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APPEALS AND IMMIGRATION COURT

If you have been placed in removal or deportation proceedings or are in an immigration detention facility, our attorneys can help you determine your eligibility for bond, waiver, cancellation, or other forms of relief. Our attorneys are experienced in practicing before the Immigration Court and the Board of Immigration Appeals. We specialize in the following areas of litigation against the Department of Homeland Security.
  • Adjustment of Status under Section 245 of the INA – To obtain relief under this section, the alien must have an approved immigrant family or work petition. Criminal history, medical examinations, and the affidavit of support requirements will factor this type of relief.
  • Cancellation of Removal of a Lawful Permanent Resident under Section 240A of the INA – In order to request this type of cancellation of removal, an alien must demonstrate: (1) he has been an alien lawfully admitted for permanent resident status for not less than five (5) years; (2) he has resided in the United States continuously for seven (7) years after having been admitted in any status; and (3) he has not been convicted of an "aggravated felony" as defined by the Immigration laws.
  • Cancellation of Removal of Non-Lawful Permanent Resident under 240A(b) of the INA – In order for an alien to request this type of cancellation of removal, an alien must demonstrate: (1) he has been physically present in the United States for ten (10) years preceding the date of the request; (2) he has been a person of good moral character during those ten (10) years; (3) he has not been convicted of an offense as described under §§ 212(a)(2), 237(a)(2), 237(a)(3); and (4) that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child who is a citizen of the United States or a lawful permanent resident.
  • 212(c) Waivers for Lawful Permanent Residents under the INA – Former section 212(c) of the Act provides that an alien lawfully admitted for permanent resident who temporarily proceeds voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted to the United States in the discretion of the Attorney General despite the applicability of certain grounds of exclusion specified in INA Section 212(a).
    • This waiver has been expanded to also be available to lawful permanent residents who did not proceed abroad, but risked losing their LPR status due to charges of deportability or removability.
    • However, section 212(c) relief applies only to charges of deportability or removability for which there are comparable grounds of exclusion or inadmissibility.
    • In addition to establishing statutory eligiblity for an INA Section 212(c) waiver, the applicant also bears the burden of demonstrating that this application merits a favorable exercise of discretion.
  • 212(h) Waivers in conjunction with an Adjustment of Status Application – A 212(h) waiver, if granted, waives the following criminal grounds of inadmissibility: crimes involving moral turpitude; a single offense of simple possession of 30 grams or less of marijuana; multiple criminal convictions where aggregate sentence was 5 years or more; prostitution and commercial vice activities; serious criminal offenses involving a grant of immunity.
    • To be eligible for this type of waiver, the applicant must meet the following criteria: (1) the criminal activities occurred more than 15 years before the date of the application for a visa, admission, or adjustment of status; (2) admission would not be contrary to national welfare, safety, or security; and (3) the person has been rehabilitated; or in the case of an immigrant who is the spouse, parent, or son or daughter of a U.S. Citizen or LPR, establishes that extreme hardship would befall the qualifying relative if admission were denied.
  • 212(i) Waivers in conjunction with an Adjustment of Status Application – Under Section 212(a)(6)(C)(i) of the Act, an alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible. However, the Attorney General may, in his discretion, waive the application of Section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of the alien would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien.
    • "Extreme hardship" is not a definable term of fixed and inflexible meaning, and the elements to establish such hardship are dependent upon the facts and circumstances of each case. The factors to be considered in determining extreme hardship to a qualifying relative pursuant to Section 212(i) include, but are not limited to: the presence of family ties to this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relatives would relocate; the extent of the qualifying relative's ties to such countries; the financial impact of departure from this country; significant health conditions, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.
  • Renewal of a Removal of Conditions Petition in Court – If a Petition to Remove Conditions has been denied by the USCIS office, the Immigration Judge can review a case "de novo" of the following categories: filing of a joint petition; spouse is deceased; marriage entered into good faith but terminated through divorce or annulment; conditional resident spouse who entered the marriage in good faith but during the marriage was battered by or was the subject of extreme cruelty by the United States Citizen or conditional resident parent; conditional resident child who was battered by or subject to extreme cruelty by the United States Citizen or conditional resident parent; the termination of status and removal from the United States will result in extreme hardship.
  • Bond Hearings for Detained Aliens – An alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. The Attorney General may release an alien on: (1) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; and (2) the alien is not mandatorily detainable as defined in the Immigration laws.
  • Pre-Hearing Voluntary Departure – Pre-Hearing Voluntary Departure is a discretionary form of relief that the judge may grant if the alien: (1) requests voluntary departure before or at the master calendar hearing; (2) requests no other relief; (3) concedes removability; (4) waives appeal; and (5) has not been convicted of an aggravated felony. If the judge grants the application, the alien is allowed up to 120 days to depart the United States.
  • Post-Conclusion Voluntary Departure – Post-Conclusion Voluntary Departure is available at the conclusion of the removal hearing if the alien: (1) was physically present in the United States for at least one year before being served with the Notice to Appear; (2) was a person of good moral character for at least five years preceding the voluntary departure application; (3) must not be deportable as an aggravated felony or terrorist (only applies to convictions on or after November 18, 1988); (4) must establish by clear and convincing evidence the ability to leave at his own expense and the intention to do so; and (5) must have the financial ability to post a bond.

APPEALS, MOTIONS TO REOPEN AND MOTIONS TO RECONSIDER

There are times when an Appeal, a Motion to Reopen or a Motion to Reconsider is possible when a case has been denied. All have specific time restrictions imposed. However, each can be a helpful remedy in resolving your case to reach a positive outcome. We assist our clients in choosing the best avenue in resolving their legal issues.

  • An Appeal can be filed within 30 days of a denied decision requesting a review by a higher court or agency to review the decision reached by the USCIS office.
  • A Motion to Reopen can be filed within 30 days of a denied decision and brings to the USCIS attention a new factual development or changed circumstance that has occurred after the decision was made.
  • A Motion to Reconsider can be filed within 30 days of a denied decision based on a belief that the USCIS misconstrued the law or facts of the applicant’s case.

IMMIGRATION COURT

If you have been placed in removal or deportation proceedings or are in an immigration detention facility, our attorneys can help you determine your eligibility for bond, waiver, cancellation, or other forms of relief. Our attorneys are experienced in practicing before the Immigration Court and the Board of Immigration Appeals. We specialize in the following areas of litigation against the Department of Homeland Security.

  • Adjustment of Status under Section 245 of the INA – To obtain relief under this section, the alien must have an approved immigrant family or work petition. Criminal history, medical examinations, and the affidavit of support requirements will factor into this type of relief.
  • Cancellation of Removal of a Lawful Permanent Resident under Section 240A of the INA – In order to request this type of cancellation of removal, an alien must demonstrate: (1) he has been an alien lawfully admitted for permanent resident status for not less than five (5) years; (2) he has resided in the United States continuously for seven (7) years after having been admitted in any status; and (3) he has not been convicted of an "aggravated felony" as defined by the Immigration laws.
  • Cancellation of Removal of Non-Lawful Permanent Resident under 240A(b) of the INA – In order for an alien to request this type of cancellation of removal, an alien must demonstrate: (1) he has been physically present in the United States for ten (10) years preceding the date of the request; (2) he has been a person of good moral character during those ten (10) years; (3) he has not been convicted of an offense as described under §§ 212(a)(2), 237(a)(2), 237(a)(3); and (4) that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child who is a citizen of the United States or a lawful permanent resident.
  • 212(c) Waivers for Lawful Permanent Residents under the INA – Former section 212(c) of the Act provides that an alien lawfully admitted for permanent resident who temporarily proceeds voluntarily and not under an order of deportation, and who is returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted to the United States in the discretion of the Attorney General despite the applicability of certain grounds of exclusion specified in INA Section 212(a).

This waiver has been expanded to also be available to lawful permanent residents who did not proceed abroad, but risked losing their LPR status due to charges of deportability or removability.

  • 212(h) Waivers in conjunction with an Adjustment of Status Application – A 212(h) waiver, if granted, waives the following criminal grounds of inadmissibility: crimes involving moral turpitude; a single offense of simple possession of 30 grams or less of marijuana; multiple criminal convictions where aggregate sentence was 5 years or more; prostitution and commercial vice activities; serious criminal offenses involving a grant of immunity.

To be eligible for this type of waiver, the applicant must meet the following criteria: (1) the criminal activities occurred more than 15 years before the date of the application for a visa, admission, or adjustment of status; (2) admission would not be contrary to national welfare, safety, or security; and (3) the person has been rehabilitated; or in the case of an immigrant who is the spouse, parent, or son or daughter of a U.S. Citizen or LPR, establishes that extreme hardship would befall the qualifying relative if admission were denied.

  • 212(i) Waivers in conjunction with an Adjustment of Status Application – Under Section 212(a)(6)(C)(i) of the Act, an alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible. However, the Attorney General may, in his discretion, waive the application of Section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of the alien would result in “extreme hardship” to the citizen or lawful resident spouse or parent of the alien.
  • Renewal of a Removal of Conditions Petition in Court – If a Petition to Remove Conditions has been denied by the USCIS office, the Immigration Judge can review a case "de novo" of the following categories: filing of a joint petition; spouse is deceased; marriage entered into good faith but terminated through divorce or annulment; conditional resident spouse who entered the marriage in good faith but during the marriage was battered by or was the subject of extreme cruelty by the United States Citizen or conditional resident parent; conditional resident child who was battered by or subject to extreme cruelty by the United States Citizen or conditional resident parent; the termination of status and removal from the United States will result in extreme hardship.
  • Bond Hearings for Detained Aliens – An alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. The Attorney General may release an alien on: (1) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; and (2) the alien is not mandatorily detainable as defined in the Immigration laws.
  • Pre-Hearing Voluntary Departure – Pre-Hearing Voluntary Departure is a discretionary form of relief that the judge may grant if the alien: (1) requests voluntary departure before or at the master calendar hearing; (2) requests no other relief; (3) concedes removability; (4) waives appeal; and (5) has not been convicted of an aggravated felony. If the judge grants the application, the alien is allowed up to 120 days to depart the United States.
  • Post-Conclusion Voluntary Departure – Post-Conclusion Voluntary Departure is available at the conclusion of the removal hearing if the alien: (1) was physically present in the United States for at least one year before being served with the Notice to Appear; (2) was a person of good moral character for at least five years preceding the voluntary departure application; (3) must not be deportable as an aggravated felony or terrorist (only applies to convictions on or after November 18, 1988); (4) must establish by clear and convincing evidence the ability to leave at his own expense and the intention to do so; and (5) must have the financial ability to post a bond.
  • Withholding of Removal under INA §241(b)(3)(B) – The burden of proof is on the applicant for withholding of removal under §241(b)(3) of the Immigration and Nationality Act to establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.
  • Withholding of Removal Under the Convention Against Torture – The burden of proof is on the applicant for withholding of removal to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. Evidence can include: evidence of past torture inflicted upon the applicant; evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and other relevant information regarding conditions in the country of removal. Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal.

All cases are reviewed on a case-by-case basis. If you require assistance with your case or want to see if you qualify for any Appeals or Immigrant Court relief, please contact our office for a consultation.

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