Immigration Court

Many immigration processes are handled through the filing of petitions, which are adjudicated by USCIS officers over a period of weeks or months after submission. Other processes require appearances before an Immigration Judge, where the alien and his/her representative make their case in Immigration Court and try to overcome the arguments of the opposing government entity.

A Lawyer’s Role is Preventing Removal or Deportation

Comprehensive immigration reforms are unlikely in the near future. The immigration courts are setting individual hearings for deportation 12 to 18 months into the future. These recent developments mean that immigration lawyers need to become increasingly creative in protecting their clients from removal from the United States. Here are some examples from our practice that illustrate what can be done.

An illegal alien in her late forties was apprehended by ICE after she was arrested for domestic battery, a crime that often is a deportable offense. At her bond hearing in San Francisco last week we were able to obtain her release. Fortunately she has been in the U.S. long enough to be eligible for cancellation of removal. And she has a good chance of prevailing since her two U.S. citizen children are in their late teens and early 20’s. Our strategy here is to gather proof of exceptional and extremely unusual hardship to her children and request cancelation of removal and be able to apply for permanent residence.

An illegal alien in her mid 20’s is in removal proceedings in Nevada. Her chances of being granted cancellation of removal are not very good since her only qualifying relatives were her parents who are lawful permanent residents. However, she has recently married a U.S. citizen. Our strategy here is to file an I 130 application and once approved, request of the immigration court that her grounds for relief of removal be expanded to adjustment of status through marriage. Fortunately she is 245 i eligible, her parents having filed an I 130 petition for her prior to 4/30/2001. While an approval of an I 130 petition by her husband takes longer than 6 months the court schedule will allow her to obtain approval of this petition prior to her individual hearing in the Fall of 2011. This allows an almost certain award of permanent residence thru marriage, in the event she can prove a bona fide marriage to her U.S. citizen spouse.

A visa overstay woman in her mid 20’s from China filed an asylum petition, alleging fear of persecution for her religious beliefs. Unfortunately it is very difficult to obtain testimony from witnesses in China, since they too fear persecution if the Chinese government becomes aware that they are assisting their friend here in the U.S. In addition, documentation of her prior arrest by Chinese authorities are extremely difficult to obtain, since these records are not available to the general public in China as they are in the U.S. She is a graduate in business management.

Since the the Dream Act did not pass, she is more then likely not able to apply for permanent residence in this manner and have her immigration proceedings terminated.

These are just a few of the strategies we are employing to prevent our clients from being removed from the United States.

Generally speaking, Immigration Court situations fall into one of two categories: removal proceedings and appeals. Click here for a longer overview of the San Francisco Immigration Courts.

Removal Proceedings

A non-citizen can enter removal proceedings for a number of reasons, but in all cases the non-citizen must prevail in Immigration Court or s/he will be deported or ordered to leave the country. A variety of forms of relief is available in these proceedings, and an experienced immigration lawyer can help you understand which forms of relief are available to you and which are your strongest options. Here is a brief overview of some common forms of relief:

Adjustment of Status
Some non-resident aliens can adjust status to lawful permanent residence through an immediate relative who is a U.S. citizen.

Cancellation of Removal
Non-resident aliens and lawful permanent residents who are subject to removal (deportation) can attempt to cancel their deportation and secure a Green Card.

Asylum Claim
A foreign national who is in removal proceedings and who fears conflict, oppression, or some other threat can file for asylum within one year of arriving in the United States.

Voluntary Departure
When an alien lacks any form of relief from deportation, s/he can accept what is known as Voluntary Departure in order to improve future prospects for immigrating lawfully.