Asylum, Removal & Appellate Services

The Representation of Individuals in Asylum, Removal or Appellate Procedures

There is a portion of immigration law practice that involves trial advocacy. It involves those individuals fleeing persecution from their home country, relief from deportation based upon criminal matters or fraud and appeals of unfavorable decisions to the Board of Immigration Appeals or federal circuit courts.

Davidson & Schiller, LLC has successfully represented many applicants seeking relief in these matters in front of immigration courts and federal courts throughout the United States.

Asylum, Withholding of Removal, and Convention against Torture

The issues in asylum cases are often complex and varied. The standard is the applicant must have a reasonable fear of persecution based upon one of five grounds identified in the law: political opinion, nationality, religion, social group or ethnicity. There is also a general rule that asylum applications must be filed within one-year of entry into the United States, but there are exceptions based upon exceptional circumstance affecting the applicant’s ability to file in a timely manner and material changes in home country conditions that result in new or heightened fear.

Asylum is affected by the applicant’s ability to corroborate the claim of persecution with evidence regarding personal circumstance and general country conditions. In some circumstances, asylum is dependent upon expert opinion explaining the context and seriousness of the threat against the applicant.

Withholding or deferral of removal is available to individuals who do not qualify for asylum either because they did not meet the one-year filing deadline or are statutorily ineligible for it as further explained below. In order to be granted “withholding” an applicant must show that if returned to his country, it is more likely than not that his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. This is a higher legal standard than the threshold to be granted asylum, which is reasonable fear. (“[T]he Attorney General may not remove an individual to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”). There is an exception to this rule when the individual has been convicted of a “particularly serious crime.” A crime where sentence imposed of five or more years is automatically a “serious crime.” The determination whether crimes with lesser sentences are a “serious crime” is made on a case-by- case bases. The factors to be considered include: nature of the crime, the length of sentence, and the circumstances under which the crimes were committed, as well as a determination whether he is a danger to the community.

To obtain relief under Convention against Torture (CAT), an individual must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” “Torture” is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” CAT relief is very rare but is significant to those individuals who have been convicted of serious crimes that make them ineligible for Withholding of Removal or Asylum.

Criminal Removal proceedings for Permanent Residents or Aliens

If a permanent resident has a criminal conviction which makes them deportable (and not all crimes do), DHS may begin removal proceedings subsequent to it becoming final, which means the end of the appeal process. In some circumstances, DHS will take the individual into custody at time of sentencing and it will then issue a Notice to Appear (NTA) listing grounds for removal pursuant to the INA. Whether or not the individual is eligible for release during removal proceedings, is dependent upon the INA statute governing mandatory detention.

The first thing to determine is whether a guilty plea will result in the individual being subject to removal. Thus, it is beneficial normally to involve an immigration lawyer in the criminal case prior to its completion in order to assess its immigration consequence. The second issue is whether that individual will be subject to “mandatory detention.” The third issue is whether that individual is eligible for any relief from deportation should he or she be placed in removal proceedings as the result of criminal convictions.

The immigration laws divide removal criminal charges into three categories. They are: 1. deportable; 2. admissible and 3.aggravated felony. The deportation charges under section 237 of the Act concern individuals present in the United States. The grounds of admissibility relate to individuals at the border attempting to enter the United States although sometimes DHS will treat an individual for immigration purposes as attempting entry even when they are not at the border. Additionally, permanent residents, if they depart the United States subsequent to any criminal conviction and try to reenter the United States, may become subject to the grounds of admissibility, which differ in some key aspects from the deportation grounds. Finally, the INA treats special categories of criminal behavior that are defined as “aggravated felonies” as deserving of harsher treatment. Individuals convicted of aggravated felonies are generally not eligible for as many waivers under the INA and are entitled to less due process rights.

The grounds for removal are as follows:

An individual is deportable if convicted of one crime involving moral turpitude committed within 5-years after the date of admission and the crime is of such nature that a sentence of one year or longer may be imposed; or if that individual is convicted of two or more crimes involving moral of turpitude, not arising out of a single scheme, regardless of sentence, then that person is subject to removal.
An individual is inadmissible if convicted of one felony, if a crime involving moral turpitude, is a basis for inadmissibility. Additionally, if convicted of two crimes involving moral turpitude regardless of length of sentence the individual is not admissible. An alien is admissible even though convicted of a misdemeanor involving moral turpitude only when the maximum penalty for the crime of which the alien was convicted (or admits to the elements of) does not exceed one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless whether sentence was ultimately executed). Additionally, an individual is inadmissible if there are two or more convictions regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more. Finally, the statute give DHS authority to find an individual inadmissible based solely on admissions of guilt without an actual conviction.
Additionally, there is a subcategory of the grounds for deportation for an individual who is convicted of an aggravated felony at any time after admission. The actual definition of “aggravated felony is found in (8 USC 1101 et. Seq…). The aggravated felony section involves serious crimes of violence, theft or other matters that Congress has designated as requiring special consideration. An example of an aggravated felony is “a theft offense” (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.” The laundry list of aggravated felonies includes drug trafficking, sexual abuse of a minor, and crimes of violence as defined under federal laws.

If an individual is convicted (it does not matter when the crime occurred) after October 9, 1998, that makes him or her either deportable or inadmissible, then that individual is subject to mandatory detention without the possibility of release during the removal proceeding upon release from incarceration. There is one exception to mandatory detention and that is if the individual has one felony conviction for a CIMT, but the actual sentence is less than one year and it is not an aggravated felony.

There are only a few categories of relief available to individuals with a criminal record whom are subject to removal. They are: 1.) cancellation of removal; 2.) adjustment to permanent resident status with application for waiver (in some circumstances the law allows a “stand alone” waiver, which means it is filed by itself); and 3.) application for asylum, withholding of removal or Convention Against Torture.

The law regarding “Cancellation of Removal for Long Term Permanent Residents” under INA §240A(a) states the Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien-

has been an alien lawfully admitted for permanent residence for not less than 5 years,
has resided in the United States continuously for 7 years after having been admitted in any status, and
has not been convicted of any aggravated felony.

The 7 year continuous residence is subject to what is called the stop time rule, which by statute stops accrual of continuous residence either when removal proceedings are started by issuance of an NTA or at the time a crime is committed that makes the individual deportable or inadmissible under 1182(a)(2), 237(a)(2) or (4).

Also, immigration laws allow a permanent resident to seek waivers of criminal matters through reapplication for permanent resident status. This avenue of relief is less favorable to permanent residents than cancellation of removal, because the 1182(h) waiver requires proof of extreme hardship to a spouse, parent or child. Additionally, 1182(h) excludes from eligibility individuals convicted of an aggravated felony if they are already permanent residents.

Finally, there is relief for individuals if they can establish grounds for Asylum, Withholding of Removal as described above.

Appellate Services

Our lawyers represent individuals in appellate proceedings before the Board of Immigration Appeals and the United States Circuit Court of Appeals. The basis of a strong appeal in an immigration case is being able to identify procedural and substantive arguments that are logical, powerful and sufficiently detailed such that they compel a favorable conclusion.