Ask An Immigration Attorney

Is the Migration Court and Immigration Bureau the same?

As you can see above in the pictures of their respective seals, these two (2) institutions are totally different one from another. The Immigration Court belongs to the United States Department of Justice and the Immigration Office (USCIS) to the United States Department of Homeland Security. So Immigration Court=Immigration Office IS NOT a true statement at all.

At the Immigration Court you go before an Immigration Judge who is going to determine whether you are deportable or you are eligible for any of the relief from removal only if the Department of Homeland Security, which is legally represented in the Immigration Court by its lawyers, issues against you a Notice To Appear (the charging document).

In the other hand, you commonly deal with the Immigration Office after submitting any of the applications to apply for an immigration benefit. Upon receiving and processing said application, the Immigration Office schedule an appointment, if it is necessary for an interview before an immigration officer.

Generally, decisions made by both institutions can be appealed before the Board of Immigration Appeals within the thirty (30) days after the decision and, be also reopened. An appeal of a decision from an Immigration Judge is directly sent to the Board of Immigration Appeals. An appeal, if it is applicable, of a decision from the Immigration officer should be sent to the BIA through the Immigration Office who rendered the decision. There are appeals of decisions from an Immigration Officer that can only be heard by the Administrative Appeals Office (AA0).

If you fail to appear before the Immigration Judge, the judge automatically will find you deportable/removable and an order of deportation/removal “in absentia” is issued against you. If you fail to meet the Immigration Officer at the scheduled interview, your file may be or may be not transferred to the other component of the United States Department of Homeland Security, the Immigration and Customs Enforcement for administrative and expedited deportation.

“DO NOT MISS YOUR HEARINGS BEFORE THE IMMIGRATION JUDGE!”

10 years of physical presence in the U. S., a path to legal status in USA

Erroneously most of the people believe that the solely fact of being present in the United States at least 10 years is a granted access to apply for a Green Card (Adjustment of Status). Well, there are more requisites and it is not that simple. In the immigration legal environment, we call this form of relief from removal, Cancellation of Removal for Certain Non-Permanent Residents. You need to notice that it is a relief to stop/suspend a removal proceedings. A removal proceeding only happens to be at Immigration Courts. Therefore, the Cancellation of Removal is not an affirmative way to obtain a legal status. The applicant obtains a legal status in the United States because the alien cannot be deported or removed and an Immigration Judge granted an E-42B application.

The E-42B is the form used to apply for Cancellation of Removal for Certain Non-Permanent Residents before the Immigration Court. Also, We need to notice that a process of Cancellation of Removal is also available for Certain Permanent Residents which it somehow differs for the one we are explaining here today. The cancellation of removal for Non-Permanent Resident’s four (4) legal requisites to evaluate the eligibility of an individual who intends to apply pursuant the Section 240A (b) (1) of the Immigration and Nationality Act, The Act are the following:

(b) CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS FOR CERTAIN NONPERMANENT RESIDENTS.

(1) IN GENERAL.-The Attorney General 2/ may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a/ 5/ ; and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

As you can see above, the alien who intends to obtain a legal status in the United States under the fact of having “10 years physical presence in the United States” needs to demonstrate with evidence and we highlight the word “demonstrate”: continuous physical presence in the US, good moral character, not having disqualifying offense and the issue of extremely unusual hardship.

Also, the Immigration Judges agree in a fifth (5) element to grant this relief. The discretionary exercise of the Court. The IJ have the discretion to grant or not this relief even if the alien meets the four (4) legal requisites above mentioned.

So, it is not very simple as: “I have lived in the United States 10 years or more so I’m eligible to obtain a legal status in the country”.

You might like

Leave a Reply

Your email address will not be published. Required fields are marked *