Remedies and Strategies for Permanent Resident Clients

413 Pages·2017·9.819 MB·English

by  ILRC Staff Attorneys

ILRC.Rem.Strat.3rd.Cover.2017.qxp_. 3/22/17 2:49 PM Page 1
Remedies and Strategies for Permanent Resident removal (Chapter 4), former § 212(c) relief P R
Clients. Protect your permanent resident clients (Chapter 5), and relief under § 212(h) of the e e
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from being removed under a deportation or Immigration & Nationality Act (Chapter 6). It also m
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inadmissibility ground using the expert analysis contains a Chapter devoted to the comparison of a d
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and framework for representation contained in LPR cancellation of removal and § 212(h) relief e ie
this manual. Designed as a “how to” manual, we (Chapter 7), and a summary of other, less common n s
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provide clear, concise and detailed explanations remedies for permanent resident clients (Chapter a
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of the grounds of removal permanent residents 8). Finally, it contains a separate chapter on e d
are most likely to face; when the grounds of detention, (Chapter 9) and a chapter on how to s S Remedies and
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inadmissibility and deportation do and don’t work with clients to obtain the best evidence in d t
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apply; how to argue that they don’t apply, and their cases (Chapter 10). n a
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the immigration remedies available for each. We t e
Strategies for
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also discuss our tips for working with clients to Throughout the manual we also emphasize that
elicit the evidence necessary to successfully defend termination of removal proceedings is the best lie ies
their cases. remedy for the permanent resident client. There- n
fore, we present arguments that you can use to ts fo Permanent Resident
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This manual contains detailed chapters on the challenge the Notice to Appear and continually
grounds of deportability and inadmissibility, as well remind practitioners that whether or not a client
as the most common remedies for those charged has a claim to U.S. citizenship should never be
Clients
with removability for crimes: LPR cancellation of ignored.
TEACHING, INTERPRETING AND CHANGING LAW SINCE I979
a publication of the
IMMIGRANT LEGAL
RESOURCE CENTER
3rd Edition
By ILRC Staff Attorneys
1663 MISSION STREET SUITE 602
3rd Edition
SAN FRANCISCO, CA 94103
T 415.255.9499 / F 415.255.9792
WWW.ILRC.ORG
Remedies and Strategies for
Permanent Resident Clients

3rd Edition

By ILRC Staff Attorneys

The Immigrant Legal Resource Center

A
Copyright 2017

Immigrant Legal Resource Center
1663 Mission Street, Suite 602
San Francisco, CA 94103
415.255.9499
www.ilrc.org
ACKNOWLEDGEMENTS
We are grateful to our ILRC staff past and present who contributed to this manual. The prior
edition was written by Nora Privitera, Kathy Brady, and Angie Junck, with able assistance from
Eric Cohen, Sally Kinoshita, and Su Yon Yi of the ILRC, and our colleagues Holly Cooper and
Sara Edelstein. This edition was led by authors and editors Kathy Brady and Rose Cahn, who
were joined by ILRC authors and editors Allison Davenport, Lena Graber, Alison Kamhi, Sally
Kinoshita, Erin Quinn, and Grisel Ruiz. Practitioners Ann Block and Aruna Sury also contributed
their expertise to various chapters. We are especially grateful for the time these advocates put in
to updating this book while working tirelessly to support immigrants at the beginning of President
Trump's administration. ILRC staff and colleagues committed to updating this manual, because
providing high-level advocacy to defend immigrants has never been more important.
The Immigrant Legal Resource Center is a unique organization that combines community
organizing and civic participation projects with meticulous and creative legal work, and an
interactive and student-centered approach to teaching that is rare in the legal field. Our staff
makes the ILRC a great place to work. We are especially grateful to Tim Sheehan for his patient
and meticulous work in creating this edition; Jonathan Huang for his work on the on-line
resources; Linda Mogannam for her patient leadership in creating publications; and the whole
ILRC staff.
Remedies and Strategies for Permanent Resident Clients
January 2017
REMEDIES AND STRATEGIES FOR PERMANENT RESIDENT CLIENTS
3RD EDITION
TABLE OF CONTENTS
Chapter 1 Remedies and Strategies for Permanent Resident Clients
§ 1.1 Introduction ........................................................................................................ 1-1
§ 1.2 How to Use This Manual.................................................................................... 1-2
§ 1.3 Which Permanent Residents Are Subject to the Grounds of
Inadmissibility and Which Are Subject to the Grounds of Deportability .......... 1-3
§ 1.4 Burdens of Proof ................................................................................................ 1-7
§ 1.5 Evidentiary Considerations; Motions to Suppress ........................................... 1-10
§ 1.6 When and Whether to Concede Removability ................................................. 1-15
§ 1.7 Analyzing Your Client’s Case .......................................................................... 1-17
§ 1.8 A Word on Judicial Review ............................................................................. 1-18
Chapter 2 Criminal Grounds of Inadmissibility and Deportability
§ 2.1 Introduction and Overview ................................................................................. 2-1
§ 2.2 Definition of Conviction and How to Avoid a Conviction for
Immigration Purposes......................................................................................... 2-7
§ 2.3 Definition of Sentence ...................................................................................... 2-15
§ 2.4 The Categorical Approach in Three Steps........................................................ 2-18
§ 2.5 Divisible Statutes, the Record of Conviction, and Burdens of Proof:
The Modified Categorical Approach ................................................................ 2-25
§ 2.6 Exceptions to the Categorical Analysis ............................................................ 2-28
§ 2.7 Overview of Immigration Consequences of Crimes ........................................ 2-32
§ 2.8 Aggravated Felonies ......................................................................................... 2-35
§ 2.9 Crimes Involving Moral Turpitude .................................................................. 2-39
§ 2.10 Controlled Substance Offenses ........................................................................ 2-48
§ 2.11 Domestic Violence, Child Abuse, Prostitution................................................. 2-68
§ 2.12 Ground of Inadmissibility for Prostitution and Commercialized Vice............. 2-76
§ 2.13 Firearms Offenses ............................................................................................ 2-77
§ 2.14 Failure to Register as a Sex Offender Deportation Ground ............................. 2-82
§ 2.15 Ground of Inadmissibility for Two or More Convictions with Total
Sentences of Five Years ................................................................................... 2-84
Chapter 3 Other Grounds of Inadmissibility and Deportability
§ 3.1 Alien Smuggling ................................................................................................ 3-1
§ 3.2 Document Fraud ............................................................................................... 3-10
§ 3.3 False Claim to U.S. Citizenship ....................................................................... 3-16
§ 3.4 Illegal Voting .................................................................................................... 3-22
§ 3.5 Inadmissible at Time of Admission and Now Removable ............................... 3-25
§ 3.6 Inadmissible for Misrepresentation and/or Fraud ............................................. 3-26
§ 3.7 Abandonment of Residence: Losing One’s Permanent Resident Status .......... 3-30
Appendix 3-A Decision of the Board of Immigration Appeals, October 27, 2008
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Chapter 4 Waiver of Inadmissibility and/or Deportability under INA § 240A(a):
Cancellation of Removal for Lawful Permanent Residents
§ 4.1 Overview of Requirements for Cancellation of Removal; Effect of
a Grant ................................................................................................................ 4-1
§ 4.2 Removal Grounds That Can Be Waived by Cancellation of Removal .............. 4-3
§ 4.3 The Applicant Must Have Been a Lawful Permanent Resident for
at Least Five Years ............................................................................................. 4-4
§ 4.4 Continuously Resided in the U.S. for Seven Years after Admission ................. 4-7
§ 4.5 Conviction of an Aggravated Felony ............................................................... 4-19
§ 4.6 Proving That Your Client Merits a Favorable Exercise of Discretion ............. 4-19
Appendix 4-A Sample Completed EOIR-42A
Chapter 5 Relief under Former § 212(c)
§ 5.1 Overview of Requirements and Procedure for Former § 212(c) Relief ............. 5-1
§ 5.2 The Former § 212(c) Relief and the Holding in INS v. St. Cyr .......................... 5-7
§ 5.3 Supreme Court Decision in Judulang v. Holder, Rejecting Statutory
Counterpart Rule ................................................................................................ 5-8
§ 5.4 Adjustment of Status and § 212(c) ................................................................... 5-11
§ 5.5 Section 212(c) Eligibility for Those Convicted by Jury Trial .......................... 5-12
§ 5.6 When the Seven Years of Lawful Unrelinquished Domicile Begins and
Ends .................................................................................................................. 5-13
§ 5.7 How Dates of Conviction Affect § 212(c) Eligibility ...................................... 5-14
§ 5.8 Section 212(c) Eligibility for People Who Were Ordered Deported
before St. Cyr Was Decided ............................................................................. 5-16
§ 5.9 DHS Regulations Governing § 212(c) Applications in the
Wake of St. Cyr ................................................................................................ 5-19
§ 5.10 Proving That Your Client Merits a Favorable Exercise of Discretion ............. 5-22
Appendix 5-A Form I-191 & Instructions
Appendix 5-B 8 CFR § 1003.44: Motions to Reopen for § 212(c) after St. Cyr
Appendix 5-C 8 CFR § 1212.3: Eligibility for § 212(c) after St. Cyr
Chapter 6 Waiver of the Criminal Grounds of Inadmissibility under INA § 212(h)
§ 6.1 Introduction to the § 212(h) Waiver ................................................................... 6-1
§ 6.2 Inadmissibility Grounds That Can Be Waived under § 212(h) .......................... 6-4
§ 6.3 General Requirements for Eligibility for § 212(h) Relief ................................ 6-10
§ 6.4 Restrictions on § 212(h) Eligibility for Certain Lawful Permanent
Residents .......................................................................................................... 6-14
§ 6.5 When Can One Use the § 212(h) Waiver? ....................................................... 6-23
§ 6.6 Discretion in § 212(h) Cases ............................................................................ 6-31
§ 6.7 Discretion in Violent or Dangerous Offenses .................................................. 6-34
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Chapter 7 Comparing § 212(h) Waivers and LPR Cancellation of Removal
§ 7.1 How to Approach Each Case .............................................................................. 7-1
§ 7.2 The Advantages and Disadvantages of § 212(h) ................................................ 7-2
§ 7.3 The Advantages and Disadvantages of LPR Cancellation of Removal ............. 7-5
§ 7.4 Case Examples ................................................................................................... 7-7
Chapter 8 Other Remedies for Permanent Residents Facing Removal
§ 8.1 Remedies for LPRs Found to Have Been Inadmissible at the Time of
Their Original Admission ................................................................................... 8-1
§ 8.2 Special Domestic Violence Waiver under INA § 237(a)(7)............................. 8-17
§ 8.3 Adjustment of Status ........................................................................................ 8-18
§ 8.4 Naturalization as a Remedy to Removal Proceedings: Termination of
Removal/Deportation Proceedings under 8 CFR § 1239.2(f) [formerly
8 CFR § 239.2(f) and 8 CFR § 242.7(e)] ......................................................... 8-20
§ 8.5 Acquisition and Derivation of U.S. Citizenship ............................................... 8-24
§ 8.6 Asylum, Withholding of Removal & Relief under the Convention
Against Torture (CAT) ..................................................................................... 8-26
§ 8.7 Remedies for Victims and/or Witnesses to Crimes .......................................... 8-30
Appendix 8-A Charts A & B: Determining Whether Children Born outside the U.S.
Acquired Citizenship at Birth
Appendix 8-B Chart C: Derivative Citizenship—Lawful Permanent Resident Children
Gaining Citizenship through Parents’ Citizenship
Chapter 9 Release from Detention
§ 9.1 Introduction ........................................................................................................ 9-1
§ 9.2 Custody Determination....................................................................................... 9-2
§ 9.3 Venue and Timing: Where and When to Request a Bond Hearing .................... 9-5
§ 9.4 Mandatory Detention of Noncitizen Criminal Offenders during Removal
Proceedings under INA § 236(c) ........................................................................ 9-6
§ 9.5 Challenging Mandatory Detention and Prolonged Detention ............................ 9-8
§ 9.6 Detention of Persons with Final Orders of Removal and No Stay of
Removal from the Circuit Court of Appeals, Including Persons Granted
Withholding or Deferral of Removal ............................................................... 9-13
§ 9.7 Detention of Persons with Final Orders Who Have a Motion to Reopen
Pending ............................................................................................................. 9-17
§ 9.8 Detention of “Arriving Aliens” ........................................................................ 9-18
§ 9.9 Detention of Persons with Credible Claims to U.S. Citizenship ...................... 9-19
Chapter 10 Working with Clients and Presenting Evidence: How to Make the Best Case
Possible
§ 10.1 The Advocate/Client Partnership ..................................................................... 10-1
§ 10.2 Creating a Partnership with Our Clients ........................................................... 10-3
§ 10.3 Dealing with Your Client’s Feelings ................................................................ 10-6
§ 10.4 Preparing the Case for Hearing ........................................................................ 10-9
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§ 10.5 Important Duties for Client and Advocate ..................................................... 10-14
§ 10.6 Introduction .................................................................................................... 10-15
§ 10.7 Extreme Hardship ........................................................................................... 10-16
§ 10.8 Equities ........................................................................................................... 10-28
§ 10.9 Proving Rehabilitation: The Three Story Approach ....................................... 10-30
Appendix 10-A Declaration of JS (A# 000-000-000) in Support of Application for
Cancellation of Removal
Appendix 10-B List of Hardship Factors
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CHAPTER 1 te
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REMEDIES AND STRATEGIES FOR PERMANENT RESIDENT CLIENTS

This chapter includes:

§ 1.1 Introduction ........................................................................................................ 1-1
§ 1.2 How to Use This Manual.................................................................................... 1-2
§ 1.3 Which Permanent Residents Are Subject to the Grounds of
Inadmissibility and Which Are Subject to the Grounds of Deportability .......... 1-3
§ 1.4 Burdens of Proof ................................................................................................ 1-7
§ 1.5 Evidentiary Considerations; Motions to Suppress ........................................... 1-10
§ 1.6 When and Whether to Concede Removability ................................................. 1-15
§ 1.7 Analyzing Your Client’s Case .......................................................................... 1-17
§ 1.8 A Word on Judicial Review ............................................................................. 1-18

§ 1.1 Introduction
To be an effective immigration advocate, it is essential to have a thorough understanding of the laws
affecting your clients. This manual is designed to give practitioners that understanding with respect
to Lawful Permanent Residents1 who have been charged with being removable.
This manual is designed as a “how to” manual; it contains detailed explanations of the grounds of
removal LPRs are most likely to face, when they do and don’t apply, the remedies for each, and the
practicalities of working with clients to elicit the evidence necessary to successfully defend their
cases.
Although the primary focus of this book is on the remedies available for LPR clients who have been
found removable, we wish to emphasize from the outset that the first line of defense in many cases
involving LPR clients will be to deny the allegations in the Notice to Appear (NTA) and move for
termination of the proceedings. This is a tactic to use in a number of situations; for example, where
the government bears the burden of proof, or when there is a question about the legality of the arrest,
or when there is an argument to be made that your client does not fall within the inadmissibility or
deportability grounds charged in the NTA.2
Finally, but very importantly, don’t forget that some of your LPR clients may actually turn out to be
U.S. citizens by operation of law, and this possibility should always be explored when representing
LPR clients in removal proceedings.

1 In this manual, we will refer to Lawful Permanent Residents in the following ways: lawful permanent
residents, LPRs, permanent residents, or green card holders.
2 These issues will be discussed in more detail in Chapters 2 and 3.
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Our goal in writing this manual has been to provide practitioners with an easy, practical way to find
information that is specific and relevant to the situations faced by their LPR clients. Chapter 1
provides a framework for analyzing cases, and therefore should be read first. Each chapter is
described below:
Chapter 1: This chapter contains a general discussion of what the grounds of deportability and
inadmissibility are, where they are found in the Immigration and Nationality Act (INA)3 and when
each of those grounds may apply to LPRs. Next, we focus on the burden of proof, how it differs
depending on whether your client is charged with being inadmissible or deportable, the particular
rules for LPRs, and the burden of proof when an LPR is seeking relief from removal. We also
discuss evidentiary rules and suppression of evidence, how to decide whether or not to concede
removability, and how to go about analyzing cases.
Chapter 2: The subject of Chapter 2 is the criminal grounds of inadmissibility and deportability,
which are the most common grounds alleged for removal of LPRs. This chapter provides an in-depth
analysis of these grounds, the differences between them, and when they apply. It also includes an
analysis of how the terms “conviction” and “sentence” are defined under the Immigration and
Nationality Act (INA), the documents that can be produced to prove that a conviction exists, the
categorical approach (how to analyze whether a conviction triggers a removal ground), the effect of
post-conviction relief and appeals, federal v. state definitions of crimes, etc. Chapter 2 provides
useful tools for successfully arguing against the removal of LPRs with criminal records.
Chapter 3: This chapter covers the non-criminal grounds of inadmissibility and deportability that are
applicable to LPR clients, such as a false claim to U.S. citizenship and unlawful voting, deportability
for being inadmissible at the time of admission, smuggling, use of false documents, and
abandonment of residence. Chapter 3 analyzes each of these grounds, when they apply, and how to
argue against them. In addition, Chapter 3 covers the specific waivers applicable to the smuggling,
misrepresentation, and document fraud inadmissibility and deportability grounds.
Chapter 4 analyzes the remedy of Cancellation of Removal for Permanent Residents under INA
§ 240A(a), including the types of grounds that can be waived, an in-depth discussion of each of the
eligibility requirements, the burden of proof, bars to relief, and the evidence required to prove your
client merits a favorable exercise of discretion.
Chapter 5 discusses relief under former § 212(c), the predecessor to Cancellation of Removal for
Permanent Residents. It includes a brief history of § 212(c), including the effect of amendments
made by the Immigration Act of 1990 (IMMACT 90)4 and the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA),5 followed by an explanation of who is still eligible for § 212(c) under
the Supreme Court’s rulings in INS v. St. Cyr6 and Judulang v. Holder.7

3 8 USC § 1101, et. seq.
4 PL 101-649, effective November 29, 1990.
5 PL104-132, effective April 24, 1996.
6 533 U.S. 289 (2001).
7 565 U.S. 42 (2011).
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Chapter 6 provides a thorough discussion of the § 212(h) waiver for criminal grounds of removal, t
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the eligibility requirements, the special restrictions for LPRs and when they apply, and the r
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evidentiary requirements for the waiver.
Chapter 7 contains an in-depth comparison of the § 212(h) waiver and Cancellation of Removal
under § 240A(a), the benefits and drawbacks of each remedy, and how to analyze which of these
remedies to pursue for your client. It also contains examples to illustrate the kinds of situations in
which a comparison of these two remedies is likely to come up.
Chapter 8 covers other potential remedies for LPR clients facing removal, including waivers under
§ 237(a)(1)(H), adjustment of status and naturalization as remedies, etc. You should be familiar with
Chapters 2–6 before reading Chapter 8.
Chapter 9 is devoted to detention, including the rules for mandatory detention under § 236(c), the
differences between pre- and post-removal hearing detention, and challenges to your client’s
detention.
Chapter 10 discusses techniques for working with clients to obtain the most effective evidence to
defend their cases, what types of evidence are most likely to be relevant to their cases, and how to
obtain and present different kinds of evidence.
§ 1.3 Which Permanent Residents Are Subject to the Grounds of
Inadmissibility and Which Are Subject to the Grounds of Deportability
A. General Rules for Noncitizens
Generally speaking, the terms “admission” and “admitted” are defined in INA § 101(a)(13). This
section was added to the Immigration and Nationality Act by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA).8 INA § 101(a)(13)(A) defines admission as “the
lawful entry of [an] alien into the United States after inspection and authorization by an
immigration officer.” Those who have been admitted are subject to the grounds of deportability.
In contrast, those who have not been admitted are considered “applicants for admission” and are
subject to the grounds of inadmissibility.
The grounds of inadmissibility are found at INA § 212(a), and the grounds of deportability are
found at INA § 237(a). Though they are similar, they are not identical. The differences between
them can have a serious effect on your LPR client’s eligibility for relief from deportation.
The following people are subject to the grounds of inadmissibility:
• Noncitizens who entered without inspection
• Applicants for admission at the border, such as nonimmigrant visa holders, those eligible
for a visa waiver, and immigrant visa holders arriving for the first time9
• Applicants for adjustment of status
• Parolees; see INA § 101(a)(13)(B)

8 Pub. L. 104-128, enacted 9/30/96; effective 4/1/97.
9 A person with an immigrant visa from a U.S. Consulate abroad does not become a lawful permanent
resident until and unless he or she is admitted at a U.S. border while the immigrant visa is valid, and within
six months of the date the visa was granted. See 22 CFR §§ 42.72-42.64(b).
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