Individuals with problematic immigration cases may already be aware of the three and ten-years bars, which typically apply after a person has accrued the requisite "unlawful presence" and then departed the United States. If a person is deemed to have been unlawfully present for 180 days or more, but less than one year, and then left the country, he/she will face the three-year bar. If a person has one year or more of unlawful presence, and then departed the country, he/she will be barred for ten years. What is less known, and perhaps more insidious, is something called "the five-year bar," which can prove even more formidable than the unlawful presence bar.
Earlier last month, we wrote about USCIS implementing the new Notice to Appear Policy Memorandum released on June 28 of this year. According to a bulletin released late last week, the second phase of expansion is scheduled to take place November 19, 2018. On and after this date, USCIS will begin applying the new policy to the following types of applications upon denial:
On September 18, 2018, Attorney General Jeff Sessions issued Matter of S-O-G & F-D-B, 27 I & N Dec. 462 (A.G. 2018), the latest in a trifecta of cases curtailing the authority of immigration judges. Under this new ruling, judges are strictly prohibited from terminating or dismissing cases "for reasons other than those expressly set out in the relevant regulations or where DHS has failed to sustain the charges of removability." As it stands, the regulations set out only a limited number of circumstances under which the court may dismiss proceedings. On motion by DHS government counsel, a judge may dismiss proceedings where
Over the Labor Day weekend, the Board of Immigration Appeals (BIA) quietly released an important decision that has a significant impact on individuals hoping to file "Pereira motions." In Matter of Bermudez-Cota, 27 I & N Dec. 441 (BIA 2018), the court held that a Notice to Appear that does not specify the time and place of a person's initial removal hearing does not divest an Immigration Judge of jurisdiction so long as a Notice of Hearing specifying this information is later sent to the individual. In the case at hand, the respondent filed a Motion to Terminate arguing that his case should be dismissed in light of the Supreme Court's decision in Pereira v. Sessions, in which the highest court in the land declared that a Notice to Appear lacking the required information (as to date, time, and place) does not stop the clock for purposes of calculating physical presence eligibility for cancellation of removal. After the decision came out, many attorneys also extrapolated from the Court's clear language that such Notices to Appear were, in effect, not only defective for cancellation of removal purposes but defective per se. This gave birth to "Pereira motions" which have seen mixed results in New Jersey, with some judges granting and others, denying.
Following on the heels of Castro-Tum, the Attorney General has issued another ruling that erodes the judicial independence of our immigration judiciary and further mechanizes the courtroom into an assembly line. In Matter of L-A-B-R, 27 I & N Dec. 405 (A.G. 2018), AG Sessions ruled that continuances may only be granted for "good cause." Instead of allowing judges to exercise their own discretion, the ruling constrains them to push cases forward, prioritizing administrative efficiency over due process and substantive relief.
On June 21, 2018, the Supreme Court issued an extremely important decision with potentially large-scale ramifications for thousands of people in removal proceedings. In Pereira v. Sessions, the Court held that the stop-rule governing continuous presence for cancellation of removal cases is not triggered by service of a notice to appear that does not specify the time and place at which removal proceedings are to be held.
Given the current climate and anti-immigrant sentiment these days, people placed into proceedings are understandably petrified of going to immigration court. There is a common misconception that once somebody summoned to court shows up, he/she will be summarily removed. This is not accurate at all. The whole point of going to court is to protect your constitutional due process rights and hold the government to its burden before an impartial judge. In fact, the consequences of not showing up for court without good cause are legally and practically more severe. If anything, an individual who does not show up is far more likely to be expelled without recourse than a person who sees the process through with competent counsel.
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.
Check our latest Youtube video on Removal Proceedings. Here's the transcript.