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Immigration Court: How To Get Status If You Were Placed In Removal Proceeding

Author: NYC Immigration Lawyer Alena Shautsova

NYC Immigration lawyer Alena Shautsova helps immigrants to successfully navigate the complex US Immigration system, comply with the Immigration court process and requirements, and present winning arguments in favor of individuals seeking status in the United States.

In this blog, we will discuss the process of applying for status once you are placed in Immigration proceedings, or you have an order of removal and your case was reopened.

Some people know that they were placed in removal proceedings when they receive a Notice to Appear in Immigration court. For example, they were referred to court after an asylum interview. They received a Notice to appear after they tried to file for citizenship and USICS stated that they either committed fraud, or should not have had green card, to begin with.

Some people do not know that they are facing removal proceedings: they find out about it when they are trying to submit an application or petition with USCIS and instead of an approval, or a work permit they receive a decision explaining that their case is administratively closed or denied because a person is in removal proceedings or already has an order of removal. How can it be that a person would know he/she got removed or deported? It happens usually because a notice to appear would be mailed to your last address on file with USCIS/DHS/ICE. If you have not updated your address with them, and the notice was mailed to the old address, you are considered to have been properly “served” despite the fact that you never received the notice. At times, it is possible to argue it was not your fault that the notice was mailed to the wrong address, but we will save this topic for another blog.

Another way when a person does not know that he/she is in fact deported or removed is when the removal proceedings happened a long time ago. At times, people believe that if they missed the Immigration court day 10 or 20 years ago, or if they were deported 10 or 20 years ago, now, their record is “clean”. This is not the case. Once you are ordered removed, and you have not served your time outside the US according to the applicable post-removal bars, you will always have to address the old order of removal or deportation, despite the amount of time passed. (There are some very limited exceptions).

Now, let’s say you discovered that you are in removal proceedings, and you are very stressed and trying to find out if it is possible to get “out” of the removal proceedings. Can you file for a green card with the judge? How do you do that? Can you file for asylum? Or, perhaps, anything else?

The answer depends on what relief you may qualify for. For example, if now you are married to a US citizen, you still (in most cases) have to show that you entered the country legally or you were admitted and inspected or paroled (not every type of parole will count for the purposes of adjustment of status). You may qualify for a defensive asylum, cancellation of removal, or waivers. Your attorney will “screen” you for potential reliefs and will discuss with you what specific relief, if any you will be filing for.

The filing for relief in Immigration court is similar and different from filing an application with USCIS. It is different in the sense that first, there are certain petitions where only USCIS has jurisdiction over them and even if you are in Immigration court proceedings, these applications have to be filed and decided by USCIS before an Immigration court may make a decision on your case. Examples of such applications would be forms I 130, I 360, U visa petition, initial I 751 filings, certain waivers, and more. How will you know which form has to be filed with USCIS and which one with Immigration court? It is a complicated question. You need to understand the nature of the form, and the relief you are seeking, and frankly speaking, at times, courts are not set on which form shall be filed where. In addition, even you have to file a form with Immigration court, such as for example, I 485 (once you are in removal proceedings, unless you are an arriving alien, only Immigration court will have jurisdiction over your adjustment of status application), you still have to pay for the form with USCIS complying with what we call “defensive filing” process.

Now, if you have an adjustment of status application that you believe you qualify for, what you will need to do is to first comply with defensive filing for I 485 and of course, submit I 130 to USCIS. Then, once you obtain receipts for both, submit a copy of the I 130 package and an original I 485 with the receipt to Immigration court. For an asylum application, you will need to do a defensive filing with USCIS, and for Cancelation of Removal: you will also need to do a defensive filing with USCIS, paying the necessary fee. A defensive filing is different from actual filing as it is designed just for fee collection and initiating background checks. The rules for it are published by DHS. Of course, if your proceedings will be terminated, then USCIS will regain jurisdiction over your adjustment of status case, and then all filings and fees will need to be sent to USCIS.

If you do not submit your documents to Immigration court the right way, then your case may be delayed or even denied. Note that there are also “practices” in Immigration courts, that were developed by the practitioners for years, and you learn about them only when you actually practice in Immigration court, and discuss “the way” things shall be done. However, you can find most answers to your questions in Immigration Court Practice Manual. Technically, a judge may reject a filing that deviates from the rules established by the manual (let’s say the tabs are put at the bottom of the filing and not on the right side of the documents; or the pages are not numbered correctly.) You would probably want to work with someone who is familiar with the court’s rules and regulations.

If you need help with Immigration court proceedings give us a call. We will be happy to look into your situation! Call us at 917 885 2261 or book your appointment online.

08 November 2021
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