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Adjustment of Status
in Removal Proceedings
Persons in removal proceedings may be able to
avoid deportation by adjusting their status
to permanent residency.
One way you might qualify for adjustment of
status to permanent residency is if you meet
the requirements of Section 245(i) of the Immigration
and Nationality Act.
Section 245(i) is only for people who are already
qualified for immigrant visas, based on a close
family relationship or an offer of employment
from a United States employer. It allows a person
who has an immediately available immigrant visa
(Form I-130, Form I-140, or Form I-360) to apply
for adjustment of status to permanent residency.
To be eligible for adjustment of status under
Section 245(i), you must:
• Have been physically present in the
United States on December 21, 2000 (there is
no requirement that you have been in the United
States since that date);
• Have an immediately available immigrant
visa that was filed on or before April 30, 2000;
and
• Pay a $1,000 dollar fine (plus, any
fees related to your adjustment application).
If your adjustment application is based on a
family-based visa petition, your family member
must have filed a Form I-130, Petition for Alien
Relative, on or before April 30, 2000. This
means that you must have been the:
• The husband or wife of a United States
citizen or lawful permanent resident;
• The unmarried child (under age 21) of
a United States citizen or lawful permanent
resident;
• The parent of a United States citizen;
• The unmarried adult child of a United
States citizen;
• The married adult child of a United
States citizen; or
• The brother or sister of a United States
citizen.
If your adjustment application is based on an
employer-based visa petition, an employer must
have filed Form ETA-750, Application for Alien
Certification, on or before April 30, 2000.
You may be eligible to adjust your status to
permanent residency under Section 245(i) even
if you:
• Entered the United States without a
proper visa
• Have fallen out of valid nonimmigrant
status or have violated the terms of your status
• Are a crewmember who entered the United
States with a D visa
• Entered the United States under a Transit
Without Visa program
• Entered the United States under the
Visa Waiver Pilot Program
Spouses and children qualify
for adjustment of status to permanent residency
if their spouse or parent qualifies to adjust
status under Section 245(i).
Qualifying for adjustment of status under Section
245(i) does not give you immigrant status. You
must file Form I-485, Application to Register
Permanent Residence or Adjust Status, along
with Supplement A to Form I-485, Adjustment
of Status Under Section 245(i). If your adjustment
of status application is approved, you will
have permanent resident status.
Applying for Asylum, Withholding of Removal,
Protection under the Convention Against Torture,
or Temporary Protected Status while in Removal
Proceedings
If you fear that you may be harmed, persecuted,
or tortured if you are forced to return to your
home country, you may be eligible to apply for
asylum, withholding of removal, or protection
under the Convention Against Torture (CAT).
If you win your asylum, withholding of removal,
or CAT case, you will not be removed or deported
from the United States.
You may also be eligible for Temporary Protected
Status (TPS) even though you are in removal
proceedings.
Withholding of Removal in the U.S.
Every application for asylum is also considered
an application for withholding of removal. Unlike
asylum, there is no filing deadline for applying
for withholding of removal so if more than one
year has passed since your arrival in the United
States and you are afraid to return to your
home country, withholding of removal and protection
under the Convention Against Torture may be
your only options to remain in the United States.
The main benefit of withholding of removal is
that you get to stay and work in the United
States. However, you may not apply for permanent
resident status, you may not bring your spouse
or children to the United States, and you may
not travel outside of the United States. If
you are granted withholding of removal, you
will have a final order of removal entered against
you, which means that you will not be allowed
to reenter the United States if you leave.
Persons applying for withholding of removal
must show that, if returned to their home country,
their life or freedom would be threatened because
of their race, religion, nationality, membership
in a particular social group, or political opinion.
Persons applying for withholding of removal
must show that there is clear probability, or
that it is more likely than not, that they would
be persecuted if sent to their country of origin.
The granting of withholding of removal is mandatory
to persons whose life or freedom would be threatened
in their countries of origin.
If you are granted withholding of removal, you
may be sent to a third country (other than the
United States and your country of origin) that
is willing to accept you and where you would
not suffer persecution.
Differences between Withholding of
Removal and Asylum
1. Withholding of removal does not have a filing
deadline. Asylum applications must be filed
within one year of your arrival in the United
States.
2. Withholding of removal is mandatory if you
meet the criteria. For asylum, even if you meet
the criteria, the Immigration Judge has discretion
to deny you asylum.
3. Withholding of removal carries a higher burden
of proof than asylum. For withholding of removal,
you must show that there is a "clear probability"
that you will be persecuted. Asylum requires
only a showing of "reasonable probability."
4. If you are granted withholding of removal,
you will not be allowed to adjust your status
to permanent residency. If you are granted asylum,
you can apply for permanent resident status
one year after the date you were granted asylum.
5. Withholding of removal does not allow you
to bring your family members to the United States.
If you are granted asylum, you can apply for
derivate status for your spouse and unmarried
children under age 21.
6. Withholding of removal does not allow you
to travel outside the United States. If you
are granted asylum, you are allowed to travel
outside the United States if you have a valid
Refugee Travel Document that allows you to reenter
the United States.
Protection under the Convention Against
Torture
If you believe you will be tortured if forced
to return to your home county, you may apply
for protection under the Convention Against
Torture (CAT). There is no formal application
to submit a CAT claim but there is a box on
Form I-589, Application for Asylum and Withholding
of Removal, that you can check if you wish you
apply for CAT protection.
Unlike asylum and withholding of removal claims,
a CAT claim does not require that you show that
you will be tortured because of your race, religion,
nationality, membership in a particular social
group, or political opinion.
The standard for CAT protection is the same
as for withholding of removal—you must
show that it is "more likely than not"
that you will be tortured if you are forced
to return to your home country.
Definition of Torture
United States law defines torture as "any
act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from
him or her or a third person information or
a confession, punishing him or her for an act
he or she or a third person has committed or
is suspected of having committed, or intimidating
or coercing him or her or a third person, or
for any reason based on discrimination of any
kind."
To qualify for CAT protection, the torture must
be done by or at the request of the government
or with the permission or agreement of the government.
Differences from Asylum & Withholding
of Removal
CAT protection differs in important ways from
asylum and withholding of removal:
If you have committed a serious crime, you may
be eligible to apply for CAT protection. Serious
crimes usually disqualify you from applying
for asylum or withholding of removal.
If you are applying for CAT protection, you
do not have to prove that your torture is due
to your religion, race, nationality, political
opinion, or membership in a particular social
group. However, the torture must be by or with
the permission of a government official.
If you are applying for CAT protection, you
must show that the harm you are likely to suffer
if forced to return to your home country meets
the definition of "torture." For asylum
and withholding of removal, you need to show
that the harm you are likely to suffer if forced
to return to your home country qualifies as
"persecution."
Temporary Protected Status (TPS)
Temporary Protected Status (TPS) is a blanket,
temporary status that the United States government
grants to persons already in the United States
that are from countries the United States has
determined are unsafe for them to return to.
Countries Currently Designated for Temporary
Protected Status
Somalia; Nicaragua; Liberia; Honduras; El Salvador;
Burundi
Criminal Immigration
The 1996 amendment to the Immigration and Nationality
Act imposed harsh sanctions on non-citizens
in the United States. Some of the most sweeping
changes dealt with the impact of criminal activity.
Many acts which were not considered deportable
offenses under the old law now carry serious
immigration penalties: deportation and, in many
cases, permanent exclusion from the United States.
In addition, most aspects of the law are retroactive
to convictions pre-dating 1996.
As many areas of immigration law change rapidly,
it is especially important to consult an immigration
lawyer before accepting any plea agreement on
a criminal matter.
Definition Of A Conviction
Most grounds of deportation require a “conviction.”
Federal immigration law defines a conviction
as: a formal judgment of guilt of the respondent
entered by a court or, if the adjudication of
guilt has been withheld, where:
1) a judge or jury has found the alien guilty
or the alien has entered a plea of guilty or
of nolo contendere ("no contest")
or has admitted sufficient facts to warrant
a finding of guilt; and
2) the judge has ordered some form of punishment,
penalty or restraint on the alien’s liberty
to be imposed.
The practical result of this statutory language
means that the following dispositions may potentially
be “convictions” for immigration
purposes: A continuance without a finding (CWOF)
generally is considered to be a conviction for
immigration purposes even if the charge is subsequently
dismissed.
In California, a pre-trial probation disposition
generally does not equal a “conviction”
for immigration purposes.
Post Conviction
Another way to fight an immigration case because
of a criminal conviction is to go back to the
state or federal court where the plea hearing
took place. Often times this is the only option
that is available to the non-U.S. citizen faced
with removal from the United States. This form
of relief is called "post conviction"
proceedings.
Post conviction requires re-opening the criminal
matter. In order to re-open the criminal matter,
there must be some constitutional and /or procedural
defect that occurred during the plea hearing
in order to invalidate the conviction.
For example, in California all state court judges
are required to engage in a dialogue with the
defendant in order to ensure that the defendant
knowingly, voluntarily, and intelligently waives
all of his/her constitutional rights when accepting
a guilty plea and/or admitting to sufficient
facts.
Also in California, all persons prior to the
judge accepting the guilty plea or admission
to sufficient facts, must be given the alien
warnings. The alien warnings consists of the
judge informing the defendant that he/she is
subject to deportation, exclusion from the U.S.,
or a denial of naturalization, if a guilty plea
and/or admission is entered on the criminal
charge.
On the other hand, if a conviction is vacated
(overturned) due to humanitarian reasons, i.e.,
"in the interests of justice", solely
to eliminate the immigration consequences, it
will NOT terminate the immigration removal proceedings.
In some cases, a reduction of sentence may be
an option to pursue in post conviction proceedings,
especially if a Motion to Revise and Revoke
was filed in the criminal case (see section
below on Motions to Revise and Revoke). If a
Motion to Revise and Revoke was not filed, one
may still pursue a reduction of sentence if
the judge will reconsider his/her original sentence.
A reduction of sentence could be critical element
necessary to apply for relief in the overall
immigration case. For example, a non-U.S. citizen
charged with a simple assault & battery
and/or a theft offense, even if a misdemeanor
in the state criminal court, yet receives a
jail sentence of one (1) year or more is considered
to have committed an aggravated felony according
to immigration laws, and is generally ineligible
for any form of relief if the conviction occurred
after April 24, 1996.
If, however, a reduction of sentence occurs,
i.e., a reduction of one (1) day resulting in
a 364 day sentence, such reduction now would
allow a non-U.S. citizen to apply for relief
in the U.S. Immigration Court.
In some cases, a one (1) day reduction of sentence
can be the difference for the non-U.S. citizen
being eligible for bond, and most importantly
applying for relief in the Immigration Court,
so that the non-U.S. citizen may remain in the
United States.
It is extremely important that non-U.S. citizens
contact an attorney who is familiar with both
criminal and immigration laws to assist them
in this process.
Vacating Convictions
As stated above, often a non-U.S. citizen’s
only remedy is to return to criminal court after
he or she has been convicted, and to have that
conviction vacated. The most common ground for
vacating convictions in the immigration context
is that the person did not receive the required
alien warning that he/she may face “deportation,
exclusion from admission or denial of naturalization”.
California law requires that the judge advise
all criminal defendants, before accepting a
guilty plea, that if they are not citizens of
the United States, their conviction may result
in deportation, exclusion from admission or
denial of naturalization. The statute places
the burden on the government to establish that
the warnings were given. If it fails to do so,
the conviction must be vacated.
If you notice that the judge has not given the
required alien warnings, or that a full colloquy
was not conducted, request a tape of the plea
hearing proceedings from the clerk of the criminal
court (most courts destroy the tapes after several
years).
Even if the required alien warnings were given,
there are other ways to attack the conviction.
For example, the plea may be defective for a
number of other reasons, such as the defendant/non-U.S.
citizen was not informed that he/she waived
the right to trial, waived the right to confront
witnesses, and waived the right of self-incrimination.
There are a number of ways to attack a conviction,
and it is best to schedule a consultation with
The Law Offices of Bashir Ghazialam to discuss
this in more detail.
Motions To Revise And Revoke
It is very important, due to the rapidly changing
nature of immigration laws, that defense attorneys
ALWAYS file a motion to revise and revoke at
the conclusion of a case. This can easily be
accomplished by bringing a standard motion to
the court and having your client sign the affidavit
while in court.
The motion MUST BE FILED WITHIN 60 DAYS of the
sentencing, otherwise, the court may not even
have jurisdiction to reduce or amend an immigrant’s
sentence. Filing a motion to revise and revoke
may prevent deportation where the government
seeks to deport the individual based on the
length of the sentence. Reducing the length
of the sentence can also make an immigrant eligible
for additional forms of relief from deportation.
Direct Appeal
A case that is on direct appeal following trial
is not considered a final conviction for immigration
purposes. A defendant/non U.S. citizen whose
matter is on direct appeal will not be placed
in removal proceedings until a decision is reached
at the appeals level.
Crimes Involving Moral Turpitude
In addition to “aggravated felonies”
some crimes are considered “crimes of
moral turpitude (CMTs)” and are therefore
deportable if they are:
a) an offense with a possible sentence of one
year or more; and
b) involving moral turpitude.
Unlike aggravated felonies, what matters with
crimes of moral turpitude is what sentence the
defendant could have received rather than what
the defendant actually received.
Crimes of moral turpitude are deportable offenses
if a defendant commits:
One crime of moral turpitude within five years
of admission into the United States OR two crimes
of moral turpitude at any time “not arising
out of a single scheme” -NOTE: defining
“admission” for immigration purposes
is complicated. You should always consult with
an immigration attorney to determine when you
were “admitted” for analysis purposes.
NOTE: The Single Scheme rule punishes crimes
of moral turpitude “not arising out of
a single scheme of criminal misconduct”
- meaning that although the charge only resulted
in one arrest and one docket sheet, if it contains
multiple counts, USCIS may consider them separate
crimes. Persons convicted of two crimes of moral
turpitude “not arising out of a single
scheme of criminal misconduct” are deportable.
Where courts define “arising out a single
scheme of criminal misconduct” narrowly,
most incidents of criminal activity, unless
the activity occurs almost simultaneously, will
qualify as multiple convictions for immigration
purposes.
Definition of Moral Turpitude
Unfortunately, there is no statutory definition
of “moral turpitude.” Generally,
the term encompasses crimes involving fraud
or evil intent. In general, crimes involving
theft, fraud, and violence tend to qualify as
crimes involving moral turpitude. Always check
with an immigration attorney before agreeing
to a plea where the charge sounds as if it may
involve moral turpitude.
Legal Permanent Residents (LPR) in the U.S.
are not deportable for one crime of moral turpitude
as long as that crime was not committed within
5 years of their admission to the U.S. However,
if an LPR travels outside of the U.S., he or
she can be placed into removal proceedings based
upon this alleged CMT and be charged as being
inadmissible as an arriving alien as if they
were applying for admission into the U.S. for
the first time.
It is critical that you discuss any and all
travel plans with your attorney prior to leaving
the country.
Agrravated Felonies
Today, as a result of the change in the law
in 1996, many previously “safe”
charges for immigration purposes qualify as
“aggravated felonies” subjecting
the defendant/non-U.S. citizen to mandatory
deportation and mandatory detention. This means
that defendants are transported directly from
state jail to federal custody and face expedited
deportation proceedings. Family contacts, U.S.
citizen children, and length of residence in
the United States CANNOT save a defendant once
convicted of an aggravated felony.
There are almost no avenues of relief. Below
is a list of general guidelines and a listing
of Aggravated Felonies
Federal Definition of a Felony
Although technically immigration law calls this
offense an “aggravated felony,”
the federal definition of felony includes any
charge with a possible sentence of more than
one (1) year. As a result, even California “misdemeanor”
criminal offenses qualify as an aggravated felony
for federal immigration purposes, because most
“misdemeanors” carry a possible
sentence of two and one half years in the California
House of Corrections.
The “one year rule” involves any
charge qualifying as (1) a “crime of violence”
(2) a “theft” charge (including
receiving stolen property), (3) a “burglary
charge” or (4) commercial bribery, counterfeiting
or forgery qualifies as an aggravated felony
where the defendant/non-U.S. citizen receives
a sentence of one (1) year or more, whether
actually imposed or suspended.
Specifically:
Crime of Violence
Crimes of Violence include any charge involving
(a) an “offense that has as an element
the use, attempted use, or threatened use of
physical force against the person or property
of another, or (b) any other offense that is
a felony and that, by its nature, involves a
substantial risk that physical force against
the person or property of another may be used
in the course of committing the offense.”
As a result, courts have interpreted
this provision extremely broadly to include
not only rape, sexual assault, indecent assault
and battery, or burglary but also some other
offenses such as:
Assault and Battery
Assault and Battery with a Dangerous Weapon
(even “shod foot” cases)
Breaking and Entering
Statutory Rape
Arson
Therefore, not only is it important to avoid
a conviction for these offenses, and any other
charge involving force or the threat of force,
it is especially important to avoid a one (1)
year sentence on such charges.
Drug Offenses
Almost any drug offense involving sale, distribution,
manufacture, etc. qualifies as a “trafficking
offense” and therefore mandates deportation.
Specifically: Distribution, Possession With
Intent to Distribute, Conspiracy to violate
controlled substance act, or any other Sale,
Manufacturing of Drug Distribution offense.
Second offense possession under certain
circumstances
Although “first offense” possession
of a controlled substance is deportable (except
simple possession of 30 grams or less of marijuana),
it is not an aggravated felony, mandating deportation.
Second offense may qualify as an aggravated
felony depending on the circumstances. As this
is a very complicated analysis, you should consult
with an immigration attorney.
With drug offenses, the SENTENCE IS IRRELEVANT.
Therefore a first offense possession with intent
to distribute is an Aggravated Felony, even
with a 6 month suspended sentence. You will
not be saving your client by negotiating an
11 month suspended sentence on possession with
intent.
Attempt/Inchoate Offenses
The definition of “aggravated felony”
specifically includes any attempted aggravated
felonies or conspiracy to commit an aggravated
felony. Therefore an attempted but unsuccessful
burglary qualifies as an aggravated felony where
the defendant receives a sentence of one year
or more regardless of whether the sentence is
suspended or imposed.
Likewise, a conspiracy to violate the controlled
drug laws qualifies as an aggravated felony
where the underlying offense involves “trafficking”
(see above for definition of “trafficking”)
A list of other “aggravated felonies”
include:
Murder
Sexual abuse of a minor
Rape
Any drug trafficking offense as defined in 8
USC § 921
Any trafficking in firearms or destructive devices
as defined in 18 USC § 921
Money laundering as defined in 18 USC §
1956
Any crime of violence, as defined in 18 USC
§16 for which the term of imprisonment
imposed is at least one (1) year (note that
this includes a suspended sentence). 18 USC
§ 16 defines a crime of violence as any
crime which involves either the use of force
against persons or property, or the substantial
threat that such force may be used.
A theft offense (including receipt of stolen
property), or burglary offense, for which the
term of imprisonment is at least one (1) year.
(The statute does not mention possession of
burglarious tools).
An offense involving fraud or deceit in which
the victim’s losses exceed $10,000 or
federal tax evasion in which the revenue loss
exceeds $10,000. (If the docket sheet, indictment
or complaint reads $10,000 or less this is not
an aggravated felony).
An offense relating to commercial bribery, counterfeiting,
forgery, or trafficking in vehicles involving
the alteration of identification numbers, for
which the period of imprisonment imposed is
at least one (1) year.
A variety of other crimes, including: child
pornography, RICO violations, alien smuggling,
obstruction of justice.
Waivers
Certain crimes make a person inadmissible to
the United States. Waivers are available and
may be granted under section 212(h) of the Immigration
and Nationality Act (INA).
A waiver may be granted to person who is inadmissible
or a person who is able to establish that the
activities for which he or she is inadmissible
occurred more than 15 years before the date
of the application for a visa, admission, or
adjustment of status, if his her admission to
the United States would not be contrary to the
national welfare, safety, or security of the
United States, and the person has been rehabilitated.
In addition, a waiver is available to a person
who is the spouse, parent, son, or daughter
of a U.S. citizen or lawful permanent resident
who is able to demonstrate that the denial of
admission would result in extreme hardship to
the U.S. citizen or lawful permanent resident.
A waiver, known as the petty offense exception,
may also be obtained for the ground of inadmissibility
by an immigrant who meets the preceding requirements,
but only for an offense relating to the simple
possession of 30 grams or less of marijuana
or if charged with a crime of moral turpitude
that carries a maximum penalty of one year in
jail according to both state and federal statue,
and the individual did not serve more than 180
days in jail.
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