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

Can you renounce foreign citizenship to avoid deportation?

No. Although, it would be interesting to see if you renounced your citizenship at your home embassy and then were placed in removal proceedings, what effect that would have. Most likely, the government would determine your renunciation was not effective and send you home. It would be an interesting case.

Renunciation of citizenship must be done prior to an immigration event, for renunciation to have any effect. For example, you must renounce your native citizenship prior to illegally entering the US. Otherwise, even if you later renounce your foreign citizenship, the illegal immigration event (entry without inspection, for example), occurred when you were a foreign citizen, so you will be deemed a citizen of the country from where you came. Designation of a country of deportation is regulated under 18 USC §1231(b). (b)(1) controls arriving aliens; (b)(2) controls all other aliens. Specifically, the order of priority for deportation is as follows (18 USC §1231(b)(1)(C) and 18 USC §1231(b)(2)(E) -- (E) is used here, as it encompasses all conceivable legal scenarios):

(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States. (iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien’s birthplace when the alien was born.
(vi) The country in which the alien’s birthplace is located when the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.

There are certain countries were deportation is not practical or possible. For example, Sudan, individuals who arrived from Vietnam before 1995, etc. In those specialized cases, you need to contact us immediately, as certain procedures must be followed to ensure you are not sent home regardless of treaty regulations.

Generally, as a matter of best practice, you do not want to designate a removal country in Immigration Court, as it may limit options under (b)(1)(C) and/or (b)(2)(E) above.

Do you have an immigration question? Contact us! Your first consultation is free, and we're glad to help! 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.
1-800-579-9864 admin@hanoverlawpc.com

Criminal Consequence for Immigration -- a snapshot

I recently had a great discussion with a colleague of mine regarding criminal/immigration consequences. I thought I would post the distilled form of the discussion here. By the way, if you need a great immigration attorney in New Jersey, be sure to contact Ms. Yolanda Navarrete, Esq. at 973-984-0800.

The conversation began with a question about immigration consequence:

Hypothetical client is detained in county jail, due to DV charges. The girlfriend does not want to press charges, by the DA is moving forward. The state is offering harassment as a plea agreement. This person is desperate to get out of jail. There's an "immigration hold" (means that ICE has placed a detainer on him) so bail is not practical. Should I make him wait for trial, or will pleading to harassment make him (undocumented but has a USC baby) an enforcement priority?

I responded:
Harassment of a family member could potentially make you a domestic violence (DV) removal priority. Actually, though, I would strongly advocate for sitting on this hypothetical client's head and not letting him (or her!) plea to anything. It can be very hard, but no desire to get out can offset a dismissal.

Next question:

How about pleaing to criminal mischief (admitting to breaking a cell phone or other personal effect)?

Answer:
Probably a lot safer in regards to an object. The issue is to avoid any kind of domestic abuse issue, or provide evidence the DHS attorney could use to that effect.

Destruction of personal effects is childish, but does not amount (arguably) to domestic abuse. Harassment, however, is the traditional precursor to a protective order, which would be extremely bad. No to harassment, a qualified "okay" to destruction of property <$100 (I believe you call that criminal mischief). Better still if the plea colloquia just stated destruction of a cell phone, without reference to the other party -- but that could be asking too much.

Do you have an immigration question or removal defense problem? Contact us -- consultation is free! 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.
1-800-579-9864 admin@hanoverlawpc.com

Stopped by CBP - Deferred Inspection

Deferred Inspection with CBP

In this instance, there are a couple of considerations. You should expect to be placed in removal proceedings. It does not sound like you will be charged with an aggravated felony. First, this does not appear to be a crime of violence, and secondly, as you described it, it sounds like you received straight probation. As such, under sec. 1101(a)(48)(b), this probably wouldn't be an aggravated felony anyway (called "agg-fel" in our parlance).

Now, if this is NOT an aggravated felony, you might qualify for various types of relief when put into removal proceedings.