Immigration in an age of terror represents profound challenges not only to our government but to those among us who represent the foreign born. Concern over national security means that our government has prioritized control over our nation’s borders. As a result, we have seen, and can continue to expect, heightened enforcement activity in the area of immigration law. [i]
Most aliens who face deportation (removal) are not security risks or terrorists. The vast majority fall into three categories (1) Individuals who have overstayed their visa (2) individuals who violated the terms of their visa (usually by obtaining employment which is forbidden under the type of visa issued to them) (3) individuals who crossed the US border illegally (EWI)[ii]
If these individuals come the attention of the Immigration authorities, they will be placed in Removal Proceedings and served with a Notice to Appear in Immigration Court. This article will survey the grounds for, and the defenses to, Removal and the various procedural issues relating to Removal Proceedings.
Under Section 240 [iii] of the Immigration and Nationalization Act (‘INA’) an alien can be removed if he/she is ‘inadmissible’ [iv] or ‘deportable’[v] the distinction turning on whether the Alien has been admitted into the United States[vi]. Section 212(a) of the INA sets forth ten categories of inadmissable aliens. These include health related grounds such as communicable diseases (particularly AIDS), or mental disorders that pose a threat to the safety or other persons or their property[vii]; multiple categories related to crime[viii] such as conviction of crimes involving moral turpitude[ix], multiple convictions of crime[x], drug related convictions[xi], prostitution and commercialized vice[xii]; exclusion based on grounds related to national security or anti-terrorism[xiii]; aliens who are likely to become a public charge[xiv]; aliens attempting to enter the labor market without having completed labor certification[xv]; unqualified physicians or health care workers.[xvi]
Grounds for Deportability: Grounds for deportation include Illegal Entry[xvii], perpetrators of various kinds of immigration fraud such as document fraud[xviii], fraudulent marriage entered into to obtain an immigration benefit[xix], draft evasion[xx], overstaying a visa or violating the terms of a visa[xxi]. Of particular interest are the provision regarding conviction of a crime.[xxii] Any alien who is convicted of a crime (1) of moral turpitude (2) within five years of entry into the United States (3) for which the sentence is incarceration of one year or more[xxiii] is deportable. Also an alien who is convicted of two or more crimes ‘not arising from a single scheme criminal conduct at any time after entry’ is subject to removal proceedings’[xxiv] Any conviction for a firearms offense puts an alien at risk for removal proceedings[xxv]. Finally, Congress created a classification of deportable crime called ‘aggravated felony’ [xxvi]. An aggravated felony is murder, rape or sexual abuse of a minor[xxvii] trafficking in drugs[xxviii], firearms[xxix], prostitution[xxx], child pornography[xxxi], stolen vehicles[xxxii], money laundering[xxxiii], fraud or tax evasion in excess of $10,000.00[xxxiv], passport forgery, smuggling aliens[xxxv] for example. The most significant of the enumerated categories is ‘crimes of violence’[xxxvi]. A significant question just recently resolved by the US Supreme Court is whether conviction of Driving Under the Influence constitutes a crime of violence for which the perpetrator, if an alien, can be placed in removal proceedings. In an opinion by Justice Rehnquist the high court held that conviction for violation of a Florida Statute which is similar to the Illinois Statute, is not a crime of violence for immigration purposes.[xxxvii]
Another enumerated ground for removal is domestic violence[xxxviii] conviction of which makes an alien eligible for removal from the US. Of even greater concern is that conviction of domestic violence is not necessary to endanger an alien’s right to live in the US. Mere violation of an order of protection will be sufficient to remove an alien from this country.[xxxix]
This article has summarized so far the grounds for placing an alien in removal proceeding. We will now turn to the defenses available to an alien placed in removal proceeding.
DEFENDING AN ALIEN IN REMOVAL PROCEEDINGS
Asylum: If an alien who is placed in Removal Proceedings claims persecution in his/her native country he/she may be able to assert a claim for Asylum as a defense to deportation. [xl] To qualify for asylum, the alien must meet the definition of ‘refugee’ [xli]. A refugee by statute is any person who is unable or unwilling to return to their country of origin because of either past persecution[xlii] of a well founded fear of persecution based on race, religion, nationality, ‘membership in a social group’ or ‘political opinion’ [xliii]
Past persecution: If an asylum applicant can establish that he/she suffered persecution in the past in his or her native country based on the same factors (race, religion, nationality, social membership, or political opinion.[xliv] Establishing past persecution creates a presumption of a well founded fear of persecution. This presumption can be defeated by showing by the preponderance of the evidence that country conditions have changed so that the asylum applicant no longer has a well founded fear of persecution. [xlv] Government attorneys usually meet, or attempt to meet, their burden by introducing into the record the US State Department’s Annual Survey of Human Rights for the country in question to establish a flowering of democracy and overwhelming goodness in the country to which they seek to send the asylum applicant. The asylum applicant, in turn, will attempt to counter this evidence with the testimony of a country conditions expert to show that the asylum applicant’s home country is still repressive.
Well Founded Fear: If the applicant cannot show past persecution he or she must show a well founded fear of persecution. This is defined by a regulation[xlvi] which incorporates case law definition of the term.[xlvii] An applicant can establish that he/she has a well founded fear of persecution if he/she can show: (1) That his/her fear of persecution is based on race, religion, nationality, membership in a social group, or political opinion (2) A reasonable possibility of suffering such persecution upon return to his/her country of origin; (3) He/she is unable or unwilling to return based on such fear[xlviii] (4) That in the applicant’s home country there is a pattern of persecution of similarly situated persons on account of the above enumerated factors (race, religion, etc.)[xlix] (5) Proof of the applicant’s inclusion in the persecuted group such that their fear of persecution is reasonable.[l]
Time Limitation Issues: An alien seeking a grant of asylum must file his/her application within one year of his arrival in the United States, or his or her asylum claim is barred.[li] However, the time bar on filing asylum claims can be set aside and asylum granted if the alien can show ‘extraordinary circumstances relating to the delay in filing an application within’ one year.[lii] The alien however, must file an application within a reasonable period given the circumstances. [liii] The alien has the burden of proof to establish that these circumstances were not intentionally created by the alien through his or her inaction and that the delay was reasonable under the circumstances.[liv] These include serious illness, or mental or physical disability[lv], legal disability (alien was a minor or non compos mentos)[lvi], ineffective assistance of counsel[lvii], return of an asylum application filed within the one year period for corrections and re-filed within a reasonable time[lviii], or the alien had lawful status prior to filing the application[lix].
An illustrative case is In Re Y-C[lx], where a 15 year old boy from the People’s Republic of China arrived unaccompanied in the United States where he was greeted by an officer of the former Immigration and Nationality Service[lxi] who promptly served him with a Notice to Appear in Removal Proceedings. The INS took the bewildered teenage into custody where he was held for an entire year until he was released by the INS to his uncle.[lxii] The Immigration Judge (IJ) perfunctorily dismissed the minor alien’s asylum application based on the one year time bar (the teen age alien did not file for asylum until he was released from custody). The Bureau of Immigration Appeals reversed finding that the extraordinary circumstances test was met by the alien’s youth and totality of circumstances. [lxiii] The determination of whether extraordinary circumstances excuse the one year bar involve an individualized analysis of the facts of each case.[lxiv] The court specifically stated that the status as an unaccompanied minor although specifically enumerated by regulation[lxv], does not alone excuse the time bar; rather the alien must show inter alia that the extraordinary circumstances claimed directly relate to his or her failure to timely file an application for asylum.[lxvi]
The other ground that excuses failure to timely file is a change of circumstances defined as a change of circumstances materially affecting the applicant’s eligibility for asylum.[lxvii] These include changed ‘country conditions’ [lxviii] (In the applicant’s homeland), changes in the applicant’s circumstances, such as any change in US law, or activities of the applicant that place him or her at risk for persecution if returned to his/her homeland[lxix], and changes in an applicant’s family relationship where the applicant was included as a dependent family member on another alien’s asylum application[lxx].
Another route to avoiding the time bar for asylum applications is an application for Withholding of Removal[lxxi], since there is no statutory deadline for Withholding of Removal. [lxxii] To qualify for this relief, the Alien must show that his life or freedom would be threatened in his homeland on account of race, religion, nationality, membership in a particular social group, or political opinion[lxxiii]. The alien’s burden of proof under this form of relief is that the alien must establish that it is more likely than not that he/ she would be subject to persecution in his/her homeland.[lxxiv] The alien’s burden of proof in applying for Withholding of Removal is a higher burden than in an application for asylum[lxxv]. The more likely than not standard for Withholding of removal requires a showing of ‘clear probability of persecution’. INS v. Stevic, 476 US 407, 104 S.Ct. 2489, 81 L.Ed. 321 (1984). This is more difficult than showing a ‘well founded fear of persecution’. [lxxvi] On the other hand, once the applicant has met his burden of proof, the relief is mandatory, whereas the grant of asylum is discretionary. [lxxvii]
CAT: An alien seeking to avoid removal may, if qualified, apply for relief against removal under the UN Convention Against Torture (CAT) [lxxviii] which is incorporated in regulations governing removal proceedings[lxxix]. The UN convention prohibits removal or even extradition by a member State of a person to another country if that person faces the danger of torture upon removal or extradition[lxxx].
The advantage of seeking this form of relief is that like Withholding of Deportation, there is no time bar for applying for relief under CAT. [lxxxi]
Torture is defined under these regulation as any act which intentionally inflicts severe pain or suffering, either mental or physical. [lxxxii] The regulations appear to be ambivalent, defining torture on the one hand to be an extreme form of cruel and inhuman treatment, but on the other hand excepting lesser forms of such treatment from the definition of torture[lxxxiii]. Furthermore, ‘lawful sanctions’ causing pain and suffering are not included in the definition of torture unless exclusion of the sanctions in question would defeat the purpose of the Convention[lxxxiv]. To qualify as torture, an act causing mental pain or suffering must be ‘prolonged mental harm’[lxxxv], caused by the infliction or threaten of infliction of physical pain[lxxxvi], use of mind altering substances or sensory deprivation[lxxxvii], threat of death to the torture victim[lxxxviii], or threat of torture or death to a third person (loved one, friend, etc.)[lxxxix]. The burden of proof under CAT is that the applicant must satisfy the IJ that he/she would more likely than not suffer torture in the country to which his/her removal is sought.[xc]
In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to, evidence of past torture inflicted upon the applicant[xci]; if the applicant could relocate to a region of his or her homeland where he or she is not likely to be tortured[xcii], whether there has been gross, flagrant or mass violations of human rights in the applicant’s homeland[xciii] and finally, country conditions in the applicant’s homeland. [xciv] If the alien meets this burden, he or she is entitled to Withholding of Removal or Deferral of Removal.[xcv] The difference between the two is that the Alien may be denied Withholding of Removal on certain grounds (discussed infra) but will still eligible for Deferral of Removal [xcvi].
Withholding of removal under the Convention Against Torture will be denied if the applicant engaged in acts of persecution against others on account of race, religion nationality, membership in a social group, or political opinion; [xcvii], or the alien has been convicted of a particularly serious crime that constitutes a danger to the community; [xcviii] the alien is believed to have committed a serious non-political crime outside the United States[xcix]; or there are grounds to believe that the Alien is a National Security Risk[c]
An alien who has been ordered removed but who has been found to be entitled to protection under the Convention Against Torture, and who is denied the remedy of withholding of removal for the foregoing reasons, nevertheless, can qualify for the remedy of deferral of removal to the country where he or she is more likely than not to be tortured.[ci]
This relief, however, is less desirable than asylum. Deferral of Removal does not confer upon the alien any lawful or permanent immigration status in the United States (unlike asylum)[cii], and will not necessarily result in the alien being released from the custody of immigration authorities if in fact, he or she is in custody.[ciii] This relief is subject to review and termination if it is determined, at a later date by the immigration authorities, that it is unlikely that the alien would be tortured in his or her homeland. [civ]
In addition to the time bar for filing for asylum, there are other barriers to this form of relief that may necessitate the fallback options of applying for withholding or deferral of removal. Asylum will be denied if the IJ determines that the applicant has been convicted of a particularly serious crime constituting a danger to the community[cv] or has been convicted of an aggravated felony (discussed above)[cvi], has engaged in the persecution of others on account, of race, religion, nationality, membership in a group, or political opinion[cvii], is a security risk [cviii], or has been resettled [cix]meaning that the applicant entered another country prior to entering the US and while there received an offer of permanent resident status, citizenship, or other resettlement. [cx]
In any event, asylum, unlike Withholding of Deportation is discretionary relief.[cxi]
Other Relief: Another forms of relief that may be pursued in removal proceedings is Cancellation of Removal[cxii]. There are two classes of cases under this statute. The first involves an alien who is a Lawful Permanent Resident (LPR), and the other class of ‘non-permanent residents’. The distinction here is between those who hold a ‘green card’ (no longer green), and those who do not hold such papers. Those who have obtained green cards are LPR’s. LPR’s can apply for discretionary relief called ‘Cancellation of Removal’ if they meet three specific requirements. First, the alien must have had LPR status for 5 years. [cxiii] Second, the alien must have resided in the US for seven years after having obtained his or her status[cxiv]. Third, the alien must not be convicted of any felony[cxv]. For those aliens who are not lucky enough to have a green card, a different standard for cancellation governs. First, the alien must have been continuously physically present in the US for 10 years[cxvi]. Second, the alien must be of good moral character [cxvii]. Third, the alien must not have been convicted of criminal offenses described in the first part of this article[cxviii]. Fourth, the alien must establish that removal/deportation would inflict unusual and exceptional hardship to a member of his or her immediate family[cxix].
However, the computation of any period of continuous residence is cut off when the alien receives a Notice to Appear in Removal Proceedings [cxx](the charging document analogous to an indictment or information).
Battered spouses and Children: In addition, there are special rules for abused aliens. If the alien can show that he or she has been abused by a spouse or parent (whether citizen or LPR) on whom his or her immigration status depends, that alien can move for cancellation of removal if (1) he or she has been physically present in the US for three years[cxxi] (2) he or she is not a criminal or terrorist as defined under the INA and has not been convicted of an aggravated felony[cxxii] (3) the removal would cause extreme hardship to the alien, his or her child, or in the case of a minor alien, that alien’s parent.[cxxiii]
POST HEARING MOTIONS
In the event that the alien is unable to obtain any affirmative relief (asylum, withholding, deferral or cancellation of removal) there are two motions available to him or her. These are motion to reconsider and the motion to reopen. They differ as to the grounds asserted for the relief sought.
‘A motion for reconsideration is generally made where counsel has nothing to add to the record, but feels that the decision is incorrect. A motion to reopen should be made where there is new evidence that was not available at the time of the hearing or could not have been discovered or presented at the hearing.’[cxxiv]
An alien may file one motion to reconsider a removal order.[cxxv] This motion must be filed within 30 days of the date of the ‘final administrative order of removal’.[cxxvi] It must ‘specify the errors of law or fact’ claimed and ‘be supported by pertinent authority’[cxxvii]
The alien may also file one Motion to Reopen[cxxviii] which must state new evidence that will presented at the hearing (if the motion is granted); the motion must be supported by affidavits or’other evidentiary material’[cxxix]. There is a 90 day deadline for this motion[cxxx] unless the underlying relief sought was asylum and the basis for the motion is changed country conditions in the alien’s homeland. [cxxxi]
A commonly asserted ground in a Motion to Reopen is ‘ineffective assistance of counsel’. A motion alleging ineffective assistance of counsel must (1) be supported by an affidavit (2) must state with particularity the allegations of ineffective assistance (3) Counsel whose competence is impugned must be notified of the charges and given an opportunity to respond; furthermore, this response must be included in the motion (4) the motion must state that a complaint has been filed with the ARDC or explain why such a complaint was not filed.[cxxxii]
Removal cases are difficult to defend. Immigration Law is bright line jurisprudence, with few narrow exceptions to alleviate the hardship to the foreign born who face removal from the US.
[i].In the recent past immigration laws had other priorities such as protecting domestic labor, limiting access to welfare as well addressing other concerns.
[ii].Entered without inspection
[iii].8 USC 1229a
[iv]. INA 240 (a)(2), INA 212(a)
[v].INA 240(2), INA 237(a)
[vi].Mailman, Immigration Law and Procedure, Sect. 16.01. Mathew Bender. However, grounds of inadmissability can be asserted against an alien in removal proceedings who has been present in the US for a period of time.
[vii]. INA 212(a)(1), 8 USC 1182
[ix]. INA 212(a)(2)(A)(i)
[xxiii]. Mailman, Immigration Mailman, Immigration Law and Procedure, Matthew Bender Sect. 17.05(b)
[xxvi]. INA 101(a)(43)
[xxvii]. INA 101(a)(43)(A)
[xxviii]. INA 101(a)(43)(B)
[xxix]. INA 101(a)(43)(C)
[xxx]. INA 101(a)(43)(K)
[xxxi]. INA 101(a)(43)(I)
[xxxii]. INA 101(a)(43)(R)
[xxxiii]. INA 101(a)(43)(M)(ii)
[xxxiv]. INA 101(a)(43)(D)
[xxxv]. INA 101(a)(43)(N)
[xxxvi]. INA 101(a)(43)(F)
[xxxvii].Leocal v. Ashcroft (No. 03-583 decided 11/9/04)
[xxxix].INA 237(a)(2)(E)(ii) See generally, Fragomen and Bell, Immigration Fundamentals: A Guide to Law and Practice Sect. 7.3(b)(5). Practicing Law Institute
[xl]. Mailman, Section 17.06.[d]. Fragomen & Bell 6.4(c).
[xli].INA 101 (42)
[xliv]. CFR 208.13(b)(1)
[xlv].CFR 208.13(b) (1)(i)
[xlvii]. Fragomen and Bell, Sect. 6.2(b)
[xlviii]. CFR 208.13 (b) (2)
[xlix].CFR 208.13 (b) (2)(i)
[l].CFR 208.13 (b) (2)(ii)
[li]. INA 208 (a)(2)(B), 8 USC 1158(a)(2)(B).
[lii]. INA 208 (a)(2)(D), 8 USC 1158(a)(2)(D).
[liii]. 8 CFR 208.4
[liv]. 8 CFR 208.4(a)(5)
[lv]. 8 CFR 208.4(a)(5)(i)
[lvi]. 8 CFR 208.4(a)(5)(ii)
[lvii]. 8 CFR 208.4(a)(5)(iii)
[lviii]. 8 CFR 208.4 (a)(5)(v)
[lix]. 8 CFR 208.4(a)(5) (vi) The apparent situation to which this would apply would be where the asylee had lawful status which was somehow lost. An example that comes to mind is where adjustment of status depends on a marriage to a US citizen, but the marriage ends before conditional status can be removed from the Legal Permanent Residence of the Alien.
[lx]. 23 I&N Dec. 286 (BIA 2000)
[lxi]. Now the Bureau of Citizenship and Immigration which reports to the Department of Homeland Security; the former INS was part of the US Department of Justice.
[lxii]. 23 I&N at 288.
[lxiii]. 23 I&N at 289 (concurring opinion)
[lxiv]. 23 I&N at 287-8
[lxv]. Footnote 54 supra
[lxvi]. 23 I$N at 288. This is a very narrow reading of the regulation in question.
[lxvii]. 8 CFR 208.4(a)(4)(i)
[lxviii].8 CFR 208.4(a)(4)(i)(A)
[lxix].8 CFR 208.4(a)(4)(i)(B)
[lxx].8 CFR 208.4(a)(4)(i))C)
[lxxi]. INA 241(b)(3)
[lxxii]. El Himri v. Ashcroft, 378 F.2d 932, 937 (9th Cir. 2004)
[lxxiii]. Zhang v. Ashcroft, F.3d
[lxxv]. Mailmen, Sect. 29.06(2)
[lxxvi].Mailmen, Sect. 29.06(2)
[lxxvii]. Mailmen, Sect. 29.06(2)
[lxxviii]. *CFR 208.18
[lxxix]. 8 CFR 208.18(a)
[lxxx]. Mailmen, Sect. 29.06(5).
[lxxxi]. Mailmen, Sect. 29.06(5).
[lxxxii]. 8 CFR 208.18 (1)
[lxxxiii]. 8 CFR 208.18 (2)
[lxxxiv]. 8 CFR 208.18 (3)
[lxxxv].8 CFR 208.18 (4)
[lxxxvi].8 CFR 208.18 (4)(i)
[lxxxvii].8 CFR 208.18 (1)(ii)
[lxxxviii].8 CFR 208.18 (1)(iii)
[lxxxix]. 8 CFR 208.18 (1)(iv)
[xc].Mailmen, Sect. 29.06
[xci]. 8 CFR 208.16(c)(3)(i)
[xcii]. 8 CFR 208.16(c)(3)(ii)
[xciii]. 8 CFR 208.16(c)(3)(iii)
[xciv]. 8 CFR 208.16(c)(3) (iv)
[xcv].8 CFR 208.16(c)(4)
[xcvi].Mailmen Sect. 29.06.
[xcvii]. INA 241 (b)(3)(B)(i)
[xcviii].INA 241 (b)(3)(B)(ii)
[xcix].INA 241 (b)(3)(B)(iii)
[c].INA 241 (b)(3)(B)(iv)
[ci]. 8 CFR 208.17
[cii]. 8 CFR 208.17(b)(i)
[ciii]. 8 CFR 208.17(b)(ii)
[civ]. 8CFR 208.17(b)(iii)
[cv]. 8 CFR 208.13(c)(2)(i)(A)
[cvi]. 8 CFR 208.13(c)(2)(i)(D)
[cvii]. 8 CFR .13(c)(2)(i)(E)
[cviii]. 8 208.13(c)(2)(i)(C)
[cix]. 8 208.13(c)(2)(i)(B)
[cx]. Mailmen, Sect. 29.04
[cxi]. Mailmen, Sect. 29.04
[cxii]. INA 240A, 8 USC 129b
[cxiii]. INA 240A (a)(1)
[cxiv]. INA 240A (a)(2)
[cxv]. INA 240A (a)(3)
[cxvi]. INA 240A (b) (1)(A)
[cxvii]. INA 240A (b)(1)(B)
[cxviii]. INA 240A (b)(1)(C)
[cxix].INA 240A (b)(1)(D)
[cxx]. INA 240A(d)(1)
[cxxi]. INA 240A (b)(2)(A)
[cxxii]. INA 240A (b)(2)(B)
[cxxiii]. INA 240A (b)(2)(C)
[cxxiv]. Mailmen, Sect. 17.08[5}
[cxxv]. INA 240 (c) (5)(A)
[cxxvi]. INA 240 (c) (5)(B)
[cxxvii]. INA 240 (c) (5)(C)
[cxxviii].INA 240 (c) (6)(A)
[cxxix]. INA 240 (c) (6)(B)
[cxxx].INA 240 (c) (6)(C)(i)
[cxxxi]. INA 240 (c) (6)(C)(ii)
[cxxxii]. Matter of Loazada 19I&N Dec.637 (BIA 1988)