Philip Eichorn Co., LPA

Q: I'm a foreign national and have a criminal charge pending against me, what do I do?

A: Charges themselves don't usually support removal. Generally it takes a conviction. However removal is not the only consideration when charges are pending. A foreign national may only be a non-immigrant and seeking to adjust status or be a permanent resident who has sufficient physical presence to file for naturalization. As such, the outcome of the criminal case will dictate the decisions on these applications as well as their life in the U.S. as they know it. We provide criminal defense representation for foreign nationals.

The recent U.S. Supreme Court case, Padilla v. Kentucky, guarantees that all non-citizens in criminal proceedings receive effective advice and counsel as to the impact of any plea bargain to procession to trial. Most criminal defense attorneys are not immigration lawyers and the Court recognized this fact. In the concurrence by Justice Alito, criminal defense attorneys were encouraged to refer the non-citizen to an experienced immigration lawyer for advice regarding the impact of the pending charges.

If you or someone you know are currently facing charges, please call us immediately (before the plea agreement or trial if possible). A prudent person hires an experienced and diligent immigration / deportation lawyer as soon as they are arrested for a DUI, receive a summons or indictment in the mail or are booked for any criminal charge. Providing your immigration/deportation attorney with a copy of the charges is critical.

Q: My friend, wife, brother or some other relative is detained by immigration, what do I do?

A: This is generally the beginning of the removal process. Department of Homeland Security can detain people who are present in violation of the immigration laws. The detention statutes differ and it's critical to understand the process. A person without a criminal history and ties to the community should be able to obtain a reasonable immigration bond. This can be done through negotiations with Immigration and Customs Enforcement agents in the jurisdiction in which the person is detained. (For Northern Ohio, detainees are sent to Seneca County Jail after processing at one of the local jails. For Southern Ohio, detainees are sent to Butler County Jail after processing at a local jail. If the bond amount is unreasonable or the person simply wants to try to lower the amount, immigration judges have the ability to redetermine the bond amounts.

If a person has a criminal history, they may not be eligible for a bond. See INA 236(c)(2). However, if the government is substantially unlikely to prevail in sustaining the removal charge, the immigration judge can grant a Joseph motion and issue a bond redetermination.

Q: What should I do if I receive a Notice to Appear (NTA)?

A: This is the beginning of the removal process and you need a lawyer. Most of the time the NTA does not have a hearing date or time. This does not mean a person can stick their head in the ground and wait for the hearing notice to arrive. Instead, a prudent person hires an experienced and diligent deportation lawyer immediately. Obtaining all of the documents that the government has in a person's alien file can take several months. The review of those documents and the person's factual circumstance will form the basis of the defense. Additionally, if there are criminal convictions for which the Department of Homeland Security is using to support removal, those convictions must be reviewed for their legal sufficiency (including potential withdrawals of pleas for failures in the criminal process and/or Padilla issues).

Q: What rights do foreign nationals have in deportation or removal proceedings?

A: Critically, the Fifth Amendment guarantees the right to Due Process. Foreign nationals have the right to legal representation throughout the removal process; at their own expense. The government will not provide counsel for an alien in proceedings. That person must hire a lawyer. Additionally, the Immigration and Nationality Act requires the Department of Homeland Security to prove removability by "clear and convincing evidence." Finally, foreign nationals are entitled to examine the government's evidence, have access to their alien file (See Dent v. Holder) and cross examine government witnesses. People also have the right to appeal judge's decisions to the Board of Immigration Appeals and if there is jurisdiction, to the Circuit Court in which the proceedings concluded.

Q: What obligations do foreign nationals have in deportation or removal proceedings?

A: All foreign nationals in removal proceedings must appear at all scheduled hearings. Failure to do so could result in the immigration judge ordering their removal in absentia. There are only three ways to reopen an in absentia order of removal. First, a person can beg and plead DHS to join the motion to reopen. Even then, the immigration judge does not have to grant the motion. Second, a person can file a motion to reopen and assert the court provided insufficient notice. The filing of this motion automatically stays the physical removal. It is a very onerous burden and there has been recent cases in the Sixth Circuit that add higher burdens on the alien's case. Third, a person can (within 180 days of the order being entered) file a motion to reopen and allege that exceptional circumstances caused their failure to appear. Motions to reopen are difficult and very technical.

Foreign nationals must inform both the Immigration Court AND the Department of Homeland Security as to their current address. Failure to inform the court can result in failure to receive a hearing notice which obviously can result in failure to appear and an in absentia order.

Q: What happens during removal proceedings?

A: The first hearing is the master calendar hearing. The Immigration Judge will determine if the government has properly served the foreign national with the charging document and review the charges with the individual. The IJ will also advise the individual of his/her rights (as listed above) in removal proceedings. Most IJ's want to keep their cases moving and will generally require pleadings to the factual allegations and the charge of removal. It is the government's burden to prove the foreign national is subject to removal so denying the charges can sometimes be to the benefit of the alien; especially if they are not true. The immigration judge will review the evidence supplied by the government and make a determination whether or not they have sustained their burden of proof.

Even if the judge determines the foreign national is subject to removal, the proceedings do not end. Foreign nationals may apply for relief from the removal order via adjustment of status, cancellation of removal, asylum, or waivers such as 212(c), 212(h), 212(i) and 237(a)(1)(H). These are defenses and should not be relied upon to provide an avenue to remain in the U.S.

Q: What are some of the basis for which the government can remove foreign nationals?

A: Foreign nationals are subject to removal for a variety of violations including but not limited to convictions of certain crimes specified in the Immigration and Nationality Act, overstaying their authorized stay (generally determined by the I-94), entering without inspection by an immigration officer, lying to an immigration/government official or providing false documents.

Q: Can I appeal an immigration judge's decision?

A: Absolutely. After a judge orders someone removed or deported, there is a thirty day time frame in which the foreign national can file the notice of appeal with the Board of Immigration Appeals. The BIA must receive the notice prior to the thirtieth day. If you disagree with the immigration judge's decision or are not satisfied with your current counsel's representation, please contact us immediately to ascertain your rights. Please provide a copy of the immigration judge's decision.

Additionally, if the BIA has denied your appeal, you have the right to petition the circuit court in which the removal proceedings were concluded for review of the immigration judge and the BIA's decision. Again there is a thirty day time frame in which to file the petition for review. Finally, if the circuit court denies the appeal, a petition for certiorari with the U.S. Supreme Court can be filed in unique situations.

Q: My Green Card is expiring, what do I do?

A: It depends on the length of validity of your green card. If it was valid for two years, you were admitted as a conditional resident. There is a specific and distinct filing procedure for removing the conditions on one's residence which is much different than filing for a renewal. If your green card was valid for ten years, you can file a Form I-90 with the appropriate USCIS service center. However, if you have been convicted of a crime, or even arrested and had the case dismissed, you should retain an attorney to advise you regarding your rights. Many criminal convictions can trigger deportation proceedings; even ten years after the fact. Most of our clients have a good understanding of their criminal history, but not the interplay between the criminal law and the immigration law (inadmissibility and deportation). It is critical not to assume that because you've read on an internet chat room or message board that your case is exactly similar to someone else's facts and circumstances. Please contact us prior to engaging in a course of action that could affect the rest of your life and your families.

In addition to renewing your lawful permanent resident card that was valid for ten years, you may also be eligible for obtaining citizenship through naturalization.

Q: My boyfriend/fiance/spouse is "illegal" and I want to fix his/her papers, what can I do?

A: This is the most common question I face; almost every day. It's important to understand that we must determine what the person posing the question means by the term "illegal." If a person has entered with a visa and overstayed, they are an "overstay" and there are many avenues of relief available; especially adjustment of status. However if a person entered the country without inspection (EWI) then there are generally three avenues to obtain permanent resident status without having to leave the country.

1. If a person entered the U.S. at anytime fearing persecution from their native country, that person can apply for asylum, withholding of removal and withholding of removal pursuant to the Convention Against Torture.

2. If the foreign national has been physically present in the U.S. for over ten years, they might be eligible for Cancellation of Removal. This application can only be presented while in removal/deportation proceedings and is very difficult to get an immigration judge to grant the application.

3. If the person entered the U.S. without inspection and was physically present prior to December 31, 2000 and a relative filed a petition on his/her behalf (or there was a properly filed labor certification) prior to April 30, 2001, they might be eligible for adjustment of status pursuant to INA 245(i).

While this list is not exhaustive, it does represent the three primary avenues of obtaining status without leaving the U.S. However, if the person is not eligible for any of the above, then in order to obtain status they must depart the U.S. and return through lawful channels. Anyone not in valid status is usually accruing unlawful presence. There are exceptions and in specific if the person was admitted with "D/S" on their I-94. If a person departs the U.S. after accruing more than six months to one year of unlawful presence, they are barred from returning for three years. If a person departs the U.S. after accruing more than one year of unlawful presence they are barred from returning for more ten years. There are waivers of these two bars, however the grant of the waiver is discretionary (you must show solid equities and that the foreign national is a person of good moral character) and also requires a showing of an "extreme hardship" on a qualifying relative. These waivers are generally approved at a rate of about 30% across the globe.

Q. If the visa in my passport expires, am I in the U.S. illegally? A. No. The visa in your passport does not determine your status. A visa is simply permission to present oneself at a port of entry for admission to the U.S. pursuant to the class averred on the visa (B1/B2, H-1B, L-1A etc.) The admission stamp or the I-94 (white or green card) controls the authorized period of stay. In general, tourists are given six months while other forms of non-immigrant visas permit other distinct, visa-specific periods of authorized time.

Q. If I've overstayed my I-94 time, what can I do?

A. It depends on how much time has elapsed since your I-94 expired. There are three general times periods into which most people fall. First, if you are within the first six months of the expiration, you have accrued unlawful presence. However if you depart you are not legally barred from returning (assuming this is your first overstay issue) to the U.S. That said, the Customs and Border Protection officer to whom you present yourself in the future has the discretion to deny your entrance and a significant overstay can impact his / her decision. If you've overstayed more than six months but less than one year, call us immediately at 216.970.7102 and indicate this is your situation. If you depart improperly within this time frame, you trigger a bar to returning of three years. There is a mechanism in which you can depart within that six month period and not trigger the three year bar. If you've overstayed more than one year and depart the U.S., you trigger a ten year bar to returning to the U.S.

Q. If I have not overstayed my I-94 time and I want to stay longer, what can I do?

A. You can extend your stay or status in the U.S. if you have a valid reason. Filing for an extension of status depends on the status in which you entered and your basis for requesting an extension. Cases are reviewed by USCIS on an individual basis and need to be properly documented. We routinely represent foreign nationals in extension matters and have a solid understanding of the qualifying evidence to sustain an approval.