DEFENSES TO REMOVAL overview of IMMIGRATION COURT DEFENSE & FORMS OF RELIEF IN IMMIGRATION COURT MODERATOR: SIANA J. MCLEAN, ESQ. Of counsel, Muscato & Shatkin LLP, Niagara Falls, NY PANELIST: MATTHEW K. BOROWSKI, ESQ. Borowski Immigration Law, Buffalo, NY

How is an Immigration Case Processed? Initiated by a charging document Typically a Notice to Appear (I-862) Sometimes a referral to Immigration Judge for Asylum Only or Withholding-Only Proceedings Custody determination/Bond Administrative Bond or Bond hearing before Immigration Judge (IJ) Immigration Court Proceedings Master Calendar Individual Hearing

Over view of Removal Proceedings Section 240 of the immigration and nationality act (INA) Title 8 of the U.S. Code (8 USC)

INA § 240 - REMOVAL PROCEEDINGS Section 240(a)(1) of the Immigration and Nationality Act provides that an immigration judge conducts removal proceedings for deciding the inadmissibility or deportability of an alien. Before the INA, proceedings were referred to as deportation or exclusion proceedings. Now they are referred to as removal proceedings. They are all generally known as proceedings to decide if someone can & should be removed/deported from the U.S.

The Notice to Appear (NTA) initiates the COURT proceedings. Issued by: Immigration & Customs Enforcement (ICE), Department of Homeland Security (DHS), Office of Chief Counsel (OCC). Step 1: The NTA is the most common method of commencing removal proceedings

Charges Immigration “charges” or allegations are the reasons why the U.S. Gov’t, the Department of Homeland Security (DHS) believes the alien is removable /deportable from the U.S.

Bond is a form of relief If your client is detained: The charges on the NTA will also determine whether or not the individual is eligible for a bond. Charges that affect long-term relief don’t necessarily affect a bond. Know that you can talk to the government counsel about a bond, and have a separate bond hearing, to determine whether or not your client can be released under a bond.

The Notice to Appear provides the basis for removal proceedings INA § 240(a)(2) DEFINES the Charges: An alien placed in proceedings may be charged with any applicable ground of inadmissibility under section 212(a) or any applicable ground of deportability under section 237(a).

Charges of Deportability Basis of Removal: INA § 240(a)(1): IJ conducts removal proceedings for deciding the inadmissibility or deportability of an alien. INA §212(a) INA § 237(a) Charges of Inadmissibility Charges of Deportability

INA §212(a) Grounds of Inadmissibility Six major categories of inadmissibility:  health-related criminal-related misrepresentation alien smuggling subject of a civil penalty, and unlawful presence  Other categories are rare. INA §212(a) Grounds of Inadmissibility Aliens Ineligible for Visas or Admission to the U.S.; relevant in removal proceedings for adjustment of status.

INA §237(a) Grounds of Deportability Generally: Present in violation of law/overstay/cond’l residence Smuggling aliens Marriage fraud/fraud or misrep. CIMT/Crimes Aggravated felonies Controlled substances/drugs Domestic violence/children False claim to Citizenship Nat’l Security/Public Charge  INA §237(a) Grounds of Deportability Any alien in and admitted to the U.S. shall be removed if the alien is within one or more of the following classes: 

Forms of Relief  Waivers §212(a) Inadmissibility § 237(a) Deportability 212(h) waiver to allow alien to Adjust Status; waiving : Crimes/mult. crimes No Drug Waiver except for simple poss. marij. Prostitution Cancellation of Removal or 212(c) relief & Voluntary Departure Aggravated felonies cannot be waived.

Pursuing Relief from Removal Waivers For adjustment of status

Adjustment of Status Generally, AOS is a procedure that allows an eligible applicant to become a lawful permanent resident (i.e., green card holder) without having to leave the U.S. and apply for an immigrant visa abroad. Eligibility can be established by: Family member/fiancée Employment Asylee/Refugee status Nationality, e.g. Cubans Juvenile Status Other eligibilities are rare.

Typical Adjustment of Status NOT in removal proceedings: File the I-130 File the I-485 Pay the fees Submit supporting evidence Biometrics Interview IN REMOVAL PROCEEDINGS File the I-130 Pay the I-130 fees If approved, pay the I-485 fee File the I-485 and supporting evidence with the Court; the IJ can terminate the case or decide the adjustment

Adjustment of Status: the I-751 Ineligibility to Adjust has to do with Inadmissibility Charges: Unlawful presence (not inspected/not admitted) Entered as crewman Didn’t marry your fiancée Crimes Already a conditional permanent resident I-751 in Proceedings Foreign spouses receiving the green card when the marriage is >2 yoa have a conditional permanent residency I-751 removes the conditions of residency

I-751 Joint Petition Prior to the expiration of the two year conditional residency, the couple must file a joint petition (Form I-751) and prove to immigration authorities that they still are living as husband and wife. In removal proceedings , this form may be submitted to the Court and the Court would then rule on whether or not the alien may adjust status to that of a lawful permanent resident.

How to Submit the I-751 Send the fee to the appropriate Service Center & file the fee receipt with the Court, with I-751 Form Evidence, in documentary form, of the relationship, including: proof of residence & joint occupancy/joint property ownership birth certificates for children born to the marriage financial records/proof of co-mingling of assets documents showing joint responsibilities affidavits & other supporting docs re : good faith marriage

Adjustment of Status: the 212(h) waiver Ineligibility to Adjust has to do with Inadmissibility Charges: Unlawful presence (not inspected/not admitted) Entered as crewman Didn’t marry your fiancée Crimes Already a conditional permanent resident 212(h) allows alien to Adjust Status by waiving: Crimes & Multiple crimes Prostitution No Drug Waiver except for simple possession of marijuana (30g or less)

212(h) can waive: CRIMES & Multiple Crimes . See, INA §212(a)(2)(A) the activities for which he is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of statues; the admission would not be contrary to the national welfare, safety, or security of the U.S.; and He’s has been rehabilitated. INA 212(h)(1)(A). 212(h) can waive: CRIMES & Multiple Crimes . See, INA §212(a)(2)(A) (i)(I)-(II), (B), and (E).

A 212(h) waiver can also waive: Where the applicant establishes that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A). A 212(h) waiver can also waive: Prostitution & prostitution- related offenses. See, INA §212(a)(2)(D) (i)-(ii).

A 212(h) waiver may also waive: Merit No violent/security crimes Removal would result in extreme hardship to his USC or lawful resident parent, spouse, or child. Hardship factors include, not limited to: U.S. family ties; non-U.S. family ties; country conditions; financial impact of departure; & significant health conditions, particularly when tied to unavailability of suitable medical care in the country to which the qualifying relative would relocate. Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). A 212(h) waiver may also waive: Crimes & Multiple Crimes where there hasn’t been a lapse of 15 years. See, INA §212(a)(2)(A)(i) (I)-(II), (B), (D)- (E)

Murder or Torture (conspiracy to commit) Aggravated felony convictions Generally, failure to demonstrate continuous residence for not less than seven years immediately proceeding the date of initiation of proceedings. See, Matter of Pineda, 21 I&N Dec. 1017 (BIA 1997); Matter of Yeung, 21 I&N Dec. 610 (BIA 1997). But see Matter of Michel, 21 I&N Dec. 1101 (BIA 1998) . 212(h) waiver Cannot be granted for:

Submit the I-485, application for adjustment of status with To the COURT: Submit the I-485, application for adjustment of status with Fee receipt (pay fee to Service Center) With Form I-601 form and supporting evidence of hardship. Submit testimony and witness testimony in support of application, subject to cross-examination. 212(h) waiver In Removal Proceedings

Cancellation of Removal

What is Cancellation of Removal? Cancellation of removal is a form of immigration relief available to certain individuals who have been placed in removal proceedings before the U.S. Executive Office for Immigration Review.

Cancellation for Non Permanent Residents Cancellation of Removal for those who have never had a “green card” These individuals are subject to inadmissibility and deportability grounds of removal.

§ 240A(b) of the Immigration and Nationality Act (INA) Who is eligible? For individuals who have never had a green card, cancellation is available if You have lived in the U.S. continuously for 10 yrs Your are of good moral character Your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a permanent resident.

FORM EOIR-42B The Application

Helpful documents include: Family Hardship/Suffering

Helpful documents include: Medical Issues Lack of Treatment in the home country

Helpful documents include: Only/Single Parent Children(s) Age & Family Ties

Cancellation for Lawful Permanent Residents Lawful permanent residents = Green Card holders Lawful permanent residents of the U.S. may be placed in immigration proceedings and may be deported due to certain criminal convictions that leave them inadmissible or deportable from the United States. Cancellation is relief from removal. Not all LPRs are eligible to apply for Cancellation of Removal.

Who is eligible? Cancellation is available for any LPR who § 240A of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229b (2000) Who is eligible? Cancellation is available for any LPR who 1) Has been an LPR for not less than five years; and 2) Has resided in the U.S. for not less than seven years in any status; and 3) Has not been convicted of an aggravated felony.

What’s an Aggravated Felony? Aggravated felonies include, generally: murder, rape, sexual abuse of a minor, drug trafficking (any drug sale), crimes of violence or theft with a one year sentence imposed.

FORM EOIR-42A The Application

Helpful documents include: Family Employment & Taxes

Helpful documents include: Community Education

to avoid the ten year bar for Voluntary Departure Allows you to pay your own ticket home and leave by a deadline imposed by the Immigration Judge to avoid the ten year bar for having been ordered removed from the U.S.

Do I have the money to pay for a ticket? Can I return to the U.S. in the next ten years? Will I get a visa? Am I admissible? Do I have the money to pay for a ticket? Do I have passport or proper ID to return to my country? How long have I been illegally in the U.S.? Will I have a three or ten year bar? How soon do I want to leave the US? Considerations Funds Travel Documents Likelihood of Return

Eligibility for Voluntary Departure An arriving alien is not eligible for voluntary departure. When you leave the U.S., take a G-146 form to the U.S. Consulate in your native country so that you may get your bond money back.

EVIDENCE The Court Does Not Follow the Federal Rules of Evidence Hearsay is acceptable Documentary evidence is admissible Email articles are admissible Translation 8 CFR 1003.33 – all foreign language documents must be translated into English and certified as translated correctly

Relief or Removal Relief Removal If Granted Alien is Released and Proceedings Terminated Removal Detention and Removal (DRO) acquires a Travel Document and Makes Arrangements for Travel to Country of Removal

Appeal If you Reserve Appeal you Have 30 Days to File a Notice of Appeal to the Board of Immigration Appeals 2nd Circuit Court of Appeals

Asylum, Withholding of Removal, CAT leads to green card, lower burden of proof (well-founded fear) Withholding of Removal higher burden (more likely than not), can have aggravated felony but no “particularly serious crime” Convention Against Torture Leads to temporary deferral of removal, available even if convicted of “particularly serious crime”

Asylum Must meet the definition of refugee in the INA:: “Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Requires (1) a well-founded fear of persecution (2) based on past persecution or risk of persecution in the future if returned to the country of origin (3) based on a protected ground, (4) the persecutor is a government actor and/or a non-governmental actor that the government is unwilling or unable to control. See 8 C.F.R. § 1208.13

Membership in a Particular Social Group An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is composed of members who share a common immutable characteristic defined with particularity socially distinct within the society in question. Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor. Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014)

What is Persecution? The following five broad categories describe abuse that adjudicators may find rise to the level of persecution: serious physical harm; coercive medical or psychological treatment; invidious prosecution or disproportionate punishment for a criminal offense; severe discrimination and economic persecution, and severe criminal extortion or robbery.

REAL ID Act REAL ID Act Applies to Asylum, Withholding and CAT Places a heavy burden on the applicant to corroborate their asylum, withholding and CAT claims. IJ may grant asylum on testimony of the applicant alone but only where the testimony “is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. An adjudicator may require other evidence to corroborate otherwise credible testimony “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”

Other Asylum Issues One Year Filing Deadline Must file asylum application within one year of last entry to U.S., or fall under an exception to the one year deadline, unless changed circumstances can be shown Internal relocation (affirmative defense by government) Reasonableness, see Matter of M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012) Firm resettlement (burden is on DHS to prove) Derivatives (family members), I-730 for family members abroad (relative petition)

How to file for Asylum, Withholding, CAT File form I-589 in Immigration Court Typically, supporting evidence need not be filed until 15 days before the trial date (individual hearing) Send copy of I-589 to USCIS Service Center in Mesquite, TX to schedule biometrics (fingerprinting) appointment For detained clients, DHS is responsible for completing biometrics

Trial Advocacy in Asylum/Withholding/CAT Individual hearings typically involve: Testimony from the respondent Witness testimony Expert witnesses Building a foundation for the admission of evidentiary submissions Opening/Closing Argument DHS will attempt to discredit your respondent/witnesses, may argue against eligibility, may argue against membership in particular social group

After a Grant Asylum grant – eligible for LPR after one year Must file I-485 LPR Status backdated by one year Withholding of Removal/CAT If, due to a “fundamental change in circumstances relating to the original claim, the alien's life or freedom no longer would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the country from which deportation or removal was withheld.” DHS must initiate by issuing notice of intent to terminate For CAT, no notice of intent to terminate needed. DHS motion filed with Immigration Court instead.