TABLE OF CONTENTS. Representing Clients in Immigration Court, 5th Ed. Acknowledgments... ix Table of Decisions Index

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1 TABLE OF CONTENTS Representing Clients in Immigration Court, 5th Ed. Acknowledgments... ix Table of Decisions Index Chapter 1: Removal Proceedings... 1 Basic Concepts... 1 Congressional Power to Deport... 3 How People Get Placed in Removal Proceedings... 5 The Effect of IIRAIRA on Proceedings Before an Immigration Judge... 7 Inadmissibility or Deportability Entry v. Admission... 7 Inadmissibility or Deportability Which Concept Applies?... 8 Inadmissibility Under INA Deportability Under INA LPRs and Admission Under INA 101(a)(13)(C)... 9 Common Examples of When More Than One Set of Rules Applies... 9 Charging Documents Notice to Appear Charging Document Notice to Appear Service Order to Show Cause Charging Document Order to Show Cause Service Form I Burden of Proof in Removal Proceedings Rights in Proceedings Right to Due Process Representation by Counsel Special Protections for Detained Citizens of El Salvador Contacting Consulates Interpretation and Translation Right to Be Advised of Eligibility for Relief Right to Examine and Present Evidence Special Rules for Minors Special Rules for Unaccompanied Minors Special Rules for Mentally Incompetent Respondents Discovery: Freedom of Information Act (FOIA), Criminal Record Checks, and Dent v. Holder Anatomy of a Removal Hearing Pre-Hearing Motions xi

2 xii REPRESENTING CLIENTS IN IMMIGRATION COURT, 5TH ED. Master Calendar Hearing Pre-Hearing Statement Pre-Individual Hearing Tasks Individual Hearing Immigration Judge Decisions and Appeals In Absentia Hearings Jurisdiction: EOIR v. USCIS Practice Tips for Non-Court Advocates Removal Orders Not Issued by an IJ During INA 240 Proceedings Expedited Removal Under INA 235(b) Administrative Removal Orders Under INA 238(b) Judicial Removal Order Under INA 238(c) Reinstatement of Removal Under INA 241(a)(5) Chapter 2: Contesting Removability Preliminary Considerations in Removal Proceedings Is the Individual a U.S. Citizen? Acquisition of Citizenship Derivation of Citizenship How to Raise a U.S. Citizenship Issue If the Respondent Is Not a U.S. Citizen, Is He or She Subject to Removal? Conceding or Contesting Removability Challenging the NTA Procedural Rules Burden and Standard of Proof in INA 240 Proceedings Removal Proceedings Based on Inadmissibility Removal Proceedings Based on Deportability If Respondent Is Charged with Being Removable on Criminal Grounds Evidence Required to Establish a Criminal Ground of Inadmissibility or Deportability Was There a Conviction for Immigration Purposes? Was the Minimum Sentence Imposed or Minimum Damage Shown? Was the Conviction Really for a Crime That Is a Ground of Inadmissibility or Deportability? Has the Conviction Been Ameliorated so as to Remove or Diminish Immigration Consequences? Does the Conviction Carry All Elements Needed for Immigration Consequences? Constitutional Violations and Motions to Suppress Motions to Suppress Evidence: A Case Study The Exclusionary Rule in Removal Proceedings Fourth Amendment Violations Fifth Amendment Due Process Violations Regulatory Violations Unreasonable Searches and Seizures Under the Fourth Amendment Identifying a Reasonable Search... 78

3 CONTENTS xiii Identifying a Reasonable Seizure Mere Questioning Detentive Questioning Preparing the Motion to Suppress The Right to Remain Silent Motions to Dismiss and Motions for Administrative Closure Motions to Dismiss Administrative Closure Conclusion Chapter 3: Noncriminal Grounds of Inadmissibility and Deportability Inadmissibility Overview Who Bears the Burden of Proof Under INA 212? Evaluating the Charges of Inadmissibility Grounds of Inadmissibility Inadmissibility Category 1: Health-Related Grounds Communicable Diseases Lack of Vaccination Physical or Mental Disorders Drug Abusers or Addicts Inadmissibility Category 2: Criminal-Related Grounds (See Chapter 4) Inadmissibility Category 3: National Security Grounds Espionage, Sabotage, Export Control Violations, and Other Unlawful Activities Terrorist Activity Potential for Serious Adverse Consequences for Foreign Policy Beliefs, Statements, and Associations Exception Exception for Foreign Politicians Membership in the Communist or a Totalitarian Party Meaning of Membership in a Totalitarian or Communist Party Waiver Participant in Genocide or Nazi Persecution Inadmissibility Category 4: Public Charge Grounds Public-Charge Standard Bond Inadmissibility Category 5: Labor Protection Grounds Inadmissibility Category 6: Fraud or Other Immigration Violations Foreign Nationals Present Without Permission or Parole Failure to Attend Removal Proceedings Fraud or Willful Misrepresentation False Claim to U.S. Citizenship Stowaways Smugglers and Encouragers of Unlawful Entry Document Fraud Resulting in Civil Penalties Foreign Students Inadmissibility Category 7: Violation of Documentation Requirements

4 xiv REPRESENTING CLIENTS IN IMMIGRATION COURT, 5TH ED. Inadmissibility Category 8: Grounds Relating to Military Service (Ineligible to Citizenship) Inadmissibility Category 9: Prior Removal Orders or Periods of Unlawful Presence Having Been Removed Previously Unlawful Presence Bars Persons Unlawfully Present Determining Unlawful Presence Leaving with Advance Parole Does Not Trigger the Three or Ten-Year Bars Reentering the United States Without Authorization Inadmissibility Category 10: Miscellaneous Grounds Grounds of Deportability Overview Deportability Category 1: Inadmissibility at the Time of Entry or Adjustment of Status Inadmissible Aliens Aliens Present in the United States in Violation of Law Aliens Who Fail to Maintain Status Termination of Conditional Permanent Residence Alien Smuggling Marriage Fraud Deportability Category 2: Criminal-Related Grounds (See Chapter 4) Deportability Category 3: Document-Related Grounds of Deportability Change-of-Address Requirement Document Fraud Violations False Claim to Citizenship Deportability Category 4: Security and Related Grounds of Deportability Espionage, Sabotage, and Other Illegal Activities Terrorist Activities Foreign Policy Considerations Participation in Genocide or Nazi-Sponsored Persecution Deportability Category 5: Public-Charge Grounds of Deportability Deportability Category 6: Unlawful Voting Ground of Deportability Chapter 4: Criminal Grounds of Inadmissibiliy and Deportability Evaluating Contacts with the Criminal Justice System Definition of Conviction for Immigration Purposes What Is Not a Conviction? When Is a Conviction Not Required? The Categorical Approach Step 1: The Traditional Categorical Inquiry Step 2: Divisibility Step 3: The Modified Categorical Approach Examining More Than the Record of Conviction: The Circumstance-Specific Approach

5 CONTENTS xv Burden of Proof in Immigration Cases Involving Convictions Criminal Grounds of Inadmissibility INA 212(a)(2)(A)(i) Crimes Involving Moral Turpitude A Survey of Crimes Involving Moral Turpitude INA 212(a)(2)(A)(i)(II) Controlled-Substance Violations INA 212(a)(2)(B) Multiple Criminal Convictions INA 212(a)(2)(C) Drug Trafficking INA 212(a)(2)(D) Prostitution Criminal Grounds of Deportability INA 237(a)(2)(A)(i) Crimes Involving Moral Turpitude Within Five Years. 159 INA 237(a)(2)(A)(i) Two Crimes Involving Moral Turpitude INA 237(a)(2)(A)(iii) Aggravated Felony Summary of Aggravated Felony Offenses Common Aggravated Felonies INA 237(a)(2)(A)(iv) High-Speed Flight INA 237(a)(2)(A)(v) Failure to Register as a Sex Offender INA 237(a)(2)(A)(vi) Pardons INA 237(a)(2)(B)(i) Conviction Relating to a Controlled Substance INA 237(a)(2)(B)(ii) Drug Abusers and Addicts INA 237(a)(2)(C) Firearms Offenses INA 237 (a)(2)(d) Miscellaneous Crimes INA 237 (a)(2)(e) Domestic Violence, Stalking, Crimes Against Children, and Violation of a Protection Orders INA 237(a)(2)(E)(i) Domestic Violence Offenses INA 237(a)(2)(E)(i) Crimes of Stalking INA 237(a)(2)(E)(i) Crimes Against Children INA 237(a)(2)(E)(ii) Violators of Protection Orders INA 237(a)(7) Waiver for Convictions of Domestic Violence, Stalking, or Violation of Protection Order INA 237(a)(2)(F) Traffcking in Persons Resources for Evaluating Immigration Consequences of Crimes Conclusion Chapter 5: Adjustment of Status Overview of Adjustment of Status Eligibility and Exclusions Readjustment of Status Adjustment of Status Applications Pursuant to INA 245 and Family-Based Adjustment of Status INA 245(a) and (c) Overview of Eligibility Requirements Heightened Burden When Marriage Occurs During Removal Proceedings178 Adjustment of Status Under INA 245(i) Adjustment of Status for VAWA Self-Petitioners INA 245(a) Adjustment of Status for Special Immigrant Juveniles INA 245(h) Adjustment of Status for Asylees and Refugees INA Procedures for Adjustment of Status in Removal Proceedings When to Assert the Defense

6 xvi REPRESENTING CLIENTS IN IMMIGRATION COURT, 5TH ED. Motions to Continue Administrative Closure Motions to Dismiss and Proceed with Adjustment Before USCIS ICE Memorandum on Adjustment Submitting Proof and Filing the Application The Individual Hearing Removal of Conditional Residence Overview Failure to Comply with Procedural Requirements Termination of Conditional Residence Before the Two-Year Period Immigration Court Jurisdiction Registry Registry Eligibility Registry Application Process Special Legislation Cuban Refugee Adjustment Act of Spouses and Children of Cubans How to Apply Haitian Refugee Immigration Fairness Act Adjustment of Status for Certain Foreign Nationals from Vietnam, Cambodia, and Laos Conclusion 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 Waiver 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 Section 212(h) Waivers? When May INA 212(h) Waivers Be Used in Removal Proceedings? INA 212(i) Waivers for Fraud or Misrepresentation INA 212(d)(11) Waivers for Smugglers and Encouragers of Unlawful Entry. 220 INA 212(a)(9)(B)(v) Waiver for Unlawful Presence Form I-601 Waivers of Inadmissibility Grounds in Removal Proceedings Strategy and Procedure Provisional Unlawful Presence Waivers Final Orders of Removal

7 CONTENTS xvii Pending Removal Proceedings The VAWA Waiver for the Permanent Bar The INA 212(d)(3) Nonimmigrant Waiver INA 209 Waivers for Refugees and Asylees Waivers Under Special Forms of Relief Waivers for Special Immigrant Juveniles Form I-212 Consent to Reapply for Admission Eligibility and Strategy Procedure Waivers of Deportation Grounds in Removal Proceedings INA 237(a)(1)(H) Deportability Waiver for Fraud or Misrepresentation INA 237(a)(1)(E) Waiver for Smuggling INA 237(a)(7) Waiver for 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 Eligibility for Cancellation Discretionary Factors BIA Unpublished Decisions on Discretionary Factors Where, How, and What to File INA 212(c) Relief Background Comparable Ground of Inadmissibility or Exclusion for Those Charged with Deportability Eligibility for 212(c) Relief INA 212(c) and Discretion BIA Unpublished Decisions Motions to Reopen to Apply for 212(c) Relief The Application for 212(c) Relief Conclusion Chapter 8: Cancellation of Removal for Non-Lawful Permanent Residents Former Suspension of Deportation Cancellation of Removal for Non-LPRs Eligibility Continuous Physical Presence NTA Stop-Time Rule Commission of an Offense Stop-Time Rule Departures That Break Continuous Physical Presence Good Moral Character Exceptional and Extremely Unusual Hardship Qualifying Family Members

8 xviii REPRESENTING CLIENTS IN IMMIGRATION COURT, 5TH ED. Hardship Standard Cases Evidentiary Requirements BIA Unpublished Decisions No Alternate Means of Adjusting Status Grounds of Ineligibility ,000 Annual Cap Cancellation of Removal for Abused Women and Children Requirements Marital Relationship Children and Sons and Daughters Battery or Extreme Cruelty Three-Year Continuous Physical Presence Good Moral Character Inadmissible or Deportable Extreme Hardship BIA Unpublished Decisions Laws of Other Countries Intake Interview VAWA Cancellation Cap Self-Petitioning Respondents: How and Why NACARA Beneficiaries of NACARA Guatemalans Salvadorans Nationals of Former Soviet-Bloc Countries Dependent Spouses and Children Unmarried Sons and Daughters Other Requirements Jurisdiction of NACARA Applications USCIS Asylum Office Guatemalans Salvadorans Means of Demonstrating ABC Class Membership Dependents Executive Office for Immigration Review Requirements for NACARA Suspension of Deportation or Cancellation of Removal Continuous Physical Presence for Seven Years Departures Good Moral Character Extreme Hardship Presumption of Extreme Hardship for Certain NACARA Beneficiaries Statutory Bars to NACARA Bars Relating to Immigration Violations Suspension of Deportation

9 CONTENTS xix Cancellation of Removal Bars Relating to Failure to Comply with Immigration Proceedings Suspension of Deportation: Five-Year Bars Cancellation of Removal: 10-Year Bars Process for Applying in Removal Proceedings Application Unmarried Sons and Daughters Motions to Reopen Burden of Proof Types of Evidence Physical Presence Good Moral Character Extreme Hardship Deadline for Applications Conclusion Chapter 9: Asylum, Withholding of Removal, and Protection Under the Convention Against Torture Credible and Reasonable Fear Process Expedited Removal Credible Fear of Persecution or Torture Reasonable Fear of Persecution or Torture Detention During the Credible or Reasonable Fear Process Asylum Filing Procedure Unable or Unwilling to Return or Avail Oneself of Protection Persecution Past Persecution Fundamental Change in Circumstances Internal Relocation Humanitarian Asylum Severe Past Persecution Other Serious Harm Well-Founded Fear On Account of a Protected Ground: the Nexus Requirement Race as a Protected Ground Nationality as a Protected Ground Religion as a Protected Ground Political Opinion as a Protected Ground Particular Social Group as a Protected Ground Matter of A R C G Matter of A B Unable or Unwilling to Control Exercise of Discretion Special Procedures for Unaccompanied Minors Adults with Children and Other Family Cases

10 xx REPRESENTING CLIENTS IN IMMIGRATION COURT, 5TH ED. Seeking Employment Authorization Know Your Rights: Asylee Employment Authorization Grounds of Ineligibility One-Year Filing Deadline Extraordinary Circumstances Changed Circumstances Reasonable Time Safe Third Country Prior Removal Order Frivolous Applications Withholding of Removal Under INA 241(b)(3) Statutory Bars to Asylum and Withholding Persons Who Have Participated in the Persecution of Others Conviction for a Particularly Serious Crime in the Asylum Context Conviction of Particularly Serious Crime in the Withholding of Removal Context Commission of a Serious Nonpolitical Crime Persons Who Are a Danger to National Security The Terrorism-Related Inadmissibility Grounds The Material Support Bar Firm Resettlement Asylum vs. Withholding Termination of Asylum or Withholding Protection Under the Convention Against Torture Definition of Torture An Intentional Act With the Consent, Instigation, or Acquiescence of a Person Acting in an Official Capacity Burden of Proof and Legal Standard Article 3 Withholding vs. Deferral of Removal Supporting Evidence Filing Procedures Evidentiary Requirements Credibility Determinations Corroboration Conclusion Chapter 10: Voluntary Departure Requirements Prior to the Conclusion of Removal Proceedings At the Conclusion of Removal Proceedings Voluntary Departure for Those Who Already Departed The Application for Voluntary Departure Negative Consequences of Failure to Timely Depart Under a Grant of Voluntary Departure Exceptions to the Consequences of a Failure to Depart

11 CONTENTS xxi Arguments to Avoid the Consequences of a Failure to Depart While the Voluntary Departure Clock Is Ticking: Appeals and Motions Appeals to the BIA Motions to Reopen and Petitions for Review Post-Dada Regulations Establishing Compliance with Voluntary Departure Prior Voluntary Departure Grant Voluntary Return vs. Voluntary Departure Conclusion Chapter 11: Bond Hearings Discretionary Detention Under INA 236(a) Bond Hearings Paying the Bond Mandatory Detention Under INA 236(c) Joseph Hearings Detention of Arriving Aliens and Individuals in Expedited Removal Under INA 236(b) Arriving Aliens Individuals Subject to Expedited Removal Visa Waiver Program Entrants Detention of Individuals with a Final Order of Removal or When Detention Has Become Prolonged Under INA Conclusion Chapter 12: Administrative Review of Removal Orders Appeals to the BIA Standard of Review Motions to Remand Motions to Reopen and Motions to Reconsider Purpose Where to File Time and Numerical Limits Equitable Tolling Ineffective Assistance of Counsel Content, Format, and Filing Requirements Motions to Reopen Based on Changed Country Conditions Related to Asylum Eligiblity Motions to Reopen Seeking Certain Relief Pursuant to VAWA Motions to Rescind and Reopen In Absentia Removal Orders Exceptional Circumstances (180 days from date of removal order, may be subject to equitable tolling) Lack of Notice (no filing deadline) Joint Motions to Reopen Sua Sponte Motions to Reopen Post-Departure Bar Stays of Removal

12 xxii REPRESENTING CLIENTS IN IMMIGRATION COURT, 5TH ED. Stays at the BIA Stays at the Immigration Court Stays at ICE ERO Conclusion Chapter 13: Judicial Review of Removal Orders Judicial Review Before the 1996 Changes Judicial Review Under the Transitional Rules Judicial Review After Passage of the REAL ID Act Habeas Corpus in Federal District Courts Habeas Corpus Prior to the REAL ID Act Habeas Petitions Pending Prior to the REAL ID Act Habeas Challenges to Detention Petitions for Review in the Courts of Appeals Petitions for Review After the REAL ID Act Expansion of Court of Appeals Review to Consider Constitutional Claims and Questions of Law Bars to Judicial Review in the Court of Appeals Denials of Discretionary Relief and the Special Case of Asylum Removal Orders Against Criminal Aliens Decisions to Begin Proceedings, Adjudicate Cases, or Execute Removal Orders Procedural Rights 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 Judicial Review of Denial of a Motion to Stay Removal Mandamus and Other Types of Petitions Conclusion Chapter 14: Trial Skills in Immigration Court Opening Statements in Immigration Court Overview of Witness Examination in Immigration Court Types of Hearings That Consider Witness Testimony Types of Witnesses Types of Witness Examination Rules Governing Witness Testimony Right to Present Evidence Testimony Procedures Credibility Assessment Rules of Evidence Requesting an Interpreter Requesting Telephonic or Video Testimony Requesting Other Witness Accommodations

13 CONTENTS xxiii Filing the Witness List Making and Responding to Objections Conducting Witness Examination in Immigration Court Direct Examination Preparing for Direct Examination Conducting Direct Examination at the Hearing Conducting Direct Examination of an Expert Witness: Preliminary Matters Conducting Direct Examination of an Expert Witness: Qualifying and Tendering the Expert Cross Examination Preparing for and Conducting Cross Examination of a DHS Witness DHS Cross Examination of Witnesses Re-Direct Examination Preparing Witnesses for Testimony in Immigration Court Closing Argument in Immigration Court Conclusion Chapter 15: Prosecutorial Discretion Legacy INS Memoranda Obama Administration DHS Memoranda EOIR Memoranda Trump Administration Executive Orders DHS Memoranda EOIR Memoranda Appendices Appendix 1: Form I-213, Record of Deportable/Inadmissible Alien Appendix 2: Form I-862, Notice to Appear Appendix 3: Freedom of Information Act Response Appendix 4: Form I-221, Order to Show Cause and Notice of Hearing Appendix 5: Form I-122, INS Notice to Applicant for Admission Detained for Hearing Appendix 6: Criminal Record Check Appendix 7: Summary Order of Removal Appendix 8: Order of Expedited Removal Appendix 9: Notice of Intent to Issue Final Administrative Order of Removal Appendix 10: Final Administrative Order of Removal Appendix 11: Immigration Bond: How to Get Your Money Back Appendix 12: Citizenship and Naturalization Charts Appendix 13: Sample Request for Prosecutorial Discretion

14 xxiv REPRESENTING CLIENTS IN IMMIGRATION COURT, 5TH ED. Appendix 14 (A and B): Sample Motions to Suppress Evidence and Terminate Appendix 15: Sample Motion In Limine Appendix 16: Sample Motion for Subpoena Appendix 17: Sample Motion to Terminate for Failure to Provide Form I-770, with Replies Appendix 18: Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal Appendix 19: (Retired) Immigration Judge Paul Schmidt s Practical Tips for Representing an Asylum Case in Immigration Court Appendix 20: Center for Gender and Refugee Studies Sample Asylum Table of Contents Appendix 21: Center for Gender and Refugee Studies Sample Client Declaration Appendix 22: Baltimore Immigration Judge Decision to Grant Asylum Based on Religion Appendix 23: Portland Immigration Judge Decision to Grant Asylum Based on Political Opinion Appendix 24: Process for Rescinding and Reopening an In Absentia Removal (Diagram) Appendix 25: Difference in Appeal Process for Section 240 Removal Orders (Diagram) Appendix 26: Twelve Questions to Ask a Central American Asylum-Seeking Mother with an In Absentia Order of Removal Appendix 27: Sample BIA Briefing Extension Request Appendix 28: Sample BIA Appeal Briefing (Motion to Rescind and Reopen on Behalf of an Unaccompanied Minor) Appendix 29: Sample Stay of Removal to ICE ERO Appendix 30: U.S. Immigration Courts and U.S. Circuit Courts of Appeals (Map)... See inside back cover