Foreword...v Acknowledgments...ix Table of Decisions...355 Index...367 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-122...7 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
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
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
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...100 Prosecutorial Discretion to Decline to Institute Removal Proceedings...101 Prosecutorial Discretion During Removal Proceedings: Joining or Not Opposing Motions to Administratively Close or Motions to Terminate...101 Motions to Close Administratively...102 Motions to Terminate...102 The Decision to Concede or Contest Removability...103 Challenging the NTA...104 Burden and Standard of Proof in INA 240 Proceedings...105 Removal Proceedings Based on Inadmissibility...105 Removal Proceedings Based on Deportability...106 Special Issues Where Respondent Is Charged with Being Removable on Criminal Grounds...107 Requirements of Evidence to Establish a Criminal Ground of Inadmissibility or Deportability...107 Does the Conviction Meet All Necessary Elements for Immigration Consequences?...108
xv Do the records submitted by ICE establish that there was a conviction for immigration purposes?...108 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?...109 Is the conviction really for a crime involving moral turpitude, aggravated felony, or other criminal ground of inadmissibility or deportability?...110 Has the conviction been pardoned, expunged, or otherwise ameliorated so as to remove or diminish immigration consequences?...111 Constitutional Violations and Motions to Suppress...112 Overview...112 Motions to Suppress Evidence: A Case Study...113 The Right to Be Free of Unreasonable Searches and Seizures Under the Fourth Amendment...113 The Exclusionary Rule in Removal Proceedings...114 When Is a Warrant Required?...115 What Constitutes a Seizure?...117 What Is an Arrest?...117 What Is Mere Questioning?...118 What Is Detentive Questioning?...119 Preparing the Motion to Suppress...120 The Right to Remain Silent...121 Conclusion...123 Chapter 5: Adjustment of Status...125 Various Modes of Adjustment...125 Readjustment of Status...126 Arriving Aliens and Adjustment in Proceedings...126 Termination to Proceed with Adjustment Before USCIS...128 Family-Based Adjustment of Status...129 Overview of Eligibility Requirements...129 Obtaining Benefits Under 245(i)...130 Procedure...131 When to Assert the Defense...132 Motions to Continue...132 Submitting Proof of Prima Facie Eligibility and Filing the Application...135 The Merits Hearing...136 Removal of Conditional Residence...137 Overview...137 Failure to Comply with Procedural Requirements...138 Denial of Joint Petition or Waiver Application...138 Immigration Court Jurisdiction...139 NACARA 202 and HRIFA...140
xvi REPRESENTING CLIENTS IN IMMIGRATION COURT Introduction...140 NACARA 202...140 Haitian Refugee Immigration Fairness Act (HRIFA)...143 Registry...146 Eligibility Requirements...146 Residence...147 Good Moral Character...148 Not Ineligible to Citizenship...148 Grounds of Inadmissibility...148 Exercise of Discretion...149 The Application Process...149 Adjustment of Status for Certain Foreign Nationals from Vietnam, Cambodia, and Laos...150 Cuban Adjustment Act of 1966 (CAA)...153 Spouses and Children of Cubans...154 How to Apply...154 Chapter 6: Waivers of Inadmissibility and Deportability in Removal Proceedings...155 The Exercise of Discretion...156 Extreme Hardship...157 Definition...157 Documenting Extreme Hardship...161 Waivers of Inadmissibility Grounds in Removal Proceedings...163 INA 212(g) Waivers for Health-Related Inadmissibility Grounds...163 Waivers for Communicable Disease of Public Health Significance...163 Waivers for Physical or Mental Disorders with Associated Harmful Behavior...164 Waivers of the Vaccination Requirement...164 INA 212(h) Waivers for Criminal Inadmissibility Grounds...165 What Criminal Inadmissibility Grounds Does INA 212(h) Waive?...165 What Are the Eligibility Requirements for 212(h) Waivers?...166 INA 212(i) Waivers for Fraud or Misrepresentation...167 INA 212(a)(9)(B)(v) Waiver for Unlawful Presence...168 The VAWA Waiver for the Permanent Bar...169 The INA 212(d)(3) Nonimmigrant Waiver...169 Waivers for Refugees and Asylees...169 Waivers Under Special Forms of Relief...170 Strategy and Procedure for Waivers of Inadmissibility Grounds in Removal Proceedings...171 Form I-212 Consent to Reapply for Admission...172 Eligibility and Strategy...172 Procedure...174
xvii Waivers of Deportation Grounds in Removal Proceedings...175 INA 237(a)(1)(H) Deportability Waiver for Fraud or Misrepresentation...175 Waiver of Deportability Ground of Crimes of Domestic Violence, Stalking, or Violation of a Protection Order...176 Conclusion...177 Chapter 7: INA 212(c) and Cancellation of Removal for Lawful Permanent Residents...179 Cancellation for LPRs Cancellation of Removal Part A...179 LPR for Five Years...180 Seven Years Continuous Residence After Lawful Admission...180 Bars to Cancellation Eligibility...183 Discretionary Factors...185 Where and How to File...186 INA 212(c) Relief...186 Relief Under 212(c)...186 Background...187 Eligibility Under Former INA 212(c)...188 Comparable Ground of Inadmissibility or Exclusion for Those Charged with Deportability...190 Motions to Reopen to Apply for INA 212(c) Relief...191 The Application for INA 212(c) Relief...191 Persons Not Covered in the 212(c) Regulations...192 Looking Ahead...192 Proposed Repapering Rule...193 Chapter 8: Cancellation and Suspension for Non-Permanent Resident Aliens...195 Former Suspension of Deportation...195 Overview...195 IIRAIRA Changes...195 Current Standard and Procedure for Suspension Applicants...196 Eligibility...197 Continuous Physical Presence...197 Proposed Rule on Repapering...198 Good Moral Character...199 Extreme Hardship...200 Discretion...201 Cancellation of Removal for Non-LPRs...201 Introduction...201 Eligibility...202 Continuous Residence or Physical Presence...202 Exceptional and Extremely Unusual Hardship...204 Grounds of Ineligibility...207 The 4,000 Annual Cap...208
xviii REPRESENTING CLIENTS IN IMMIGRATION COURT Cancellation of Removal for Abused Immigrant Women and Children...208 Background...208 Requirements...208 Marital Relationship...209 Children...209 Battery or Extreme Cruelty...210 Three-year Continuous Physical Presence...211 No Residence with Abuser...212 Where Abuse Took Place...212 Good Moral Character...212 Inadmissible or Deportable...214 Extreme Hardship...215 Evidence...216 Intake Interview...217 Self-Petitions...217 Laws of Other Countries...218 VAWA Cancellation Cap...218 NACARA 203...218 Introduction...218 Beneficiaries of NACARA...219 Eligibility to Apply...219 Dependent Spouses and Children...220 Unmarried Sons and Daughters...220 Other Requirements...220 Jurisdiction of NACARA Application...221 Asylum Office...221 Executive Office for Immigration Review...222 Requirements for NACARA Suspension of Deportation or Cancellation of Removal...222 Continuous Physical Presence...222 Good Moral Character...223 Extreme Hardship...224 Presumption of Extreme Hardship for Certain NACARA Beneficiaries...225 Statutory Bars to NACARA...226 Bars Relating to Immigration Violations...226 Bars Relating to Failure to Comply with Immigration Proceedings...227 Process for Applying in Removal Proceedings...228 Application...228 Unmarried Sons and Daughters...229 Motions to Reopen...229 Burden of Proof...230 Types of Evidence...230 Reinstatement of Removal Does Not Bar NACARA Application...231 Deadline for Applications...231
xix Chapter 9: Asylum, Withholding of Removal, and Protection Under the Convention Against Torture...233 Asylum vs. Withholding...233 Standards of Proof, Evidentiary Considerations, and the REAL ID Act of 2005...236 The REAL ID Act of 2005...238 Elements of Persecution...239 Economic Refugee...239 Persecution by Groups That the Government Cannot Control...239 Internal Flight Alternative...240 Persecution vs. Prosecution...240 Coercive Family-Planning Programs...240 Neutrality and Imputed Political Opinion...242 Conscription by the Government...243 Membership in a Particular Social Group...244 The Proposed Regulations...249 Exercise of Discretion...251 Ineligible Classes...253 Ineligible for Asylum...253 Persons Inadmissible on Security Grounds or Removable as Terrorists...253 Firm Resettlement...255 Safe Third Country...255 Particularly Serious Crime in the Asylum Context...256 Ineligible for Withholding...256 Particularly Serious Crime in the Withholding Context...257 Termination of Asylum or Withholding...258 Credible Fear Process...259 Overview...260 Definitions...260 Establishing Eligibility...264 Burden of Proof...264 Article 3 Withholding or Deferral of Removal...264 Procedures...265 Persons Arriving at a Port of Entry...265 Persons in Removal Proceedings...266 Persons Who Apply Affirmatively for Asylum and Withholding...266 Persons Ordered Removed or Those Who Had Final Orders of Removal Before March 22, 1999...266 Persons Who Had CAT Cases Pending with Legacy INS on or Before March 22, 1999...266 Persons Whose Previous Removal Order Is Reinstated and Persons Who Are Not LPR Aggravated Felons...267
xx REPRESENTING CLIENTS IN IMMIGRATION COURT Persons Who Are Subject to Administrative Removal per INA 235(c)...268 Diplomatic Assurances...268 Chapter 10: Voluntary Departure...269 Requirements...269 Prior to the Conclusion of Removal Proceedings...270 At the Conclusion of Removal Proceedings...270 Negative Consequences for Failure to Timely Depart Under a Grant of Voluntary Departure...271 Arguments to Avoid the Consequences of a Failure to Depart...274 Appeals While the Voluntary Departure Clock Is Ticking...274 The Effect of a Motion to Reopen Upon a Grant of Voluntary Departure...274 The Application for Voluntary Departure...276 Establishing Compliance with Voluntary Departure...277 Conclusion...277 Chapter 11: Naturalization as a Defense to Removal...279 Prima Facie Eligibility for Naturalization...279 Bars to Establishing Good Moral Character...280 Aggravated Felony Convictions...280 Naturalization as a Defense to Removal...281 Procedure...281 Prosecutorial Discretion...282 Termination of Proceedings Under 8 CFR 1239.2(f)...283 After Termination of Proceedings...285 Final Finding of Deportability Bars Naturalization...286 Chapter 12: Administrative Review of Removal Orders...287 Overview...287 Appeals to the BIA...287 Motions to Reopen and Motions to Reconsider...289 Purpose...289 Time and Number Limits...289 Content, Format, and Filing Requirements for Motions to Reopen and Motions to Reconsider...291 Motions to Reopen in Absentia Removal Orders...293 Conclusion...296 Chapter 13: Judicial Review of Removal Orders...297 Judicial Review Before 1996 Changes...297 Judicial Review Under the Transitional Rules...298 Judicial Review of Removal Orders After Passage of REAL ID...298 Overview...298 Habeas Corpus in District Courts...299
xxi Habeas Corpus Prior to REAL ID...299 Habeas Petitions Pending Prior to REAL ID...299 Habeas Challenges to Detention...300 Petitions for Review in the Courts of Appeals...300 Petitions for Review After REAL ID...300 Bars to Judicial Review in the Court of Appeals...301 Procedural Rules Regarding Petitions for Review...304 Judicial Review of Particular Types of Removal Orders...306 Expedited Removal of Aliens Arriving at Ports of Entry...306 Treatment of Nationality Claims...307 Challenges to the Validity of Removal Orders in Criminal Proceedings...307 Judicial Review of Certain Administrative Removal Orders...308 Judicial Review of Judicial Orders of Removal...308 Mandamus and Other Types of Petitions...309 Appendices Appendix 1: Notice to Appear...313 Appendix 2: Order to Show Cause...317 Appendix 3: Sample I-122...323 Appendix 4: Criminal Record Check...325 Appendix 5: Court Instructions...327 Appendix 6: Summary Order of Removal...329 Appendix 7: Order of Expedited Removal...331 Appendix 8: Administrative Order of Removal...335 Appendix 9: Naturalization Charts...337 Appendix 10: Motion to Suppress Evidence...349