Month: January 2010

So you’ve been deported and nobody told you?

We often see the same scene played out with different characters.  A person walks into our office and says they
have not heard from the Immigration Service in a long while.  They’ve called their 800 number, they have
visited the field office, they have checked on-line.  Their case seems to be in “legal limbo”.

Imagine their surprise when we call the Automated Query
System of the Immigration Court and learn that, according to their
computers, the person was deported months, or perhaps years ago.   He or she never received a letter, a phone
call, not even a warning on their visits to the USCIS field office.  Their whole case has been summarized by a
one-sentence automated blurb that dispassionately drawls, “The Immigration
Judge order you removed on [date]”.

For most people, this is a very hard thing to hear,
particularly those who have diligently asked after their case through one of
the many channels the government puts at immigrants’ disposal.  The truth, however, is that these “channels
of communication” are more like optimistic generalizations that cannot be
relied upon to ascertain the actual status of a case.  When the harsh reality comes crashing down,
one might think that the battle is over before it was actually begun.  Once ordered deported, there seems to be
little chance of obtaining any immigration relief.

So, what to do if you suddenly find out you were deported?  The solution is to retrace the steps of the deportation
or removal order.  This means going
through every bureaucratic step in reverse, fixing and correcting the government
mistakes that led to Immigration Court. 
This is where an attorney can come in handy.

An immigrant may authorize an attorney to represent her or
him before the Immigration Court.  This
is done using a form called EOIR-28.  In
this form, the attorney informs the court that he or she has been retained to provide
legal services on an immigrant’s behalf. 
The attorney has several options. 
The record of the court file may be inspected, or, if, enough details
are known, file to have the order of removal rescinded (taken back) and an immediate stay of
the deportation order put into place.  Of
course, this is not merely a matter of asking the court to reopen a case “just
because”.  The alien must provide a convincing
argument and, if available, proof, that they have never received notice of the
removal or deportation proceedings. 

Lack of notice is one of the grounds for reopening a case at any
time, and it is crucial to bolster the request with evidence that the alien has
dutifully informed all changes of address, and that copies or records of status
inquiries be submitted.  In many cases, a
sworn affidavit may have to be provided as the alien must state, under penalty
of perjury, that notice was never received. 
The government is then given an opportunity to respond to your request (or
“motion”) to reopen.  They may agree and
state that they do not oppose a reopening or they may challenge your
allegations by providing what they believe is proof that they did indeed give
proper notice.  These are definitely deep
waters that an immigrant should preferably tread with the aid of a competent attorney.

The proceedings at the Immigration Court will strip the
order of removal from your case file, but that does not mean your case is
finished.  Remember how the case arrived
at the Immigration Court?  That’s right.  You still need to have the USCIS look into the
denial of your case so that the reasons for the denial are corrected and overcome.  Sometimes it is simply a matter of correcting
a typographical error and sometimes it is a matter of evidence requested that
was never received. 

Regardless of the
reasons, the USCIS cannot give you an immigration benefit unless you prove that
you are eligible.  So, if you did not
receive that request for evidence asking for a clearer copy of your birth
certificate or a criminal record, you are still ultimately required to provide
these documents.  You do not
receive a free pass because of all the hoops you have had to jump through.

In conclusion, a recently discovered order of removal or
deportation is a very serious matter: it can interfere with employment, travel,
and general livelihood of an immigrant.  It
is not, however, the end of the road. 
There are ways to “remove” orders of removal, particularly in cases
where no notice was ever received.  With
patience, diligent record-keeping, and tenacity, you can reconstruct your case
and avoid being permanently removed from the United States.

Haiti TPS: Critical Dates and Addresses

The Department of Homeland Security (DHS) has issued the official notice on the Federal Register specifying the critical dates for Haitian Temporary Protected Status (TPS).

As part of Haiti’s designation for TPS, DHS has informed that:

  • 01/21/2010 – Start of TPS application period
  • 07/20/2010 – End of the TPS registration period (180 days after start)
  • E-Filing Possible? — No, form must be mailed in
  • Mailing Addresses

            If you live in the state of Florida:      

                US Postal Service:       USCIS
                                                 PO Box 4464
                                                 Chicago, IL 60680–4464

                Express mail and
                courier deliveries:     USCIS,
                                                Attn: Haiti TPS,
                                                131 South Dearborn, 3rd Floor
                                                Chicago, IL 60603–5520

                If you live in the state of New York:

                US Postal Service:     USCIS
                                                PO Box 660167
                                                Dallas, TX 75266–0167

                Express mail and
                courier deliveries:     USCIS
                                                Attn: Haiti TPS
                                                2501 S. State Hwy. 121 Business, Suite 400
                                                Lewisville, TX 75067


                All others:        

                US Postal Service:      USCIS
                                                PO Box 24047
                                                Phoenix, AZ 85074–4047

                Express mail and
                courier deliveries:     USCIS               
                                                Attn: Haiti TPS, 1820
                                                E. Skyharbor Circle S, Suite 100
                                                Phoenix, AZ 85034

After nineteen years of looking for answers, we ask the right question

We recently had a case which illustrates the rather obscure
way an immigration attorney can be of help. 
We received a young lady who had been to many attorneys asking the same
questions.  She had entered the country
illegally when she was a very young girl. 
Now, nineteen years later, with a husband (a United States Citizen) and their
young child (also a U.S. Citizen), she was being told repeatedly that she had
no recourse.  Conventional wisdom from
the sources she was consulting was that once section 245(i) of the Immigration
and Nationality Act expired on April 30, 2001, she was out of luck.  Immediately upon telling these people that
she had entered illegally, she was essentially ushered out the door; no visa,
no hope.

The Long Hand of the Grandfathering Law

But our heroine had one more stop to make.  As she entered our offices, she was understandably
crestfallen, and, to be fair, we initially felt her case was not eligible for
adjustment.  Her entry had been illegal
(what is called Entered Without Inspection—or EWI) and the law that allowed an
illegal entrant to adjust had ended.  It
is then that we asked a routine question regarding the procedural history of
her case:

“Has anyone in your family, other than your husband, ever file
a petition on your behalf?”

Her answer was as nonchalant as it was staggeringly

“Sure.  My mom, but
that was a very long time ago, that doesn’t count anymore.”

And yet it did. 
According to USCIS policy documents, upon expiration of the LIFE Act enacted
at the end of 2000, any person who had a pending immigrant petition or labor
certification would be able to use the part of the law that allowed illegal entrants
to adjust their status–even after it was gone.  In short, that
petition filed by her mother many, many years ago proved to be the link that
would allow her to be grandfathered and use INA 245(i) to legalize her status.

Although skeptical at first, we convinced her that she
needed only to file an Adjustment Application with the special evidence
required by the LIFE Act and she would be adjusted.  After several months of administrative
processing, she received her Green Card two weeks before the New Year.  She also received her Social Security card
and put a down payment on a home.  With
her new credentials, she is now in school and studying while working—the promise
of the American Dream written on her smile.

What We Learned

No matter what people tell you, make sure you always seek
the advice of competent counsel, and DON’T be afraid to ask for a second
opinion; or a third, or a twenty-third. 
Although this person’s case had many unique elements, only a thorough,
honest and exacting history of your case can ensure that your lawyer has the
best chance to pull a residence out of a hat.