Articles Posted in Removal Proceedings

76773_sign_no_entry_2.jpgThe USCIS proposed a plan March 30, 2012 to create a new waiver of unlawful presence called the “provisional waiver.” This waiver would allow a foreign national to apply for a waiver of the 3/10 year bar while still inside the United States. This proposed process has not yet taken effect and is currently unavailable.

What is the 3/10 year bar?
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952313_gavel.jpgThe United States Court of Appeals for the Eighth Circuit recently denied a foreign national’s application for asylum last month because it did not demonstrate past persecution or a well-founded fear of future persecution.

Pedro Garcia-Colindres, a foreign national of Guatemala, had entered the United States without legal authorization along with his wife and son in 1994, and filed an initial application for asylum shortly thereafter. The US then began removal proceedings against him in 2005. He then filed an updated asylum application in 2006, which also was a request for withholding of removal.
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832858_-paper_family_ii-.jpgThe Immigration and Nationality Act (INA) states that a foreign national who has been unlawfully present for one year or more in the United States, departs from the US, is then subject to the 10 year bar and may not reenter. The 10 year bar means that the foreign national would then be inadmissible for 10 years from the date of his or her prior departure.

The INA does provide a waiver that would allow such foreign national to reenter if it can be established that refusal to admit the foreign national would result in extreme hardship to the foreign national’s US citizen or US permanent resident spouse or parent.
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1056260_airplane_.jpgFrequently, a deportation order from the United States results in a bar that would prohibit a foreign national from returning to the US for five years, ten years, or more. However, a foreign national who has been granted voluntary departure is considered to have not been deported and would not be subject to the bar to reentry.

There are certain advantages to voluntary departure as a form of removal relief. It avoids an order of deportation being placed on a foreign national’s record. The bars resulting from removal to reentry into the United States do not apply. An unlawful entry following a voluntary departure does not result in a criminal penalty, unlike unlawful reentry following a deportation order.
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1392509_rainbow_flag.jpgHomosexual couples are now considered by immigration officials to be “family relationships” according to Homeland Security Secretary Janet Napolitano, who issued the order to federal agencies. She said in a letter to U.S. House Representative Jerrold Nadler dated September 27, 2012, that she has directed the U.S. Immigration and Customs Enforcement agency (ICE) to exercise prosecutorial discretion with respect to lesbian, gay, bisexual, and transgender (LGBT) individuals. Napolitano’s letter also says that family relationships are to be interpreted by homeland security to include “long-term same-sex partners.”

Such prosecutorial discretion is used by ICE to determine whether an undocumented foreign national in removal proceedings merits special consideration and should be allowed to stay in the United States based upon several factors, one of which is whether an individual has close family ties to the United States.
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918333_u_s__capitol_building.jpgSecretary of Homeland Security, Janet Napolitano, announced the new prosecutorial discretion policy on June 15 in a memo entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” The new policy aims to give relief to certain undocumented immigrants by giving them permission to live and work in the United States.

U.S. House Representative Lamar Smith (R-Texas), Chairman of the House Judiciary Committee, asked several questions in a letter to U.S. Immigration and Customs Enforcement Director John Morton on July 3 about how the Obama administration’s new prosecutorial discretion policy will be implemented. Smith blasted the new policy as “blatantly political” and an “unprecedented breach of faith” that “ignores the rule of law” and labeled it as “amnesty.”
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477966_commerce_acts_books.jpgMany undocumented immigrants who were brought to the United States as children have graduated from US law schools, passed bar exams, and are seeking to practice law in the US as attorneys. Yet because they are undocumented immigrants, they are forbidden by the state bars from being admitted as attorneys to legally practice law.

Sergio Garcia was brought to the United States illegally by his parents when he was just a baby. He has since graduated from Cal Northern School of Law and passed the California state bar exam in 2009. The state bar told him he was ineligible to join the state bar because he was in the country illegally. The California Supreme Court is currently reviewing Garcia’s case to decide whether the state bar must admit him as an attorney.
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1038827_u_s__supreme_court_1.jpgUndocumented immigrants should be breathing a sigh of relief after the U.S. Supreme Court issued its decision on the controversial Arizona immigration law, yet news media have been bombarding us with news stories that would probably scare them instead.

The Court issued its decision last Monday about the four-part Arizona law, in which the Court struck down the strongest three parts of the law and left only one part standing, the weakest part. Yet this does not seem to be what the news media is reporting. Many of these stories are incorrectly reporting the Court’s decision for what may be political purposes to get Latino voters riled up in an election year.
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US_Permanent_Resident_Card_2010-05-11.JPGUnited States immigration law allows the U.S. Attorney General, through the Executive Office for Immigration Review (EOIR) and the Board of Immigration Appeals (BIA), to grant “cancellation of removal” to people adjudged inadmissible or deportable, if the person meets certain criteria. This can be a powerful tool for people seeking relief from deportation, but the law is not always clear about who may qualify. The U.S. Supreme Court issued a consolidated ruling in two cases in May that clarified the requirements for adult immigrants who resided here as children. The question was whether an immigrant who entered the U.S. as a child could meet the “continuous residence” and “physical presence” requirements by tacking on a parent’s periods of residence and presence, or if the immigrant must meet the requirements on his or her own. The Court held that each immigrant must meet the requirements on his or her own.

Cancellation of removal is a discretionary form of relief available to certain permanent or nonpermanent residents who are otherwise be inadmissible or deportable. The criteria for nonpermanent residents are much more restrictive than those for permanent residents. The Attorney General may cancel the removal of a permanent resident who has been “lawfully admitted for permanent residence” for at least five years, who has been physically present in the U.S. for at least seven years, and who does not have a conviction for an “aggravated felony” as defined by the immigration laws.
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253947_buried_alive.jpgAttorneys who represent foreign national clients facing deportation may file a Freedom of Information Act request in order to obtain documentation from the U.S. Citizenship and Immigration Services that may be critical to preparing a defense. The problem is that one never knows when a FOIA request will be answered. It can be difficult to competently formulate a defense without having access to all the evidence. FOIA requests have taken so long to get through the backlog, in some cases, that the request is not answered until long after the person has been deported.

The law requires federal agencies to respond to FOIA requests within 20 days, and this may be extended to 30 days under unusual circumstances. The USCIS says that it responds to FOIA requests on a first-in first-out basis. It gets about 100,000 FOIA requests annually and has reduced the backlog within the last five years. However, delays still do exist.
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