Analyzing Prior Removal Orders -- or are they? (immigration law)

by LALO ALCARAZ on JULY 3, 2014 in CARTOONS, EL NOW. See: http://www.pocho.com/la-cucaracha-you-must-be-this-tall-toon/

A fellow practitioner asked a question regarding deportation and future relief. I thought the topic was worth discussing here.

Client came to me because he had received a notice to appear (NTA). Initially, I was pleasantly surprised, base on his equities. He had been in the US since 2002, no criminal record, 4 USC children, filed taxes and requisite hardship for cancellation of removal. Then the other shoe fell – he had been deported in November, 2001 and came back within weeks (early 2002) and hasn’t left since. My initial question was why he had not been given a reinstatement of removal and an expedited removal. Instead he received an NTA in May 2016 with a court date in late May. What is happening here?

Great question – and very frustrating, I know.

The code section you are looking for is 8 CFR 241.8. Other than withholding of removal (under asylum grounds), and CAT, along with a couple of obscure South American/Central American Acts, the alien ain’t eligible for squat!

Now, technically, you have an interesting issue here. DHS lacks authority to reinstate – it has to be done by an immigration officer (i.e. ICE or CBP). Read the code section carefully. Also, said reinstatement is discretionary. If ICE/CBP opt not to apply this section, then…can they later change their mind?

The most telling indication that this section does not apply is the release of the alien on parole or bond. That is not done when reinstatement is in play, and the Court has no authority on bond issues with these folks (for obvious reasons).

Do you have a question about immigration law or deportation defense? Contact us! Initial phone consultations are always free. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax (VA), Resiterstown (MD), and Washington (DC)
www.hanoverlawpc.com
Central Office: 2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com

The difference between "credible fear" and "reasonable fear" interviews by ICE/DHS

From time to time we run into this question -- what is the difference between there two types of interviews? A recent question asked on an immigration board, to which we belong, is typical:

I have a detained client who received a positive reasonable fear determination. I checked the law, and I cannot find anything that states his bond eligibility. Anyone have any information on this?

ANSWER: A reasonable fear determination (as opposed to a credible fear determination) is the term used by DHS/ICE when the detained individual has a prior removal order that is not extinguished (still active). Although this was not mentioned in the above scenario, judging from the term used ("reaosnable fear"), I would guess that is the case. If it is, the judge lacks the authority to issue a bond.

The controlling provisions for bond/custody re-determination hearings are found at INA §236; 8 CFR §1003.19 and 1236.1. The bond hearing is separate and apart from the removal hearings pursuant to 8 CFR §1003.19(d).

The kicker is here: The immigration judge has no authority to review custody determinations if the alien has an administratively final order of removal or deportation. INA § 241; 8 C.F.R. § 1236.1(d)(1); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).

It should be noted that because a credible fear determination stems from an aliens status as "arriving," immigration judges also lack authority to grant bond to individuals who have a positive credible fear determination, whether or not ICE/DHS grants them parole or bond.

Do you have an immigration question? Call us! We can help. We are experienced in both immigration court defense, and forms based business and family adjustments. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com