Immigration Law and Colorado Criminal Defense Cases – A Primer
Hundreds of thousands apply for visas to come to the United States every year in an attempt to avail of America. Some come to visit. Some come to live. For many of them, the trip is the realization of a life’s dream. Living, working, simply being, here means opportunity for themselves, and more importantly, for their children. The greatest threat to the continuance of living the dream, short of death, is the initiation of removal proceedings, which is the process by which persons are physically removed from the United States, sometimes barring them from ever returning.
Immigration law, in general, is complex, time-sensitive and difficult. Actions and decisions (or lack thereof) can have severe immutable consequences on subsequent immigration options. Nowhere is this more apparent than in removal proceedings.
Frequently Asked Questions
1. What is removal? (Answer)
2. Who is subject to removal? (Answer)
3. How is one removed? (Answer)
4. Can one be detained during this process? (Answer)
5. What are the different types of relief? (Answer)
1. What is removal?
Until IIRAIRA (Illegal Immigration Reform and Immigrant Responsibility Act of 1996) was enacted, INS and the law drew sharp distinctions between deportation proceedings and other removal proceedings called exclusion, forcing immigration law professionals to study closely grounds of inadmissibility, excludability, deportability, the links and shared spaces among them. With the passage of IIRAIRA these distinctions were made less important by recognizing that both types of proceedings had the same end goal – the expulsion of certain aliens. As such, proceedings to expel an alien from the United States are now called simply Removal Proceedings.
2. Who is subject to removal?
A person placed in removal proceedings can be classified into different sub-categories of reasons why. Many of the offenses that make up the different categories are shared, which is one of the reasons why a more general Removal proceedings structure was necessary.
while not defined in the INA Â§101(Immigration and Nationality Act), illegal aliens are all persons in the United States without authorization.
Grounds for Inadmissibility: health related grounds (e.g., communicable diseases, physical/mental disorder that can be or has been harmful to others, drug addiction); economic grounds (e.g., person likely to become a public charge, tax evaders); criminal grounds (e.g., CMT offenses, drug offenses, two or more convictions, prostitution); moral grounds (e.g., polygamists); violations of INS laws (e.g., seeking admission before bar to their admission has expired, unlawful presence, EWI (Enter Without Inspection), failure to appear at removal proceeding without good cause, stowaways, alien smuggling, student visa abuse); national security grounds (e.g., espionage, sabotage, terrorism); foreign policy grounds(e.g. communists, American property confiscators)
Grounds for deportation: inadmissible at time of entry; status violations (e.g., overstay, marriage fraud, encouraging illegal immigration); economic reasons (e.g., public charge); security/ political reasons (e.g., espionage, terrorism, sabotage, endangering public); failure to give current address; falsification/forgery of documents; unlawful suffrage; criminal grounds (e.g., CMT committed within 5 years of entry for which possible sentence was a year or more, 2 or more CMTs of different schemes at any point, aggravated felony; high speed flight from immigration checkpoint; drug offenses; firearms violations; miscellaneous crimes (e.g., violations of Neutrality laws, selective service, etc.); domestic violence
3. How is one removed?
Before April 1, 1997, persons already in the United States against whom deportation proceedings were commenced were issued “Order to Show Cause” (OSC) forms. Those persons with OSC letters still have their cases adjudicated in the deportation framework, in which suspension of deportation may be an available relief. Actions commenced by the INS after April 1, 1997 for all persons already in the United States it wishes to remove are done through the issuance of a “Notice to Appear” (NTA). INS’ issuance of an NTA signifies that it has information sufficient to allege that a person is in the United States unlawfully and/or that the person’s continued presence in the United States is against the interests of the United States.
The NTA states the nature of the proceedings, legal authority for the proceedings, factual allegations and identification of provisions and statutes said to be violated. The NTA orders the respondent to appear at an initial hearing (â€œMaster Calendarâ€) before an Immigration Judge. If an NTA has been issued to you, an immigration attorney should accompany you to the hearing. At this hearing, the Immigration Judge reiterates the allegations set forth in the NTA, advises the respondent of his/her rights and forms of relief apparently available, and records the relief for which the respondent requests. The respondent may also designate the country to which he/she wishes to be removed to if the INS is successful at this time. The respondent will also be scheduled for an Individual hearing at a later date to determine whether relief will be granted in the Judges discretion. .
At the Individual hearing, the INS is represented by a trial attorney (an INS employee) whose job is to prove the allegations set forth in the NTA and argue aginast the Judge granting discretionary relief. The respondent (applicant for relief), by his or her attorney will counter by disproving the trial attorney’s claims and/or proving the client’s eligibility for discretionary relief. This investigative process is done through the presentation of witnesses and documentary evidence and is presided over by an Immigration Judge.
At the end of the Individual hearing, the Immigration Judge may issue a decision immediately or a later date. The Immigration Judge may grant the alien’s request for relief or enter an order to remove the alien. If the ruling goes against the alien, he or she has the right to appeal. A Notice to Appeal the Immigration Judge’s decision must be filed within 30 days or the right to appeal is waived. Filing of a Notice to Appeal has the effect of staying the removal order (the INS can not deport you).
The appellate process is as follows: once a Notice to Appeal is filed, the alien’s counsel should request a copy of the entire transcript of the previous proceedings and a time period after receipt of the transcript to write an appeal brief. The alien’s counsel will use the transcript and whatever other evidence at his/her disposal to write a convincing brief to the Board of Immigration Appeals (BIA) arguing that the Immigration Judge committed reversible error and/or abuse of discretion, and that the IJ should be reversed and that relief from removal should issue. The Service responds in opposition with a brief of its own. Based on these written arguments, the BIA will issue a decision. For most cases (90-98%), the BIA’s decision is the final word.
Where there is Judicial Review (judicial review not proscribed by IIRAIRA), the alien may bring his/her appeal another step by filing a lawsuit in federal court against the Service. Under a recent Supreme Court decision, in order for the lawsuit to be entertained in federal court, the alien must demonstrate that the Judge and the BIA erred in their decision as a “question of law”.
4. Can one be detained during this process?
Yes. In fact, if the alien subject of removal meets certain criteria, he or she may be detained pursuant to IIRAIRA and AEDPA provisions. For example, aggravated felons placed in removal are subject to mandatory detention. Though, it is not the INS’ intention to detain persons without cause. Persons detained are considered to be unlikely to show for proceedings. Appearance for most persons is sufficiently ensured by a bond, when the IJ thinks it is questionable.
5. What are the different types of relief?
There are several types of relief that may be available. The following lists some examples:
Cancellation of Removal
Political Asylum/Withholding of Deportation
VOLUNTARY DEPARTURE- removes some of the sting of being removed. If granted, the alien is given up to 120 days to depart the United States on his/her own terms and is subject to only a five-year bar from returning. (Generally, removed persons are barred from even re-applying to return to the United States for ten years.)
(A) if requested at the beginning of proceedings (Master calendar)–no other relief is requested; concedes removability; is not an aggravated felon or deportable for security reasons.
(B) if requested at conclusion of proceedingsâ€”must have been physically present in the U.S. for at least one year prior to NTA service; must display good moral character for the five years preceding date of request; is not an aggravated felon or terrorist; has not been granted VD before; must display financial ability to effect departure and intent to do so.
CANCELLATION OF REMOVAL-comes in two forms: LPRs or non-LPRs.
For LPRsâ€”must have been an LPR for 5 years, residing continuously in U.S. for 7 years; is not an aggravated felon; has not been convicted of a CMT within 5 years of admission, has not been convicted of two or more CMTs at any time; has no convictions for drug trafficking, firearms, domestic violence, or certain other crimes; not a crewman; not a J-doctor who did not comply with two year foreign residency requirement; not a security threat; has not persecuted others; has not been granted cancellation, suspension or 212(c) relief previously.
For non-LPRs – must have been physically present in the U.S. for ten years from date of application; good moral character for the same time period; must show ensuing hardship to LPR or USC immediate relative if cancellation not granted, and has not been convicted of offenses which would render one inadmissible or deportable; not a crewman; not a J-doctor who has not fulfilled foreign residency requirement; has not persecuted others; has not previously been granted cancellation or suspension; not an aggravated felon; not convicted of a CMT (unless offense’s maximum possible penalty is 1 year of imprisonment and actual sentence was less than six months); not convicted of two offenses with an aggregate sentence of 5 years or more; not convicted of drug, firearms, sex or certain other offenses
*For these applicants, a grant of cancellation of removal also acts as an application for adjustment of status. (Though there is a numerical cap on the number of people whose removal may be cancelled and who may adjust status.)
Factors in considering grant of Cancellation of Removal:
Positive: family in the U.S.; long period of residency in U.S.; ensuing hardship if cancellation not granted; service in armed forces; employment history; property or business in U.S.; service to the community; showing of good character.
Negative: nature of exclusion grounds; significant violations of law; criminal record; other evidence of bad character.
POLITICAL ASYLUM/WITHHOLDING OF DEPORTATION- Aliens served with an NTA can apply for political asylum before the Immigration Judge, who will have adjudicate the application, even if an asylum application has been previously submitted to and is pending before an Asylum Officer. When a person in removal requests relief in the form of political asylum, withholding of deportation automatically attaches. (While similar, political asylum and withholding of deportation have significant differences which will be explained in this discussion.)
A hearing would then ensue on the political asylum claim. The claimant is required to prove his or her claim in the same manner that he or she would have done even if removal proceedings had not commenced. An applicant must display a well-founded fear of persecution if he or she is returned to his or her homeland and that the persecution arises out of the applicant’s political beliefs, religious affiliations, or other personal characteristics that an applicant cannot or should not have to change, i.e., gender.
If the applicant succeeds in meeting this burden of proof, the IJ may grant political asylum. After a year, the person granted political asylum may apply for adjustment of status. If the applicant fails to meet the high burden of proof for political asylum but succeeds in proving that his/her life or freedom would be threatened by returning him/her to his her native country, the IJ must grant withholding of deportation. Unlike a grant of political asylum, a grant of withholding does not give rise to eligibility for adjustment of status.
212(c) WAIVER-This waiver allowed the INS, in its discretion, to waive the exclusion (thereby eliminating the ground of deportation) of a lawful permanent resident returning to the United States to a lawful unrelinquished domicile of seven consecutive years. While this section closely resembles other sections in what offenses merit a waiver, it is not a general form of discretionary relief but is a waiver for only the deportation grounds specifically listed in the section. Nevertheless, 212(c) waivers are very important and caused some apoplexy when it was taken away by a cruel Congress as a part of IIRAIRA, and joyous relief when it was returned to certain persons by a compassionate Supreme Court.
A person requesting 212(c) relief at his master calendar hearing is scheduled for a 212(c) hearing. At this subsequent hearing, the Immigration Judge is authorized to “waive deportation” after reviewing the seriousness of the offense, evidence of either rehabilitation or recidivism, the duration of the aliens residence, the hardship of deportation on the alien and his or her family, the number of citizens and permanent residents in the family, and the character of any service in the Armed Forces.
IIRAIRA cancelled 212(c) which left a system that had no mercy for aliens who had been convicted (found guilty or pled nolo contendere) because the provision was retroactive. The Supreme Court replaced 212(c) for persons convicted before the enactment of IIRAIRA saying that eliminating 212 (c) relief “would surely be contrary to familiar considerations of fair notice, reasonable reliance, and settled expectations”.
212(h) WAIVER- This waiver allows the INS, in its discretion, to forgive certain criminal grounds of inadmissibility. It can be obtained by asserting extreme hardship (to alien’s United States Citizen or Lawful Permanent Resident immediate relatives) and covers the following acts: prostitution or procurement, crime involving moral turpitude, two crimes (so long as aggregate sentence is less than 5 years), exercise of prosecutorial immunity, controlled substance violation (possession of 30 grams or less of marijuana). A 212(h) waiver may also issue if the alien can establish that the act occurred 15 years or more before the date of the application; that his or her admission would not be contrary to the national welfare; that he or she has since been rehabilitated; and that he or she has complied with all other regulations.
1996 Amendments withdrew the availability of 212(h) for lawful permanent residents who have: an aggravated felony conviction or have not been residing continuously in the United States for 7 years immediate preceding the date of the application. Strangely enough, these Amendments left aliens who are not lawful permanent residents (e.g., illegal aliens, non-immigrants) with aggravated felony convictions still statutorily eligible for 212(h). However, since a 212(h) waiver issues only with a favorable exercise of discretion, statutory eligibility may not mean much in the face of an aggravated felony conviction.
H. Michael Steinberg Attorney at Law. Immigration Law and Criminal Defense in Colorado