ALI-ABA Course of Study Immigration Law: Basics and More

Transcription

1 273 ALI-ABA Course of Study Immigration Law: Basics and More Sponsored with the cooperation of the American Immigration Lawyers Association (AILA) May 8-9, 2008 Washington, D.C. Practicing Before the Immigration Court: Crimes and Other Grounds of Removal and Applications for Relief By Mary E. Kramer Mary E. Kramer, PA Miami, Florida Submitted by Laura L. Lichter Lichter & Associates, P.C. Denver, Colorado This article is reprinted from materials prepared for a previous presentation of this course.

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3 275 INTRODUCTION PRACTICING BEFORE THE IMMIGRATION COURT: CRIMES AND OTHER GROUNDS OF REMOVAL AND APPLICATIONS FOR RELIEF By Mary E. Kramer Immigration litigation involves first and foremost practice before the Immigration Court. It is an exciting and challenging area of the immigration law practice, which gives the practitioner an opportunity to write, research and argue; work with witnesses; and essentially try a case to the bench. Admittedly, some immigration court cases will be resolved in an hour or two, but other cases can span days and involve significant out-ofcourt written argument and pleadings. This article provides an overview of both procedure as well as substantive law for attorneys representing clients before the immigration court. Following the discussions of procedure and grounds of removal, the article goes over applications for relief from removal. Although portions of this article are written at a basic level, it is hoped there are good tips and nuggets of gold buried within for the experienced practitioner. Neither this article nor any article can cover every aspect of immigration court procedure or conceivable legal issue that may arise in an individual case. Let this article be the starting point, but do not hesitate to do further legal research as the particular case may require. PROCEDURAL OVERVIEW COMMENCEMENT OF PROCEEDINGS: THE NTA The charging document in immigration court proceedings is the Notice to Appear, or NTA. The NTA is the counterpart to an indictment or information in criminal proceedings. It may be prepared and issued by all three immigration components of the Department of Homeland Security: Customs and Border Protection ( CBP ), Immigration and Customs Enforcement ( ICE ), and Citizenship and Immigration Services ( CIS ). Initiation of removal proceedings vis a vis the NTA is covered by 8 CFR CBP encounters non-american citizens primarily at ports-of-entry and with a few factual exceptions--will issue an NTA when the individual is an arriving alien at a port-of-entry (like an airport). ICE is the immigration investigations branch of the Department ( DHS ) and will issue NTAs to persons it encounters within the United States persons who have already physically entered. By way of example, ICE arrests persons in the streets, at home, at the worksite, while attending CIS interviews, and at jails, prisons, and other detention facilities. 1 1 Both CBP and ICE have the ability to expeditiously, or administratively, remove certain non-american citizens without a full immigration hearing before an immigration judge. Expedited removal is beyond the scope of this article. Suffice to say an individual expeditiously removed by either CBP at a port-of-entry or

4 276 CIS, the benefits component of the Department, can also prepare, issue, and serve an NTA. CIS issues NTAs when it denies a benefit. An applicant for adjustment of status, for example, may be amenable to removal for a variety of reasons: the underlying marriage has fallen apart or is suspected to be fraudulent; the individual is out-of-status and not 245(i) eligible; the applicant has a criminal conviction which CIS declines or cannot waive. When CIS denies adjustment, or naturalization, or asylum (many NTAs come out of the Asylum Office), they will mail out an NTA with the denial, or shortly thereafter. The regional services centers of CIS are increasingly issuing NTAs. The difference is that CIS does not have officers whom arrest people. In the context of a sought-after benefit generating the NTA, CIS will either serve or mail out the NTA without an arrest, or (where CIS feels the situation merits an arrest) the agency will call in an ICE officer to effectuate an arrest and detention. Once CBP, ICE, or CIS prepares and serves the NTA, the A-file with the NTA inside is forwarded to the Office of Chief Counsel. The Office of Chief Counsel is the prosecutor in immigration court. The Office of Chief Counsel will review the NTA for legal sufficiency and file the NTA with the immigration court. The immigration court is encompassed in the Executive Office for Immigration Review ( EOIR ). The EOIR is an agency within the Department of Justice and immigration judges are employees of DOJ not the Department of Homeland Security. If the Office of Chief Counsel does not perform the function of reviewing and filing the NTA efficiently, the case will not move forward with the immigration court. Often, the issuing agency (like, CBP) will serve an NTA with a specific court date given; the hearing will not go forward on that date, however, because the Office of Chief Counsel has failed to timely review and file the NTA with the court. This is a downright dangerous situation for the non-american citizen because the onus is on him or her to appear in court as scheduled. Where there is a lag time in getting the case properly moving forward, the individual for whatever reason may not receive or know about the next court date. If a hearing date is missed because of the agency s fumbling, it will usually still be the individual s fault. Once an NTA is received, both client (called a respondent in immigration court) and attorney alike should monitor the case by calling EOIR s automated system at The respondent in immigration court proceedings, and/or his or her attorney, should promptly notify the court of address changes by filing a form known as the EOIR-33. This form can be obtained from a variety of internet and software programs, or from the immigration court itself. Generally, this address form is included with the NTA when it is served. By law, the NTA can be served in person or by mail. Service does not need to be by certified mail: regular United States post will suffice. There is a presumption in the statute that the individual received the NTA and subsequent notices of hearing. 2 An ICE (the latter involving a non-lpr aggravated felon) has a deportation order which carries the full weight of law as that issued by an immigration judge. 2 INA 239(2)(A) and (c). 2

5 277 individual who misses his or her court hearing will be ordered removed in absentia and it is extremely difficult to reopen such an order. 3 BURDEN OF PROOF Like all other areas of law, there is a burden of proving removability in immigration court proceedings. Which party bears the burden of proof (the Department of the respondent) depends on which chapter of the Immigration and Nationality Act the charges are brought under. The substantive law section, immediately following below, discusses grounds of inadmissibility (INA 212(a)) and deportability (INA 237(a)). Persons who are charged under INA 212(a) are alleged to be inadmissible: they carry the burden of proving that they are not inadmissible i.e., have been legally admitted and are not otherwise in violation of the law in immigration proceedings. 4 Knocking at the door A respondent who is an applicant for admission (in other words, was detected and placed in proceedings at a port-of-entry) must establish clearly and beyond doubt that he or she is entitled to be admitted. Entry without inspection A respondent who is encountered within the United States, but is suspected of having entered without inspection by Department officials, will also be charged under INA 212(a), and must establish by clear and convincing evidence that he or she was lawfully admitted. On the other hand, an individual who is encountered and arrested (or served an NTA without an arrest) within the United States following an initial lawful admission (i.e., a valid visa entry) will be charged under INA 237(a). Deportable: here, but in trouble In cases of deportable aliens, individuals who have already been admitted and are now deemed to be in violation of the law, the Department must establish by clear and convincing evidence that the respondent is deportable. 5 THE RECORD OF CONVICTION Many removal grounds are based on criminal convictions; these grounds are discussed further, below. Proof of a conviction must be established by the record of conviction, which includes the state or federal charging document, the plea, and the final 3 INA 240(b)(5). 4 INA 240(c)(2)(A). 5 INA 240(c)(3). 3