Q: Why should I hire an immigration lawyer?
A: Your immigration status is precious to you. 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 brilliant but there is no substitute for the experience a lawyer brings to the table. You need someone with a legal background who has years of experience on your side.
You need an objective viewpoint about the case against you or how to present your case affirmatively to the government to obtain a benefit. You want to remove the emotion that attaches to these matters. That’s what a lawyer will do for you.
Even lawyers have an old saying, “[i]f you represent yourself, you have a fool for a client.”
Q: I’m getting married to a someone who doesn’t have status and we need to fix their papers. How do we do it?
A: It depends on how a person entered the United States. Did they use a visa? If so, what kind of visa? Did they go through a checkpoint? Did they get waived in or did they use a fake passport? Did they simply run across the border? How many times have they been in the U.S. and what status (if any) did they hold? How many times have they left the U.S. and returned.
These are just the beginning of the questions that need answering to properly determine if your spouse can adjust their status to that of Lawful Permanent Resident (green card) while remaining in the U.S. or if your spouse will have to depart and return home and apply for a visa at the U.S. consulate abroad. (consular processing). Give us a call and let’s discuss this.
Q: I’m not a U.S. citizen and have a criminal charge pending against me, what do I do?
A: Hire a lawyer! The U.S. Supreme Court stated in Padilla v. Kentucky that the Sixth Amendment 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 to criminal defense attorneys they should refer non-citizen defendants to experienced immigration lawyers for advice regarding the impact of the pending charges.
There are many possible immigration consequences for criminal cases including but not limited to deportation, refusal of entry after international travel, denial of adjustment of status, denial of naturalization, visa revocation, and jail without bond. Each case is different. Give us a call and let’s discuss your case (before the plea agreement or trial if possible).
Q: Someone has an immigration hold against them, what do I do?
A: Call US!!! Immigration detention generally means the beginning of the removal process. For removal proceeding cases originating in Northern Ohio (north of I-70), ICE holds immigration detainees at the Seneca County Jail in Tiffin, Ohio or Geauga County Jail in Chardon, Ohio after processing at one of the local jails. For removal cases beginning in Southern Ohio (south of I-70), ICE holds detainees at the Butler County Jail in Hamilton, Ohio after processing at a local jail.
If the detained non-citizen has a criminal history, by law they may not be eligible for a bond. This is called “mandatory detention.” There are arguments to be made that the person should be given a bond. The landscape on mandatory detention cases changes continuously. We stay up to date on the changes and therefore can provide your loved one with the most recent arguments.
A non-citizen in immigration custody who does not have a criminal history but does have ties to the community should be able to obtain a reasonable immigration bond. The first level of negotiation is with Immigration and Customs Enforcement agents in the jurisdiction in which the person is detained. If ICE sets an unreasonably high bond or the person simply wants to try to lower the amount, the local immigration judges have the ability to redetermine the bond amounts. The best course of action is to hire experienced immigration bond attorneys to help get lower bonds.
Q: What should I do if I receive a Notice to Appear (NTA)?
A: Call Us!!! This is the beginning of the removal process and you need a lawyer. Consider the NTA an indictment or summons to appear to answer to the charges against you. Many times the NTA won’t have a hearing date or time on it. DHS files the NTA with the court based on the address they have on file for you or your loved one. The court will then issue a hearing notice with a date and time certain.
Don’t wait until the week before or the day before to hire a lawyer. The best lawyers need time to properly prepare your defense. We immediately file with the government to get all of the documents contained in a person’s “alien file” that the government will use against you. This process takes several months. Filing immediately after receiving the NTA helps out a lot. Additionally, if there are criminal convictions in the case, we want to review the transcripts of criminal case along with the certified judgment entries of the plea hearing and the sentencing. Again, this process takes time.
So what should you do if you have an NTA in your hand, hire an experienced removal proceedings lawyer.
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. The non-citizen in removal proceedings has the right to have the government prove the case against them by “clear and convincing evidence.” The non-citizen in removal proceedings has the right to examine the government’s evidence, have access to their alien file (See Dent v. Holder) and cross examine government witnesses. If the immigration judge orders a non-citizen deported, then that person has the right to appeal judge’s decisions to the Board of Immigration Appeals. If the BIA rules against the non-citizen then he or she can file a Petition for Review in the Circuit Court of Appeals in which the proceedings concluded. [For Cleveland cases, the PFR is filed in Sixth Circuit Court of Appeals.]
Q: What obligations do non-citizens have in removal proceedings?
A: All non-citizens in removal proceedings must appear at all scheduled hearings. The immigration judge may order the non-citizen removed in their absence if they fail to appear. Non-citizens 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 of removal.
Q: What happens during removal proceedings?
A: The first hearing is the master calendar hearing. This is a preliminary hearing similar to an arraignment in a criminal case. The Immigration Judge determines if the non-citizen received the NTA properly and confirm the identity and contact information of the non-citizen. The IJ will also advise the individual of his/her rights (as listed above) in removal proceedings. The IJ will request pleadings (admit or concede) to the factual allegations and the charges of removal. The IJ will ask the non-citizen to identify what country they want DHS to remove them to if they’re ordered deported.
The IJ will ask the non-citizen to identify any waivers or other forms of relief from removal if the charges are sustained (found to be true and accurate). Non-citizens 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 last line defenses and should not be relied upon to stay in the U.S. unless absolutely necessary. It’s always better to fight the case first.
Q: Can I appeal an immigration judge’s decision?
A: Absolutely. Check out our page on Appealing an Order of Removal or Deportation.
Q: My Green Card is expiring or has expired, what do I do?
A: It depends on the length of validity of your green card. If it was valid for two years, the government admitted you 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 or your green card.
If your green card was valid for ten years, you 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 hire a crimmigration lawyer to review the criminal case(s) and advise you regarding the immigration consequences of the criminal matter. Don’t rely on message boards or what your buddy is doing, your case is specific to you. Please contact us prior to engaging in a course of action that could affect the rest of your life and your families.
Q: If the visa in my passport expires, am I in the U.S. illegally?
A: The visa in your passport does not determine your status in the U.S. A visa is 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 in your passport or the I-94 (white or green card or now electronic version) 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 determine the exact date on the I-94. Any day you’re in the U.S. after that date is considered unlawful presence. If you’ve been present in the U.S. for up to 180 days and you leave, there are no bars to returning but you may have some bumps in the road depending on why you stayed over for so long. If you’ve been in the U.S. unlawfully for between six months and a year and you depart, then you can’t return for three years. If you’ve been in the U.S for over a year without status and then you depart, you cannot return for ten years. If your I-94 is marked “D/S” you have a different set of circumstances so call us.
Q: As an illegal immigrant, what is the difference between a civil offense and a criminal defense in regards to whether or not I am deported?
A: There is a difference between a civil lawsuit and a criminal case. A civil case is generally a lawsuit between two parties not usually resulting in jail or prison time. The parties to the lawsuit can be corporations or individuals but also can be the government. The winning party must prove their case by a “preponderance of the evidence.” This means the evidence shows that the losing party more likely than not did something that hurt the winning party.
A criminal case is one where a government (federal, state or local) charges or indicts an individual for having violated a criminal law or ordinance. If the government wins, the individual faces potential jail or prison time. The government must prove that the individual violated a criminal law using the legal standard of “beyond a reasonable doubt.”
The Immigration and Nationality Act (INA) contains a definition for a conviction for purposes of deportation, denial of admission to the United States, denial of naturalization and other immigration benefits. That definition can be found at INA § 101(a)(48). A conviction for immigration purposes may not be the same for a criminal case.
The government cannot deport a person for losing a civil lawsuit. Some of the evidence presented in that lawsuit may be used in an immigration case but losing a civil case is not a ground for removal proceedings. Sometimes the evidence presented in a civil case can trigger an investigation of the immigrant and if that immigrant has another immigration law violation, then the government might initiate removal proceedings for that violation.
The government can try to deport immigrants “admitted” to the United States with criminal convictions. [The government admits someone at a checkpoint (air, land, or sea) after an inspection of their passport, visa, or sometimes after being waved through.] However, there are many defenses available to immigrants in removal proceedings for criminal convictions. Whenever there is an issue with a criminal case and an immigration case, it is best to get an expert opinion on the matter. This is especially so in light of President Trump’s recent executive order regarding criminal aliens.