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Philip Levin & Associates

Immigration Law

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BIA Holds That Where DHS Returns An Applicant To Mexico To Await An Immigration Hearing Pursuant To The Migrant Protection Protocols And Provides Him Or Her With Sufficient Notice Of The Hearing, An Immigration Judge Should Enter An In Absentia Order Of Removal If The Applicant Fails To Appear.

May 12, 2020 Philip Levin

On January 31, 2020, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal, reinstated removal proceedings, and remanded the record for further proceedings. Respondent had applied for admission to the U.S. at the San Ysidro, California port of entry (POE) at the Mexican border. In April 2019, DHS served him with a Notice to Appear (NTA), charging him as removable under INA §212(a)(7)(A)(i)(I) as one who does not possess valid entry documents. The NTA listed the date, time, and place of Respondent’s hearing, as well as his address in Mexico; DHS also provided him with a “Migrant Protection Protocols” (MPP) information sheet, with a Spanish-language copy, instructing Respondent to arrive at a specific location at the San Ysidro POE at 9:00 am on the morning of his hearing so he could be transported to the Immigration Court. DHS returned Respondent to Mexico per the MPP to await his hearing. He did not appear and DHS requested the Immigration Judge (IJ) to issue an in absentia order of removal; citing due process concerns, the IJ concluded that Respondent’s notice was insufficient and terminated the proceeding without prejudice (and without allowing the government to submit evidence of removability). DHS appealed. 

The BIA began its analysis by quoting the well-settled rule that an IJ may only terminate removal proceedings under special circumstances set forth in the regulations, where the charges of removability have not been sustained. As such, the Board concluded that the IJ had erred in terminating proceedings. The decision noted that, under the MPP, DHS has the discretion to return “certain foreign individuals” entering or seeking admission to the U.S. from Mexico – illegally or without proper documentation – to Mexico for the duration of their immigration proceedings. Additionally, the NTA had been personally served so Respondent had notice of the time and place of the hearing, had been informed of the charges against him, and warned of the consequences of failing to appear. 

The BIA also pointed out that DHS had given Respondent the MPP sheets but the IJ had “expressed concern” that Respondent had not understood the instructions contained therein; the opinion concluded, “there is no adequate basis to assume that he did not.” The Board went on to note that the MPP sheet contained Respondent’s signature and there is no requirement that one placed in immigration proceedings be provided with an NTA “or any other document” in his or her native language. Thus, held the decision, where, as here, DHS returns an applicant to Mexico to await an immigration hearing pursuant to the MPP and provides him or her with sufficient notice of that hearing, that IJ should enter an in absentia order of removal if the respondent fails to appear in court.  

Finding that termination of the proceedings had not been warranted because there was no legal basis to do so, and that the IJ’s failure to allow the government to present evidence as to Respondent’s removability ran counter to his conclusion that DHS had not sustained the charges, the BIA reinstated proceedings and remanded the record, holding that the IJ should have granted DHS’s request to proceed in absentia. The Board ordered that, on remand, if DHS establishes Respondent’s removability “based on the facts and the evidence”, the IJ should enter an order of removal. Thus, the appeal was sustained, the IJ’s decision vacated, proceedings reinstated, and the record remanded for further proceedings. Matter of Rodriguez Rodrguez, 27 I&N Dec.762 (BIA 2020). 

Filed Under: BIA, Blog

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  • 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.