All posts by Philip Levin

Voluntary Departure from the United States

What if I leave the United States voluntarily when I receive the Notice to Appear?

If someone receives a notice to appear then leaves the U.S., the system may not know that the alien has voluntarily left the United States. What they do know is that you didn’t appear at your hearing. When that occurs, the Judge orders you removed “in absentia.” This is never a good idea. Reopening a

You may also ask that the IJ grant you “voluntary departure.” A voluntary departure is a Judge’s order, and most of time it is preferable to a removal order because when you are ordered removed the burden of coming back is higher.

If you are granted voluntary departure and you do leave the United States within the time granted by the IJ, you don’t have that removal barrier sometimes. This means you may not have to file an I-212. This is a very important point because you haven’t been “deported”.

Voluntary departure is a form of defense. If you are in front of the immigration judge and you really don’t have any mechanisms to apply, you don’t have CAT, you don’t have an asylum application, perhaps at that moment you don’t have a viable spousal case or family-based case to apply for a residency. If you don’t have that, sometimes the best strategy that an immigration attorney will tell you is, “Let’s get you voluntary departure. You have to leave the U.S., but while you are gone, we will be able to work on all these other mechanisms. We can file the I-130 petition to get you back into the U.S. but we don’t have to fight this waiver application process. That’s one way under the voluntary departure.

But, in the instance that the person just takes off, and he’s ordered removed in absentia, he has another higher burden. It doesn’t make sense for a person to just leave the U.S. if there’s a chance they may be removed in absentia, because no matter what, even though he left without attending a court hearing, the judge is still going to have that order, and you are still going to file that I-212, or you are going to fight that in absentia order.

How do I notify the Court that I’m leaving voluntarily?

Generally, there is no set form for this request. A person could file a motion where he or she is essentially asking the judge for prehearing voluntary departure. If you’re granted prehearing voluntary departure, you have to pay a nominal fee, and then, you are given a set amount of time to leave the U.S. Then you can get your “bond” fee back, and you can actually turn around and come back to the United States if you can prove that you’re eligible for an immigrant or nonimmigrant visa.

Two types of Voluntary Departure

There are two types of voluntary departure: The prehearing voluntary departure because you have voluntarily said “I’ll take myself out of the system. Let me leave on my own terms.” And, then, there is post-hearing voluntary departure where the burden gets a little higher. Penalties can start to accrue at a higher rate if you violate the voluntary departure when it is post-hearing.

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BIA Holds That, Under The Adam Walsh Act And INA §204(a)(1)(viii)(I), A Petitioner Is “Convicted” Of An Offense Where A Formal Judgment Of Guilt Is Entered By A Court Or, If Adjudication Of Guilt Was Withheld, Where A Plea, Finding, Or Admission Established His Or Her Guilt And A Judge Ordered Some Form Of Punishment, Penalty, Or Restraint On Petitioner’s Liberty

On January 12, 2017, the Board of Immigration Appeals (BIA or Board) decided the appeal of an I-130 immigrant visa petition denied by the Service Center Director (Director) on the basis that the petitioner is barred from having the case approved by the Adam Walsh Act, noted upholding the Director’s decision and dismissing the appeal. Petitioner had been convicted of California Penal Code §243.4(a), sexual battery by restraint, and the Director found the conviction to be for a “specified offense against a minor” under the Adam Walsh Act, noted that petitioner had not established he poses no risk to the beneficiary (his spouse) and denied the petition. Submitting proof that his conviction had been expunged under California Penal Code §1203.4, petitioner argued he had not been “convicted” but the Director held the post-conviction relief did not overcome the conviction because it was obtained per a rehabilitative statute, rather than as the result of a procedural or substantive defect in the proceedings. Petitioner also argued on appeal that the definition of “conviction” found at INA §101(a)(48)(A) did not apply to U.S. citizens like himself; the BIA requested supplemental briefing on this issue.

Initially, in its analysis, the Board held that the definition of “conviction” found at INA §101(a)(48)(A) applies to lawful permanent residents and U.S. citizens and would therefore be adopted for purposes of INA §204(a)(1)(A)(iii)(I), which states that a U.S. citizen petitioner convicted of a specified offense against a minor may only have a visa petition approved if DHS determines he or she presents “no risk” to the beneficiary. Thus, stated the BIA, a petitioner has been “convicted” where “either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.”

The Board went on to find that the §1203.4 expungement, while releasing the petitioner from the penalties and disabilities of the offense, was actually quite limited and therefore had no effect on his conviction for either Adam Walsh Act or INA §204(a)(1)(A)(iii)(I) purposes. The opinion also rejected petitioner’s argument that his crime did not constitute a specified offense against a minor, finding the BIA’s own precedent – Matter of Inrocaso, 26 I&N Dec. 304 (BIA 2014) – allowed DHS to inquire into the facts and circumstances of the violation to ascertain both the victim’s age and petitioner’s underlying conduct. As such, the Director’s determination that petitioner had not met his burden of establishing he was not convicted of a specified offense against a minor was affirmed and the appeal dismissed. Matter of Calcano De Millan, 26 I&N Dec. 904 (BIA 2017).

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BIA Holds Definition Of Perjury Under INA §101(a)(43)(S) Requires A Knowing Material False Statement Under Oath Where An Oath Is Authorized By Law And, Thus, A Conviction For Perjury In Violation Of California Penal Code §118(a) Qualifies As An Aggravated Felony Per §(a)(43)(S).

On December 29, 2016, in a case remanded by the Ninth Circuit Court of Appeals, the Board of Immigration Appeals (BIA or Board) upheld the decision of the Immigration Judge (IJ) that a conviction for perjury under California Penal Code §118(a) is a categorical aggravated felony per INA §101(a)(43)(S) as an offense relating to perjury where the term of imprisonment is at least one year. Initially, the respondent had conceded removability and applied for various forms of relief but the IJ found him to be an aggravated felon ineligible for relief and the BIA affirmed. After the filing of a petition for review, the Ninth Circuit granted a motion to remand so the Board could consider its previous holding in Matter of Martines-Recinos, 23 I&N Dec. 175 (BIA 2001)(en banc), which found that a violation of §118(a) is a categorical aggravated felony perjury offense by comparing 18 USC §1621, the Federal perjury statute, with the elements of the California statute.

In its analysis, the BIA first noted that the Martinez-Recinos decision had not explained why the Board relied on §1621 for a generic definition of perjury. The BIA then found that “18 USC §1621 alone does not provide the generic definition of perjury for purposes of “INA §101(a)(43)(S), instead adopting a generic definition “based on how the crime of perjury was commonly defined at the time §101(a)(43)(S) was enacted”. Looking to the 1996 definitions of perjury codified in state and Federal law, the Model Penal Code, and scholarly commentary to articulate a uniform definition of perjury, the Board withdrew from Martinez-Recinos to the extent it conflicts with its’ new framework.

The decision’s survey of perjury statutes led the BIA to conclude that when “perjury” was added to (a)(43)(S) in 1996, the majority of states agreed the definition included 1) a material 2) false statement 3) made knowingly or willfully 4) while under oath, affirmation or penalty of perjury, e.g., made at an official proceeding or where an oath was required or authorized by law. This definition, held the Board, also embodies “the level of criminal liability that Congress intended when it added the offense of perjury” to the INA in 1996. Comparing the elements of §118(a) to this definition, the BIA concluded that respondent’s conviction is categorically for an offense relating to perjury under §101(a)(43)(S) as the state law “substantially emulates” the Federal crime proscribed by §1621, which is generally accepted as the acknowledged definition of perjury. In a footnote, the Board agreed with the Ninth Circuit that §118(a) is broader than that common law definition but noted that its analysis concerned the generic definition of the offense when §101(a)(43)(S) was enacted, a definition which may diverge from the common law. As such, the decision concluded that respondent’s conviction was for a categorical aggravated felony rendering him ineligible for relief and dismissed the appeal. Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016).

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AAO Sets Forth New Standard For Granting Of National Interest Waiver, Vacates Matter of New York State Department Of Transportation, 22 I&N Dec. 215 (Acting Associate Commissioner, 1998).

On December 27, 2016, the Administrative Appeals Office (AAO) revisited the analytical framework for assessing national interest waiver (NIW) eligibility via the appeal of a Texas Service Center denial of both a self-petitioned I-140 immigrant visa petition seeking to classify the Petitioner as a member of the professions holding an advanced degree and the accompanying NIW. Initially, in discussing the legal background of the waiver, the opinion explained how a petitioner must first prove that the beneficiary qualifies under the Employment-Based 2nd preference (EB-2) as either a professional with an advanced degree or an individual of exceptional ability, then show that it is in the interest of the U.S. to waive the job offer (labor certification) requirement. However, the AAO noted the term “national interest” is ambiguous, undefined by statute or regulation, i.e., “a broad concept subject to various interpretations”.

The decision found that while the current legal paradigm for evaluating national interest is established by the precedent decision, Matter of New York State Dep’t of Transp., 22 I&B Dec. 215 (Acting Assoc. Comm’r 1998)(“NYSDOT”), the intervening period has led the AAO to find that it is now time for a reassessment. Essentially holding that the 3rd of NYSDOT’s 3 prongs – the requirement that the petitioner “demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national” – is too confusing a standard for  all parties, the AAO stated that this prong can be misinterpreted to require evidence of “the very labor market test the waiver is intended to forgo” and is therefore unworkable when petitions with NIWs are submitted by self-employed individuals like entrepreneurs. Additionally, held the AAO, the harm-to-national-interest concept unnecessarily limits USCIS’ broad discretionary authority to grant an NIW. As such, NYSDOT was vacated.

Thus, under the AAO’s new framework, once EB-2 eligibility is confirmed, the NIW may be granted if the petitioner proves by a preponderance of the evidence 1) that the beneficiary’s proposed endeavor has both substantial merit and national importance; 2) that the individual is well-positioned to advance the endeavor; and, 3) that, on balance, it would be beneficial to the U.S. to waive the job offer requirement, The decision expressly noted that this last prong “ does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.” The opinion then held that the instant petitioner met the new test, sustained the appeal, and approved the petition. Matter of Dhanasar, 26 I&N Dec.  884 (AA) 2016).

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Immigration Appeals

There are very few appeals From an IJs decision available. As a general rule, regardless what you think is going on with your case after the Master Calendar Hearing, you are left to attend the Individual Regular Calendar Hearing and comply.

Under what circumstances would I find myself before the Board of Immigration Appeals?

Typically, this will happen at the end of your court case and the judge has ordered the person removed/deported. But in doing so, the Attorney determines that there is an appealable set of facts or interpretation of law. Generally, after being ordered deported, the next application for relief is to see if the Board of Immigration appeals will overrule the lower immigration court.

It’s a real strategic move to make the determination because if it’s not done properly even though you may win on appeal for that issue you may lose the prize at the end, of being able to get residency or prosecutorial discretion, or something to be able to remain in the U.S. Our knowledgeable attorneys are able to assist you with those filings.

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Can an Immigration Lawyer Represent Me from Anywhere in the United States?

Yes, they can. That’s a difference between immigration lawyers and other attorneys: Immigration law is Federal in scope and so immigration attorneys can practice nationally.

If you’re in the deportation process already, it is more akin to a criminal proceeding than to the purely administrative process where people are applying for their green cards or naturalization. Because it is like a criminal proceeding, generally it is in the best interest of the client to find an attorney who has the ability to appear with you in court, not only because it’s important that the attorney be with them in court.

It is advantageous because part of the preparation of all of their defenses to removal requires a lot of local legwork, such as building witness testimony, meeting with family members, providing document review, whatever is needed to show the positive equities of your case. Your attorney may need to work with those people who will need to attend the hearing in San Francisco versus Texas.

Is it better to select a local attorney who is familiar with the local immigration court system?

Yes, there may definitely be some benefit to having an attorney who is familiar with local rules in many situations but not in all situations.

Whether it be criminal proceedings or civil proceedings, it is always best to have the person be familiar with the local office. They are familiar with that office’s priorities. For example, a judge or ICE attorney in one office may have a difference of opinions on how the laws are interpreted.

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A Summary of President Trump’s Executive Orders of January 27, 2017

On January 27, 2017 President Trump issued the following three executive orders:

Executive Order Number One

Executive Order Number One was a border security and immigration enforcement improvement executive order which authorized the wall along the Mexican border with the U.S., authorised construction and staffing of numerous detention facilities, expanded the expedited removal program, and ended “catch and release”, authorized conducting removal proceedings in Mexico and Canada, restricted the use of parole authority for removable individuals which will obviously impact people with DACA relief and authorized criminal prosecution of unlawful entries, not just re-entries but initial unlawful entry. The Executive Order seeks to enhance the public safety initially by getting rid of the three tiers determining who is a top priority for removal. This order now makes everybody, every undocumented immigrant, a top priority regardless of whether he or she is a criminal or how long they have been here, reinstates the Secure Communities Program and expands the 287(g) program which allowed state and local law enforcement officers to work, essentially, as ICE agents and promulgates a rule that there will be a new regulations to collect fines and penalties for people who are not only unlawfully present, but (apparently) those who they’ve lived with, who are “facilitating” their presence.

Executive Order Number Two

Executive Order Number Two authorizes the hiring of 5000 new Border Patrol agents and 10,000 new ICE agents, denies federal funding to sanctuary cities and requires federal agencies like IRS and Social Security to share data on unauthorised immigrants with DHS, and rearranges the enforcement priorities to include any person who has no lawful status. Lastly, it removes Privacy Act protections for every one other than U.S. citizens and permanent residents.

Executive Order Number Three has garnered the most attention: Protecting the Nation from Foreign Terrorism. That Executive Order did the following: It suspended all refugee resettlement for 120 days, even those who have completed all screening and vetting steps and requires “extreme vetting”; it’s unclear exactly what that means. It also reduces the annual quota of refugees by more than half, to 50 000, and allows DHS to give the states involvement in refugee placement, which of course certain states have claimed to already have, and gets rid of all the exemptions for what are called TRIG, or Terror Related Inadmissibility Grounds.

This new Executive Order places an indefinite ban on all Syrian refugees, there’s a 90 day ban, that has been successfully or partially-successfully challenged in the courts on entry into the U.S. by citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. On any visa or immigrant visa or green card or advance parole, and the ban will not expire if those countries refuse to accept people back from the U.S.

Apparently, the ban does not apply to naturalized U.S. citizens, or citizens from Saudi Arabia, Bahrain, Oman, Qatar and the UAE, or citizens of Bangladesh, Egypt, Indonesia, and Morocco, Pakistan and Turkey and other Muslim majority countries. The Executive Order cancelled the Visa Interview Waiver Program for repeat applicants issued the same type of visa before at the same consular post, and directed the development of standard procedures to screen all immigration benefits to identify fraud or the intent to do harm, and evaluate the likelihood of becoming a positively contributing member of society and someone who has the ability to make contributions to the national interest, these are fairly undefined terms seemingly cribbed from other parts of immigration law.

Executive Order Number Three

Lastly, Executive Order Number Three expedites implementation of a biometric entry/exit system in an effort to keep track of people coming into the U.S., specifically as non-immigrant visitors. Despite the Order suspending entry of the citizens of the 7 Muslim countries for 90 days, green card holders and dual citizens were eventually allowed to enter, so people who have green cards from those countries and dual citizens, that is those with citizenship from one of the 7 countries but from another country as well, are able to come in. Subsequently, the travel ban was temporarily restrained by a District Court judge in Seattle, Washington, a decision later upheld by the Ninth Circuit Court of Appeals. It’s obvious, however, that the administration would like refugee applications and the approval process somehow impacted here.

I guess if we know anything now, it is that if you have a valid passport that is not from one of the 7 countries and you have a valid visa, you should be admitted, regardless of where you were born; so even if you were born in one of those 7 countries but you have a passport from another county, i.e., even if you are not a dual national but you are just a national or citizen of another country you should be able to enter the U.S. Lawful permanent residents, people with Green Cards even if born in one of those 7 countries and even if they have a claim to citizenship regarding one of those countries, are admissible.

It is clear that CBP officers are looking through people’s passports, even people entering on ESTA, that is, the visa waiver program. They are searching their passports for stamps into one of the 7 countries as a pre-emptive measure but it is unclear how that is impacting travellers; apparently, they are still being allowed to enter even if they have visited one of the 7 countries but they may be questioned about their prior travels there.

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Do I Need to Have a Lawyer at my Master Calendar Hearing?

You should have a lawyer at your Master Calendar Hearing.   In fact, if you do not, the judge is instructed to ask if you would like to be represented and to allow for one, two, sometimes three continuances to let you to find a lawyer.

For the purposes of keeping my legal fees as low as possible, should my immigration lawyer be located in San Francisco?

If that is where your court is, it’s advisable but not necessary.  People who are comfortable with a lawyer and feel he or she will do the job may prefer to have that lawyer represent them no matter that attorney is located.

If my immigration lawyer is in another state and my Master Calendar Hearing is in San Francisco, how will the lawyer represent me?

You are generally assigned to the court based on where you live, and if you are assigned to San Francisco because you live here, the attorney in another state would have to travel to San Francisco unless he or she was granted the ability to make telephonic appearances.

Read more about Master Calendar Hearing Locations.

Master Calendar Hearings – Locations

Master Calendar Hearings on deportation issues can be set wherever there is an Immigration Court. There is not one in every major city. For example, Sacramento doesn’t have an Immigration Court, nor does Fresno.  In these cases the applicant would have to go to the court that covers their jurisdiction.

San Francisco is the only city in Northern California that has an Immigration Court. Anyone who faces a master calendar hearing in the Bay Area will be going to San Francisco.

Do I need have a lawyer at my Master Calendar Hearing?

Prosecutorial Discretion and “Tiers”

There is some discretion given to the DHS attorneys when it comes to the deportation process. If they look at the Notice To Appear and feel that there is really not a whole lot that they can do, they can dismiss the NTA using prosecutorial discretion. In effect, they are saying “We’re not going to really go after this person. Let’s just put him off to the side…we’ve got bigger fish to fry.” Then, through the use of PD, the person is taken out of the Immigration Court system.

If the Trial Attorneys don’t do that, it has to be an affirmative application from the applicant or the applicant’s attorney to ask the DHS attorney why this client is here and present the reasons for his presence, the positive factors on his side, and why he should be granted Prosecutorial Discretion in front of the IJ. Then, if the ICE attorneys agree, it is presented to the judge for approval.

“Tier 4” is just taken from a memo issued by the Office of the Chief Consul; the group that supervises all of the Trial Attorneys across the country, asking that each office prioritize those people who they are going after.

No one in court mentions what tier the person is in. Judges are never told that someone is a Tier 3 – the allegations against the person are what they are. Sometimes things will come up in court that will show that the person is a much less desirable citizen than they had initially appeared to be because, suddenly, the ICE attorney will present a number of criminal conviction documents. Generally, it is within the discretion of the IJ whether to allow someone to remain despite a criminal conviction.

On the other hand, sometimes someone is an aggravated felon, or they have committed domestic violence, for example, and there is no waiver for that level of criminal depravity. Under these circumstances, the judge has no choice but to order the person removed.

In Immigration Court, a lot of the legal arguments that take place aren’t that the alien is or isn’t convicted of a serious crime. The technical jousting that goes on between the lawyers is whether or not the crime that the person is convicted of, given the wording of the state statute, qualifies as an aggravated felony or as a crime involving moral turpitude. Those are the cases that the U.S Supreme Court has been deciding and weighing in on over the last 4 or 5 years.

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