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You can’t get railroaded by ICE if you have a Court hearing

Posted on November 5, 2015 by Brian D. Lerner

Matter of GARCIA-RAMIREZ, 26 I&N Dec. 674 (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, regardless of whether the encounter occurred at or near the border. 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. Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), followed.

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Under immigration reform USA, here are exceptions to the priorities of deportation

Posted on November 30, 2014 by Brian D. Lerner

The immigration reform USA has made specific reference to three priorities and how they are to be deported and put into removal proceeding and deported. However, the same memorandum, explains Brian D. Lerner, goes into exceptions of what you can do in order to not be deported or placed into deportation proceedings, even if you fall under one of the priorities.

Priority 1 Exceptions:

Brian D. Lerner reminds that Priority 1 targets are the highest level of targets, such as terrorist suspects, national security, various felonies, aggravated felons and various gang related crimes. The immigration reform USA exceptions to priority 1 are as follows: Of course, if you qualify for asylum, then it does not matter if you are in priority 1 as you can apply and stay if granted asylum. However, the immigration reform USA states that if you do not qualify for asylum and are under priority #1, that you can request that under prosecutorial discretion, you are not placed into removal proceedings and/or removed if in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate you are not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.

Clearly, the immigration reform USA is quite strict on allowing an exercise of prosecutorial discretion if you are under Priority #1. It also allows a variety of levels of personnel to make the decision. It might be best, states Brian D. Lerner, to apply with the top official, rather than the lowest level official who might not have as much sympathy or knowledge or procedure. However, it is possible explains Brian D. Lerner if you have a packet put together that is persuasive and that shows that there are compelling and exceptional factors to grant the request for prosecutorial discretion to not be removed. In the memo itself, in the immigration reform USA, it does not discuss what is defined as ‘compelling’ or ‘exceptional’, and therefore, there is lots of room to properly argue relief from deportation.

Priority 2 Exceptions:
Brian D. Lerner reminds that Priority 2 is the mid level priority to deport people. In summary, Priority #2 deals with persons who have 3 or more various misdemeanors, or a significant misdemeanor of which deals with specific crimes such as domestic violence, gun crimes, drug crimes, burglary, or other crimes where there was 90 days or more in custody. The immigration reform USA also included in Priority #2 includes people entering illegally or re-entering illegally and cannot prove they have been in the U.S. prior to January 1, 2014 and finally those people who have abused the visa waiver or other visa programs and in their discretion should be deported.

Thus, Brian Lerner states, that under immigration reform USA, it is in the memorandum that in order to try to apply for prosecutorial discretion so that you are not deported or put into deportation proceedings if you are in Priority #2, the following must be done: First, as with Priority #1, if you qualify for asylum, explains Brian D. Lerner, then you will not be deported here. However, assuming that is not the case as under the immigration reform USA, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security.

Brian D. Lerner, explains that the procedure and requirements to qualify for a Priority #2 exception, might look the same as Priority #1 under the immigration reform USA, it is not the case. First of all, you do not need to show ‘compelling’ or ‘exceptional’ circumstances. Brian Lerner states this is huge. The burden of proof needed to show why prosecutorial discretion should be exercised is much less with a Priority 2 request. Additionally, in Priority 2, you must only show that you will not be a threat to national security, whereas under Priority 1, you must show not only you will not be a threat to national security, but to border security or public safety. Thus, the immigration reform USA makes it abundantly clear that it will be easier to get prosecutorial discretion granted under Priority 2, rather than Priority 1.

Priority 3 Exceptions
As you might already guess, Brian D. Lerner explains, Priority #3 is the least priority given to deporting people. The immigration reform USA states that Priority #3 which basically consists of persons issued a final order of removal after January 1, 2014, but do not fall under the other priorities.

In order to be issued prosecutorial discretion if you fall under Priority 3, it must be shown that in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. Thus, Brian D. Lerner states that under immigration reform USA, this burden is even less than Priority 2. No arguments need to be made about national security. Rather, it must be shown that there is no threat to the integrity of the immigration system, or in the alternative, you are not an enforcement priority. Brian Lerner states it is a bit ambiguous what exactly is meant by ‘integrity to the immigration system’, but the fact it is listed on Priority 3 exceptions, would mean it has the least amount of burden to prove.

Therefore, there are ways to argue that prosecutorial discretion should be exercised in each and every priority. Brian Lerner reminds you that you should have the packet for prosecutorial discretion exercised in a very persuasive manner and get a qualified immigration attorney to help comply with the requirements of the immigration reform USA.

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Committed a crime? Maybe you should not be deported due to retroactivity.

Posted on November 11, 2013 by Brian D. Lerner

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Can’t get the H-1B? Try the O-1.

Posted on October 21, 2013 by Brian D. Lerner

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Can’t get an H-1B? Try the O-1.

Posted on October 21, 2013 by Brian D. Lerner

The O-1: An alternative to the H-1B.

Question: I have years of experience, but cannot get an H-1B as they are used up. Are there any alternatives to the H-1B?

Answer: There is the option of the O-1. I normally do not used this as a first resort, but it most definitely is an option The O nonimmigrant visa is for people of “extraordinary ability.” The regulations also provide for O-2 visas for supporting workers. Eligibility for O visas is based on nonacademic achievements. There are no numerical limits on the O visas issuable each year and O petitions may be valid for up to three years, with extensions in one-year increments.

Question: What are the procedures for O-1 Visas?

Answer: An application for an O visa requires a U.S. employer to file a petition with a U.S. Citizenship and Immigration Services (USCIS) service center on Form I-129, with an O supplement, a “consultation,” an employment contract or letter describing the activities to be performed, documents proving the foreign national’s career achievements, and the filing fee. An itinerary is required for services to be performed in numerous locations. If the beneficiary will work concurrently for more than one employer, each employer must file a separate petition.

Question: Can I self-petition for the O-1?

Answer: A foreign national cannot self-petition for an O-1 visa. A U.S. employer is required. USCIS regulations permit an “agent” to act as an employer to sponsor the foreign national. The petition must be accompanied by a summary of the employment agreement’s terms (i.e., a letter from the petitioner). A Notice of Action (Form I-797) approving the petition is issued by the USCIS service center.

A foreign national outside the United States submits the approval notice to an American consulate with Form DS-160 5 (or DS-156 and, if necessary, DS-157 and/or DS-158), and the visa fee. If in legal status in the United States, the foreign national, at the time of filing the petition, may apply for change of status using Form I-129.

Question: What are the advatages of the O-1?

Answer: When a foreign worker does not qualify for an H-1B visa because he or she lacks a college degree or equivalent work experience, the job is not a specialty occupation, the salary is below the prevailing wage, or an H-1B visa number is not available, the O-1 visa may be a viable alternative. For example, a violin maker’s occupation is not an H-1B specialty occupation, as it does not require a degree. A violin maker of extraordinary ability, however, may be able to obtain an O-1 visa. Similarly, a chemist with a Ph.D., patents, and publications may be granted an O-1 visa when H-1B visas are not available. A foreign national who has exhausted the time permitted in H or L status may apply to change status to O-1 to remain working in the United States. Further, J-1 visa holders subject to the two-year foreign-residency rule under Immigration and Nationality Act (INA) §212(e) may be able to obtain an O-1 visa, which is exempt from INA §212(e) restrictions.

Question: What do you have to show to get an O-1 Visa?

Answer: There are several items that must be shown, but all of the following is not necessary. However, you should be able to provide at least three that are on the list:
(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; (4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; (5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field; (6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media; (7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; and (8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

Thus, it is not easy to get an O-1, but is a very viable alternative to the H-1B and is always available.

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Got a deportation order you never knew about?

Posted on October 14, 2013 by Brian D. Lerner

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Got a Deportation Order because you never received notice?

Posted on October 14, 2013 by Brian D. Lerner

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.

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