REMOVAL PROCEEDINGS UNDER INA 240

Transcription

1 REMOVAL PROCEEDINGS UNDER INA 240

2 Yamataya v. Fisher (1903)

3 COMMENCEMENT OF PROCEEDINGS DHS Discretion Notice To Appear Issuing Serving Filing

4 COMMENCEMENT OF PROCEEDINGS Jurisdiction Of Immigration Court Triggered By The Filing Of The NTA Termination Of Proceedings Only Through Motion Filed By Alien Or DHS Notice To Appear Basics Factual Allegations Charges Of Removal

5 NOTICE TO APPEAR CONTENTS - INA 239(a)(1) Explain Nature Of Proceedings Identify Legal Authority For Proceedings Identify Acts Or Conduct That Violate Law Identify Charges Of Inadmissibility Or Deportability Explain Alien s Right To Counsel

6 NOTICE TO APPEAR CONTENTS - INA 239(a)(1) Explain Obligation To Immediately Provide Written Record Of Address And Telephone Number Provide Address Of Immigration Court Where DHS Will File NTA Explain Obligation Of Alien To Notify The Immigration Court Of Any Change In Address Explain The Consequences Of Failing To Update Address Or Failing To Appear As Ordered

7 NOTICE TO APPEAR SERVICE [S]hall be In Person, If Practicable May Be Mailed To Alien Or Counsel Of Record Regular Mail Is Sufficient In Absentia Proceedings

8 BURDEN OF PROOF Inadmissibility Proceedings Burden Falls On Alien If Seeking Admission - INA 240(c)(2)(A) Clearly And Beyond Doubt Entitled To Be Admitted And Not Inadmissible If Present In The US after entering without inspection (PWI) - INA 240(c)(2)(B) By Clear And Convincing Evidence That the Alien Is Lawfully Present Pursuant To A Prior Admission INA 291 Alien Bears The Burden

9 Who is subject to a charge of inadmissibility? Anthony entered the U.S. without inspection in September He has lived happily in Washington, D.C. If DHS/ICE seeks to remove Anthony, he can be charged with a ground of inadmissibility because he was never inspected and admitted when he entered the US in 1995.

10 BURDEN OF PROOF Deportation Proceedings The DHS Must Establish By Clear And Convincing Evidence That An Admitted Alien Or LPR Is Deportable. INA 240(c)(3)(A) In Absentia Proceedings Burden Always On DHS To Show By Clear, Unequivocal, And Convincing Evidence Proper Service Of NTA Alien Is Removable INA 240(b)(5)(A)

11 Who is Subject to A Charge of Deportability? Piyush entered the US as an F student. After completing his studies at UDC he decided to stay in the Washington area. If Piyush is placed in removal proceedings he will be charged with a ground of deportability.

12 HEARINGS BEFORE AN IMMIGRATION JUDGE Authority Of Immigration Judges Removal Determinations Asylum/Withholding/CAT Relief From Removal Waivers Cancellation Generally Not Available For Criminal Aliens Adjustment of Status Voluntary Departure

13 MASTER CALENDAR HEARING Alien Must Be Advised Of Right To Representation Qualified Representatives Attorney (No Expense To The Government) Law Students/Graduates Under Supervision BIA Accredited Representatives Official Of The Government To Which Alien Owes Allegiance Reputable Individual Appearing Without Compensation

14 Is there a right to counsel? Aguilera-Enriquez v. INS (6 th Cir. 1975) p. 639 Saakian v. INS (1 st Cir. 2001) p. 647) (in absentia case)

15 MASTER CALENDAR HEARING Reading Of The Allegations And Charges Explanation Of Nature Of Proceedings Acknowledgment Of Service Pleading Designation Of Country Of Removal Applications For Relief From Removal Asylum And Withholding/Torture Convention Cancellation Or Adjustment Of Status

16 MERITS HEARING Documentary Evidence Charging Document Notice to Appear Conviction Documents Immigrant Visa Passports Rules of Evidence Generally Do Not Apply

17 MERITS HEARING Witnesses Government DHS Investigator Alien Family members Friends Alien

18 ASYLUM HEARING IJ Role Jacinto v. INS (9 th Cir. 2000) p. 630

19 IMMIGRATION JUDGE S DECISION Memorandum Of Oral Decision Right to Appeal To Board Of Immigration Appeals Alien Department Of Homeland Security Judicial Review Petition For Review To Court Of Appeals Habeas Petition To District Court