Lee & Garasia, LLC
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Immigration Court Archives

Defective Notice To Appear Does Not Stop 10 Years | Green Cards

Last week, the Third Circuit issued an important precedential decision regarding the "stop-time rule" and cancellation of removal. In Orozco-Velasquez v. Attorney General, the Court held a defective Notice to Appear ("NTA") did not effectively stop the clock for purposes of showing the requisite ten years physical presence for cancellation of removal. (According to our immigration laws, any period of continuous physical presence shall end when the alien is served with a Notice to Appear.) In the case, the government had initially served an NTA that not only listed the wrong location for the Court hearing, but lacked "fundamental, statutorily required information" necessary to give the alien reasonable notice of the charges against him and "the basic contours of the proceedings to come." To be more specific, the notice did not inform him of the specific date and time of the removal proceedings, only that they were "to be set." Nearly two years later, the government served a second NTA that listed the correct location and a specific time and date. In the course of litigation, Mr. Orozco-Velasquez submitted an application for cancellation of removal, which the government argued he was precluded from filing, due to the first NTA. The Judge agreed with the Department of Homeland Security.

Is There Any Way To Get a 2019 Immigration Court Hearing Scheduled Earlier?

Thumbnail image for bigstock-Courtroom-Trial-70035736.jpgPlease subscribe to our US Citizenship and Family Immigration Podcast on Itunes. This is a transcript of Episode #3 in which we talk about immigration court and 2019 hearings.  

Does a Notice to Appear Trigger Stop Time Rule for Cancellation of Removal?

Although it may not have generated much attention in the media, a very important precedential decision was issued by the Board of Immigration Appeals last month. Lawyers who practice deportation and removal defense certainly know about, or certainly should. The decision is Matter of ORDAZ, 26 I & N Dec. 637 (BIA 2015) and it is especially relevant in these times given the seemingly endless delay of individuals having their day in immigration court. The decision concerns the "stop-time" rule and whether service of a Notice To Appear that does not result in commencement of removal proceedings effectively triggers the stop-time rule for purposes of cancellation of removal.

Applying for Cancellation of Removal in Newark, New Jersey Immigration Court

While Cancellation of Removal is perhaps the most sought after form of relief in Immigration Court, it is an extraordinarily complex and labor-intensive application that is often misunderstood. First, respondents (people facing removal proceedings) should be aware that there are actually two different types of Cancellation of Removal Relief. One is for people who already have "green cards" or lawful permanent residence and the other, for people who do not have permanent residence. There are different requirements and criteria for each. The most distinguishing differences are:

What Does A Notice To Appear For Immigration Court in Newark Mean?

Surprisingly, many foreign nationals do not understand or realize when they are being put into removal proceedings. This is understandable because more often than not, unless the individual has been arrested and processed by Immigration and Customs Enforcement, the only indication the person will have that formal proceedings are being instituted to remove him/her is an innocuous looking document called a "Notice To Appear" ("NTA"). While only one or two pages long, a Notice to Appear (NTA) is an extremely important legal document with potentially dire ramifications if not addressed properly.

New Jersey District Court Rules on Mandatory Detention Immigration Issue

Not just too long ago, the United States District Court ruled that the Petitioner in a Habeas Action that he was entitled to a Individual Bond Hearing after ICE took the person into custody years later. Just again recently, New Jersey District Court Joel Pisano ruled that mandatory detention did not apply when the Petitioner was taken into custody approximately ten years after he was sentenced to a conditional discharge in New York (for which he was never incarcerated). The Court held that the plain language of the statute requires DHS to take custody of an alien who is subject to mandatory detention immediately when that person is released from custody. In this particular case, the Petitioner 1) was never relased from criminal custody and 2) he certainly was not detained immediately: in fact, there was a ten year gap between his criminal case and detention. The Court therefore held that the terms of his pre-removal release are governed not by 8 USC 1226 (C ) (1)--the mandatory detention rules--but rather 8 USC 1226 (a), which allows release on bond. While this case is not precedential, it nevertheless points in the right direction and represents a clear, no-nonsense interpretation of what is essentially unambiguous.

NJ District Court Rules Against Mandatory Detention

Though not a published or precedential decision, the District Court of New Jersey recently issued a significant ruling regarding mandatory detention and whether an individual is entitled to a bond hearing. In Demanche v. Taylor, et. al., the Court ruled that the Petitioner, who had filed a Habeas Corpus Action to determine the lawfulness of his custody, was entitled to an individualized bond hearing despite the Department of Homeland Security's argument and position that he was subject to mandatory detention for having committed an aggravated felony and two crimes involving moral turpitude. The Court examined the issue of what constitutes a reasonable interpretation of the "when... released" language of Section 1226(c) and found that, in line with the plain meaning of the statute, "when" does not mean "any time after" release. In this particular case, DHS took custody of the Petitioner five years after he was released from his criminal sentence. Maybe the result might have been different if the time period were shorter, but in this particular instance, five years did not conform to the spirit or plain meaning of the statute regarding mandatory detention of aliens.

Hope of Comprehensive Immigration Reform Not Good Enough

In an interesting decision out of the First Circuit, Sheikh vs. Holder, the Court of Appeals recently ruled that it was not an abuse of discretion for an Immigration Judge to deny a six-month continuance to the Respondent to wait for the passage of comprehensive immigration reform that would allow him to possibly adjust status. In this particular case, the Respondent, Mr. Sheikh acknowledged that while he was not eligible to adjust his status based upon an approved I-140, and that he had no other pending applications, he argued that the Judge committed reversible error by failing to grant his request for a postponement, so that "a change in immigration law would inure to his benefit." The BIA affirmed the Judge's decision, and eventually the case made its way up to the Court of Appeals. The case is an interesting read because it reviews the standard for continuances as laid out in Matter of Hashmi, 24 I&N Dec. 785 (2009), considerations of which include:
1) the [government's] response to the motion; 2) whether the underlying visa petition is prima facie approvable; 3) the [alien's] statutory eligibility for adjustment of status; 4) whether the . . . application for adjustment merits a favorable exercise of discretion; and 5) the reason for the continuance and other procedural matters.

BIA Ruling on Grandfathering Requirements under 245i

There is a new Board of Immigration Appeals precedential case regarding adjustment of status under 245(i). The case is Matter of Svetislav, 25 I&N Dec. 717 (BIA 2012). Anyone applying for adjustment of status under section 245(i) certainly needs to read this opinion, as it deals with the subject of grandfathering and more specifically, the issue of derivatives being grandfathered. In this particular case, the respondent was trying to apply under 245(i) as a derivative of his wife, who was the beneficiary of an I-130 filed on December 1, 1999. In a nutshell, the Board remanded the case to the Immigration Judge to determine whether the principal beneficiary--the wife--satisfied the physical presence requirement laid out by INA 245(i), namely, whether she was physically present in the US on December 21, 2000. The holding essentially concludes that in order for a person to adjust status under 245(i) as a derivative grandfathered alien, it must be shown that the principal beneficiary satisfies the grandfathering requirements, which in some cases means demonstrating physical presence as per INA 245(i)(1)(C).

PROFESSIONAL RECOGNITION

    • The National Advocates | Top 100 Lawyers
    • Rated by Super Lawyers | Angie Garasia | 5 Years
    • Avvo Rating 10.0 | Superb
    • Client Distinction Award martindale.com | 2016 Martindale-Hubbell Client Distinction Award
    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
    • Nationaly Recognized | Newsweek Nationwide Showcase | Top Attorneys 2013
    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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