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Philip Levin & Associates

Immigration Law

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BIA Holds That, Pursuant To INA §240(b)(5)(B), Neither Rescission Of An In Absentia Order Of Removal Nor Termination Of Proceedings Is Required Where A Respondent Who Was Served With A Notice To Appear That Did Not Specify The Time And Place Of The Hearing Failed To Provide An Address Where A Notice Of Hearing Could Be Sent. Pereira V. Sessions, 138 S.Ct. 2105 (2018) Distinguished.

June 18, 2019 Philip Levin

On May 22, 2019, the Board of Immigration Appeals (BIA or Board), continuing with its current post-Pereira post-Bermudez-Cota line of cases, dismissed the appeal of a respondent from an Immigration Judge’s (IJ’s) denial of her motion to sua sponte reopen proceedings. When appellant had entered the U.S. without inspection, she had been served with a Notice to Appear (NTA) ordering her to appear for an Immigration Court hearing in San Antonio, Texas at a date and time to be set. She refused to provide an address where she could be contacted, did not appear at her hearing, and was ordered removed in absentia by the IJ.

Respondent subsequently filed a motion requesting ‘sua sponte’ reopening to rescind her removal order so she could file a form I-601A provisional waiver application based on her approved I-130 visa petition, filed on her behalf by her U.S. citizen husband. The motion was denied by the IJ on the grounds that he lacked jurisdiction over the waiver, which she could seek from USCIS, and that respondent had not alleged exceptional circumstances warranting ‘sua sponte’ reopening. On appeal, respondent argued that the IJ erred in finding she was eligible for a provisional waiver of unlawful presence despite her in absentia removal order and in providing no analysis in holding she had not presented exceptional circumstances. She also relied on the intervening U.S. Supreme Court decision in Pereira v. Sessions, 138 S,Ct.2105 (2018), claiming her NTA was invalid “because it did not contain a specific date and time for her initial removal hearing,”as required by INA §240A(b)(1).

The BIA first addressed respondent’s Pereira argument, stating that in that case the Supreme Court had focused on whether the service of an NTA missing the time and place information triggers the “stop-time” rule of §240A(d)(1)(A) for purposes of cancellation of removal; the Board took the position that Pereira “did not hold that such a deficient [NTA] is invalid for all purposes, including for initiating removal proceedings.” Further, noted the opinion, while the applicable regulations provide that jurisdiction vests with the filing of an NTA with the Immigration Court, they do not require that date and time information be included in the notice. Additionally, the regulations note that failure to provide any of the data that is therein required “shall not be construed as affording the [respondent] any substantive or procedural rights.”

The BIA also stated that rescission of respondent’s in absentia removal order “is not mandated by Pereira”, noting that the statute concerning the entry of such an order provides that anyone who, after written notice required under §239(a)(1) or (a)(z) has been provided, does not attend a proceeding may be ordered removed; as the disjunctive “or” is used, the Board echoed its reasoning in Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019) and held that an in absentia removal order may be entered “if a written notice containing the time and place of the hearing was provided” either by NTA [§239(a)(1)] or by a subsequent hearing notice [§239(a)(2)].

The opinion went on to find that, under INA §(b)(5)(B), if one fails to provide an address to DHS, “no written notice of the hearing is necessary” to issue an in absentia removal order. As respondent refused to provide an address after being advised of her obligation to do so in the NTA, “notice of the time and place of her hearing was not required under either section of the statute,” so the in absentia order was proper. The BIA also concluded that because the applicant in Pereira provided his correct address and applied for cancellation, that case is distinguishable from the instant matter and does not require rescission of respondent’s removal order or termination of her proceedings.

Lastly, the Board noted that whether proceedings should be reopened sua sponte “is a discretionary determination to be made based on the totality of circumstances presented in each case.” Despite respondent’s contention that her U.S. citizen family will suffer extreme hardship upon her removal, and her acknowledged supporting evidence, the Board held that under de novo review, her case “does not present an exceptional situation that warrants the exercise of discretion” to reopen sua sponte, despite the availability of an I-601A waiver. As such, the appeal was dismissed. Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019).

Filed Under: BIA, Blog Tagged With: NTA, Pereira vs Sessions, sua sponte

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Recent Blog Posts

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  • Attorney General Holds That, In Conducting Its Review Of An Asylum Claim, The BIA Must Examine De Novo Whether The Facts Found By The Immigration Judge Satisfy All Of The Statutory Elements Of Asylum As A Matter Of Law. When Reviewing A Grant Of Asylum, The BIA Should Not Accept The Parties’ Stipulations To, Or Failures To Address, Any Of The Particular Elements Of Asylum Including, Where Necessary, The Elements Of A Particular Social Group. Instead, Unless It Affirms Without Opinion Under 8 C.F.R.§1003.1(e)(4)(i), The Board Should Meaningfully Review Each Element Of An Asylum Claim Before Affirming Such A Grant, Or Before Independently Ordering A Grant Of Asylum. Even If An Applicant Is A Member Of A Cognizable Particular Social Group And Has Suffered Persecution, An Asylum Claim Should Be Denied If The Harm Inflicted Or Threatened By The Persecutor Is Not “On Account Of” The Respondent’s Membership In That Group. That Requirement Is Especially Important To Scrutinize Where The Asserted Particular Social Group Encompasses Many Millions Of Persons In A Particular Society. One’s Membership In A Particular Social Group Cannot Be “Incidental, Tangential, Or Subordinate To The Prosecutor’s Mention…[F]or Why The Persecutor [ ] Sought To Inflict Harm.” Accordingly, Persecution That Results From Personal Animus Or Retribution Generally Does Not Support Eligibility For Asylum.
  • BIA Holds That, After An Immigration Judge Has Set A Firm Deadline For Filing An Application For Relief, A Respondent’s Opportunity To File The Application May Be Deemed Waived Prior To A Scheduled Hearing, If The Deadline Passes Without Submission Of The Application And No Good Cause For Noncompliance Has Been Shown. Respondent Failed To Meet His Burden Of Establishing That He Was Deprived Of A Full And Fair Hearing Where He Has Not Shown That Conducting The Hearing By Video Conference Interfered With His Communication With The Immigration Judge Or Otherwise Prejudiced Him As A Result Of Technical Problems With The Video Equipment.

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R-1
TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. PL&A will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

PL&A will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. PL&A will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on PL&A to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. PL&A will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.