DETAILED TABLE OF CONTENTS IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.

DETAILED TABLE OF CONTENTS IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. Preface: Goin to the Crossroads of Immigration and Criminal Law (and beyond)...v Dedication...xi Acknowledgments...xiii Abbreviations...xxxv Table of Decisions...541 Index...555 Chapter One: An Overview of Basic Immigration Terms and the Immigration Law System...1 Who (or What) Is Your Client? An Introduction to Statuses...1 The American Citizen...2 The Lawful Permanent Resident ( Green Card Holder)...3 The Nonimmigrant Visa Holder...3 Tourists and temporary workers without visas from the Caribbean, Canada, and Mexico...4 The Visa Waiver Program (tourists without visas)...4 Other Protective Categories...5 Refugees and asylees...5 Temporary protected status...7 Parole...7 Deferred action...8 Order of supervision...9 No Status: Present Without Inspection or Admission, or Overstay...9 Other Useful Terms...10 Notice to Appear...10 I-94...10 Visa...11 Employment Authorization Document...11 Authority over Immigration Law Enforcement: A Look at the Government Agencies...11 The Department of Homeland Security...11 An arrest at the border...13 An arrest upon termination of sentence...13 Arrest while out in the community...13 The Department of State...14 The Executive Office for Immigration Review...14 xv

xvi IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. The Board of Immigration Appeals...15 Attorney general review...16 The Administrative Appeals Office...16 The Agencies at Work: Removal Proceedings...17 Notice to Appear...17 Course of Proceedings...18 The Burden of Proof...20 Applications for Relief...20 Board of Immigration Appeals...21 Travel while a BIA appeal is pending...23 Review After the Board of Immigration Appeals...23 Federal Judicial Review...24 The REAL ID Act...26 Jurisdiction...27 No review of discretionary determinations...27 Petitions for Review to the Court of Appeals...27 Petitions for Habeas Corpus to the Federal District Courts...29 Tips and Tools of the Trade...30 1. Federal Bureau of Investigation (FBI) rap sheet...30 2. Accurint...31 3. PACER...31 4. FOIA requests...32 5. Polygraph examinations...32 6. Westlaw, LEXIS, AILALink, and AILA.org...32 7. Psychological and medical evaluations...33 8. Country-condition experts...33 9. Country-condition sources of information (websites)...33 10. Confirmation-of-appointment letters...33 11. Intake sheets...33 Sources of Legal Authority...34 Recent Legislation...34 Appendix 1A: ICE Offices of Chief Counsel...35 Appendix 1B: List of Detention Centers...43 Appendix 1C: Executive Office of Immigration Review...45 Appendix 1D: Structure of CBP...53 Appendix 1E: Structure of ICE...55 Appendix 1F: Structure of USCIS...57 Appendix 1G: Sample Notice to Appear...59 Appendix 1H: FBI Rap Sheet Request...63 Appendix 1I: Appointment Confirmation Letter/Intake Sheet...65 Appendix 1J: Memorandum of Law on Polygraph...67

DETAILED TABLE OF CONTENTS xvii Chapter Two: The Definition of Conviction According to Immigration Law...73 The Statutory Definition of Conviction...73 Beyond a Reasonable Doubt Standard Required...74 Finality...74 Withholds or Deferrals of Adjudication...75 A withhold with no penalty...76 Pretrial Intervention or Diversion...76 Admissions to the prosecutor do not qualify...77 Expungements and Record Sealings...77 First offender/youthful offender provisions...78 Roldan not followed in the Ninth Circuit...78 The other federal circuits...81 FFOA expungements...82 Pardons...83 The effect of a pardon on a ground of inadmissibility...84 Pardon must be full and unconditional...84 Foreign pardons...85 Postconviction Relief on the Merits: Matter of Pickering...85 The burden of proof in Pickering-type cases...88 Motions to reopen...89 BIA decisions after Pickering...90 The federal courts approach to Pickering...90 Vacatur found effective in eliminating the conviction...91 Vacatur found ineffective for immigration purposes...91 Postconviction Relief Modifying the Sentence Imposed...95 Acts of Juvenile Delinquency...95 Other Juvenile Acts...98 Foreign Convictions...98 Proof of Convictions...99 Suspensions of Sentence...100 Appendix 2A: BIA Response to Motion to Reopen...103 Appendix 2B: BIA Response to Motion to Remand...105 Appendix 2C: Motion for Postconviction Relief...107 Appendix 2D: Memorandum in Support of Motion for Postconviction Relief...109 Appendix 2E: Sample Motion to Vacate...113 Appendix 2F: Memorandum in Support of Motion to Vacate...117

xviii IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Chapter Three: Consequences of Criminal Activity: Removal from the United States...121 Inadmissibility...121 The Applications of INA 212(a)(2)(A)...121 Knocking at the door...121 Applicants for admission...122 When a Lawful Permanent Resident (LPR) seeks admission...122 The defunct Fleuti doctrine...123 Adjustment of status...125 Visa applicants at American consular posts abroad...126 Change of status...126 Parolees...126 Persons physically present in violation of the law the EWIs...127 Temporary protected status...127 Naturalization and good moral character...127 Deportability...128 INA 237(a)...128 Deportability vs. Inadmissibility...128 Expedited Removal of Certain Aggravated Felons...130 Relief from Expedited Removal...132 Detention...133 Mandatory Detention...133 Re-entering After Removal: Criminal Prosecution and Reinstatement of Removal...133 Re-entry of Removed Aliens...133 Challenging the underlying order...134 Reinstatement of Removal...135 Limited exception for certain nationality-based benefits...136 Supreme Court upholds retroactive application of 241(a)(5)...137 How the Government Locates Your Client...138 The Sure Ways...138 Serving time in state or federal detention, both pre and post-trial...138 Filing an immigration application...139 Frequently, but Not Always...140 While reporting to a probation or parole officer...140 When re-entering the United States after a trip abroad...141 Increasingly, and Who Knows What the Future Holds...141 Local police...141 Department of Motor Vehicles, Social Security Administration...142 Appendix 3A: Sample Motion to Terminate...145

DETAILED TABLE OF CONTENTS xix Chapter Four: Consequences of Criminal Activity: Detention Inside the United States...149 Mandatory Detention...149 Cooperating Witnesses...151 Demore v. Kim...152 Legal Challenges to Mandatory Detention Following Demore...153 Bond Hearings Before the Immigration Judge...154 Numerical Limitations and Jurisdiction...155 Matter of Aguilar-Aquino...157 Matter of Joseph...157 Jurisdiction over Custody Issues...159 Arriving aliens...159 Federal court review...160 Deportable respondents and EWIs...162 The Release from Custody Requirement...162 When released...162 Does a sentence of imprisonment have to be imposed?...163 Detention for Offense Not Charged on NTA...164 Releases on or Before October 8, 1998...167 Other Detention Issues...167 Non Mandatory Detention Cases: The Standard...168 The automatic stay...168 Detention After a Removal Order...172 Detention during judicial review of final removal order...174 Alternatives to detention...175 Appendix 4A: Custody Rule Invoked...177 Appendix 4B: Section 309 of IIRAIRA...179 Appendix 4C: Section 303(b) of IIRAIRA...183 Appendix 4D: BIA Bond Redetermination for Electronic Monitoring...185 Chapter Five: Classifications of Crimes Under Immigration Law...187 Section I: Methodology...188 Re-learning the Analysis: The Categorical Approach and Beyond...188 The categorical approach...188 The modified categorical approach...189 Minimal (or least culpable) conduct approach...190 Non-elemental facts...190 Gonzales v. Duenas-Alvarez...191 Matter of Silva-Trevino...192 The Facts...192

xx IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. The New Methodology...193 Step one...193 The realistic probability test...194 Step two...194 Step three...195 Moral turpitude as a non-elemental fact...195 The Burden of Proof...196 Evidence that is necessary and appropriate...197 After Silva-Trevino: the federal courts response...198 Nijhawan v. Holder...198 The facts...198 Section II: Crimes Involving Moral Turpitude...200 An Introduction to the Concept...200 Includes felonies and misdemeanors...201 The elements of the criminal statute control...201 The question of intent...201 Negligence vs. recklessness...202 Divisible statutes and the record of conviction...203 Aiding and abetting; conspiracy...203 A Discussion of Specific Offenses and Whether They Involve Moral Turpitude...204 Theft and larceny...204 Burglary...206 Fraud crimes...207 False statements...208 Obstruction of justice; misprision...209 Crimes of violence...210 Failure to Register as a Sexual Offender...213 Crimes involving children...214 Driving under the influence...215 Controlled substance offenses...216 Firearms offenses...216 Immigration law violations...216 Section III: Aggravated Felonies...217 INA Definition...217 Applies to Federal, State, and Certain Foreign Convictions...218 Case Law...218 Sexual Abuse of a Minor...219

DETAILED TABLE OF CONTENTS xxi Drug Trafficking Crimes...219 Federal controlled substance convictions...220 State controlled substance convictions...221 Misdemeanors...221 Divisible statutes...222 Purchase...223 Simple possession offenses...224 Background...224 The hypothetical felony approach...224 The guidelines approach...225 Matter of Yanez-Garcia...225 Lopez v. Gonzales...227 Multiple simple possession convictions...228 Handling cases involving multiple misdemeanor convictions: the recidivist argument...229 Prior conviction must be final...230 Post-Lopez BIA decisions... 233 Post-Lopez federal court decisions... 234 Attempts and conspiracies...235 The Definition of Crime of Violence...235 Mens rea: the levels of intent...236 Leocal v. Ashcroft...237 Recklessness and the use of force...239 Force vs. contact...240 Particular offenses...241 Not crimes of violence...241 Crimes of violence...242 Unauthorized use of a motor vehicle...243 Firearms Offenses...245 Whether a state firearms offense can be described by 101(a)(43)(E)...247 Theft Crimes...247 Gonzales v. Duenas-Alvarez...247 Possession of stolen property...249 Alien Smuggling...249 Offenses That Depend on the Sentence Imposed...250 Offenses That Depend on the Amount of Funds Involved...250 Offenses That Depend on Commercial Advantage...252 Aggravated Felony Must It Be a Felony?...253

xxii IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Misdemeanor crimes of violence...253 Misdemeanor sexual abuse of a minor...254 Attempts and Conspiracies...255 Section IV: Classifications Beyond Moral Turpitude and Aggravated Felony...255 Controlled Substance Offenses...255 The Definition of Controlled Substance Offense...256 Solicitation offenses...257 Drug paraphernalia...257 Possession must be accompanied by intent to use...258 Reason to Believe...258 Drug Abusers and Addicts...259 Firearms Offenses...259 Firearm and Destructive Device Defined...260 Firearms as a non-elemental offense?...261 Firearms not a ground of inadmissibility...262 No Reason to Believe or Admission of the Essential Elements Standards Apply...262 Money Laundering...262 Reason to Believe...263 Crimes of Domestic Violence...263 Offenses Included as Ground of Deportability...263 Crime of Domestic Violence Defined...264 The Domestic Violence Victim...265 Defining the victim ; applying the categorical approach...265 Child abuse...266 Violations of Protection Orders...267 Applies to Convictions After September 30, 1996...268 Domestic Violence Offense as a Crime Involving Moral Turpitude...268 Alien Smuggling...268 Limited Exceptions for Smuggling an Immediate Family Member...269 Alien Smuggling Defined...270 The Crime of Alien Smuggling...270 Crimes Involving Failure to Register; Visa and Passport Fraud...272 Failure to Register...272 Visa and Passport Fraud...274 Visa fraud as a crime involving moral turpitude and an aggravated felony...275 Immigration document fraud...275 Passport fraud...275 Export Law Violations...276 Export Law Violations: A Matter of National Security...276

DETAILED TABLE OF CONTENTS xxiii Failure to Register as a Sex Offender...278 The Adam Walsh Act...278 Appendix 5A: AR-11 Alien Change of Address Card...281 Appendix 5B: Upublished BIA Decision in Drug Paraphernalia Case...283 Appendix 5C: Sample Motion to Terminate Charge...289 Appendix 5D: Immigration Client Checklist...295 Chapter Six: Consequences of Specific Criminal Activity...299 Consequences of Crimes Involving Moral Turpitude...300 Inadmissibility, Including Adjustment of Status and Visa Eligibility...300 Admission of the essential elements...300 Petty-offense exception...301 Deportability/Removability...301 Multiple criminal convictions...302 Mandatory Detention...303 Voluntary Departure...304 Precommencement or early stage of removal proceedings...304 Voluntary departure at conclusion of removal proceedings...304 Asylum, Withholding of Removal, and Convention Against Torture...305 Asylum...305 Withholding of removal...305 Convention Against Torture...306 Naturalization...306 Consequences of an Aggravated Felony Conviction...307 Inadmissibility, Including Adjustment of Status and Visa Eligibility...307 Deportability/Removability...308 Mandatory Detention...308 Voluntary Departure...308 Summary of caveat eligibility for individual with aggravated felony conviction seeking voluntary departure:...309 Asylum and Withholding of Removal...309 Judicial review of the particularly serious crime determination...310 Convention Against Torture...310 Naturalization...311 Consequences of a Controlled Substance Offense...311 Inadmissibility, Including Adjustment of Status and Visa Eligibility...311 Reason to believe...312 Deportability/Removability...312 Compare deportability to inadmissibility...313 Mandatory Detention...313

xxiv IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Voluntary Departure...314 Precommencement or early stage of removal proceedings...314 Conclusion of proceedings...314 Asylum and Withholding of Removal...314 Naturalization...315 Consequences of a Firearms Offense...316 Inadmissibility, Including Adjustment of Status and Visa Eligibility...316 Deportability/Removability...316 Cross-reference with the aggravated felony definition...316 Mandatory Detention...318 Voluntary Departure...318 Precommencement or early stage of removal proceedings...318 Conclusion of proceedings...318 Asylum and Withholding of Removal...319 Naturalization...319 Consequences for Money Laundering Offenses...319 Inadmissibility, Including Adjustment of Status and Visa Eligibility...319 State money-laundering offenses...321 Moral turpitude...321 Deportability/Removability...321 Mandatory Detention...322 Voluntary Departure...322 Precommencement or early stage of removal proceedings...322 Conclusion of proceedings...323 Asylum and Withholding of Removal...323 Naturalization...324 Consequences of a Domestic Violence Conviction...324 The Definition...324 Inadmissibility, Including Adjustment of Status and Visa Eligibility...325 Cross-reference to crimes involving moral turpitude...325 Deportability/Removability...325 Mandatory Detention...327 Voluntary Departure...327 Precommencement or early stage of removal proceedings...327 Conclusion of proceedings...327 Asylum and Withholding of Removal...328 Naturalization...329 Consequences of Alien Smuggling...329

DETAILED TABLE OF CONTENTS xxv Inadmissibility, Including Adjustment of Status and Visa Eligibility...329 Deportability/Removability...329 Cross-reference with the aggravated felony definition...329 Mandatory Detention...330 Voluntary Departure...330 Precommencement or early stage of removal proceedings...330 Conclusion of proceedings...330 Asylum and Withholding of Removal...331 Naturalization...331 Consequences for Failure to Register, Falsification of Documents, and Visa and Passport Fraud...332 Inadmissibility, Including Adjustment of Status and Visa Eligibility...332 Registration violation...332 Visa fraud...332 Possession versus use...333 Civil or criminal document fraud violations under INA 274C...333 Deportability/Removability...334 Registration and Visa Fraud...334 Civil or criminal document fraud violations under INA 274C...334 Mandatory Detention...334 Voluntary Departure...335 Precommencement or preliminary stage of removal proceedings...335 Conclusion of proceedings...335 Asylum and Withholding of Removal...336 Naturalization...336 Consequences of Export Law Violations...337 Inadmissibility, Including Adjustment of Status and Visa Eligibility...337 Deportability/Removability...338 Mandatory Detention...338 Voluntary Departure...339 Precommencement or early stage of removal proceedings...339 Conclusion of proceedings...339 Asylum and Withholding of Removal...340 Naturalization...340 Appendix 6A: Crimes and Possible Consequences...341 Chapter Seven: Immigration Defense: Waivers and Other Relief...343 Adjustment of Status...344 Available to both Permanent and Non Permanent Residents...346

xxvi IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Discretionary Benefit...346 Jurisdiction...347 Aggravated Felony Offenses...348 Firearms Offenses...349 Domestic Violence Offenses...349 Visa and Registration Offenses...350 Export Violations...350 Waivers Under INA 212(h)...351 The 15-Year Waiver...352 The Extreme Hardship Waiver...352 The Battered Spouse and Child Waiver...352 Special Rules for Lawful Permanent Residents...353 Aggravated felony convictions...353 Retroactivity of the amendment...354 Defining admission...354 LPRs with non-aggravated felony convictions...354 Tolling of seven-year period...355 Available to Arriving Aliens or in Conjunction with Adjustment of Status...357 Separate application for adjustment not required in the Eleventh Circuit...358 Limited Availability of INA 212(h) for Persons Convicted of Violent or Dangerous Crimes...359 Matter of Jean...360 INA 209(c) Waiver for Refugees and Asylees...362 Compare to the INA 212(h) Waiver...363 Use of INA 209(c) by Certain Lawful Permanent Residents to Avoid Removal363 Asylum and Withholding of Removal...365 Asylum...365 Withholding of/restriction on Removal Under the INA...366 Defining the particularly serious crime...367 Withholding and Deferral Under Convention Against Torture...368 Cancellation of Removal...369 Continuous Residence Versus Lawful Permanent Resident Status...370 Offense need not be charged in removal proceedings to stop the time...371 The Requirement of a Lawful Admission...372 Individuals Who Are Ineligible for Cancellation...373 Combining Waivers...374 Special Rule for Battered Spouses...374 Special Rule Cancellation of Removal: NACARA 203...375 The Old Friend: A Waiver Under INA 212(c)...377

DETAILED TABLE OF CONTENTS xxvii The 1996 Legislation...377 The Supreme Court Decision...378 The 2004 Regulation...379 Cut-off dates for eligibility...379 Individuals in exclusion proceedings...381 IIRAIRA definition of aggravated felony retroactive: the summer of 1996...382 Persons Convicted by Trial...383 Federal courts versus the regulation...384 An individualized approach to reliance...384 A categorical approach to reliance...386 Door still closed...388 Summary: developing the record for appeal...389 Persons in Deportation Proceedings on or Before April 24, 1996...389 The regulation (the Soriano rule)...389 Case law...391 Persons physically deported prior to St. Cyr...392 Re-entry after pretermission of 212(c) application and deportation...393 Section 212(c) Eligibility Criteria...394 Persons who served five years in prison for aggravated felony...394 Waives Grounds of Inadmissibility and Comparable Grounds of Deportability..395 Matter of Blake...396 Circuit courts of appeals...397 Strategies for dealing with Blake...398 Gabryelsky Filings: Adjustment of status combined with INA 212(c)...400 Combining INA 212(c) and Cancellation of Removal...401 Affirmative Applications for 212(c)...401 Naturalization after a waiver under INA 212(c) relief...402 Voluntary Departure...402 Precommencement or preliminary stage of proceedings...404 Conclusion of proceedings voluntary departure...405 Is Your Client an American Citizen? An Introduction to Derivative Citizenship...406 Watch for effective dates...407 At birth...407 Children born outside of the United States...408 Individual who turned 18 before February 27, 2001...409 Naturalization as a Defense to Deportation...411 Termination of Removal Proceedings for Naturalization...411 Soldiers and Veterans...412

xxviii IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Relief from Alien Smuggling Charges...414 Relief from Deportability and Inadmissibility, Absent a Conviction...414 Waiver for smuggling immediate family members...414 Cancellation of removal...415 Relief from a Conviction for Alien Smuggling (An Aggravated Felony)...415 Adjustment of status...416 INA 212(h) waiver...416 Cancellation of removal...416 INA 212(c) waiver...416 Asylum and withholding of removal...416 Naturalization...417 Nonimmigrant Visa Waiver Under INA 212(d)(3)...417 Introduction: My son s been deported for an aggravated felony; can he ever come back?...417 Jurisdiction...418 Applications at the consulate...418 Applications at a port of entry...419 Separate permission to re-enter after deportation or removal (Form I-212) not required...420 Does not waive security or terrorism grounds of inadmissibility...421 Factors for Consideration...421 Defending the Criminal Charge of Re-entry After Removal...422 Appendix 7A: BIA Decision: 212(h) Waiver...425 Appendix 7B: Summary Explanation of Unpublished BIA Decisions...427 Appendix 7C: BIA Decision: 212(h) Waiver...435 Chapter Eight: Fashioning a Plea to Avoid Adverse Immigration Consequences...439 Avoiding Adverse Immigration Consequences...440 Avoiding a Conviction Through Pretrial Diversion...440 Beware of admissions to the crime...440 Federal First Offender Act Treatment; 18 USC 3607...441 State First Offender Programs in the Ninth Circuit...442 Keep the Case in Juvenile Court...442 The Petty-Offense Exception...443 Section 237 s version of the petty-offense exception...444 Avoiding a Conviction of a Crime Involving Moral Turpitude...444 Why It Is Important (A Quick Rundown on Consequences)...444 Eligibility for permanent resident status...444 Mandatory detention...444 Naturalization...445

DETAILED TABLE OF CONTENTS xxix What Is Moral Turpitude?...445 Fraud crimes...445 Theft offenses...445 Burglary...446 Working with a divisible statute: control the conviction record...446 Alternative pleas...447 Crimes of violence...447 DUIs (operating under the influence)...447 Avoid Multiple Counts...447 Summary Examples of Successful Plea Bargaining to Avoid the Crime Involving Moral Turpitude...448 Avoiding the Aggravated Felony Conviction...450 Why It Is Important (A Quick Rundown on Consequences)...450 Limited eligibility for relief from removal and mandatory detention...450 Barred from asylum...450 No naturalization for convictions entered after November 29, 1990...450 Avoiding an Aggravated Felony Keep the Sentence Under One Year...450 Avoiding Loss to a Victim in Excess of $10,000...451 Avoiding Crime of Violence by Pleading to a Non Specific Intent Crime...451 Avoiding Alien Smuggling/Aggravated Felony Conviction...452 Summary Examples of Effective Plea Bargaining to Avoid the Aggravated Felony...452 Avoiding Deportability for Domestic Violence Offenses...456 Avoid Specific-Intent Crimes...456 Creating Eligibility for Relief...457 INA 212(h)...457 Less than 30 grams of marijuana...458 Avoid the aggravated felony conviction...458 Cancellation of Removal...458 Avoid offenses that toll the seven years of legal residence...458 Avoid the aggravated felony conviction...458 Withholding of Removal and Asylum...459 Naturalization eligibility...459 Creating a Good Record Through the Plea Agreement and Plea Colloquy...459 Defense and immigration counsel must work as a team...461 Plea Agreements to Avoid (i.e., Bad Plea Deals)...461 False statements and currency transactions...461 Possession, paraphernalia and purchase...461 Aggravated assault and probation only...462

xxx IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Multiple counts...462 365 days in jail...462 Five-year prison sentence...463 Chapter Nine: Visas for Cooperating Witnesses...465 S Status...465 Introduction...465 The Statute...466 The Regulations...467 Conditions of Status...469 Adjustment to Permanent Resident Status Under S...470 The statute...470 The regulations...471 Special requirements for family members...471 Miscellaneous Tips and Advice About S Status...472 T Status...474 The Statute...474 The Regulations...475 Severe form of trafficking defined...475 Extreme hardship defined...475 Application Procedure...476 Effect of pending immigration proceedings...476 Applicants with final orders of removal...476 Annual cap on number of admissions allowed...477 Revocation of status...477 Family Members...477 Duration of nonimmigrant status and application for permanent residency...477 U Status...478 The Statute...479 Criminal activity defined...480 The Regulation...480 Filing...481 Qualifying family members...482 Persons in removal proceedings...483 Family Members Not Already in U Status...486 Jurisdiction...487 Appendix 9A: I-854 Inter-Agency Alien Witness and Informant Record...489

DETAILED TABLE OF CONTENTS xxxi Chapter Ten: Preparing and Presenting Applications That Waive a Criminal Conviction...495 Venues: Consulate, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and Immigration Court...496 Rules Regarding Biometrics Prior to Relief at Immigration Court...498 The Universal List: Evidence in Support of a Waiver...499 Evidence Relating to the Applicant...500 Evidence Relating to Family Members...502 Adjustment of Status...503 Forms, Fees, and Attachments...503 When Filing with the Court...505 Adjustment Is Discretionary...505 Section 212(h) Waiver 15-Year, Hardship, and Battered Spouse or Child...506 Form and Fee...506 When Filing with the Immigration Court...507 Emphasis on Hardship to Family Members...507 Discretion Must Be Warranted, Notwithstanding Hardship...508 Refugee Waiver Under INA 209(c)...508 Waiver Under the Pre-AEDPA 212(c) (repealed in 1996)...509 Form and Fee...509 When Filing with the Immigration Court...509 Emphasis on Unrelinquished Domicile; All Equities Are Relevant...510 Cannot have served five years in prison for an aggravated felony or felonies..510 A balancing of the equities...510 Cancellation of Removal INA 240A(a)...511 Form and Fee...511 Filing with the Immigration Court...511 Emphasis on Residency Requirements; All Equities Apply...511 A balancing of the equities...511 Special Rule Cancellation of Removal...512 Form and Fee...512 Supporting Documents...512 Waiver Under INA 212(d)(3)(A)...512 Form and Fee...512 Information Required...513 Contacting Legal Net for Assistance When Consul Declines to Accept Waiver..513 Memoranda of Law and Witness Lists...514 Before USCIS or American Consulate...514 Pretrial Statements to the Immigration Court...515 Witnesses...516

xxxii IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Witness list...516 Choosing witnesses...516 Working with witnesses...517 Details: The time and place of hearing, the need for an interpreter...517 Conclusion...518 Applications Filed After an Order of Removal...518 Stay of Deportation: Form I-246...518 Criteria...519 Application for Permission to Reapply for Admission into the United States After Deportation or Removal...519 Criteria...522 Appendix 10A: Sample Memorandum in Support of Affirmative Filing for INA 212(c) Waiver...523 Appendix 10B: Sample Pretrial Statement...531