Q: Why should I hire an immigration lawyer?
A: Your immigration status is mission critical. Your family relies upon you. Your co-workers rely upon you. You want to stay and live in the U.S. forever. You may be extremely smart but there is no substitute for an experienced lawyer who has your best interests in mind. How many times have you seen a brain surgeon operate on himself or herself? I hope none but sarcasm aside this is a great point. How many times have you represented yourself before the immigration authorities and been successful? Clearly not the same as brain surgery but the concept is similar.
You don’t want to do this on your own. You need an objective viewpoint. You need someone with a legal background who has years of experience on your side. Do you want the best chance to win your case?
Q: I’m getting married to a foreign national and we need to fix his or her papers. How do I do it?
A: It depends. This is the worst answer to such a question but it is accurate. Family based immigration cases are driven by how a person entered the United States. Did they use a visa? What kind of visa? Did they go through a checkpoint with a fake passport or someone else’s border crossing card? Did they run the border? How many times have they been in the U.S. and what status (if any) did they hold? These are just the beginning of the question that need answering to determine if a person can adjust their status to that of Lawful Permanent Resident (green card) while remaining in the U.S. or if the person will have to depart and return home and process through their consulate (consular processing).
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 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 the criminal case on immigration matters. Most criminal defense attorneys are not immigration lawyers and the Court recognized this fact. The Court indicated that to criminal defense attorneys they should refer non-citizen defendents 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).
Q: Someone has an immigration hold, what do I do?
A: Immigration detention is generally the beginning of the removal 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 in Tiffin, Ohio or Geauga County Jail in Chardon, Ohio after processing at one of the local jails. For Southern Ohio, detainees are sent to Butler County Jail in Hamilton, Ohio 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. This is called “mandatory detention.” The law can be found in Section 236(c)(2) of the Immigration and Nationality Act. 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 for someone previously considered subject to detention without bond.
The best decision is the one to hire a lawyer who understands immigration bonds and detention.
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 smart person immediately hires an experienced and well reviewed deportation lawyer. Getting the government’s case against the alien (obtaining all of the documents that the government has in a person’s alien file) can take several months. Starting upon receipt of the NTA minimizes that time. Additionally, if there are criminal convictions in the case, transcripts of those proceedings must be obtained and reviewed for their legal sufficiency (including potential withdrawals of pleas because of flaws in the criminal case or the criminal defense lawyer’s failure to properly advise).
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: 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. 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 time immigration stamped in my passport, 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 before 179 days after the expiration of your time, you are not legally barred from returning (assuming this is your first overstay issue) to the U.S. However, 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. 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. There are waivers available for this situation so if you or a loved one has already departed after one year of unlawful presence, call us.
Q. If I have not overstayed the time immigration gave me to be in the U.S. 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.