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Introduction To Representing Noncitizens In Removal Proceedings: All Parts Compiled (Parts 1-5)

by Michael J. Boyle

This paper attempts to provide a brief introduction to removal practice for new attorneys and attorneys who now practice criminal law or family or business immigration law.

CLIENT MANAGEMENT

Removal work, especially representing detained clients, requires careful client and office management. Access to detained clients is very limited. While many detained - and nondetained - clients are honest, helpful and realistic, others are distrustful of lawyers and in denial about their chances of avoiding removal. Deadlines are rigid and many are jurisdictional. In general, detained cases move fast.

Even well-intentioned, hard-working lawyers can sink into a malpractice morass by being too busy, communicating too little, or not documenting their work and their communications with their clients. Because clients desperate to avoid removal have little to lose, and Bureau of Immigration Appeals (BIA) rules on motions to reopen require filing a complaint against former counsel in many cases, removal law is an area where it is sensible to practice law defensively.

Define the scope of representation

It is critical to define the scope of representation early on. Will you represent the client before the Immigration Court in bond and merits proceedings, before the Board of Immigration Appeals, in state court to try and vacate a conviction, in a federal court habeas action to review the client's mandatory detention, or in a federal court petition for review or habeas action seeking review of a final order of removal? Many criminal cases could involve every one of these proceedings. Defining - and if necessary, redefining as the case develops - what you are being hired to do and what parts of the case you are not responsible for is critically important. Know what you want to do, what you are competent to do, and have time to do. Be careful to be realistic. If necessary, consider limiting the scope of representation that you undertake, either absolutely, or through teaming up with experienced criminal or removal law counsel. This is an area where feelings of sympathy for a client or their relatives, inexperience, or ego can lead you to try to commit to more hard work than you can realistically produce.

The Executive Office for Immigration Review, the Justice Department office which the immigration courts and the BIA are part of, severely limits an attorney's ability to withdraw in mid-case. Withdrawal is by permission and it is only granted for cause. Nonpayment of fees is not good cause. A prudent lawyer representing individuals in removal proceedings who wants to sustain her practice for the long-term needs to collect a significant portion of her fees up front. As a practical matter, it is common for relatives of detained clients to lose interest in footing the bill as a case moves from the Immigration Court, the BIA and the federal courts.

Visit your client, talk to your client, write your client

Communication is a serious problem in removal defense. Language problems, client anxiety and denial, and the unreal harshness of current immigration laws impede open, efficient communication with clients. Clients and their families are often in denial about the offenses that have landed the noncitizen in removal proceedings, and about the likelihood of avoiding removal. While it is important to be a strong advocate and not adopt a cynical attitude about noncitizen clients, it is also important to not let clients cling to delusions that will make it difficult or impossible to mount an adequate defense. ("I took four years in prison on a plea, but I'm not guilty…I've seen others do much worse, and they didn't get deported…I have kids here and they can't deport me. The judge will understand that," etc.)

Detained clients are especially difficult to communicate with. You must communicate with clients prior to their hearings. Many Department of Homeland Security (DHS), Deportation and Removal Operations (DRO) offices have created local rules that make communication with a client on the day of a hearing virtually impossible. It was formerly common to meet with clients serving sentences for long talks prior to Institutional Hearing Program hearings at the correctional facilities holding such hearings. However, these hearings are typically now being held by teleconference and direct communication with clients requires the immigration judge's agreement to clear the courtroom. You should do this when necessary to effectively represent your client, but it will not be permitted to make up for failure to meet with a client before the hearing.

Prison visits are time consuming. Prior to making such visits, you need to research a specific facility's practices. At some correctional facilities, visiting hours are liberal and visits do not have to be arranged in advance; at others, visiting hours are limited and must be scheduled a day or more in advance. Some counselors are very cooperative, and others are not. Sometimes, detainees are housed far from where they were living prior to their detention, including in other states, making visits even more difficult.

To effectively represent detained noncitizens, you need to visit clients in prison, accept collect calls, have someone available to take those calls who can respond to them effectively, and most of all, you have to be well-prepared so that the limited time you can speak to your client and his family members will be productive.

GET THE RECORDS

It is critically important to get your client's criminal records. First, you need the Notice to Appear (NTA), the charging document in an immigration proceeding. Then, you need the client's entire record, not just the record for the most recent offense or the offense the DHS is charging on the NTA. It is common for the DHS to initially charge only one or two offenses. However, they can and do amend the Notice to Appear to add new offenses, so you need everything. You need it now, because you are unlikely to get repeated continuances and because you need to know the full picture to plan your defense and assess the viability of the client's case. Except in extremis, do not rely on your client's or a friend or relative's account of his past offenses.

For state offenses, you need to learn what kinds of records are available, and how to request them. The information or indictment, judgment of conviction, and plea colloquy or trial transcript are typical conviction records that will be admissible to prove up a conviction. Although police records will generally not serve as proof of a conviction, in some states where police records are considered part of the information, they will be admissible as proof of a conviction. DHS sometimes uses court clerk attestations of record summaries or extracts of a record rather than obtaining certified copies of the original records. You will want to scrutinize these non-original records carefully, as they are not always accurate. you may be able to use this to your client's benefit.) The exact offense title and section are often important in preparing your defense. The date of conviction can be important where removability definitions or eligibility for relief from removal have changed over time.

It is always valuable to request the transcript. If the section of the statute your client was convicted under is divisible, the transcript may be admitted in most cases as evidence of whether your client was convicted of a removable offense. In addition, having the transcript lets you know what your client did, or at least what he pled to doing. This is critical if relief is available, and often valuable for thinking about defense strategies. It is also useful in promoting more realistic communication with your client. In most jurisdictions you will order the transcript from the Court Reporter's Office at the courthouse where your client was convicted, which will pass the request to the reporter who reported the plea. The speed and efficiency of service varies quite a bit from reporter to reporter, and you need to monitor the process.

In non-detained cases, or if time permits, you should also consider requesting the client's FBI record and DHS file. For the FBI record, send a money order for $18 along with a completed fingerprint card taken by local police to Attn: SCU, U.S. Treasury, FBI CJIS Division, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306. The DHS record will need to be requested via the Freedom of Information Act. Records should be requested from the Immigration FOIA office that maintains the records for a region, if known, or from the nearest Immigration office.[1] No up-front fee is required with the request.

Before beginning your immigration law analysis, it is worth reviewing the transcript to see whether the court advised your client pursuant to that immigration consequences could result from his conviction. If the court failed to give these warnings, in many states, the conviction can be vacated by a relatively straightforward motion to the state court. (Care needs to be taken because the case begins again once the initial conviction is vacated. However, in more cases than not, a new plea, better-tailored to avoid or minimize immigration consequences, can be crafted.) Likewise, review the transcript to confirm your client knowingly waived his constitutional rights to go to trial, against self-incrimination, etc., before he pled. For more information on this area of the law, see Norton Tooby, Post-Conviction Relief for Immigrants, available from the author at 510 597-9856 or www.criminalandimmigrationlaw.com; or Larry Yates, Postconviction Remedies, West Group, or seek out experienced criminal counsel.

BUILDING YOUR CASE

This section attempts to break down the immigration law analysis that you need to do into its component parts, and to suggest sources of help for each part of the analysis.

Sources of immigration law

Immigration law is primarily statutory. It is critical to have a copy of the Immigration and Nationality Act and related statutes and regulations. West Publishing publishes a one-volume book with both, and Matthew Bender/LEXIS and Legal Research Bureau, 800 572-9899, usimmigrationbooks.com, publish annotated multi-volume sets. The statutes and regulations can also be found on the BCIS web site.

Ira Kurzban's Immigration Law Sourcebook, published by the American Immigration Law Foundation (800 982-2839), is an indispensable one-volume reference to immigration law. Matthew Bender publishes a twenty-volume treatise, Gordon, Mailman and Yale-Loehr, Immigration Law and Procedure, which costs about $1,500 per year to maintain.

While Benders' Immigration Bulletin (monthly, free if you subscribe to their treatise) and West's Interpreter Releases (weekly, about $500 per year) are useful for keeping up with developments in the law, membership in the American Immigration Lawyers Association (AILA) and access to its members-only web site, InfoNet, is indispensable (Annual membership about $400). Useful, free, general immigration law web sites include Immigration Lawyers on the Web (ILW), http://www.ilw.com, and Los Angeles immigration attorney Carl Shusterman's site, http://www.shusterman.com.

Is the client a noncitizen?

Only non-citizens can suffer immigration consequences for a criminal conviction. A United States citizen or national cannot be deported or denied admission to the United States regardless of where she was born. It is easy to overlook the fact that your client might have derived citizenship through a parent or grandparent. With very limited exceptions anyone born in the United States is a citizen. Also, a child can derive citizenship at birth or up to age eighteen from a U.S. citizen parent, or up to age eighteen if one of the non-citizen's parents naturalizes. "Chain derivations" from grandparent to parent to child are common. Derivation can occur without any action by the recipient or any knowledge of its occurring. Clients with older convictions followed by years of good character may be eligible to naturalize. In particular, veterans enjoy relaxed naturalization requirements. Finally, a number of attorneys are making creative arguments about acquisition of nationality by lawful permanent residents who have made special efforts, like applying for citizenship, to demonstrate their allegiance to the United States. Once citizenship or nationality is acquired, it cannot be lost.

If any of these situations may be applicable to your client, the late Daniel Levy's U.S. Citizenship and Naturalization Handbook, West Publishing, updated annually, is a good source for research.

Is the NTA valid?

The DHS often makes mistakes in the Notice to Appear. If the NTA is invalid, proceedings should be terminated. Although often such termination will be without prejudice, your client may not be charged again or may become eligible for a form of relief which was previously not available to him, for example by marrying his U.S. citizen fiancé or acquiring the ten years of residence required for cancellation of removal. If the immigration judge fails to sustain your challenge, you also have a legitimate appeal ground. For a nondetained client, appeal time is almost always valuable.

Common errors that should result in termination are failure to serve or prove service of the NTA, having the NTA signed by a deportation officer instead of one of the officers listed in 8 CFR § 239.1(a), and failing to advise the noncitizen of the his right to consult his consul. Simon Azar-Farr, Procedural Challenges to Removal Hearings, 2 AILA 1999-00 Immigration and Nationality Law Handbook, 350, is an excellent article on this subject.

Is there a final conviction?

Although in some cases individuals can be inadmissible for their conduct alone (e.g., involvement in drug dealing) or their admission of the elements of a crime, in order for an individual to be deportable, he or she must have been convicted for a removable offense. Thus, a charge of deportability cannot be sustained while a criminal appeal is pending. Nor is a juvenile adjudication - or a youthful offender conviction in some states - a conviction for immigration purposes. See, e.g., Matter of Devison, 23 I&N Dec. 1362 (BIA 2000) (New York youthful offender conviction is not a conviction for immigration purposes.). Vacating a conviction or reducing a sentence to below the relevant removability threshold based on legal error when the sentence was entered will also eliminate it for immigration purposes. Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000).

Nor can a resolution that does not involve an on-the-record admission of guilt support removal. Thus, some state diversion or deferred adjudications, for example, accelerated rehabilitation or family violence programs, may be ideal resolutions to criminal charges against non-citizens. But, be aware that dismissals under diversion programs in some states, e.g., Texas, Oklahoma, California drug offenses after January 1, 1997, require initial entry of a guilty plea and will be considered convictions under INA §101(a)(48)(a).

All of the reference works recommended in the next section include good discussions of the definition of conviction.

If so, is the person inadmissible or deportable for the cited offense(s)?

Prior to enactment of AEDPA and IIRAIRA it was routine for immigration attorneys to concede the charges against their clients and then apply for relief from removal. Because these laws curtailed relief from removal so dramatically, noncitizens in removal proceedings must aggressively deny that they are removable and challenge whether the DHS can meet its burden of proving removability by "clear and convincing evidence."

These challenges typically involve arguing that the state statute under which the noncitizen was convicted is not consistent with the ground of removability charged on the Notice to Appear. Where the offense which the noncitizen is convicted of clearly does not fall within the definition of the ground of removability charged, the noncitizen is entitled to termination of proceedings. Where the conviction statute is divisible, containing some offenses that fall within the ground of removability and others that do not, the DHS has the burden to prove specifically that the noncitizen committed a removable offense, usually by getting a detailed transcript of the plea proceeding or trial. See, e.g., Matter of Teixeira, 21 I&N Dec. 316, 318 (BIA 1996); Matter of Short, 20 I&N Dec. 136, 137 (BIA 1989). DHS is sometimes unable or unwilling to do this, resulting in termination of proceedings. Some other offenses, like crimes of violence, are analyzed categorically, meaning that the minimum criminal conduct necessary to sustain a conviction, rather than the actual conduct of the defendant is considered. Matter of Ramos, 23 I&N Dec. 336, 339 (BIA 2002). Given the possibilities that DHS will not be able to sustain its burden of proof, it is almost always wise for a noncitizen to deny removability at her master calendar removal hearing.

Many widely-violated state statutes have been held to be incongruent with the ground of removal charged or divisible. For example, in Barnaby v. Reno, 142 F. Supp. 2d 277 (D. Conn. 2001), the court held that a conviction for failure to appear under Conn. Gen. Stat. § 53a-172 does not render a noncitizen removable under the failure to appear aggravated felony ground of removal, INA § 101(a)(43)(T), 8 U.S.C. § 1101(a)(43)(T).

Detailed discussion of how to analyze an offense are beyond the scope of this paper. Fortunately, excellent resources are available to orient you. While these books cannot stay up to date with the rapidly-changing case law in this area, they can provide an excellent foundation for work in this area. Criminal Defense of Immigrants (National Edition), by Norton Tooby and Katherine Brady, Crimes of Moral Turpitude, by Norton Tooby and Jennifer Foster, and Aggravated Felonies by Norton Tooby, are comprehensive, easy-to-use handbooks. ($170 each. Available from Tooby's office, 510 597-9856, or his web site.) Immigration Law and Crimes, a one volume treatise, published by West and updated annually, is less useful as a day-to-day handbook but takes a deeper approach, discussing the constitutional underpinnings and historical development of removal law. Its authors are former BIA Member Lory Rosenberg and Dan Kesselbrenner, Director of the National Immigration Project of the National Lawyers Guild. ($175, annual update service about $150.). Two state-specific guides, California Criminal and Immigration Law by Katherine Brady ($165, Immigrant Legal Resource Center, 415 255-9499), and Representing Noncitizen Criminal Defendants in New York State by Manuel Vargas ($50, New York State Defenders Association Criminal Defense Immigration Project, 518 465-3524), are useful, both for analyzing offenses from those states and for gaining insights for potential challenges to other states' statutes. The New York State Defenders Association Criminal Defense Immigration Project also has an extraordinary web page.

Staying up-to-date in this area is incredibly challenging. In addition to membership in AILA, you should join the National Immigration Project of the National Lawyers Guild ($100 per year, which holds seminars, issues quarterly bulletins, has several useful listservs, and provides access to a network of experience removal lawyers around the country. Dan Kowalski, the editor of Bender's Immigration Bulletin, sends emails (30-50 per week) of case decisions, news, announcements, and opinions on emerging immigration law issues. Subscribe by emailing him at dan@cenizo.com. Immigration Daily from ILW.COM includes a wide range of immigration law news and includes many federal court decisions on removal cases. (To subscribe, send a blank email to join-immigration-daily@listserv.ilw.com.) The BIA's web site has an excellent virtual law library, including precedent decisions, searchable headnotes for those decisions, and a table of circuit court decisions citing BIA precedents. Finally, even with these resources you will be at a serious disadvantage if you do not have access to LEXIS or Westlaw.

If so, will the INS exercise its prosecutorial discretion?

In extremely rare instances DHS will exercise its prosecutorial discretion to not charge someone with removability or to terminate or agree to indefinite administrative closure of proceedings. Usually, these cases involve extraordinary, heartbreaking circumstances. A well-organized attorney and family members would present the case in a compelling way to the DHS, with the specter of significant press interest if the DHS makes the wrong decision.

If not, is any relief available to your client?

Although AEDPA and IIRIRA drastically restricted the availability of relief from removal, relief remains available in some cases depending on the type of case and the non-citizen's immigration and family status and tenure in the United States. Descriptions of the major forms of relief from removal, beginning with the forms that are most easily available but convey the least substantive benefit, follow. Immigration Law and Crimes and Kurzban's Immigration Law Sourcebook, supra, provide good general introductions to most forms of relief. Additional resources for specific areas are cited below.

Voluntary departure

A grant of voluntary departure under INA § 240B(a) or (b) permits a non-citizen a fixed period of time to depart the United States, normally at his or her own expense, in lieu of being removed. Voluntary departure allows a non-citizen to depart without the stigma or harsh conditions attendant to removal. Voluntary departure has additional value for a non-citizen with a conviction for a firearms offense or a minor offense who will have a legal method to immigrate in the future, typically through a relative who plans to become a citizen.

Voluntary departure is discretionary. It is liberally granted in non-criminal cases. In criminal cases, likelihood of a grant declines based on the seriousness of the crime, and aggravated felons and terrorists are ineligible for voluntary departure. INA § 240B(a)(1). Up to 120 days of voluntary departure can be granted based on a request at a master calendar hearing, and the Immigration Judge can require that the non-citizen post a bond. INA § 240B(a), 8 U.S.C. § 1229c(a). Different judges have different thresholds and informal standards for evaluating voluntary departure. Generally, a noncitizen who has no convictions or major blemishes on his immigration record, who appears for his hearing timely and appears to understand the commitment to leave during the voluntary departure period will likely be granted voluntary departure.

Voluntary departure is often requested as an alternate form of relief in tandem with a request for cancellation of removal or adjustment of status. In such a case, the voluntary departure request is only ruled on if the other forms of relief are denied. Eligibility for end-of-hearing voluntary departure requires a showing that the non-citizen is not deportable as an aggravated felon or terrorist, is willing and has the financial ability to depart at his or her own expense, was present in the United States for at least a year prior to being served with a Notice to Appear, and is and has been a person of good moral character during the last five years. INA § 240B(b), 8 U.S.C. § 1229c(b). Most non-citizens who are deportable on criminal grounds are precluded from showing good moral character, as are non-citizens who have served 180 days or more in jail during the five year period, "habitual drunkards," and others. INA § 101(f), 8 U.S.C. § 1101(f). The maximum grant at the conclusion of proceedings is sixty days. INA § 240B(b), 8 U.S.C. § 1229c(b).

Cancellation of removal for permanent residents

Cancellation of removal, INA § 240A(a), 8 U.S.C. § 1229b(a), allows the Immigration Judge to not remove some long-time legal permanent residents (LPRs). An LPR must have been resident in the United States in a legal status for at least seven years and have been an LPR for at least five years prior to the earlier of: a) service of the Notice to Appear; or b) the date the non-citizen committed any deportable offense. INA § 240A(d), 8 U.S.C. § 1229b(d). LPRs convicted of aggravated felonies are ineligible for cancellation. As part of IIRIRA, Congress limited the total number of cases that can be approved each year.

Cancellation is discretionary relief. The Immigration Judge balances favorable and unfavorable factors in deciding whether the non-citizen can remain in the United States. Positive factors include: close family ties and long residence here; steady employment, home or business ownership; rehabilitation after conviction; good moral character references; community service; and hardship if removed. Matter of Marin, 16 I&N 581 (BIA 1978); Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). The grounds of deportability are the most obvious negative factors, but other criminal problems, past immigration violations and lack of remorse or rehabilitation are also considered.

Cancellation took the place of relief under former INA § 212(c). Section 212(c) allowed relief for a much broader spectrum of crimes, including many drug trafficking offenses. The Supreme Court's decision in INS v St. Cyr, 533 U.S. 289 (2001) restored eligibility for this relief for noncitizens whose convictions predated enactment of AEDPA and IIRIRA in 1996.

Cancellation of removal for non-permanent residents; VAWA cancellation

INA § 240A(b)(1) provides relief from removal for a noncitizen with ten years' continuous presence and good moral character in the United States who can show that her removal would cause "exceptional and extremely unusual hardship" to her U.S. citizen or permanent resident spouse, parent or child. Applicants who have suffered battering or extreme cruelty by a U.S. citizen spouse need demonstrate only three years of continuous presence and good moral character to qualify for cancellation. INA § 240A(b)(2).

Adjustment of status, INA § 212(h) waiver

Adjustment of status, INA § 245, 8 U.S.C. § 1255, is the formal name for stateside processing of a non-citizen's application for permanent residence. In categories where a visa is immediately available, most notably for spouses or parents of adult United States citizens, a deportable LPR can readjust status in removal proceedings if he is not inadmissible[2] or if the Immigration Judge concurrently approves a waiver of inadmissibility. In addition to the general immigration law source materials discussed above, Immigration Law and the Family by Sarah Ignatius and Elizabeth Stickney (West, $160, annual update service about $100) is a good one-volume introduction to family cases, including those where a waiver is required.

INA § 212(h) waives many criminal grounds.[3] However, it does not waive drug crimes, except for a single offense for possession of thirty grams or less of marijuana, INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) and it does not waive lawful permanent residents' aggravated felony convictions. INA § 212(h), 8 U.S.C. § 1182(h). To be eligible for the waiver for an offense committed in the last fifteen years, the non-citizen must be the spouse, parent, son, or daughter of an LPR or U.S.C., and demonstrate that their LPR or citizen relative would suffer extreme hardship in the event of the applicant's removal. LPRs seeking INA § 212(h) relief must have seven years of lawful residence in the United States prior to the commencement of removal proceedings. INA § 212(h), 8 U.S.C. § 1182(h). BIA decisions construe extreme hardship narrowly. Matter of Ngai, 19 I&N Dec. 245 (BIA 1984). The waiver is discretionary, and Immigration Judges typically undertake the type of balancing analysis described in the section on cancellation of removal, above.

Asylum, withholding, torture convention

Non-citizens who fear persecution or torture in their home countries may be able to avoid being removed. Asylum brings with it eligibility for permanent residence. A non-citizen convicted of an aggravated felony or a particularly serious non-political crime will be ineligible for asylum, INA § 208(b)(2), 8 U.S.C. § 1158(b)(2). Withholding of removal allows staying the removal of non-citizens whose life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). Non-citizens who have persecuted others, are terrorists or have committed particularly serious crimes, including aggravated felonies for which they received a sentence of five years or more, are ineligible for withholding. INA § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B).

Removal can be withheld or deferred under Article 3 of the U.N. Convention Against Torture "[w]here there are substantial grounds for believing that [the applicant] would be in danger of being subjected to torture." Relief from removal under CAT differs from asylum and withholding of removal under INA §241(b)(3) in that the torture need not be inflicted "on account of" the traditional bases for asylum - religious belief, political opinion, etc. Deferral is available even where the alien would otherwise be barred from withholding of removal based on conviction of a particularly serious crime. 8 C.F.R. § 208.17(a). CAT relief is mandatory. There is no exception to eligibility for protection based on having committed serious crimes, having persecuted others, etc. Matter of H-M-V-, 22 I&N Dec. 256 (BIA 1998).

Although all these forms of relief are closely scrutinized and very difficult to win, practitioners can take advantage of a wealth of specialized literature in this area. Deborah Anker's Law of Asylum in the United States ($99, ) is a comprehensive treatment of U.S. law, and includes useful background and suggestions for integrating developing international law norms. AILA's Asylum Primer by Regina Germain ($96, 800 982-2839) and the ILRC's Winning Asylum Cases by Mark Silverman, Robert Jobe, and Larry Katzman ($67, see ILRC information, supra) are good introductory guides. The internet is an invaluable tool for doing human rights research. http://www.asylumlaw.org, includes many valuable search tools, including a search engine that searches fifteen major government human rights information or case law archives simultaneously.

If no relief is available, does your client want to be removed quickly?

As discussed above, many clients cannot avoid removal. Others have limited, unattractive options: long-shot challenges to removability or appeals of denials of relief applications that will proceed over a period of months while the client remains in DHS detention. It is important to share your best judgment with the client about his chances so that he can make an informed choice about how to proceed. It is tempting to want to make this decision for your clients, and it is common for his relatives to feel that it is their role to make it for him. A good attorney will lay the options out for the client as clearly as possible, as early in the process as possible. This review should include discussion of the costs and timing of each level of appeals. Based on Attorney General Ashcroft's post-9/11 BIA reforms, even meritorious appeals in cases involving noncitizens with convictions will likely require federal court review to achieve a successful result. Understating the time and expense involved in going this route is a real disservice to clients.

If a client decides that his case is not worth fighting, be ready to concede the allegations and charges at the master calendar hearing. Doing so will help keep the client moving smoothly along the path to removal. Reserving appeal, or taking an appeal and then withdrawing it, will slow down the process. Whether you bargain for it or not, your client will expect you to try and iron out kinks in the removal process. If you have clients from countries like Jamaica, Guyana, the Dominican Republic or China that are slow to repatriate their nationals, you may want to gather information on consular officials who your client or his relatives can contact to ensure that travel document processing proceeds at a reasonable pace. Currently, a reasonable pace is several weeks to a few months for many countries. "Slow" countries could take four to six months or more to arrange removal. Furthermore, the DHS frequently delays taking custody of a noncitizens in state custody who have been voted to parole and reached their parole dates. At times the noncitizen will be stuck waiting and have to serve his entire sentence before the DHS will pick him up. A noncitizen in DHS custody cannot sue the government to remove him or her more quickly, but if delays in the process reach more than six months the noncitizen can file a habeas action seeking an order for mandating his or her release. Filing such an action often inspires the DHS and consulate to do their job.

Finally, you should consider documenting your client's choice not to proceed with appeals or relief applications. When a noncitizen lingers in jail waiting to be removed and thinking of all he is losing in leaving America, he may be tempted to change his mind about being removed or other matters of case strategy after the short time limits on filing an appeal have past. A brief confirmation or disengagement letter can limit the consequences to you of a client's after-the-fact dissatisfaction with your representation.


[1] For more information, visit the Bureau of Citizenship and Immigration Services (BCIS) web site, which has links to information on making FOIA requests. The BCIS's Internet address is www.immigration.gov/graphics/aboutus/index.htm.

[2]A non-citizen charged with deportability for a non-aggravated felony firearms offense is not inadmissible, and can adjust without a waiver.

[3]A 212(h) waiver waives inadmissibility for convictions of crimes of moral turpitude (other than murder or torture), INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I); multiple crimes, INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B); prostitution, INA § 212(a)(2)(D), 8 U.S.C. § 1182(a)(2)(D); and assertion of diplomatic immunity, INA § 212(a)(2)(E), 8 U.S.C. § 1182(a)(2)(E). It can, however, waive such convictions for someone who has never been a permanent resident, has the qualifying relative, and is seeking to adjust. Matter of Michel, 21 I&N Dec. 1101 (BIA 1998).


About The Author

Michael J. Boyle practices immigration law with the Law Offices of Michael Boyle, a four-attorney immigration law firm in North Haven, CT. Mr. Boyle is also Chair of the Connecticut chapter of the American Immigration Lawyers Association. He is also Staff Attorney for the unions at Yale University and advises the immigration committee of the Hotel Employees and Restaurant Employees International Union. He is a graduate of Yale, the University of London School of Oriental and African Studies, and the University of Connecticut School of Law. Michael Boyle may be contacted at: mboyle@immigrantcenter.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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