a very reasonable chance that I could win. Can you let me know where my appeal goes and what might happen?

Answer: There are many Immigration Courts in the U.S. All together there are about 55 Immigration Courts through all 50 States as well as in Puerto Rico. Whenever you lose at the Immigration Court level, you appeal to the Board of Immigration Appeals or the BIA. There is only one BIA in the entire United States. The BIA is located in Virginia and handles all of the appeals of every Immigration Court throughout the entire United States.

The Notice of Appeal must be in the hands of the BIA no later than 30 days after issuance of the decision from the Immigration Judge. Afterwards, it goes to a panel of three of the members of the Board of Immigration Appeals and in about one year the decision is issued.

Question: I have heard that there will be some changes at the BIA. Is that true and what are they?

Answer: Yes it is true. The changes are not for the better. In fact, the changes will make the appeal process to the BIA an exercise in futility and will deny numerous rights to immigrants and their rights to appeal. Attorney General Ashcroft has just issued regulations to go into effect later this month that will change some of the basic ways that the BIA decides cases. First, they will no longer make a three member panel to decide cases, but only one member will decide. Only on cases of novel importance or ones that are unusually complicated will it be referred to a three member panel. Who decides if a case is novel or unusual is unclear. In all other real appeals (other than the new BIA regulations) it goes to a three member panel. This gives the person appealing the knowledge and satisfaction that the appeal will be decided among three qualified persons who must come to a consensus. Now, the appeal at the BIA, for the most part, is in the hands of one person. This item by itself takes away much of the due process and fairness to the immigrant.

Next, there is now a timetable that is set for deciding the case. Thus, rather than taking the necessary time to properly decide the case, the Attorney General has mandated that the cases take around 6 months. Thus, again there is a violation of the Due Process rights of immigrants. An appeal should not have as its primary importance the number of days or months it must be decided. What this will do is make a single member rush through cases to make sure that the timetable is met, rather than the case being decided on its merits.

Question: What will happen if the BIA denies the case?

Answer: In reality, that is what will happen in most cases. Because of these new regulations, and because of the violation of Constitutional Due Process rights, people will simply use the BIA as a stepping stone to get to the real appeal. Once the BIA denies the case, it can be appealed directly to a Circuit Appellate Court of the United States. These courts are right below the U.S. Supreme Court. In these appeals, there will be a three judge panel and they will give a real chance to have the case heard on the merits. Do not give up with these new regulations. Just keep fighting until you get to the Circuit Courts, and hopefully, we can restore the immigrant rights that have been lost.

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Is there hope for me in deportation proceedings?

Posted on August 6, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the United States for 13 years and have worked illegally the entire time. My boss just came to me last week and said the Social Security Department has sent him notification that there is something wrong with my Social Security Number and that he must terminate my position. Two days later I got a letter from the Immigration and Naturalization Service that I am in deportation proceedings. Do I have any hope?

Answer: First, the Social Security Department has been getting much stricter on notifying employers when a Social Security Card does not match the employees information. Previously, they had done this only when there was an employer with a large amount of employees who had incorrect information (e.g., fake social security cards.) However, in the current world we live in, they are now sending employers the request for confirmation of the Social Security Card if a single employee’s information does not match. Under the immigration laws, they are then forbidden to keep the employee hired without violating the law.

Unfortunately, you are now in Removal Proceedings and the INS will try to have you deported. Fortunately, the United States has several options for people in Removal (or deportation) Proceedings even if they have worked out of status and are here in the United States illegally. There is what is known as Cancellation of Removal. In order to qualify for this type of relief, you need several things. First, you must have been physically present in the United States for at least ten years. Secondly, you must have good moral character. Finally, you must have an immediate Lawful Permanent Resident Relative or United States Citizen who will suffer extreme hardship if you are deported or removed from the United States.

Question: I do have two United States Citizen Children. However, how would I possibly show or prove that they would suffer extreme hardship if I were deported?

Answer: You have actually hit on the most difficult part of a Cancellation of Removal case. It is showing the extreme hardship. Previously, if you had children that were of at least five or six years old, it was not difficult to prove this issue. Then the Board of Immigration Appeals came out with a case that basically made it incredibly difficult to meet the extreme hardship burden. Recently, the Board of Immigration Appeals has seemed to back off of such a stringent interpretation of the issue of showing extreme hardship. It is known as the Recinas case and was decided less than one month ago. In fact, the exact terminology that you must consider is ‘exceptional and extremely unusual’ hardship. Therefore, the hardship associated with a normal deportation will not suffice. However, under Recinas, you do not need to show that the hardship would be unconscionable. In deciding a Cancellation of Removal claim, consideration and evidence should be given to the age, health and circumstances of the family members. Some of the factors would include how a lower standard of living or adverse country conditions in the country of return might affect those relatives.

Question: What type of factors should I present to show the hardship?

Answer: In addition to the above, try to show all U.S. Citizen family members who interact with your children (such as a Grandmother or Grandfather.) Present evidence on how little knowledge they have of their home country, or how they may not know the language and culture of the home country. Present evidence showing financial, emotional and medical hardships. Also, show that there are no other realistic means for you to ever immigrate to the U.S. again. Basically, it is not easy to obtain Cancellation of Removal, but if all the evidence is presented and all of the different factors are taken into account regarding the hardship, there is a chance you will be granted your Lawful Permanent Residence based upon Cancellation of Removal.

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New Hope for Aliens in Removal Proceedings

Posted on August 5, 2025 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.

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Preventing Removal through Habeas Corpus

Posted on July 23, 2025 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.

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Is Immigration suffering or being helped by DHS?

Posted on July 21, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: Last year, the Department of Homeland Security came into being. I have many friends who are having lots of problems with immigration. Is the DHS helping or hurting these people?

Answer: March 1, 2004 marks the one-year anniversary of the Department of Homeland Security’s (DHS’s) assumption of U.S. immigration functions. There are several problems that exist within the agency. 1) Inadequate Coordination: Because enforcement and adjudications are two sides of the same coin it would be to the benefit of all if there were close coordination from DHS and between the DHS and other federal agencies including the State Department, Department of Justice, FBI, and CIA. However, this has yet to be realized.

Next, inadequate funding long has characterized adjudications. Especially in light of this historical underfunding, it is imperative that the US Citizenship and Immigration Services (USCIS) be accorded adequate resources to do its job. Direct congressional appropriations are necessary in order to ensure that the USCIS lets the appropriate people into the country and bars those who mean to do us harm, and adequately delivers services.

Question: I also have many friends over the last year who have received answers to their applications. For one reason or another, it always boils down to a “no”.

Answer: This is a definite problem. The DHS must change the culture of “No”. There have been widespread reports of unfair, arbitrary and inconsistent adjudications. Reinforcing this view are the increased numbers of unnecessary requests for additional information that contribute to the dramatic slowdown in the processing of petitions and applications. While our immigration system has long been characterized by backlogs, delays, and inadequate funding, current backlogs and delays have reached historical levels. Many organizations and individuals are reporting severe delays in processing that have negatively impacted American business and family members. USCIS needs to efficiently and fairly adjudicate petitions and applications.

Question: I have read a report that the number of B2 Visitor Visas has been denied and cut drastically over the last couple of years. Is this really what DHS wants?

Answer: The Importance of Immigration at our Ports of Entry must be recognized. Our national and economic security depends on the efficient flow of people and goods at these ports. Unfortunately, current reports suggests that the Custom and Border Protection Bureau (CBP) is giving inadequate attention to immigration and is initiating polices that do not reflect the intricacy of the subject and its importance to our country.

Question: My family has appointments at the U.S. Consulate, but there have been numerous delays. Is this also a problem?

Answer: With the Department of Homeland Security’s authority to establish and administer rules governing the granting of visas, it is vitally important that visas be granted to the people who come to build America and denied to those who mean to do us harm. We must balance our national security and economic security needs by recognizing that the U.S. is tied to the rest of the world economically, socially, and politically. However, severe delays at the consulates continue to hamper the visa issuance process, with serious consequences for businesses, families, schools and others in the United States. The gridlock that has paralyzed the visa issuance process in the past two years must be resolved – the agencies charged with clearing security checks must be motivated to give these operations the priority that they deserve.
Thus, there are a great many items that must be worked upon. It is a constant balancing of safety verses allowing immigrants into the U.S. Hopefully, in the near future, there will be a comprehensive policy to deny visas to persons who would be a danger to our society, but to allow those into the U.S. for legitimate means.

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PERM: Am I an ‘Arriving Alien’?

Posted on July 6, 2025 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.

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212(c) Deportation Relief Expanded.

Posted on June 17, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the U.S. for the last 25 years and committed only 1 crime in 1996. However, I am in deportation now and they claim that I am an aggravated felon and not eligible for 212(c) relief and that I will be deported for the rest of my life. I committed the crime in August of 1996, and plead guilty the following October. Is there anything I can do to avoid deportation?

Answer: If you happen to live in the jurisdiction of the 9th Circuit you are in luck. If you live elsewhere, I would get a good immigration attorney to fight for you up to the appellate level to make the same similar arguments that were made in the newly published 9th circuit case. First, it is necessary to have a little background. In 1996, Congress passed IIRAIRA which expanded quite considerably the definition of what crimes constitute an aggravated felony. It also repealed or took away 212(c) relief. This is a type of relief whereby if a person had a certain number of years in the U.S. as a lawful permanent resident and committed a crime that was not an aggravated felony (basically any crime that they received less than five years of jail time), they could apply for this relief in deportation proceedings. If they won, they would get their Green Card back and could remain in the U.S.

From 1996 until sometime in 2001, every court was denying 212(c) relief because it was repealed by IIRAIRA. However, the Supreme Court of the United States came out with a case called St… Cyr. Which essentially stated that it was unconstitutional to retroactively apply IIRAIRA to these people. It stated that if someone PLEAD guilty before April of 1996, that they could now apply for 212(c).

While St.. Cyr was a great case, it left a group of people out of its ruling that were similarly situated, but did not fall under the exact parameters of this case. It was those people who COMMITTED the crime before the passage of IIRAIRA, but were CONVICTED after the passage. In these cases, these people for all these years have not been eligible for 212(c) and have been deported for the rest of their lives.

Question: What did this new case rule?

Answer: Cordes v. Gonzales held that post-IIRIRA case law (namely INS v. St. Cyr) limiting the availability of §212(c) relief, to legal permanent residents who had not committed deportable offenses at the time of their conviction offends equal protection when §212(c) is available to similarly situated permanent residents who committed deportable offenses at the time of their conviction. The “only discernible difference” between the two groups, the court said, is that “those entitled to section 212(c) relief faced deportation at the time they entered their guilty pleas.” “This difference, however, is ‘irrelevant and fortuitous’ since the [immigrant in this case] quite obviously faces deportation now,” the court said. The court also found there is no rational basis for the disparate treatment of lawful permanent residents who are eligible for §212(c) relief under St. Cyr based on the “ironic fortune of facing the prospect of deportation at the time that they entered their guilty pleas” and permanent residents, like Petitioner, who are not eligible simply because their crime was not serious enough to render them deportable at the time they pled guilty. The court said:

“Allowing permanent residents who have committed worse crimes than Cordes to apply for section 212(c) relief, while denying the same opportunity to Cordes, does not achieve Congress’ express purpose behind the expanded definition of aggravated felony and its retroactive application: to expeditiously remove criminal aliens and make it more difficult for them to obtain relief from removal. Indeed, the disparate grant of section 212(c) relief here does not increase the total number of criminal aliens subject to removal, as Congress intended, but rather perversely increases only the number of less dangerous criminals subject to removal.”

Thus, this case now opens up the possibility of applying for 212(c) relief to those previously not eligible (at least in the 9th circuit court of appeals) and gives a much better fighting position to those in other jurisdictions to fight on this same basis.

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