Articles Posted in Deportation (Removal) Proceedings

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In a disappointing decision by the Attorney General, a decision has been made on whether immigration judges and the Board of Immigration Appeals have discretion to administratively close deportation proceedings.  Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) was decided on May 17th, 2018 after the Attorney General referred the issue to himself.


Why is the Attorney General making this decision?


The Attorney General has the authority to refer Board of Immigration Appeals decisions to himself to review. 8 C.F.R. §1003.1(h)(1)(i).  In this case, an Immigration Judge granted several continuances to a juvenile who had been issued a Notice to Appear for deportation proceedings.  The Notice to Appear that was handed to the juvenile did not give a date for a hearing.  Notice of the hearing was sent to the address provided by the juvenile.  When the juvenile didn’t appear for court, the immigration judge continued the case and ultimately administratively closed the case.  The government appealed and the Board of Immigration Appeals remanded the case for the Immigration Judge to proceed with the deportation proceedings and to issue an order of removal in absentia if the juvenile did not appear.  The Attorney General then referred the decision to himself.  The Attorney General’s decision is binding on the Board of Immigration Appeals, which is the appellate court that rules on all appeals from Immigration Judge decisions.

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Criminal convictions are a primary basis for deportation or denial of immigration benefits, like greencards, visas, and naturalization.  A criminal conviction can have devastating consequences on your immigration options.  Some convictions may result in deportation.  Some may not.   Immigration is controlled by federal law.  Most convictions are based on state law.  Whether a state conviction qualifies as a deportable offense under federal law is often a complicated analysis that is commonly litigated in courts across the country.  The best course of action when you are charged with a crime is to consult with an experienced immigration lawyer who has criminal law experience.  Then make sure your criminal defense lawyer and immigration lawyer discuss the best options for your criminal case and how a conviction will affect your immigration case.  But what if it’s too late?  What if you already have the criminal conviction and are only now being told that you can be deported because of that conviction.  Or what if you are being told that you can’t apply for an immigration benefit because of your criminal conviction?


Is there anything I can do?


Once you plead guilty or no contest or are found guilty by a jury, it becomes increasingly difficult to fight your conviction.  However, there may be an avenue of hope.  The law in the State of Florida allows you to go back two years to challenge a conviction if your criminal defense attorney made certain mistakes.  For example, if your criminal defense attorney did not properly advise you of the immigration consequences of your criminal conviction, you may be able to reopen the case and negotiate a more immigration friendly plea.

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Immigration lawyers throughout the country sighed together last week when a new United States Supreme Court decision came down concerning people in deportation proceedings.  The Supreme Court was deciding whether a person who has been detained for four years while his deportation case was pending was entitled to a bond redetermination.  In an unfortunate decision, the Court held that under the current state of the law, a person in deportation proceedings is not entitled to a bond redetermination.


What were the facts of the case?


Alejandro Rodriguez, a Mexican citizen and lawful permanent resident (greencard holder) of the United States, was convicted in 2004 of a drug offense and a theft offense.  Mr. Rodriquez was placed in deportation proceedings (referred to as removal proceedings) and he was detained in a jail during those proceedings.  His removal case began in April 2004.  In July 2004, Mr. Rodriguez was ordered deported by an immigration judge.  Mr. Rodriguez elected to exercise his right to appeal the immigration judges decision to the Board of Immigration Appeals (BIA).  The BIA agreed with the immigration judge that Mr. Rodriguez was subject to mandatory removal based on his conviction.  Mr. Rodriguez then appealed the BIA’s decision to the Ninth Circuit Court of Appeals.  His case languished before the court of appeals and in May 2007, more than 3 years after he was initially detained, Mr. Rodriguez filed habeas petition in Federal District Court claiming that he was entitled to a bond hearing.  The District Court initially denied his habeas petition, but the Ninth Circuit Court of Appeals reversed the District Court’s ruling and the District Court eventually entered an injunction basically requiring that a bond hearing be held every six months where the government must prove by clear and convincing evidnece that further detention is justified.  The government appealed and the United States Supreme Court took up the case.

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A criminal conviction can make you deportable.  It doesn’t matter how long you’ve been in the United States.  It doesn’t matter how good a person you are.  It doesn’t matter if you have never been to the country of which you are a citizen.  The law is cut and dry when it comes to whether you are deportable.  If you have been convicted of certain crimes, you are deportable.  But…there is good news.  Whether you are deportable is only the first part of the analysis.  Once an immigration judge determines that you are deportable, he or she must next determine whether you are eligible for any forms of relief from deportation.  This is where your lack of prior criminal record, how good of a person you are and other factors may come into play.  However, you must meet certain eligibility criteria in order to be eligible for each different form of relief.  Today, I want to focus on one particular, and often used, form of relief: Cancellation of Removal.


What is Cancellation of Removal?


Cancellation of Removal is a form of relief from deportation.  Once the judge has determined that you are deportable, the judge can cancel that removal if you qualify.  It basically wipes the slate clean and you are able to keep your greencard, or you may be able to obtain a greencard, even if you entered without any documents. The bad news is that for several of the requirements, you either are or you are not eligible, and there may be nothing you can do to become eligible if you don’t qualify.

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We’ve had many Cuban clients who had a false sense of security when it came to their immigration status as a Cuban Adjustment Act Lawful Permanent Resident.  They think that if they are convicted of a deportable crime, they will not be deported.  Although historically this has been the case, times are changing and more and more people are and are going to be physically deported to Cuba.


Who can be deported?


If you were convicted of a deportable offense, even if that conviction was decades ago, you would be subject to being placed in removal proceedings at any point in the future.  In other words, there is no statute of limitations for deporting someone based on a criminal conviction.  If you were placed in removal proceedings and ordered removed, but weren’t physically deported to Cuba because of existing relations at the time, you also can be deported based on that prior order at any time in the future.  The only thing standing between you and physical deportation to Cuba is whether Cuba accepts you back and whether U.S. policy to physically deport Cubans becomes more widespread.  So, once relations between Cuba and the United States thaw and certainly if the Cuban government transitions to a democratic government.

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Sometimes, there just is no relief in deportation proceedings that will allow the person to stay here.  Whether it’s because of lack of ties to the United States, lack of hardship to U.S. citizen relatives, criminal history, or other factors, you just may not be eligible under any provision of the Immigration and Nationality Act to remain in the United States.  No cancellation of removal.  No waivers. No asylum or withholding of removal.  Your immigration attorney has looked at your case from every angle and there just is no possible way to keep you here.  In those cases, there is often one last option that may have some very beneficial consequences.  It is called Voluntary Departure.  Florida immigration attorneys often request voluntary departure in the Orlando Immigration Court in both detained and non-detained cases.  So what is Voluntary Departure?


WHAT IS VOLUNTARY DEPARTURE?


Voluntary Departure is a form of relief that allows a person to leave on his or her own rather than under a removal (deportation) order.  Although, the person does have to leave the United States, it can have some really important benefits that help the person lawfully come back into the United States on a later date.