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Category Archives: Deportation

Removal Cases: What is Prosecutorial Discretion and Am I Eligible for this Benefit?

At my law office, I have been receiving many calls from individuals in deportation / removal proceedings asking whether a new law has been passed that helps them avoid removal from the U.S.  There has been a change, but it is not a new law per se.  Basically, the Obama administration has issued a policy change in how they will treat OPEN deportation and removal cases by setting “low priority” and “high priority” case standards. Those individuals with what are considered low priority cases are eligible for prosecutorial discretion, which means that the Immigration Court can “administratively close” or even terminate removal proceedings.

The new policy change is that John Morton, Director of ICE, has explained the benefit called Prosecutorial Discretion and has even created a system whereby an immigration lawyer can file a prosecutorial discretion request on behalf of their clients.  The request is usually made to the Chief Supervising Attorney at the Office of the Chief Counsel.

I have filed many requests for prosecutorial discretion on behalf of my clients, and I have received calls directly from the Chief Supervising Attorney about some of those pending applications.  I mainly look for the following factors when choosing whether an individual is a good candidate for prosecutorial discretion:

  • Length of time in the U.S.
  • Any family in the U.S. especially immediate relatives
  • Any health conditions for the applicant or his / her U.S. citizen or lawful permanent resident relatives
  • Completing an education in the U.S.
  • Entering the U.S. at a young age
  • Lack of a criminal history as well as other factors detailed in a Memo issued by John Morton OR
  • Any other “humanitarian” type of factors

It is important to note that you do not need all of the above points to qualify for prosecutorial discretion.  I look for one or more of the above factors, and I organize our request in a way that maximizes our chances of success by attaching legal arguments and documentation.

The reason for this policy change is that there are more removal cases than the current immigration court system can handle. In other words, Obama wants to focus on criminal aliens more than the aliens that have no criminal record and the aliens that have a possible means to obtain immigration relief.

We have noticed an increase in the cooperation of the trial attorneys for cases where the individual has no criminal history, and we are thankful for this new policy change.  For individuals who already have a Final order of removal, we have been successful in filing a prosecutorial discretion request asking the Office of Chief Counsel to Join our Motion to Reopen based on other grounds, and they can cite this policy change as a reason for the Judge or the BIA to have mercy on them and grant their request.

The above policy is in line with the thoughts reiterated by Homeland Security Secretary Janet Napolitano, who has stated that the work raids where hundreds are arrested will stop, and focus of immigration officials will turn to prosecuting and removing criminal aliens.

Is Administrative Closure the Same as Termination of Removal Proceedings?

For any applicants currently in Removal proceedings, they may have heard the above terms used interchangeably, but in fact they are two completely different forms of relief that an Immigration Judge(s) can grant. Termination of Removal Proceedings basically means that removal proceedings against an applicant are completed and no longer pending, i.e. open, against the applicant. This means that at least for the most current removal proceedings, the applicant was not ordered removed or deported from the U.S. The applicant’s removal proceedings are considered completed, and the applicant is no longer in removal proceedings.

Administrative closure, on the other hand, simply means that the applicant’s removal proceedings are being put on hold for the time being, and that they must be reopened in the future for the removal proceedings to be resolved. Through Administrative closure, the applicant’s case is temporarily taken off the Court’s calendar. The applicant still remains in removal proceedings.

In June and ongoing months in 2011, some Memorandums of law were released by Director J. Morton that set forth factors ICE should consider when determining if a case is eligible for prosecutorial discretion. If ICE agrees to apply prosecutorial discretion to a case, then that case will be administratively closed. In this way, that applicant will not be ordered removed and can also apply for an employment card while he or she is in the U.S.

Fraud Waiver APPEAL SUSTAINED BY AAO For Our Client

In an unpublished decision received on behalf of our clients, the AAO (Administrative Appeals Office) sustained our appeal that we filed for the denial of our clients I-601, Waiver for Fraud, Application. Our client had previously filed a fraud waiver on his own without an attorney with the U.S. Embassy in Tirana, Albania. The U.S. Embassy in Tirana, Albania denied his fraud waiver, claiming that the applicants did not show that the U.S. citizen spouse would suffer extreme and unusual hardship if her husband cannot re-enter the U.S. or if she is forced to move to Albania to join her husband.

Our client, an Albanian national, had entered the U.S. with a fraudulent passport that did not belong to him. He applied for asylum in the U.S. but the Immigration Judge denied his case and granted him voluntary departure requiring him to leave the U.S. During his many years in the U.S. while his case was pending, our client met his current wife, a U.S. citizen. They now have a child together.

When he left the U.S. and applied for his green card to re-enter the U.S., the U.S. Embassy in Tirana denied the fraud waiver citing that the U.S. citizen spouse was already living with her husband in Tirana. They reasoned that she could remain there, if she did not want to be separated from her husband. As noted above, our client was required to file a fraud waiver because of his previous use of a fake passport to enter the U.S.

Because our client was not represented by an attorney and filed the fraud waiver on his own, his case was not as strong as it could have been and the Officer(s) were able to deny his case. His wife had submitted substantial research on the country conditions in Albania, proof of their marriage etc. but the Officer was not satisfied.

When I took over the case, I immediately filed an appeal with the Office in Vienna, Austria, which has jurisdiction to review the case from the U.S. Embassy in Tirana, Albania. The case was then transferred to the AAO in Washington, D.C. The AAO decision, which we just received, held that the U.S. citizen would suffer extreme and unusual hardship if her husband is not allowed to re-enter the U.S.

The Immigration Appeals Officer(s) based their favorable decision on the arguments and research we presented on behalf of our clients. Notably, they noted that the U.S. citizen does not speak Albanian, and that she did live in Albania for a year or so, but that she had to return to the U.S. because she could not adjust to living in Albania. Further, we had conceded that our client’s use of the fake passport was wrong. We did not try to rationalize his breaking of U.S. laws. We did however point out individual details of the couple’s life to convince the AAO to allow them to be reunited here in the U.S.

We are pleased to have worked on this case and to be a part of this family’s reuniting, especially given that they now have a child together. Our client, the U.S. citizen spouse, has given her express permission for me to use the details of her case in this blog. Her name has been kept confidential.

U.S. Citizenship can be Revoked as Per New Decision by the Seventh Circuit

The U.S. Court of Appeals for the Seventh Circuit has just issued a decision which allowed Jose Suarez’s U.S. citizenship to be revoked. Jose Suarez committed two controlled substance offenses just before he applied for citizenship. The former INS, now USCIS, did not find these offenses when he did his fingerprints because he had not yet been charged. His application for citizenship was approved and he was sworn in as a U.S. citizen.

A couple of months after he was sworn in, he was indicted for the offenses that had taken place before he applied for citizenship. After he served his sentence, his criminal offenses came to the attention of the immigration officials, and under 8 U.S.C. section 1451(a), the United States sought to take away his citizenship.

The U.S. brought charges to take away his citizenship about three years after he was released from jail. The complaint against Suarez alleged that he illegally procured his citizenship because he did not reveal these crimes at the time of his interview. It is important to note here that he was not formally indicted for these until after he was already sworn in! In other words, no criminal charges were pending against him at the time he applied for citizenship. The INS’ reasoning was that he committed the crime before naturalization, and he evaded criminal punishment for those criminal acts until he was sworn in as a U.S. citizen.

The Seventh Circuit Court of Appeals had similar reasoning and many additional arguments that they relied on to revoke his citizenship. The bottom line is that he committed the acts before he appeared at the interview with the INS, and therefore he should revealed this information and even if he did reveal this information, he would not have been found to be a person of good moral character.

Mr. Jose Suarez was found guilty of being part of a conspiracy to distribute almost 200 pounds of marijuana. Yes, crimes like these will keep you from becoming a U.S. Citizen, and might even get you removed (deported) from the U.S.

Is Fleeing to Elude a Police Officer while Driving a CIMT?

In a recent decision issued by the Board of Immigration Appeals (BIA), it seems that it is more likely than not that the offense of fleeing to elude a police officer is a crime involving moral turpitude, also called CIMT. In the Decision of Matter of Ruiz-Lopez, BIA 2011, the BIA gave an extensive explanation of which driving offenses constitute a crime involving moral turpitude. The BIA explains that fleeing to elude a police officer is a crime involving moral turpitude because the Respondent knows that the police officer has asked him to stop, and in reckless disregard of the Officer’s command, the Respondent still drove in a reckless manner that could endanger his life, others and even the Officer’s life, due to the Respondent’s willful behavior to flee from the Officer.

As a result of the conviction of fleeing to elude a police officer, the Respondent was found ineligible for cancellation of removal because he had committed a crime that is listed under 212(a) of the Immigration and Nationality Act, which is a crime involving moral turpitude. The Respondent had entered the U.S. without inspection over 10 years before removal proceedings were started again him. Although he would usually be eligible for cancellation of removal due to his presence in the U.S. for over 10 years, because of his conviction noted above, the BIA held that he was not eligible for this immigration relief.

Good BIA case for Iraqi Christians Applying for Asylum

The Board of Immigration Appeals recently issued a favorable case regarding Iraqi Christians. Although the Immigration Judge did not allow the applicant to reopen her deportation order to apply for asylum from Iraq, the Board of Immigration Appeals (BIA) reversed the Judge’s decision and allowed the applicant’s deportation order to be reopened.

This is a helpful case, because the motion to reopen was NOT timely filed within 90 or 180 days. In fact, the applicant waited 3 years before filing this Motion to Reopen. The Judge who denied the Motion to Reopen is with the Immigration Court in Detroit, MI. Based on this decision, now the applicant will have the opportunity to apply for asylum and withholding of removal.

The Board of Immigration Appeals reopened the applicant’s case because they stated that based on the country conditions information provided by the applicant, the country conditions for Christians in Iraqi have worsened in the years of 2008 and 2009. The BIA held that the country conditions have worsened to such an extent since the applicant’s prior deportation hearing that the deportation proceedings should be reopened to allow the applicant to apply for asylum and withholding of removal. The matter was remanded, i.e. sent back, to the Immigration Judge for his consideration of the worsening situation in Iraq for Christians and for entry of a new decision.

This decision is unpublished and a copy of the decision was emailed to our office for our own information from the applicant’s attorney.

Immigration Case Sample: Removal Proceedings

I recently accompanied a client of mine to the Immigration Court in Orlando, FL where he had his final individual hearing. The specifics of his case are that he entered on a fiancé visa and then obtained his conditional resident card. However, before he obtained his permanent resident card, otherwise known as the 10-year green card, he became separated from his U.S. citizen wife. He unfortunately did not reveal this fact to the Immigration Officer that interviewed him and his wife. So when the couple appeared for an Interview at USCIS Immigration Office and were physically separated during their interview, they provided conflicting statements. This led the Immigration Officer to deny their case. The Officer denied the permanent resident petition, finding that the couple had engaged in marriage fraud.

The client then hired my office to represent him in removal proceedings. I did not represent him until he was already placed in removal proceedings. In addition to re-filing the petition form, I accompanied him to his final hearing where he presented evidence and testimony to the Judge to show that he in fact had entered the marriage with his now ex-wife in good faith and that there was no marriage fraud.

After I completed my questioning of my client about his dating and marriage history with his now ex-wife, the government attorney then spent over one hour cross-examining my client. Some unfortunate details were revealed, like my client had a child with another woman during his marriage to his U.S. citizen sponsor.

However, in the end, the Judge granted my client’s application for a waiver in good faith and now my client will become a permanent resident of the U.S. It bears noting that we were victorious in this case because I stressed to the Immigration Judge that the standard is not whether their marriage was perfect or whether my client was a perfect husband, but rather the standard was whether the marriage was entered into in good faith at the time of their engagement and their marriage. I was able to show that my client did not have any money at that time that he could have used to bribe the U.S. citizen, nor was there any other motivation for the U.S. citizen to marry him and sponsor him, except for the hope of building a life together. My client had also taken a trip outside Jacksonville, FL with his then wife and had other proof of their bona fide marriage.

Not all cases like the one described above will have the same result, obviously, but the above case details are being provided because I know my clients and readers are interested to know about recent real-life immigration cases and their results.

Orlando Immigration Court has a new address

The Executive Office for Immigration Review has just released a notice that the Immigration Court in Orlando, Florida is moving from their current downtown address to the following address:

Executive Office for Immigration Review
Office of the Clerk / Immigration Court
3535 Lawton Road, Suite 200
Orlando, Florida 32803

It is important to note that EOIR’s own press release contains the wrong zip code. We have checked with the Court and checked with hearing notices we have received for our current clients. The correct zip code is the one listed above, which again is 32803.
The Immigration Court is moving from their current address on North Hughey Avenue which is in downtown Orlando.

The Court is expected to be at their NEW location on November 18, 2010. The Court will be closed from November 12, 2010 until they re-open on November 18th.
If for an emergency you need to call the clerk at the immigration court, the office number is 407-648-6565. They are open from 8:00 am to 4:00 pm.

It is not yet clear what the new address for the government attorneys will be. Any filing that is made with the Court must include a certificate of service that states that a true and accurate copy of the foregoing documents was sent / mailed to the Office of Chief Counsel located at (their address). For this reason, we will locate the address and then place the information on this blog.