Removal Defense: Defending Immigrants in Immigration Court

Preface & Acknowledgements
Table of Contents
Chapter 1: Introduction to Removal Proceedings
§ 1.1 Introduction
§ 1.2 What’s Inside
§ 1.3 Immigration Proceedings: A Quick Overview
§ 1.4 The Legal Framework for Removal Proceedings
§ 1.5 The Concept of Admission
§ 1.6 Deportation and Exclusion Proceedings before IIRIRA
§ 1.7 The Grounds of Inadmissibility and Grounds of Deportability
§ 1.8 Burdens of Proof
Chapter 2: Meeting Your Client & Assessment of the Case
§ 2.1 Introduction
§ 2.2 Attorney-Client Relationship: Some Basics
§ 2.3 The Client Interview
§ 2.4 A Closer Look at the Initial Meeting and the Intake Sheet
§ 2.5 Subsequent Information-Gathering Meetings
§ 2.6 Working with Vulnerable Clients
§ 2.7 Analyzing Your Client’s Case
§ 2.8 Educate Your Client on His or Her Case
§ 2.9 Ask the Client and His or Her Family to Do Work on the Case
§ 2.10 Case Management
§ 2.11 Freedom of Information Act (FOIA)
§ 2.12 CBP FOIA Requests
§ 2.13 OBIM FOIA Requests
§ 2.14 Expedited FOIA Requests for Clients in Removal
§ 2.15 Challenging the FOIA Response
§ 2.16 Subpoenas
§ 2.17 Criminal Documents
Chapter 3: Non-Criminal Grounds of Inadmissibility
§ 3.1 Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse
§ 3.2 Alien Smuggling
§ 3.3 Fraud and Misrepresentation
§ 3.4 False Claim to U.S. Citizenship
§ 3.5 Inadequate Documentation and Document Fraud
§ 3.6 Likely to Become a Public Charge
§ 3.7 Entry, Admission, and Effective Dates
§ 3.8 Unlawfully Present in the United States without Being Admitted or Paroled
§ 3.9 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver
§ 3.10 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed, and Who Enter or Attempt to Enter without Being Admitted
§ 3.11 The Differences between “Unlawful Presence” under INA § 212(a)(9)(B) & (C) and “Unlawful Status”
§ 3.12 Failure to Attend Removal Proceedings
§ 3.13 Past Removal or Deportation/Exclusion
§ 3.14 Other Grounds: Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Child Abductors
Chapter 4: Non-Criminal Grounds of Deportability
§ 4.1 Removable for Being Inadmissible at Entry or Adjustment
§ 4.2 Present in Violation of Law
§ 4.3 Violated Nonimmigrant Status
§ 4.4 Violation of Condition of Entry
§ 4.5 Marriage Problems
§ 4.6 Failure to Register and Falsification of Documents
§ 4.7 Public Charge Ground of Deportation
§ 4.8 Alien Smuggling
§ 4.9 Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility
Chapter 5: Crimes & the Grounds of Deportability, Inadmissibility, & Bars to Establishing Good Moral Character
§ 5.1 Clients with Criminal Records
§ 5.2 Forming Defense Goals: Deportability, Inadmissibility, and the Burden of Proof in Removal Proceedings
§ 5.3 What Is a Criminal Conviction?
§ 5.4 Definition of a Sentence
§ 5.5 The Categorical Approach in Three Steps
§ 5.6 Divisible Statutes, the Record of Conviction, and Burdens of Proof: The Modified Categorical Approach
§ 5.7 Exceptions to the Categorical Analysis
§ 5.8 Overview of Immigration Consequences of Crimes
§ 5.9 Aggravated Felonies
§ 5.10 Inadmissibility and Deportability Based on Drug Offenses
§ 5.11 Crimes Involving Moral Turpitude
§ 5.12 Firearms Offenses
§ 5.13 Other Criminal Grounds of Deportability and Inadmissibility
§ 5.14 Clearing Up a Criminal Record
§ 5.15 The Good Moral Character Requirement
Chapter 6: Representing Detained Clients in Bond Hearings
§ 6.1 Introduction to the Immigration Detention System
§ 6.2 Representing Detained Clients: Special Challenges
§ 6.3 Securing Release for Your Client
§ 6.4 Avoiding Initial Custody by ICE: ICE Detainers
§ 6.5 Custody Determination
§ 6.6 Venue and Timing: Where and When to Request a Bond Hearing
§ 6.7 Mandatory Detention
§ 6.8 Challenging Mandatory Detention and Prolonged Detention
§ 6.9 Children and Bond
§ 6.10 Preparing for the Bond Hearing
§ 6.11 Proving the Bond Case
§ 6.12 Posting the Bond
Chapter 7: The Master Calendar Hearing & Contesting Removal
§ 7.1 The NTA and the Initiation of Removal Proceedings
§ 7.2 A Brief Overview of the Master Calendar Hearing
§ 7.3 Preparation before the Master Calendar Hearing
§ 7.4 General Procedures during a Master Calendar Hearing
§ 7.5 Pleading to the Notice to Appear
§ 7.6 When and Whether to Concede Removability
§ 7.7 Special Considerations for Unaccompanied Minors and Children
§ 7.8 Evidentiary Considerations; Motions to Suppress
§ 7.9 After the Master Calendar Hearing
Chapter 8: Trial Practice & Motions: The Individual Hearing & Trial Practice
§ 8.1 Introduction
§ 8.2 Strategy
§ 8.3 Document Submission
§ 8.4 Rules and Procedures
§ 8.5 Preserving the Record
§ 8.6 Testimony
§ 8.7 Opening and Closing Statements
§ 8.8 Judge’s Decision
§ 8.9 Filing Motions
Chapter 9: Filing for Relief
§ 9.1 Introduction
§ 9.2 Jurisdiction
§ 9.3 Special Considerations on Jurisdiction
§ 9.4 Strategies while Awaiting a Decision by USCIS
§ 9.5 Filing Applications and Documents
§ 9.6 Voluntary Departure
§ 9.7 Prosecutorial Discretion
§ 9.8 Deferred Action for Childhood Arrivals
Chapter 10: Introduction to Non-LPR Cancellation of Removal, Former Suspension of Deportation, VAWA Cancellation of Removal, & NACARA Suspension & Cancellation of Removal
§ 10.1 Overview of the Law
§ 10.2 Introduction to Cancellation of Removal under INA § 240A(b)(1) (“Non-LPR Cancellation”)
§ 10.3 Continuous Physical Presence for Non-LPR Cancellation
§ 10.4 Good Moral Character and Criminal Bars in Non-LPR Cancellation
§ 10.5 Exceptional and Extremely Unusual Hardship for Non-LPR Cancellation
§ 10.6 Discretion
§ 10.7 Judicial Review
§ 10.8 Introduction to Suspension of Deportation
§ 10.9 Continuous Physical Presence for Suspension of Deportation
§ 10.10 Good Moral Character for Suspension of Deportation
§ 10.11 Hardship for Suspension of Deportation
§ 10.12 Introduction to VAWA Cancellation and Suspension
§ 10.13 Establishing the Family Relationship for VAWA Cancellation and Suspension
§ 10.14 Battery or Extreme Cruelty for VAWA Cancellation and Suspension
§ 10.15 Three Years of Continuous Physical Presence for VAWA Cancellation and Suspension
§ 10.16 Inadmissibility and Deportability Bars to VAWA Cancellation
§ 10.17 Good Moral Character for VAWA Cancellation
§ 10.18 Extreme Hardship for VAWA Cancellation
§ 10.19 VAWA Cancellation Compared with VAWA Self-Petitioning
§ 10.20 Motions to Reopen in the VAWA Context
§ 10.21 Introduction to NACARA
§ 10.22 Continuous Physical Presence for NACARA
§ 10.23 Hardship for NACARA
§ 10.24 Good Moral Character for NACARA
§ 10.25 NACARA Suspension and Cancellation for Those with Certain Crimes
Chapter 11: Applying for Cancellation of Removal (For Lawful Permanent Residents) under INA § 240A(a) and the § 212(c) Waiver
§ 11.1 Introduction: Cancellation of Removal and the Former § 212(c)Waiver
§ 11.2 Overview of Legal Requirements
§ 11.3 Removal Grounds That Can Be Waived by Cancellation of Removal
§ 11.4 Lawful Permanent Resident Status for at Least Five Years
§ 11.5 Seven Years Continuous Residence after Admission
§ 11.6 Never Convicted of an Aggravated Felony
§ 11.7 Other Bars to Eligibility
§ 11.8 Proving That Your Client Merits a Favorable Exercise of Discretion
§ 11.9 Proving Rehabilitation: The Three Story Approach
§ 11.10 Preparing the Client for the Hearing
§ 11.11 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings
Chapter 12: Asylum and Related Relief: Asylum, Withholding, Convention Against Torture
§ 12.1 Overview of Asylum Law
§ 12.2 Defensive Asylum in Removal Proceedings
§ 12.3 Comparing Asylum and Withholding of Removal
§ 12.4 Relief under the Torture Convention
§ 12.5 The “Asylum Clock” and Qualifying for Work Authorization
§ 12.6 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal
§ 12.7 Bars to Both Asylum and Withholding of Removal
§ 12.8 The Statute: Legal Requirements for Eligibility for Asylum
§ 12.9 Well-Founded Fear of Persecution
§ 12.10 Past Persecution
§ 12.11 What Is Persecution?
§ 12.12 Persecutors: Government and Non-Governmental Forces
§ 12.13 Connecting Persecution to the “Enumerated Grounds”
§ 12.14 The Meaning of the Protected Grounds
§ 12.15 Spotlight on Membership in a Particular Social Group
§ 12.16 The REAL ID Act and Corroboration
§ 12.17 Credibility and Frivolous Applications
Chapter 13: Motions to Reopen
§ 13.1 Introduction to Motions to Reopen
§ 13.2 Comparing Motions to Reopen, Remand, and Reconsider
§ 13.3 General Requirements for Reopening Removal Proceedings
§ 13.4 Exceptions to Time and Numerical Limitations
§ 13.5 Where to File the Motion
§ 13.6 Effect of Departure from the United States
§ 13.7 Proving That the New Evidence Is Material and Was Previously Unavailable
§ 13.8 Exceptions Where Changed Circumstances Give Rise to Eligibility for Asylum
§ 13.9 Motions to Reopen Involving Prior Ineffective Assistance of Counsel
§ 13.10 Overview of MTRs Challenging In Absentia Removal Orders
§ 13.11 Reopening In Absentia Removal Orders Based on Exceptional Circumstances
§ 13.12 Reopening In Absentia Removal Orders Based on Lack of Notice
§ 13.13 Joint and Sua Sponte Motions to Reopen
§ 13.14 Discretionary Factors Relevant to Motions to Reopen
Index of Appendices
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
Appendix I
Appendix J
Appendix K
Appendix L
Appendix M
Appendix N
Appendix O
Appendix P
Appendix Q
Appendix R
Appendix S
Appendix T
Appendix U
Appendix V
Appendix W
Appendix X
Appendix Y
Appendix Z
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