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.
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.
Also known as "PD," a Prosecutorial Discretion Request may be of help to certain individuals presently in removal proceedings before an immigration judge. Contrary to popular belief, this is not technically a form or application filed with the court. Rather, it is a request to Immigration and Customs Enforcement ("ICE") for an exercise of discretion to discontinue proceedings against you in order to focus its resources on more important priorities. No one is entitled to prosecutorial discretion as a right, and unfortunately, not everyone will qualify. The decision is made based upon a number of factors, both positive and negative, in evaluating whether you are a candidate for this.