If I marry a US Citizen, will I avoid deportation?

By Jessica Suotmaa 0

Many of our non-status clients believe marrying a U.S. citizen will solve their immigration problems.  Undocumented clients will either jump into a marriage head first for a chance at a marriage green card, or they’d wait until they’re detained to marry their beloved.  Then, they’ll come to us and expect the marriage certificate to solve all of their problems. We’re here to tell you it’s not as simple as that; if you’re an undocumented immigrant married to a U.S. citizen, you can still be deported.

Unfortunately, qualifying for a marriage-based green card requires more than just a marriage certificate proving marriage to a U.S. Citizen.

Here are the four other questions to ask yourself if you’re considering a marriage-based green card:

1. Is your marriage legitimate?

Not only does your marriage to a U.S. citizen have to be genuine, but you also need to be able to prove it.

Many clients believe a few photos and a lovey dicey appearance will suffice at the interview, but it’s more complicated than your romance narrative. For immigration purposes you need to show proof of joint residence and shared finances in addition to documents showing your love.

A good immigration lawyer can review your case and existing documents or help you prepare your petition and application.

2. Did you enter the U.S. legally?

Although after marriage you’re now an “immediate relative of a U.S. citizen”, how you entered the U.S. still matters. In order to adjust your status after your Petition for Alien Relative (Form I-130) is granted, you have to be eligible.  Part of being eligible is having entered the U.S. legally (e.g., with a valid visa) and being in status at the time of adjustment.

If you did not enter the U.S. legally, are undocumented, or have overstayed your allotted time, you may be ineligible to obtain permanent residence. Consult an experienced immigration attorney to see if you are banned from re-entry and if you qualify for any ineligibility waivers.

3. Do you and your spouse have enough money?

To obtain a green card, the applicant must be financially secure and/or sponsored by a relative or other U.S. Citizen or Legal Permanent Resident. To qualify for adjustment of status, you’ll have to show pay stubs, tax returns, and other documents proving financial independence.

Applicants are now required to file an additional form, I-944 Declaration of Self-Sufficiency which requires even more detailed financial information to prove you won’t require government assistance in the future.

4. Are you healthy?

All adjustment of status applicants have to undergo a medical examination to prove they are in good health. You will also be required to see an immigration-approved doctor for a full physical. You’ll be required to have received certain vaccinations and even prove you’ll have health insurance to cover any medical issues you may have.

See our article on Public Charge and the Healthcare Ban for more information.

If you’re concerned about your answers to any of the above questions, or if you just want to be certain, give us a call and we’ll review your situation to see how we can help you in your marriage-based adjustment.

undocumented & deportable

By Jessica Suotmaa 0

Amid recent news on an increase in Immigration & Citizenship Enforcement (ICE) raids, many may worry about detainment. While California is immigrant-friendly, it doesn’t mean law enforcement won’t turn you over to ICE.  It also does not prevent federal agents from taking you into custody. If you’re undocumented and worry you might be detained or deported, then this article is for you.

We’ve already written about how employer’s can guard against on-site job raids. We’ve also referenced many resources for undocumented immigrants to learn about their rights.  You can always call us if you you have questions about your options or current immigration case. And we’ve discussed deportation and even waivers for inadmissibility. Now it’s time to talk go over precautions you can take to protect your family if you are at risk of deportation.

1. Memorize a phone number that’s not your own

We can all (hopefully) remember our own phone number, but do you remember the number of your emergency contact? How about your immigration attorney?

…Our number is 626-795-8886, by the way.

Be sure to remember at least one phone number of a reliable person whom you can call if you’re detained.  This phone number should belong to someone who is available or who at least has a voicemail set up with an inbox that is not full.

2. Assign your kids a guardian

If you have children, and this is especially true if they’re U.S. citizens or lawful residents, they will need a guardian when you’re detained.  Someone should know to pick up your kids from school, to take them home, or to stay in your home to care for them.

Someone should also be assigned to be legally responsible for them. Relatives can be informal guardians, but anyone can be given Informal Guardianship Authorization. This form would allow the guardian to enroll your kids in school, take them to the doctor, sign up for Medi-Cal, and other necessary items. Ask us about the form, or ask your school and medical professional what forms they offer.  Prepare the necessary paperwork and sign multiple copies so that everyone has one.

3. Give someone trusted access to your info

Does your spouse, mother, child, or other emergency contact have access to your home? Do they have a key to your house? Your car? Do they know where their legal documents are? Do they know who your attorney is?

Be sure to organize all your immigration documents, forms, and other supporting documents in an accessible place. If you have criminal records, legal documents from your home country, tax records, or any other important documents, place them in the same space.  Include any other “positive” documents about your American life, your family and children that may help your immigration case.  Ensure your emergency contact knows where your legal documents are stored.

4. Prepare your loved ones

If you have an alien registration number (A#), be sure to share that with your friends and loved ones. If you are detained and they need to find you, they need certain information about you.  Specifically, your full legal name (or names, if you have multiple), date of birth, and alien registration number. Share the Online Detainee Locator link with your loved ones.

Preparedness is important as it reduces stress for both you and your loved ones when you’re detained.

5. Know your rights

As an undocumented immigrant, you still have rights.

You have the right to silence. You have the right to tell the officer you do not wish to speak.

You have the right to speak to an attorney.

You have the right to privacy of your home and vehicle. You have the right to exit your home and meet officers outside (rather than let them in). You have the right to inspect a warrant to verify if an immigration signed it.

Don’t be afraid to ask for your rights!

Are Administratively Closed Immigration Court Cases still SAFE?

By Jessica Suotmaa 0

On May 17, 2018, Attorney General Jeff Sessions overruled a Immigration Judge’s decision in Matter of CASTRO-TUM, 27 I&N Dec. 187, clarifying that immigration judges and the Board of Immigration Appeals (BIA) does not have the authority to administratively close cases indefinitely. 

What does this mean?

In short, you can no longer request prosecutorial discretion (PD) for immigration court cases to be administratively closed.

If your case was administratively closed, commonly referred to as “having PD”, your case could be reopened by the court or BIA.

What does “Administratively Closed” mean?

“Administrative Closure” means the immigration judge has ordered the case off calendar for the time being.  Usually cases are administratively closed to allow the respondent to receive a decision from United States Citizenship and Immigration Services (USCIS),  e.g. an I-130 petition that would grant them the ability to adjust status in the U.S.

Sometimes, immigration judges have administratively closed cases because respondents did not show up to any of their hearings, and the immigration judge felt that the court did not have the correct address or means to contact the respondent.

For an individual respondent, administrative closure means their case is in limbo: they have no closure.  Respondents with administratively closed cases are not ordered removed, but their Notice to Appear (NTA) remains on file.  They (usually) do not qualify for work permits and cannot adjust for status through their original application (if applicable).  Not every respondent appreciates having their case administratively closed, as was the case in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) where a Chinese national appealed his administrative closure because he wanted a decision on his asylum case.

Why do Judges “Administratively Close” cases?

The immigration courts have a huge backlog of cases. Transactional Records Clearinghouse identified 658,728 pending immigration court cases as of November 2017.  This total does not include administratively closed cases.  On January 5, 2018, The American Bar Association announced that there were around 350,000 administratively closed cases, making the total “pending” immigration court cases over 1 million. There are not enough judges or courts to handle all of the cases. Administrative closure is a tool for Immigration Judges to manage their case docket.

Why are “Administrative Closures” an issue?

Administrative closures have been argued to be a “cover up” for immigration courts to hide their unmanageable backlog.  The American Immigration Council connects “administrative closure” to “prosecutorial discretion” (PD), which is “the authority of an agency or officer to decide what charges to bring and whether to pursue your case”:

Administrative closure was used extensively as a form of prosecutorial discretion during the later years of the Obama Administration; in particular, the Department of Homeland Security (DHS) often joined in motions to administratively close cases that did not fall within its enforcement priorities.

Out of the 350,000 administratively closed cases (last 22 years), over 200,000 cases were closed during the last four years of the Obama administration. The Immigration Court backlog has also increased exponentially during the Obama years. The BIA has previously held in Matter of Ramirez-Sanchez that PD cannot be given by the Immigration Court or reviewed by the BIA:

The decision to institute deportation proceedings involves the exercise of prosecutorial discretion and is one which neither the immigration judge nor this Board reviews. Once deportation proceedings are commenced, the immigration judge must order deportation if the evidence supports the charge.  

In the more recent case, Matter of WYU-, 27 I&N Dec. 17 (BIA 2017), BIA held that an immigration judge does not have PD:

In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

This decision prompted Attorney General Jeff Sessions to review old cases, such as the Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and the Matter of Reynaldo CASTRO-TUM.

What’s important about Matter of Avetisyan?

In this matter, the respondent had an expired J-1 visa, was out of status, but she told the court that her husband was to be naturalized and could thereby file an I-130 Petition for Alien Relative soon. The Immigration Court gave her five continuances, but the respondent did not have proof of an I-130 approval. Speculating that the immigration court hearings were the reason why USCIS could not process her I-130 (as the physical file has to be sent back and forth between the attorney general’s office and USCIS), the respondent requested administrative closure, which the Immigration Judge granted despite government attorney objections.

Before January 31, 2012, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), immigration court cases could only be administratively closed if there was no opposition to the closure. If the individual respondent requested administrative closure, then both the immigration court judge and the government attorney had to approve the decision.  However, Board of Immigration Appeals’ (BIA) decision in Matter of Avetisyan overruled previous guidelines, stating that the immigration court or BIA could decide if a case warranted administrative closure. In doing so, the immigration judge and BIA overruled a previous decision in Matter of Gutierrez.

What’s important about the Matter of Reynaldo CASTRO-TUM?

By overruling the decision in Matter of Reynaldo CASTRO-TUM, Sessions has effectively overruled the decision in Matter of Avetisyan as well. Here’s what the decision basically states:

  • Immigration judges and the BIA do not have authority to “suspend indefinitely immigration proceedings by administrative closure” (overrules Avetisyan and W-Y-U-).
  • The only time immigration judges and the BIA can administratively close a case is “where a previous regulation or a previous judicially approved settlement expressly authorizes such an action”, e.g. when the settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) required BIA to administratively close all Guatemalan and Salvadorian deportation cases to allow them to apply for asylum under a new class.
  • By law, the Department of Homeland Security (DHS) decides whether to pursue a case and issue an NTA. Immigration judges and the BIA must resolve the case as quickly as possible.
  • If a case needs time, immigration judges are to issue continuances.
  • If a respondent doesn’t show up to their hearing (in absentia), then the immigration judge must order removal in absentia if DHS can prove that they’ve given written notice.
  • Cases that were administratively closed “without requisite authority” will be recalendered on the motion of either party.

In other words, Attorney General Jeff Sessions has decided that while administrative closure is abolished, it is not possible to reopen all the previously administratively closed cases due to the backlog of unresolved immigration court cases. However, any administratively closed case can be reopened by the court or BIA.

 

Feeling confused? Have questions? This blog is not legal advice. Contact our office to speak to an attorney for advice on your case.

 

 

Deportation is not the end

By Lum Law Group 0

Deportation has become a source of tears, hardship, and anxiety for many of our clients in recent months.  The new administration has tightened policies, increased the number of ICE arrests, and limited the amount of discretion at the disposal of individual officers. As a result, we have seen an increase in the number of detainees and deportations.  Many have weighed heavily on our minds weeks, or even months afterwards, and we have struggled to communicate effectively the hope we still hold for them.

Yes, there is hope.

Banned from Returning

Each immigration case is different, as it depends on the number of years you are banned from returning to the United States. There are five year bans, ten year bans, 20 year bans, and even permanent bans, which are issued depending on why you were removed and on whether you have a criminal record.  Generally, non-citizens who entered the US illegally without inspection or who overstayed, are unlawfully present in the US.  If you have been unlawfully present for over 180 days, but less than one year, you are banned for three years.  If you have been unlawfully present for over one year, you are barred from re-entering for ten years.

Form I-212

Once deported, you can file I-212 Application for Permission to Reapply for Admission to the United States. You can file the I-121 if you were deported or ordered removed and voluntarily departed. You may also need to file the I-212 if you were previously removed and then re-entered unlawfully, or if you were illegally present in the United States for over one year.  The I-212 should be filed with applicable supporting evidence and the filing fee alongside a visa application.  Supporting evidence can range from family ties in the US to changed country conditions to rehabilitation, depending on your individual reasons for inadmissibility. By submitting the form, you are asking Immigration (USCIS) to overlook your “inadmissibility” (the reason you were deported) and grant you another application that would allow you to re-enter the US (such as a Visa application).

If granted, you are able to re-enter the US and do not have to worry about your previous illegal status.

Form I-601

If you are deemed inadmissible for circumstances other than illegal entry and unlawful stay, then you may need to file an I-601, Application for Waiver of Grounds of Inadmissibility alongside your other applications.  The I-601 Waiver requires you to prove extreme hardship to an immediate family member who is a US citizen or permanent resident.

USCIS has deemed extreme hardship factors to include (but not limited by) health, financial considerations, education, personal considerations, and special factors. Evidence of extreme hardship should be carefully annotated, but keep in mind the I-601 Waiver is a discretionary relief, meaning the officer reviewing your case will interpret your extreme hardship and decide whether to grant your request for waiver.

When preparing to file for I-601, it’s important to note that while you may qualify to apply, there is no guarantee that your application will be accepted.  Your chances of success may be low if you have previously violated immigration law, if you have criminal charges/arrests/convictions, or marriage fraud.  Such circumstances could weaken your application and require proof of more extreme hardship than others.

Re-entering Illegally is a Felony

We cannot stress enough how important it is to re-enter the United States lawfully post-deportation. The reason is that illegally entering the United States is a misdemeanor (8 U.S.C. § 1325), but illegally entering, or attempting to enter, the United States after removal is a felony crime (§ 1325 is 8 U.S.C. § 1326). Your previous proceedings and orders will be “reinstated”, meaning you’ll likely not have a chance to defend yourself in front of an Immigration Judge and you may be permanently barred from entering the US.

 

If you’re unsure as to whether you qualify for any of the above waivers, or if would like to know your chances, talk to an experienced immigration attorney.

Waiting in the Airport Lounge

By Justin Lum 0

If you are out of status and deemed “removable”, you will be placed in “removal proceedings” and scheduled for a “Removal Hearing” with U.S. Immigration court.

You will receive a “Notice to Appear” (NTA) which informs you when and where your hearing will take place.

The government will provide proof as to why you are “removable” (can be deported) and present it to the Executive Office of Immigration Review (“EOIR”) Office of the Immigration Court. This is also where you can defend yourself by proving you are not removable or request “relief” from removal.

The first hearing is a “Master hearing” where everyone will determine how to move forward with your case.

Many aliens will give up at this point and request “Voluntary Departure”, which means you will leave the US of your own accord. Keep in mind that even if you leave voluntarily, you will still be subject to penalties (such as a travel ban).

If you do not wish to leave voluntarily, you can go through the motions and prepare for your next hearing (sometimes a “merits” hearing).

Each case is different and each alien has their own circumstances. If you aren’t sure if you can handle court cases on your own, contact Lum Law Group for legal assistance.