When a non-citizen has lost an immigration court case or has been ordered deported or removed from the U.S., the order of deportation is usually not executed by Immigration and Customs Enforcement (ICE) immediately. This can allow time to file a motion to reopen.

A motion to reopen is the first step in asking the Immigration Court or the Board of Immigration Appeals to look at new evidence in a case and consider rescinding the order of deportation or removal. A request for a stay of removal will often accompany such a motion.

It is common for a non-citizen to find out that he or she has been ordered deported in absentia, or in their absence. If the DHS provides evidence to the Immigration Judge that written notice was provided of a court hearing date, the Immigration Judge will ordinarily order deportation for someone who fails to appear at their scheduled court hearing. Often times, in absentia orders of removal or deportation occur as the result of sending a hearing notice to a mistaken address, or due to incorrect advice from a notario, or non-attorney adviser.

In such instances, a motion to reopen can be filed if there was a lack of proper notice. There is no time limit for filing such a motion when there was lack of proper notice.

A motion to reopen may also be filed after an in absentia order of removal in cases where there were “exceptional circumstances” for failing to appear, and the motion to reopen is made within 180 days. Exceptional circumstances might include a serious illness, or the death of a family member.

In cases not involving in absentia orders of removal, motions to reopen may be made while a case is pending on appeal at the Board of Immigration Appeals, or within 90 days of a final order of removal. In many cases, this 90 day window is actually narrower because motion to reopen should also be filed prior to expiration of any period of voluntary departure.

Motions to reopen are based upon new material evidence not previously available that could make the non-citizen eligible for relief from removal in Immigration Court. One such example of new evidence could be marrying a U.S. citizen, which might allow that person to apply for legal residence based on the marriage. In asylum cases, changed country conditions also serves as a ground for filing a motion to reopen.

Other types of motions to reopen include “Lozada” motions, which are based on new evidence that was not previously available due to an error or oversight by the previous attorney in not submitting or requesting material evidence at the original hearing. In some cases, this may be grounds to toll the 90-day time period to file a motion to reopen.

Joint motions to reopen may also be an option, but they require agreement of the DHS/ICE, so ordinarily sympathetic facts must be involved, such as in cases involving minors, or where a family may be severely affected. Another type of motion to reopen is the Sua Sponte Motion to Reopen, which is really a suggestion for the Court to reopen on its own motion. The Immigration Judge or Board of Immigration Appeals may reopen Sua Sponte where new compelling, exceptional circumstances would warrant the Court to reopen on its own motion.

The jurisdictional, legal, and evidentiary requirements involved in all these types of motions to reopen are often complex, so knowing which type of motion to file, when to file, and what evidence to include is critical.

Disclaimer- Please Read
Any advice on zaslowlaw.com, The Law Offices of Nathan Zaslow website or You Tube Videos is general in nature and not designed for the specific facts of any given case. Each case is unique and should be treated as such. Different facts, laws and venues can be involved. The comments in this blog are for general informational use. Always seek advice from a competent attorney, who is familiar with the facts of your case. Also keep in mind that laws are constantly changing as are the policies and procedures of both agencies and courts in dealing with these cases.

When someone convicted in State Criminal Court faces deportation or removal based on their criminal record, it is important to investigate whether Post-Conviction Relief is viable.

Post-Conviction Relief may take many forms, but it is usually is some sort of a motion made in the State Criminal Court to modify, reduce, expunge, vacate, or alter in some way either the plea, the sentence, or the record of conviction.

When it is necessary to vacate a plea, it is first important to review the record of proceedings to determine which documents make up the official record of proceedings, and what the immigration consequences will be for the particular conviction.

The immigration consequences are often different for each different person, as much depends on the date of the conviction, the immigration status of the defendant, the date the immigrant/defendant entered the U.S., how the immigrant/defendant entered the U.S., the prior criminal history, etc.

It is of course much better to have an immigration lawyer involved in the State Criminal Court process prior to a plea being taken so as to better shape the record of conviction with future immigration consequences in mind. While California Penal Code § 1016.5 requires all defendants to be advised by the Judge that a plea of guilty or no contest could have future adverse immigration consequences, most immigrant defendants rely on the advice of their lawyer concerning whether to accept a plea deal.

Problems often arise because not all lawyers are well versed in the intricacies of the immigration laws, and the immigrant defendant is often surprised later to learn of the adverse immigration consequences of the plea they accepted.

The first step in attacking a plea is often to see if the plea was “knowing and intelligent”. This often an inquiry into whether the defendant was advised of all the constitutional rights, including the admonitions under 1016.5 that accepting the plea could result in deportation, denial of admission into the U.S., or denial of naturalization. If the court minutes, signed plea form, or hearing transcript does not contain a record of these admonitions, a 1016.5 Motion to Vacate may be an option. Sometimes, older court records are purged, and there may be no record to prove whether or not the Court gave these admonitions.

Motions to vacate may also be made for other reasons, such as when the defense lawyer did not give good legal advice concerning the immigration consequences of a plea. These motions, often called “Padilla” motions, will be in the form of a writ of habeas corpus in the California Superior Court. A habeas writ requires that the defendant still be “in custody”, meaning he or she is still in criminal custody or under probation or parole.

Motions for Post-Conviction Relief can be tricky, as there is often a requirement to show prejudice, meaning it must be shown that had the proper procedures been followed, the defendant may have pursued some other viable defense or legal strategy to avoid the conviction.

The District Attorney (DA) may oppose a motion to vacate, or the DA agree to the motion or agree to vacate the plea but substitute the plea with a lesser offense that will not have the same adverse immigration consequences. Sometimes it may only be necessary for the DA to agree to amend the record of conviction in some way.

Even if a post-conviction relief order will be issued by the State Criminal Court, care should be taken to assure it will be recognized in the Immigration Court or before the USCIS. For example, when drafting the proposed order for the State Court Judge, it is best to show that the new order by the State Court Judge was done to cure a Constitutional or procedural defect in proceedings, as opposed to an order made simply for immigration purposes. However, there is a plausible argument that a new order by the State Court Judge should be given Full Faith and Credit by the USCIS and the Immigration Judge pursuant to the Constitution and Federal Statute regardless of the reason for the State Court order.

Post-Conviction relief is a complicate area of law involving the state and federal immigration court systems, but sometime is the only hope to avoid deportation or removal.

Disclaimer- Please Read
Any advice on zaslowlaw.com, The Law Offices of Nathan Zaslow website or You Tube Videos is general in nature and not designed for the specific facts of any given case. Each case is unique and should be treated as such. Different facts, laws and venues can be involved. The comments in this blog are for general informational use. Always seek advice from a competent attorney, who is familiar with the facts of your case. Also keep in mind that laws are constantly changing as are the policies and procedures of both agencies and courts in dealing with these cases.

What is an Aggravated Felony?

The term “Aggravated Felony” is a term of art used in the Immigration and Nationality Act (INA). An aggravated felony does not necessarily have to be felony, nor does it have to be aggravated as that term is usually used in the Criminal Courts.

Under Section 101(A)(43) of the INA, Aggravated Felonies include convictions for: murder, rape, sexual abuse of a minor, drug trafficking, a crime of violence in which a term of imprisonment of at least a year is imposed, a theft or burglary offense for which a term of imprisonment of at least 1 year is imposed, a crime of fraud or deceit in which the loss to the victim exceeds $10,000, etc. This is not an exhaustive list of aggravated felonies, but it includes many of the common offenses that cause non-citizens to be classified as aggravated felons.

When a non-citizen is classified as an aggravated felony, severe consequences will usually follow. For example, a Legal Permanent Resident (LPR) who is convicted of committing an aggravated felony will not be eligible for a form of relief from removal called cancellation of removal, which is filed on Form EOIR-42A (http://www.justice.gov/eoir/eoirforms/instru42a.htm). Cancellation of removal is a waiver that allows those who committed criminal immigration violations to remain in the U.S. if they can show rehabilitation, among other factors.

An LPR classified as an aggravated felon may also be ineligible for bond while Immigration Court Proceedings are pending. This is important because Immigration charges are Civil in nature, and the administrative detention which can result may be lengthy (lasting years in some cases), and many times is longer than the actual jail term imposed for the underlying criminal punishment.

If an LPR is removed from the U.S. based on committing an aggravated, there is a 20-year bar to re-entry. If an alien removed as an aggravated felon is caught in the U.S. after having re-entered illegally, he or she could be subjected to criminal prosecution in Federal Court, which can carry stiff mandatory minimum federal prison sentences. The stakes are high when facing charges of being an aggravated felon.

The first step when confronted with such charges is to have an attorney review the underlying criminal records that form the basis of the immigration charges. Sometimes, the records will reveal that the Immigration and Customs Enforcement acted too hastily in bring such charges and that a motion to terminate the Immigration proceedings may be in order. Other times it may be necessary to file a motion in the criminal court to modify a plea or sentence, completely vacate a plea, or even modify part of the record of conviction.

In some instances, there may be relief in Immigration Court despite an aggravated felony conviction, such as for those who may qualify for a waiver under former section 212(c) of the INA, and for those who may qualify for a waiver under INA § 212(h). There are very technical requirements to qualify for these waivers.

The law related to aggravated felonies is very technical, and the legal definitions of terms such as “crime of violence” or “sexual abuse of a minor”, for example, would not be obvious to the layperson. These definitions have been the subject of much litigation. Seizing on a viable legal defense strategy when confronting aggravated felony charges, is the key to beating these charges. Winning strategies frequently involve a coordinated legal effort in the State Criminal Court and the Federal Immigration Court.

Disclaimer- Please Read
Any advice on zaslowlaw.com, The Law Offices of Nathan Zaslow website or You Tube Videos is general in nature and not designed for the specific facts of any given case. Each case is unique and should be treated as such. Different facts, laws and venues can be involved. The comments in this blog are for general informational use. Always seek advice from a competent attorney, who is familiar with the facts of your case. Also keep in mind that laws are constantly changing as are the policies and procedures of both agencies and courts in dealing with these cases.

Section 245(i) Adjustment for those out of status or who entered the U.S. Illegally

Those in the U.S. seeking to apply for legal residence, or a green card through marriage to a U.S. citizen or other family member need to be aware of an important aspect of the application process.

One frequent obstacle to adjusting status to that of a legal resident arises when the non-citizen applicant has entered the U.S. illegally, or without inspection.

In such cases, it will be necessary to qualify under section 245(i) of the Immigration and Nationality Act. Section 245(i) eligible applicants may apply for their green cards in the U.S. with the U.S. Citizenship and Immigration Service (USCIS), rather than through the U.S. Consulate in their home country.

Generally to be eligible for Section 245(i) treatment, the applicant must be the beneficiary of a family visa (I-130 Petition) or labor certificate filed for him or her on or before April 30, 2001, which is called the sunset date for Section 245(i). The applicant must also have been physically present in the U.S. on December 21, 2000. Those who qualify for 245(i) treatment based on a petition filed on or before the previous sunset date of January 14, 1998 are not subject to the December 2000 physical presence requirement.

Section 245(i) also allows those who have worked illegally in the U.S. or those who are out of status due to overstaying a visa to adjust status in the U.S. rather than leave the U.S. and pursue consular processing in the consulate abroad. Working illegally and overstaying a visa is generally a problem for those adjusting status through a non-immediate relative petition, such as those I-130s filed by a U.S. citizen sibling or legal permanent resident parent or spouse. Immediate relatives I-130 Petitioners, on the other hand, include U.S. citizen spouses, U.S. citizen parents of minor children, and U.S. citizen children age 21 or over.

Section 245(i) requires payment of a $1,000 penalty fee and the filing of a supplemental form, in additional to the Adjustment of Status Application (I-485), and the regular filing fees for that application.

It is also possible to be grandfathered into Section 245(i) eligibility by a previous approvable petition filed for the applicant in the past even if he or she is not seeking adjustment through the same family petition that creates 245(i) eligibility.

It is also possible to acquire derivative 245(i) status, such as through a spouse who is the beneficiary of a 245(i) eligible petition, or through a parent who was the beneficiary of a 245(i) petition filed by the uncle or aunt of the applicant, for example, when the applicant was a minor. It is sometimes complicated to determine if one is 245(i) eligible based on derivative status or grandfathering, but it is worth knowing as the benefit is potentially so great.

Disclaimer – Please Read
Any advice on zaslowlaw.com, The Law Offices of Nathan Zaslow website or You Tube Videos is general in nature and not designed for the specific facts of any given case. Each case is unique and should be treated as such. Different facts, laws and venues can be involved. The comments in this blog are for general informational use. Always seek advice from a competent attorney, who is familiar with the facts of your case. Also keep in mind that laws are constantly changing as are the policies and procedures of both agencies and courts in dealing with these cases.

When an undocumented immigrant is arrested by ICE, he or she may be given the opportunity by ICE to accept voluntary departure in lieu of initiating formal removal or deportation proceedings.

In some cases, a detainee may wish to be freed as quickly as possible and returned to his or her country of origin. In other cases, the detainee may wish to request a bond or request to be released on his own recognizance by ICE. This decision by ICE will often be based on the criminal history of the subject, the past immigration violations, and the potential relief that would be available under the Immigration laws.

For example, someone who had one or more DUIs or violent offenses may be considered a danger to the community. And someone with little likelihood of relief in Immigration Court and few family ties to the U.S. may be considered a flight risk. If ICE refuses to issue a bond amount or authorizes a high bail, the detainee may seek review of that decision before an Immigration Judge.

Generally, ICE will try to schedule an Immigration Court hearing date within 10 days of being taken into custody. Bond hearings will be heard by an Immigration Judge. It is possible to request a bond hearing from an Immigration Judge even before the Notice to Appear, or charging document has been filed in the case. This is because the bond hearing is a separate hearing from the underlying removal proceedings.

The Bond proceedings will inquire into whether the detainee is a danger to the community and a flight risk. Due to highly publicized incidents of undocumented aliens killing people while driving under the influence, the Immigration Judges are cautious to grant a low bond to someone who they believe is a high risk for driving under the influence. While it is possible to have bond granted for someone with multiple DUIs, a strong showing must be made before the Immigration Judge of rehabilitation and a network of support. Generally the longer time that has elapsed since the offense without re-offending, the more likely the Immigration Judge will believe that genuine rehabilitation has been achieved.

Certain categories of offenses, such as aggravated felonies, will disqualify a detainee from bond eligibility, and will subject him or her to mandatory detention. An experienced immigration lawyer will be able to determine in which cases bond is a possibility. In cases where bond is denied, or the detainee cannot afford to pay bond, he or she has the option to pursue the removal hearing while in custody. Such cases are generally expedited to reduce the amount of time in custody and to reduce the government expense to house the detainee while proceedings are pending. In some cases, a detained alien may not be eligible for bond, but could be eligible to pursue and be granted legal residence or some other relief from removal.

In San Francisco, cased of detained aliens are held at 630 Sansome Street, Room 475. While awaiting court hearings, detainees in Northern California are held at various county facilities on a contract basis, which can include Contra Costa County West Facility in Richmond, CA; Sacramento County Jail; and Yuba County Jail in Marysville, CA. An alien arrested in San Jose, CA, for example, may be sent to one of these facilities, or if there is not “local bed space”, that detainee may be transported to another state, such as Arizona or Washington. In these cases, the detainee has his case heard in the local Immigration Court.

ICE usually makes an effort not to transport the detainee out of the general geographic area when they have retained local counsel prior to being transported. In cases where the alien is still transported out of state, a motion to change venue (for example from Arizona back to California) will have a better chance of success of the detainee had hired local counsel prior to being transported out of state. If a family member is detained by ICE you can try locating them online by using the detainee locator tool.

Disclaimer- Please Read
Any advice on zaslowlaw.com, The Law Offices of Nathan Zaslow website or You Tube Videos is general in nature and not designed for the specific facts of any given case. Each case is unique and should be treated as such. Different facts, laws and venues can be involved. The comments in this blog are for general informational use. Always seek advice from a competent attorney, who is familiar with the facts of your case. Also keep in mind that laws are constantly changing as are the policies and procedures of both agencies and courts in dealing with these cases.

Immigration court can be confusing if you don’t know your way around. Here’s an overview of the structure of the court to help you better understand how to navigate it:

Executive Office of Immigration Review (EOIR)
The Federal Immigration Courts, or Executive Office of Immigration Review (EOIR), is a system of administrative courts throughout the country that processes alien charged with violating Immigration laws.

The Immigration Courts are administered by the Executive branch of government. Some of those facing Immigration Court deportation or removal hearings will have relatively minor charges, such as overstaying a visa, while others might have more serious charges, such as committing an aggravated felony.

Charges are brought by the Department of Homeland Security (DHS) by issuing a Notice to Appear, which is the charging document.

Generally a Master Court hearing is scheduled first by the Immigration Court. This is a status type hearing in which the Immigration Judge informs the alien, or respondent, that he or she has the right to seek counsel. It is customary to allow at least one continuance for counsel.

Because the failure to appear at court hearing will result in an order of removal in absentia, it is important to attend each hearing even if the respondent does not yet have an attorney.

In Northern California, the Immigration Court is located in San Francisco’s Financial District (http://www.justice.gov/eoir/sibpages/sfr/sfrmain.htm ). There are two locations. The main court is located at 120 Montgomery Street, Suite 800, and the second Court is located at 630 Sansome Street, Room 475, which is generally reserved for those aliens in custody of ICE/DHS. If a family member is detained by ICE you can try locating them online by using the detainee locator tool.

Unlike criminal cases, the Immigration Court is a Civil proceedings, thus, there is no Constitutional right to government appointed counsel. There is however the right to retain the lawyer of your choice at no expense to the government. Immigration Judges generally advise respondents to seek counsel if they have the means to hire an attorney, as the Immigration laws are often complex.

After one or more Master hearings, the Immigration Judge may set the case to a Merits or Individual hearing in order to present testimony and evidence. Sometimes, the respondent will contest the charges contained in the Notice to Appear, and other times the respondent may admit the charges but seek some form of relief from removal, such as an application for asylum or adjustment of status to that of a legal permanent resident.

Depending on the calendar of the Immigration Judge, these cases can last for several months or for several years. Sometimes people will be eligible to apply for a work permit while the case is pending in the Immigration Court. A lawyer will know when it is possible to receive a work permit. Work permit applications are filed with the U.S. Citizenship & Immigration Service (USCIS), part of the Department of Homeland Security, which is distinct from the Immigration Court, which is part of the Department of Justice, or Attorney General (www.justice.gov/eoir/ ).

Board of Immigration Appeals (BIA)
In most cases, respondents who are not successful at the Immigration Court may file an appeal to the Board of Immigration Appeals (BIA), which is the administrative appellate court for the Immigration Courts.

The BIA is located in Falls Church, Virginia. A decision by the Immigration Judge to order a respondent deported or removed is not final if the respondent reserves the right to appeal and files an appeal to the BIA in a timely manner. The BIA may find that the Immigration Judge committed some error and reverse the Immigration Judge or remand proceedings to the Immigration Court for further proceedings. If the BIA affirms the order of the Immigration Judge, the order of removal or deportation will become final. In those instances, Immigration and Customs Enforcement (ICE) might then have authority to deport that person.

Federal Circuit Courts of Appeal – Petitions for Review
The Federal Circuit Courts of Appeal sometimes provide another layer of appellate review and the possibility to stay a deportation order, but the Circuit Courts will not have jurisdiction over all cases.

The Federal Circuit Courts of Appeal are Article III Courts, meaning they are an independent branch of government from the Executive Department. There is generally jurisdiction for the Circuit Courts to review asylum decisions, but jurisdiction for many other types of discretionary cases has been limited by statute.

An attorney experienced in such cases can best determine when there will be jurisdiction to file a petition for review before the Federal Circuit Courts. Petitions for review must be filed within 30 days of a final order of removal.

In cases arising out of Immigration Courts in California, Arizona, Nevada, Hawaii, Alaska, Idaho, Oregon, Washington state, and Montana, petitions for review should be filed in the Ninth Circuit Court of Appeals. The Circuit Courts have begun to allow electronic filing of cases. As part of a Petition for Review, a stay of removal must be requested in the Federal Court in order to prevent the execution of a removal order while the petition for review is pending. In a successful appeal, the Circuit Court may overturn the BIA and remand the case for further proceedings at the administrative court level. Some cases will be in this system for years.

Disclaimer- Please Read
Any advice on zaslowlaw.com, The Law Offices of Nathan Zaslow website or You Tube Videos is general in nature and not designed for the specific facts of any given case. Each case is unique and should be treated as such. Different facts, laws and venues can be involved. The comments in this blog are for general informational use. Always seek advice from a competent attorney, who is familiar with the facts of your case. Also keep in mind that laws are constantly changing as are the policies and procedures of both agencies and courts in dealing with these cases.