Category Archives: Blog

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.

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.

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.

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.

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.

How a Person May End Up in Immigration Court

How a person gets in front of an Immigration Judge can be either voluntary or involuntary.

“Involuntary” generally means that that you have done something wrong where the person comes to the attention of Immigration Customs and Enforcement (ICE). For example, the person committed a crime and has been placed in criminal jail, ICE then picks him or her up and determined that they not eligible to remain in the U.S. ICE issues a Notice to Appear and puts the person in removal/deportation proceedings.

A person can end up in immigration court “voluntarily” by voluntarily filing an application that is subsequently denied. For example, a denied asylum application automatically sends the person to Immigration Court or a denied adjustment of status application for a green card may result in a NTA issued.

 

How Can I Get Political Asylum in the U.S.?

There are two ways to get political asylum: The main path is not through the deportation process, but is what is called an “affirmative filing” for political asylum. This is where a person applies for political asylum with the USCIS Asylum Office.

If the case is approved and the applicant is granted asylum by the USCIS Asylum Office, then a year later he or she can apply to become a lawful permanent resident.

If the case is not approved, then they pick up a notice that says “your case has not been approved,” and attached to that notice is a Notice to Appear (NTA) putting the applicant in front of the Immigration Court for removal/deportation proceedings. Then they are entitled to re-apply for political asylum in front of theIJ. If they are approved, they can then become a lawful permanent resident one year later.

Withholding Of Removal And Protection Under the “Convention Against Torture”

When one applies for political asylum usually, but not always, he or she is also applying for the more mandatory, but harder to obtain, defense of “withholding of removal”.

Often people will also allege that if they are returned home they will be tortured by their government, so they to stay under the UN “Convention Against Torture” or the “CAT.”  When somebody applies for asylum in the immigration court, they are usually applying for asylum, withholding, and CAT relief.

But, if they have been in the United States more than one year and have never applied for asylum, they can only apply for withholding and CAT relief. However, the one year period for filing for asylum can be tolled for certain reasons.

Deportation or Exclusion Proceedings

A removal proceeding is just another word for a deportation or exclusion proceeding. It is presided over by an Immigration Judge (IJ). These are not Article 3 state or federal judges, but are administrative officers who are considered by the federal government to be mid-level employees; they don’t have a great deal of power. IJs have the power to order someone removed from or to allow someone to remain in the U.S.

Reasons for Deportation

There are multiple possible reasons for deportation: Most often people are placed into removal proceedings because they have been convicted of a crime, they have violated an immigration law or laws, have overstayed their visa or status or committed fraud of some variety.

After an immigration arrest, it is impossible to tell how soon someone, or even if, they will be deported.

If someone is a violent criminal and is picked up directly from jail by the DHS, he or she will be taken into custody and kept in custody until his or her country issues a travel document, and then he or she will be deported. When that will be depends on the country and the individual’s case status.

Defenses to Removal

Defenses to removal are varied and many. Some people are able to remain in the United States by applying for political asylum and being granted political asylum. If a person is married to a U.S. citizen, another form of relief is applying for adjustment of status.

Cancellation of Removal

Other people who have been here long enough are able to apply for and obtain what is called “cancellation of removal,” generally requiring that a person has been in the United States a certain amount of time, has been a person of good moral character during that time period, has not committed an aggravated felony, and in the judge’s discretion is deserving of being allowed to remain in the U.S., generally because his or her close relatives who are U.S. citizens or permanent residents will suffer a high level of hardship.

When we are talking about cancellation or removal for nonpermanent residents, that type of hardship must reach the level of exceptional and extremely unusual.

Adjustment of Status

Other defenses to deportation will involve the applicant being allowed to file for adjustment of status. That is, he or she is eligible to obtain a green card because they have a close adult relative who is a U.S. citizen.  Sometimes even a green card holder relative can be enough.

Technicalities as a Defense

One type of defense to removal is to just show that the person is not removable under the ground that is alleged. Often, someone can win on a technicality that in fact they are not removable under the immigration law that is alleged on the notice to appear.

Filing for Prosecutorial Discretion

Filing for prosecutorial discretion (a type of deferred action), is also a defense to removal. Once someone is deported, they are generally barred from reentering the United States. However, if within the period off time they are required to remain outside of the U.S. (i.e., are inadmissible), they are eligible to come back because of a familial relationship who can obtain a green card for them, they are allowed to file a Form I-212 waiver, which is advanced permission to apply for a green card.

Forms, Petitions and Waivers

The I-130 is a family petition. If the I-130 is approved, there may be a chance for the person to apply for and pick up an immigrant visa in conjunction with an I-212 waiver and any other waivers that are necessary such as an I-601 waiver (for fraud or a criminal conviction).

Deportation Appeals: Board of Immigration Appeals (BIA)

There is a deportation appeals process. One can appeal an order of removal issued the immigration judge to the Board of Immigration Appeals (BIA), in Falls Church, Virginia.

One can appeal a BIA decision that it upholds an order of removal once the order is filed to their circuit court of appeals. Here, in San Francisco, we are governed by the Ninth Circuit Court of Appeals.

Deportation: Deferred Action

Deferred Action is a hands-off policy that the government maintains towards a particular individual under the belief that given the totality of circumstances surrounding him or her, it is best to allow the person to remain.

Often it is because he or she has a U.S. citizen (or permanent resident) parent, spouse and/or children who need that person’s household income, et cetera.

Prosecutorial Discretion in Deportation

Because the government has limited resources to deport people who are in the U.S. illegally, it has come up with the concept of Prosecutorial Discretion (PD). Under PD, a judgment is made by the Office of the Chief Counsel in a particular jurisdiction that an removable person who has been issued a Notice to Appear does not warrant the time and effort that would be spent trying to remove/deport them. If granted, the person can remain here. But it is not a green card and the status can always be revoked.

One type of Prosecutorial Discretion is called “Deferred Action Status”. Deferred Action means that the removal process is being placed to the side and not acted on, but the case has not being fully terminated. While the proceeding may be administratively terminated and the case closed, it can be reopened if the person does something wrong or if there is a change in priorities on the part of the Government.