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.
Q. How much immigration authority does the executive branch of the federal government possess?
A: Congress passes bills. Those bills go to the President for his or her signature. Once signed, the bill becomes a law. The Executive Branch agencies implicated in that law are require to make regulations (rules) on how each agency will implement the law. These regulations are published in the Federal Register for notice and comment by the public. Once the regulations become effective the current administration may choose (usually via policy memorandum) how to enforce those regulations. Such a determination is generally driven by voter mandate and financial ramifications.
The current agencies involved in immigration matters are the Department of State (visa issuances at the consulates abroad), the Department of Justice (immigration courts and the Board of immigration Appeals), and the Department of Homeland Security. DHS took over for legacy INS in 2003. DHS is comprised of three agencies; Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS). Border Patrol is a part of CBP.
Here’s an example of how it works. On March 6, 2017, the President Trump issued a presidential memorandum directing the Secretary of State, the Attorney General (DOJ) and the Secretary of Homeland Security to enhance security measures on visa issuances and border inspections. Subsequent to that memorandum, Secretary of State Rex Tillerson sent cables to the foreign posts with appropriate directions on how to implement the request of the White House. The March 17, 2017 Tillerson cable can be seen here.
The Executive Branch cannot undo or repeal the law, but the current administration does have substantial authority on how it implements a law and how it enforces the law.
As a business owner, what happens if I employ undocumented immigrants? What if I am unaware that I am doing so?
A: All U.S. employers are required to verify each employee’s authorization to work. Thus, there is no “I am unaware.” Congress, in the Immigration Reform and Control Act of 1986 (IRCA), added the requirement that each U.S. employer complete a Form I-9 for each employee at initiation of the employment.
The Form I-9 contains several sections. The employee completes Section 1 of Form I-9 at the time of hire. The employer completes Section 2 based on documents submitted by the employee. The employer must verify those documents within three days of beginning employment.
Some additional considerations are
- All employees must be treated equally and all employees must be required to produce appropriate work authorization documents and complete the form.
- Performing a self-audit and receiving training on the proper completion of the I09 and re-verification of the I-9 are best practices.
- The government may penalize a non-compliant employer and one of those penalties includes issuance of a fine against. This Immigration and Customs Enforcement I-9 webpage gives some good information.
Harboring is a term that gets loosely thrown about when it comes to employing undocumented foreign nationals. Harboring appears in 8 U.S.C. § 1324(a)(1)(A)(iii) and is a criminal matter. It’s part of a disjunctive phrase; “conceals, harbors, or shields from detection.” In the Ninth Circuit (and from a 1976 decision based on an old version of the statute), harboring means “simple sheltering.” Judge Posner, in the Seventh Circuit, disagreed in U.S. v. Costello, 66 F.3d 1040 (7th Cir. 2012). There are differing opinions depending on where the employer’s principle place of business or the branch office may be located.
If you have further questions or concerns about your I-9 compliance practice, please give Hammond Law Group a call.
How do my rights differ as a green card holder and as a citizen of the United States? Do I have any rights as an undocumented immigrant?
A: The primary difference in rights between a lawful permanent resident (green card holder) and a citizen of the U.S. is the right to vote. Only U.S. citizens may register and vote in federal elections. In fact, unlawful voting can cause deportation proceedings and denial of naturalization. INA § 237(a)(6) and INA § 101(f). So the best advice I can give is that if you are presented with an opportunity to register to vote or vote, don’t. If you have run across this issue in the past and think you have gone down the wrong path, contact counsel now to possibly correct the record. Do so before it becomes an issue with Department of Homeland Security.
It is also important to remember that a person who comes to the U.S. and obtains citizenship through naturalization, can have their citizenship taken away. DHS has the right to file either criminal or civil denaturalization proceedings against an individual who they believe illegally procured their citizenship. DHS will review prior visa applications or adjustment of status applications or naturalization applications to make this determination. How an applicant answers the questions on those forms compared to the facts becomes the basis for a denaturalization case. In fact, there is a current denaturalization case at the U.S. Supreme Court for which the justices just hear oral arguments.
As a non-citizen (green card holder, nonimmigrant visa holder or undocumented) some rights do attach. The preliminary questions to determine what rights attach and what level of review the federal courts will give to issues presented include the following:
- Whether that action comes from Congress or an Executive Branch agency like Department of Homeland Security or Department of State;
- If there is discrimination based on race or national origin;
- If there is discrimination based on a person’s alienage;
- If the aggrieved person is in the U.S. or outside the States;
- Within immigration matters if a fundamental right or substantial right attached;
- Whether state laws affecting immigrants are preempted by federal laws.
The best course of action is, if presented with an issue where you believe you’ve been discriminated against or a right of yours has been violated, to call an attorney who understands these issues.
I am a citizen but my spouse is not, does the Trump administration’s proposed travel ban affect him or her from travelling outside of the country on their own?
A: Absolutely. In fact, there have been stories about U.S. citizens encountering issues getting back into the U.S. In addition to the “travel ban” there was also the March 6th Presidential Memorandum which has not gotten as much notoriety as the “travel ban.” That memo directs the Secretary of Homeland Security, the Attorney General and the Secretary of State to take action in enhancing security for visa issuance, border adjudications and we’re now seeing enhanced interviews at USCIS for alleged marriage fraud and other misrepresentations.
As a routine course of action, we prepare H-1B and L visa beneficiaries for visa stamping (the process in which they go to the consulate and get new visa stamps consistent with their new status). We’ve seen an uptick in 221(g) letters (which can be devastating to an individual’s visa issuance) and “administrative processing” (which can be the death knell for a person abroad as there is no perfected strategy to get someone out of admin processing). As well, we’ve seen a greater number of CBP officers accusing visa beneficiaries of fraud while they’re trying to enter the U.S.
Part of travelling internationally is understanding the processes involved. Included in those processes are interactions with law enforcement (consular officers and CBP officers). Knowing how to truthfully and accurately answer the questions can be the difference between getting a visa and re-entering. Take for example the difference between the words “for” and “at.” If you work “for” someone, they’re your employer. If you work “at” a location that does not mean that company employs you. Those two words can change an interview.
The best course of action is to discuss your travel plans with your attorney and be fully prepared to handle these interviews.
Should I use an immigration attorney if I am planning on moving to the United States from another country?
A: There law does not require a foreign national to use an immigration attorney to immigrate to the United States. Therefore, the question becomes one of personal choice and thus the answer becomes “it depends.” In my experience, I’ve seen many individuals do just fine by filing their cases on their own. However, those cases have historically been “clean” cases or cases without issues. As well, even those legally “clean” cases may run into issues for a variety of reasons.
For example, an applicant fails to file required forms or evidence to support the application and they receive a Request for Evidence. An experienced attorney is not likely to file a case without all appropriate documentation. While it won’t be the end of the case, an RFE and the corresponding response slow down the processing time.
I like to use two analogies when answering this question. First, anyone can file their taxes on their own but only a tax professional knows if it’s been done correctly and if the person has received the largest refund possible. Conversely, would the potential larger refund outweigh the cost of an accountant? So this is again, an “it depends” answer.
Another example is our obsession with self-diagnosing and the internet. You can look online and see if your symptoms are for something minor can be treated at home. But isn’t it the safest move just to schedule a doctor’s appointment? And isn’t it possible that the website that you’re looking on is not 100% accurate or maybe isn’t even written by a doctor? Again, it depends on the symptoms.
The most common reason I hear from my clients with “clean” cases on why they hire me is that they want a professional to guide them through the law. I’m hearing this more and more in light of the new administration. This is especially so based on the March 6 Presidential Memo on visa issuances.
I tend to agree with having an attorney. I’m also a fan of Abraham Lincoln who said, “[h]e who represents himself has a fool for a client.” I’ve always said that if I married someone from another country, I’d hire one of my colleagues to represent us. This would remove my bias and emotion from the application and would give us the best chance at being approved.
Should you use an immigration attorney? My answer remains “it depends” but tends to lean towards yes you should.
If I am detained by immigration services, what are my rights in regards to calling for an attorney?
A: This is a fascinating issue in a constantly changing environment. Unfortunately, the answer to this question is “it depends.” There are three immigration agencies that would detain an individual; Customs and Border Protection (CBP), Border Patrol and Immigration and Customs Enforcement (ICE). So the questions are 1) where is the person, 2) which agency has custody of them and 3) why?
A person attempting to enter the United States is subject to inspection. INA §232. During this inspection, applicants for admission have no “right” to representation during primary or secondary inspection unless the applicant becomes the focus of a criminal investigation and has been taken into custody. 8 CFR §292.5(b); Gonzalez-Ortega v. Holder, 736 F.3d 795 (9th Cir. 2013). CBP may be investigating a person for an expedited removal order or a returning resident for a removal case. In these instances, CBP does sometimes permit more lenient access to counsel if the “’helper’ can assist in providing information pertinent to the inspection.” Memo, Ahern, Asst. Comm., Field Operations, CBP, Man-1-FO:PO CM, (July 30, 2003). CBP will contact someone, including an attorney, on an individual’s behalf if they are detained for an administrative issue and not a criminal issue and the detention lasts more than three hours after referral to “hard secondary.” Each port of entry maintains their own detailed policy on such access to counsel.
Border Patrol is a part of CBP. When Border Patrol arrests an individual for regular removal proceedings, they usually transfer the person to ICE custody. (See Below for ICE) However, many Border Patrol arrests are also for expedited removals and thus the above CBP policies should apply. That said, Border Patrol does not always follow the CBP policies and many times they take a harder line toward detention and thus access to counsel.
When in ICE custody, a detainee should have access to counsel. ICE may put limits on the number of calls a person can make and the amount of time a person can be on the phone calling an attorney. However, ICE is usually reasonable in allowing “contact” visits and expanding the normal visitation times to allow for lawyers’ busy schedules.
Sometimes and individual is held at a local jail or private prison that has a contract with ICE for such detention. Sometimes the local operators are not 100% familiar with ICE policies on access to counsel. If an issue arises, contact a family member to hire a lawyer to help.
What steps do I take to appeal a decision made by immigration services?
A: There are many different forms filed with USCIS and depending on which benefit you have been denied, there may or may not be appeals available. For example, when USCIS denies a DACA application or an I-601A provisional unlawful presence waiver, there is no appeal from that decision. For a denied visa petition or a denied adjustment of status application or a denied naturalization application, there are come choices as to how to appeal.
For a denied visa petition, the petitioner holds the rights to the appeal. The petitioner can appeal to the Board of Immigration Appeals (BIA), the Administrative Appeals Office or even federal district court. The decision on where to appeal will depend on factors including which visa petition USCIS denied and the grounds on which the petitioner wishes to appeal. There may also be tactical decisions on where to appeal. For example, a federal district court can address constitutional challenges and alleged due process violations.
For a denied adjustment of status application, the applicant holds the rights to the application. A denied I-485 usually results in USCIS issuing a Notice to Appear before an immigration judge and consequently the initiation of removal proceedings. There are times where the denial does not leave the applicant without proper status. In those cases and if there was no fraud or criminal issue, then USCIS may not issue an NTA. Then the applicant may, depending on the basis for the denial and the place of residence, appeal to the federal district court.
For naturalization cases, there is an appeal as of right for the applicant. This is called the N-336 Hearing. If USCIS denies the applicant’s N-336 challenge, the applicant can file for a de novo (or fresh eyes) review in federal district court.
As with all appeals, just because the right exists does not mean it is the best course of action to file the appeal. Many times, there are less expensive alternatives such as re-filing or waiting and re-filing. Alternatively, if the circumstances warrant, a person can file a motion to reopen (stating new and previously unavailable facts and evidence USCIS should consider) or a motion to reconsider (arguing USCIS misapplied the facts to the law or that USCIS misstated or misinterpreted the law). At all times prior to appealing, the aggrieved party should engage experienced immigration appellate counsel.