TABLE OF CONTENTS. Foreword...v Acknowledgments...ix Table of Decisions Index...367

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1 Foreword...v Acknowledgments...ix Table of Decisions Index Chapter 1: Removal Proceedings...1 Introduction to Basic Concepts...1 Congressional Power to Deport...2 Changes in the Law Impacting Removal Proceedings...2 How People Get Placed in Removal Proceedings...3 Inadmissibility or Deportability Which Concept Applies?...5 Commencement of Removal Proceedings in Immigration Court...6 Charging Documents...6 Notice to Appear...6 Order to Show Cause...7 Form I Proper Service...8 Notice to Appear...8 Order to Show Cause...8 Notice of Address Change...8 Burden of Proof in Removal Proceedings...8 Rights in Proceedings...9 Representation by Counsel...9 Legal Services...10 Contacting Consulates...10 Translation...10 Right to Examine Evidence...10 Right to Be Advised of Eligibility for Relief...11 Right to Due Process...11 Special Rules for Juveniles...11 Pre-Hearing Procedures...12 Bond...12 Ineligible for Bond: Persons Subject to Mandatory Detention...12 Joseph Hearings...14 Ineligible for Bond Arriving Aliens...14 Eligible for Bond...15 Bond Hearings...15 xi

2 xii REPRESENTING CLIENTS IN IMMIGRATION COURT Pre-Hearing Motions...16 Discovery Through FOIA and Criminal Record Checks...18 Pre-Hearing Statement...21 Master Calendar Hearings and Individual Hearings...21 In Absentia Orders...23 Immigration Judge Decisions/Appeals...25 Consequences of Being in Removal Proceedings...25 Jurisdiction...25 Penalties for Noncompliance with Court Orders...26 Anatomy of a Removal Hearing...27 Types of Removal Orders...28 Expedited Removal Under INA 235(b)...28 Administrative Removal Orders Under INA 238(b)...29 Judicial Removal Order Under INA 238(c)...30 Reinstatement of Removal, INA 241(a)(5)...31 Practice Tips for Non-Court Advocates...32 Chapter 2: Grounds of Deportability...35 Grounds of Deportability: Generally...35 Aliens Inadmissible at the Time of Entry or Adjustment of Status...36 Inadmissible Aliens...36 Aliens Present in the United States in Violation of Law...37 Failure to Maintain Status...38 Termination of Conditional Permanent Residence...38 Alien Smuggling...39 Marriage Fraud...40 Criminal Grounds of Deportability...41 General Crimes...41 Crime of Moral Turpitude (CMT)...41 Multiple Criminal Convictions...47 Aggravated Felony...48 High-Speed Flight...51 Failure to Register as a Sex Offender...51 Drug Offenses...52 Controlled Substance Convictions...52 Drug Abusers and Addicts...52 Firearm Violations...53 Miscellaneous Crimes...53 Crimes of Domestic Violence, Stalking, or Violation of a Protection Order...54 Domestic Violence, Stalking, and Child Abuse...54 Violators of Protection Orders...54 Document-Related Grounds of Deportability...55 Change-of-Address Requirement...55

3 xiii Criminal Convictions Relating to Failure to Register and Falsification of Documents...55 Document Fraud Violations...55 Falsely Claiming Citizenship...56 Security and Related Grounds of Deportability...56 Espionage, Sabotage, and Other Illegal Activities...56 Terrorist Activities...57 Foreign Policy Considerations...57 Participation in Genocide or Nazi-Sponsored Persecution...57 Public Charge Grounds of Deportability...57 Unlawful Voting Ground of Deportability...58 Chapter 3: Grounds of Inadmissibility...61 Overview of the Inadmissibility Grounds...61 Who Bears the Burden of Proof Under INA 212?...62 Evaluating the Charges of Inadmissibility...62 Grounds of Inadmissibility...63 Health-Related Grounds...63 Communicable Diseases...64 Lack of Vaccination...65 Physical or Mental Disorders...66 Drug Abusers or Addicts...67 Criminal Grounds...68 Overview...68 Required Standards of Proof...68 Obtaining Necessary Records and Analyzing a Criminal Conviction...69 Conviction, Admission, and Sentence...69 Crimes Involving Moral Turpitude...70 Multiple Criminal Convictions...71 Controlled Substance Violations...71 Traffickers in Controlled Substances...72 Prostitution and Commercialized Vice...73 Immunity from Prosecution...74 Particularly Serious Violations of Religious Freedom...74 Significant Traffickers in Persons...75 Money Laundering...75 Aggravated Felonies...75 National Security Grounds...76 Espionage, Sabotage, Export Control Violations, and Other Unlawful Activities...76 Terrorist Activity...77 Potential for Serious Adverse Consequences for Foreign Policy...78 Membership in the Communist or a Totalitarian Party...78 Participant in Genocide or Nazi Persecution...79 Public Charge...80

4 xiv REPRESENTING CLIENTS IN IMMIGRATION COURT Public Charge Standard...80 Bonds...82 Previous Immigration Violations...82 Foreign Nationals Present Without Permission or Parole...82 Failure to Attend Removal Proceedings...83 Fraud or Willful Misrepresentation...83 False Claim to U.S. Citizenship...85 Stowaways...86 Smugglers and Encouragers of Unlawful Entry...86 Final Civil Document Fraud Order...86 Foreign Students...87 Not in Possession of Immigration Document...87 Ineligible for Citizenship...87 Prior Removal Orders or Periods of Unlawful Presence...88 Having Been Removed Previously...88 Unlawful Presence Bars...90 Determining Unlawful Presence...91 Reentering the United States Without Authorization...94 Miscellaneous Grounds...95 Chapter 4: Contesting Removability...97 Three Preliminary Considerations in Removal Proceedings...97 Is the Individual a U.S. Citizen?...97 Acquisition of Citizenship...98 Even if the Respondent Is Not a USC, Are They Actually Subject to Removal?.100 Prosecutorial Discretion Prosecutorial Discretion to Decline to Institute Removal Proceedings Prosecutorial Discretion During Removal Proceedings: Joining or Not Opposing Motions to Administratively Close or Motions to Terminate Motions to Close Administratively Motions to Terminate The Decision to Concede or Contest Removability Challenging the NTA Burden and Standard of Proof in INA 240 Proceedings Removal Proceedings Based on Inadmissibility Removal Proceedings Based on Deportability Special Issues Where Respondent Is Charged with Being Removable on Criminal Grounds Requirements of Evidence to Establish a Criminal Ground of Inadmissibility or Deportability Does the Conviction Meet All Necessary Elements for Immigration Consequences?...108

5 xv Do the records submitted by ICE establish that there was a conviction for immigration purposes? If the ground of removability requires that a certain sentence have been ordered or that a certain amount of damages be involved, does the evidence reflect the minimum sentence or damages? Is the conviction really for a crime involving moral turpitude, aggravated felony, or other criminal ground of inadmissibility or deportability? Has the conviction been pardoned, expunged, or otherwise ameliorated so as to remove or diminish immigration consequences? Constitutional Violations and Motions to Suppress Overview Motions to Suppress Evidence: A Case Study The Right to Be Free of Unreasonable Searches and Seizures Under the Fourth Amendment The Exclusionary Rule in Removal Proceedings When Is a Warrant Required? What Constitutes a Seizure? What Is an Arrest? What Is Mere Questioning? What Is Detentive Questioning? Preparing the Motion to Suppress The Right to Remain Silent Conclusion Chapter 5: Adjustment of Status Various Modes of Adjustment Readjustment of Status Arriving Aliens and Adjustment in Proceedings Termination to Proceed with Adjustment Before USCIS Family-Based Adjustment of Status Overview of Eligibility Requirements Obtaining Benefits Under 245(i) Procedure When to Assert the Defense Motions to Continue Submitting Proof of Prima Facie Eligibility and Filing the Application The Merits Hearing Removal of Conditional Residence Overview Failure to Comply with Procedural Requirements Denial of Joint Petition or Waiver Application Immigration Court Jurisdiction NACARA 202 and HRIFA...140

6 xvi REPRESENTING CLIENTS IN IMMIGRATION COURT Introduction NACARA Haitian Refugee Immigration Fairness Act (HRIFA) Registry Eligibility Requirements Residence Good Moral Character Not Ineligible to Citizenship Grounds of Inadmissibility Exercise of Discretion The Application Process Adjustment of Status for Certain Foreign Nationals from Vietnam, Cambodia, and Laos Cuban Adjustment Act of 1966 (CAA) Spouses and Children of Cubans How to Apply Chapter 6: Waivers of Inadmissibility and Deportability in Removal Proceedings The Exercise of Discretion Extreme Hardship Definition Documenting Extreme Hardship Waivers of Inadmissibility Grounds in Removal Proceedings INA 212(g) Waivers for Health-Related Inadmissibility Grounds Waivers for Communicable Disease of Public Health Significance Waivers for Physical or Mental Disorders with Associated Harmful Behavior Waivers of the Vaccination Requirement INA 212(h) Waivers for Criminal Inadmissibility Grounds What Criminal Inadmissibility Grounds Does INA 212(h) Waive? What Are the Eligibility Requirements for 212(h) Waivers? INA 212(i) Waivers for Fraud or Misrepresentation INA 212(a)(9)(B)(v) Waiver for Unlawful Presence The VAWA Waiver for the Permanent Bar The INA 212(d)(3) Nonimmigrant Waiver Waivers for Refugees and Asylees Waivers Under Special Forms of Relief Strategy and Procedure for Waivers of Inadmissibility Grounds in Removal Proceedings Form I-212 Consent to Reapply for Admission Eligibility and Strategy Procedure...174

7 xvii Waivers of Deportation Grounds in Removal Proceedings INA 237(a)(1)(H) Deportability Waiver for Fraud or Misrepresentation Waiver of Deportability Ground of Crimes of Domestic Violence, Stalking, or Violation of a Protection Order Conclusion Chapter 7: INA 212(c) and Cancellation of Removal for Lawful Permanent Residents Cancellation for LPRs Cancellation of Removal Part A LPR for Five Years Seven Years Continuous Residence After Lawful Admission Bars to Cancellation Eligibility Discretionary Factors Where and How to File INA 212(c) Relief Relief Under 212(c) Background Eligibility Under Former INA 212(c) Comparable Ground of Inadmissibility or Exclusion for Those Charged with Deportability Motions to Reopen to Apply for INA 212(c) Relief The Application for INA 212(c) Relief Persons Not Covered in the 212(c) Regulations Looking Ahead Proposed Repapering Rule Chapter 8: Cancellation and Suspension for Non-Permanent Resident Aliens Former Suspension of Deportation Overview IIRAIRA Changes Current Standard and Procedure for Suspension Applicants Eligibility Continuous Physical Presence Proposed Rule on Repapering Good Moral Character Extreme Hardship Discretion Cancellation of Removal for Non-LPRs Introduction Eligibility Continuous Residence or Physical Presence Exceptional and Extremely Unusual Hardship Grounds of Ineligibility The 4,000 Annual Cap...208

8 xviii REPRESENTING CLIENTS IN IMMIGRATION COURT Cancellation of Removal for Abused Immigrant Women and Children Background Requirements Marital Relationship Children Battery or Extreme Cruelty Three-year Continuous Physical Presence No Residence with Abuser Where Abuse Took Place Good Moral Character Inadmissible or Deportable Extreme Hardship Evidence Intake Interview Self-Petitions Laws of Other Countries VAWA Cancellation Cap NACARA Introduction Beneficiaries of NACARA Eligibility to Apply Dependent Spouses and Children Unmarried Sons and Daughters Other Requirements Jurisdiction of NACARA Application Asylum Office Executive Office for Immigration Review Requirements for NACARA Suspension of Deportation or Cancellation of Removal Continuous Physical Presence Good Moral Character Extreme Hardship Presumption of Extreme Hardship for Certain NACARA Beneficiaries Statutory Bars to NACARA Bars Relating to Immigration Violations Bars Relating to Failure to Comply with Immigration Proceedings Process for Applying in Removal Proceedings Application Unmarried Sons and Daughters Motions to Reopen Burden of Proof Types of Evidence Reinstatement of Removal Does Not Bar NACARA Application Deadline for Applications...231

9 xix Chapter 9: Asylum, Withholding of Removal, and Protection Under the Convention Against Torture Asylum vs. Withholding Standards of Proof, Evidentiary Considerations, and the REAL ID Act of The REAL ID Act of Elements of Persecution Economic Refugee Persecution by Groups That the Government Cannot Control Internal Flight Alternative Persecution vs. Prosecution Coercive Family-Planning Programs Neutrality and Imputed Political Opinion Conscription by the Government Membership in a Particular Social Group The Proposed Regulations Exercise of Discretion Ineligible Classes Ineligible for Asylum Persons Inadmissible on Security Grounds or Removable as Terrorists Firm Resettlement Safe Third Country Particularly Serious Crime in the Asylum Context Ineligible for Withholding Particularly Serious Crime in the Withholding Context Termination of Asylum or Withholding Credible Fear Process Overview Definitions Establishing Eligibility Burden of Proof Article 3 Withholding or Deferral of Removal Procedures Persons Arriving at a Port of Entry Persons in Removal Proceedings Persons Who Apply Affirmatively for Asylum and Withholding Persons Ordered Removed or Those Who Had Final Orders of Removal Before March 22, Persons Who Had CAT Cases Pending with Legacy INS on or Before March 22, Persons Whose Previous Removal Order Is Reinstated and Persons Who Are Not LPR Aggravated Felons...267

10 xx REPRESENTING CLIENTS IN IMMIGRATION COURT Persons Who Are Subject to Administrative Removal per INA 235(c) Diplomatic Assurances Chapter 10: Voluntary Departure Requirements Prior to the Conclusion of Removal Proceedings At the Conclusion of Removal Proceedings Negative Consequences for Failure to Timely Depart Under a Grant of Voluntary Departure Arguments to Avoid the Consequences of a Failure to Depart Appeals While the Voluntary Departure Clock Is Ticking The Effect of a Motion to Reopen Upon a Grant of Voluntary Departure The Application for Voluntary Departure Establishing Compliance with Voluntary Departure Conclusion Chapter 11: Naturalization as a Defense to Removal Prima Facie Eligibility for Naturalization Bars to Establishing Good Moral Character Aggravated Felony Convictions Naturalization as a Defense to Removal Procedure Prosecutorial Discretion Termination of Proceedings Under 8 CFR (f) After Termination of Proceedings Final Finding of Deportability Bars Naturalization Chapter 12: Administrative Review of Removal Orders Overview Appeals to the BIA Motions to Reopen and Motions to Reconsider Purpose Time and Number Limits Content, Format, and Filing Requirements for Motions to Reopen and Motions to Reconsider Motions to Reopen in Absentia Removal Orders Conclusion Chapter 13: Judicial Review of Removal Orders Judicial Review Before 1996 Changes Judicial Review Under the Transitional Rules Judicial Review of Removal Orders After Passage of REAL ID Overview Habeas Corpus in District Courts...299

11 xxi Habeas Corpus Prior to REAL ID Habeas Petitions Pending Prior to REAL ID Habeas Challenges to Detention Petitions for Review in the Courts of Appeals Petitions for Review After REAL ID Bars to Judicial Review in the Court of Appeals Procedural Rules Regarding Petitions for Review Judicial Review of Particular Types of Removal Orders Expedited Removal of Aliens Arriving at Ports of Entry Treatment of Nationality Claims Challenges to the Validity of Removal Orders in Criminal Proceedings Judicial Review of Certain Administrative Removal Orders Judicial Review of Judicial Orders of Removal Mandamus and Other Types of Petitions Appendices Appendix 1: Notice to Appear Appendix 2: Order to Show Cause Appendix 3: Sample I Appendix 4: Criminal Record Check Appendix 5: Court Instructions Appendix 6: Summary Order of Removal Appendix 7: Order of Expedited Removal Appendix 8: Administrative Order of Removal Appendix 9: Naturalization Charts Appendix 10: Motion to Suppress Evidence...349