What To Do If You Are Stopped by ICE One of the most stressful situations you can face as an…
An Order of Removal Doesn’t Mean You Can’t Get a Green Card
An Order of Removal Doesn’t Mean You Can’t Get a Green Card
Do you have an Order of Removal? Do you think you can’t get a green card because of that? You may have options.
Andres Mejer :Now third subject. Lastly, we’re going to talk about, hey, what if you have an order of removal?
Andres Mejer :Can you still become a green card holder? The answer is yes. We’re going to talk about two ways. First, we talk about Jorge,George Now, his real name is not George. George has TPS today. He has children over 21 years old and U.S. citizen.
Andres Mejer :When don’t talk about specifically his daughter who wants to apply for him and his wife is a lawful permanent resident. Everybody has achieved legal status except George. Why?
Andres Mejer :Because George has an order of removal from the 1990s. He applied for asylum. Went to trial. It was denied. He was given voluntary departure, but didn’t leave. What is voluntary departure? Voluntary departure is where you pay your way to go back home. You buy your ticket, you board the plane and you leave. It isn’t where you’re detained. And they tell you, listen, you know what? If you sign here, we’ll have you out of here in a week. If not, you could be in for months. And you say, screw it, I’ll sign. That’s not voluntary departure. That’s just you agreeing to be deported. That is not the same thing. George got voluntary departure. Problem is, he never left. So when he didn’t leave 30 years later. So when he didn’t leave, he was given an order of removal. Then TPS came about. TPS gives them protection from deportation. Similar to DACA.
The only difference is TPS is by statute, not by presidential decision with TPS. He has work authorization, Social Security, driver’s license. He can stay in the United States.
Andres Mejer :He’s even left and came back with advanced parole on several occasions. Now. So here, here’s the context. His daughter wants to apply for him. She’s a U.S. citizen, so she’s going to document the relationships, she’s going to show she’s the U.S. is she’s going to show she’s his biological daughter. And once it once he gets approved, he then will be able to historically change his status to Green Card Holder, but he’s inadmissible because of the order of removal.
Andres Mejer :So we need to find a way to overcome it. Today, we’re going to talk about two ways. One is a motion to reopen. What is a motion to reopen? That’s what you’re asking immigration judge or the Board of Immigration Appeals to consider material previously unavailable and to vacate the order. Now, here are some common reasons. You had ineffective assistance of counsel which prejudiced your case.
Andres Mejer :It actually doesn’t matter which country he’s from. For purposes of conversation, let’s say from a he’s from El Salvador, which he is. But it really doesn’t matter if he’s from El Salvador, from Haiti, from Honduras. I mean, that matters when it ends. But the purpose of the conversation, what’s important is that he has TPA. So motion to reopen. What are some common reasons? One, ineffective assistance of counsel, which prejudiced your case. Now, you’re not entitled to the best attorney on earth.
Andres Mejer Sorry, I couldn’t help that, but know that the law doesn’t say you must have the best attorney on earth. No. The law says you’re entitled to a reasonable attorney. So did your attorney make a mistake that a reasonable attorney would not have done?
Andres Mejer And how did that affect your case? It is by no means easy to prove. Let me give you an example. Your attorney was disbarred for a fraud. Let’s say you did not commit marriage fraud, but your attorney was a crook and he wasn’t doing things he or she should have done. And USCIS. He lied to you about what happened.
Andres Mejer You were denied. And later you find out he never filed anything. And you were denied because he just didn’t do it.
Andres Mejer That’s ineffective since his counsel that prejudiced your case and you can prove that your attorney was the was the spark. You have a contract that you hired him. You have received showing that you paid him and you have notification from the bar. Scuse me. Our newspaper articles indicating he lost his license for the crimes that he committed. So that’s a pretty darn good reason to get it to get a case reopened. So that’s one ineffective sense of counsel which prejudiced your case, too. You weren’t deportable or are eligible for relief based on one of the following, let’s say, a newly vacated conviction. So let me give you an example. Let’s say 20 years ago, you were arrested with, I don’t know, in a car with four, four people. And one of them had a whole lot of drugs on his person. You didn’t know you had nothing to do with it, but everybody was charged with it. You went to court. You pled guilty. You went to court. You were arrested on Friday. Monday you went to court. The you know, the prosecutor said, listen, you plead guilty. You pay a fine. Don’t where you want. Do enough to go to jail. Awesome. You pay your 800 bucks. You didn’t have to pay for an attorney. Life is great. Twenty years later, ICE picks you up and says, hey, you’re a drug trafficker. You’ve committed an aggravated felony. No bond for you. You’re going to be detained and you’re eligible for nothing. We’re deporting you because a crime you committed 20 years ago when you didn’t know.
Andres Mejer So you father post conviction, relief motion, say, listen, I was not aware of the consequences. I did not have an attorney. And, my plea was not knowing the involuntary for a variety of reasons, maybe didn’t have a translator, maybe to speak a language, maybe, you know, was going on the review in the judge’s transcripts. Maybe the judge didn’t give you the proper instructions.
Andres Mejer Maybe there is no transcript. There’s nothing because they just went to guilty. Did they follow any of the protections that you were supposed to do? And that’s the basis to reopen it. And today, the conviction gets overturned. Now, you were deported because you had that conviction. Now that you no longer have that conviction, you’re no longer deportable. And that’s a reason to reopening situation number three, new case law or new new law, period. It could be case law could be statute. So let’s say that you are a victim of violent crime before the U visa statute was enacted. So you did know that you could be protected because of it, because of the service that you provided to help find a criminal, take them off the streets and go and prosecute. Go, go testify in court. You didn’t know that that was protected because at the time it wasn’t. But now the law changed and it is. So you applied for a U visa. You were approved for the U visa. Now you can find the reopening. So one ineffective sense of counsel which prejudiced your case to you weren’t deportable or you are now eligible because facts or the law has changed. Here’s the kicker. Motion to reopen does not automatically stop your case. So here you are. You have an order of removal, your daughter, your Jorge. Your George. Your daughter has applied for you.
Andres Mejer That it’s called an I-130. That petition was approved. She is your daughter. She is a U.S. citizen. There is a visa immediately available for you. And now you want to, you know, get rid of the order removal. So you filed for a motion to reopen and ICE picks you up. What the hell? I’m doing the right thing. Why am I being picked up? Because there’s no automatic stay. What does that mean? You have to in some circumstances, you have to request the court say, hey. While you’re deciding my future, please prevent immigration from deporting me. Now, sometimes you need and sometimes you don’t. Let me give you a simple example. If you have what’s called an in absentia order. What that means is you were supposed to go to court. You didn’t show up. You failed to appear. That’s an in absentia order. If that’s what happened to you, you file a motion to reopen. That’s an automatic stay. Anything else is not automatic. And you have to request that the judge stay your deportation. It’s called removal Now. Otherwise, ICE could pick you up. Doesn’t mean that they will, but they could. So it’s better that they don’t. If the motion to reopen is granted you, you’ll be placed in removal proceedings. Now, historically, you could then request an immigration judge to terminate proceedings and remand the case down to USCIS to adjudicate your Green Card application. But today that’s not happening because unless unless the government’s attorney joins in your application an immigration judge, the attorney general decided that the immigration judge does not have discretion to terminate proceedings. Can you imagine? That’s ridiculous. You may very well find yourself in deportation proceedings now called removal proceedings. And you may find yourself having a trial on whether you deserve to get you Green Card or not. Which I don’t have a problem with the fact of a trial. Look, it’s more expensive, no question. But if that was the only avenue, no issue there. It’s not the cost. It’s what’s the opportunity and how much time is it going to take me? So let me give you an example. I have a client that was caught at the border to present itself at the border. Ask for asylum. Took two years to get her first court appearance. She had filed first for asylum timely. She had all the evidence. She said, I your honor, I’m ready. I want my trial date. This was the end of October. You know what date she gave her?
Andres Mejer June 25th, two thousand twenty three, almost four years. This is someone who’s ready. This is someone who’s prepared. This is someone with a fantastic case and wants her day in court as fast as possible. And it’s going to take six years in total. That’s ridiculous. So if you’re if you’re George and your daughter, who a us and is applying for you and that’s approved and you file a motion to reopen and that’s approved Now you in removal proceedings, do you really want to wait another four years for your day in court to get your Green Card?
Andres Mejer Not if you have any other option. The good news is you have another option. It’s called the I-212 waiver, Now I-212 waiver. Normally I don’t use numbers, but to be honest, I just haven’t come up with a good name for it. Neither could immigration, which is why they call it I-212. But this waiver allows you to request consent from USCIS to allow you to reapply to for lawful readmission after having been deported. So these waivers are discretionary. The government does not have to grant them to you. But here are some factors that the government will consider. Why were you deported? Listen, if you killed somebody and you were jail, for 20 years and then you were deported an I-212, ain’t gonna help you.
Andres Mejer How long were you deported? Was it five days ago or 50 years ago? How long have you been in the US? Three months or 30 years. Are you a good moral person? Do you go to church? Are there people who will? We have good things to say about you. Are you employed? Do you pay taxes? Do you pay child support or do you owe child support? So are you a good more person? Evidence of re formation and rehabilitation. Let’s say for purposes of conversation, you weren’t convicted of a crime. But you know, back in the day you were drunk and you live maybe on the street and maybe you did stupid stuff and now you found God and you changed your life. You no longer drink. You go to AA, you Now married. You have three kids. U.S. citizens, your employed. Your whole life is changed now. Maybe you weren’t a drunk, but you found the right man or woman and then you changed your life because of it. You’re reformed. You’re rehabilitated. You’re a better person today than you were some time ago. Hopefully more than a day ago. Right. Otherwise, this isn’t gonna go very well. So why were you deported? How long ago you were deported? How long have you been in the US? Are you a good moral person? Evidence of re formation or rehabilitation? Are you admissible in the US if you committed a murder? You’re not admissible in the United States if you sold drugs with the intent to distribute. You’re a drug trafficker. That means you’re an aggravated felon. You’re not admissible to the US. Your problem is greater than just your order of deportation.
Andres Mejer It’s also this other event. So what they’re saying is, are you admissible in the United States? Listen, is the order of removal. The only thing preventing you from becoming a lawful permanent resident or is there something else? And if there is. Do you have a solution for it?
Andres Mejer Let’s say you entered into the United States and you entered without permission. And here you are 30 years later.
Andres Mejer Well, that’s an unlawful entry. You’re not eligible for your Green Card inside the United States. You’re gonna have to leave the US the moment you leave. You’re inadmissible for 10 years. So now you have two things making you ineligible. 1 The order removal. Second, you’re unlawful presence. But guess what? There’s waivers for both of those and an I-212 is appealable. Now, last criteria, to be honest, is the most important one hardship to family lawfully in the United States.
Andres Mejer And this is why we’ve been doing a lot of I-212 lately, because in the example that I just provide just a second ago where you went to without permission or and you’ve been here all this time and now you’re going to leave the United States, you’d visible for 10 years. It’s the same waiver. They call it something different, but the criteria is the same. It’s the same agency that reviews it. USCIS, it’s the same filing fee. It’s the same proofs. So if I know I need a waiver to overcome my unlawful presence, why on earth would I file a motion to reopen? I can’t do that. I still need that waiver.
Andres Mejer So if it’s the same criteria, I might as well file the I -212 first because if it denied, I can appeal it and I can take that all the way up and hopefully win at the border immigration appeals or the Third Circuit or Supreme Court. But hopefully we we win at the agency level. Point is, you can appeal it. Now, if it’s approved. Hey, I just know that my next waiver is going to be approved also or very likely going to get approved because it’s the same circumstances. So hardship to family lawfully in the United States. Let’s look at it now. We look at financial, emotional and medical. Those are the three principal factors. There’s a lot of factors, but you need at least two of them in Georges case, Jorge’s case. He will be fine. The I-212, or because a motion to reopen will just result in a trial and there’s no point waiting for years. And he has a really good waiver case. So he’s been in the U.S. over three years. He has no criminal record. He has many people that can attest to his good moral character. His wife’s a Green Card holder. He has U.S. citizen kids, some of which have married and have their own kids. So the whole family will be affected if his waiver is not granted. Now, his wife has significant medical conditions. She needs his help to get to the doctors. She needs help to do simple things, like to go buy groceries. She can’t pick up the laundry. She’s disabled, so she can’t work. So if he’s deported, if he’s leaves, she how is she going to support herself? Likely she’s going to have to file for government assistance because he’s the sole breadwinner. How will she be affected emotionally if she’s separated from her spouse of 30 years? All of these families in the U.S., almost all are either. Actually, I think all of them but him are Green Card holders or U.S. citizens. How will the rest of his family be affected if he’s removed?
Andres Mejer He has a great case. And had he had the Trump administration not been trying to get rid of TPS. He’d likely wouldn’t have done anything about it. He just would have stayed with TPS. So don’t do that. If you have TPS or you have darker and you’re not sure of your options. Call! If you have some way to change your status. We’ll let you know if it exists. We’ll find it. Thank you for tuning in. I’m Andrés Mejer published author, Radio Celebrity and today doing your segment on Para Ser Legal.