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New Decision on DACA

By Peek & Toland on July 28, 2021

If you follow along with us on social media, you know that we’re extremely dedicated to reviewing and sharing the latest immigration news that affects you, and we have some news on a DACA ruling from a federal judge, U.S. District Court Judge Andrew Hanen. This court ruling is one you definitely want to pay attention to, especially if you’re undocumented and are seeking protection under the Deferred Action for Childhood Arrivals immigration policy.

Let’s take a look at what DACA is, who is eligible, and how this recent decision in Texas will affect the ways immigrants pursue an adjustment of status and pathway to citizenship.

What is DACA?

DACA, or Deferred Action for Childhood Arrivals, is a policy in which certain people who entered the U.S. as children and meet various guidelines may request consideration of deferred action from the government for a period of two years, which is then subject to renewal. People covered under this policy (referred to as dreamers) are also eligible for work authorization, which helps to further solidify a successful future in the U.S.

The DACA program has seen various changes and challenges from President Trump and the Trump Administration. It has gone through review in a court’s decision since its inception under President Obama. This most recent July 2021 ruling will not affect current DACA recipients or applicants, but it most definitely interests future dreamers in their pathway to citizenship.

Let’s review this latest ruling on a very popular immigration program for undocumented persons brought to the U.S. as a child.

July 2021 Decision on Deferred Action for Childhood Arrivals Program

As mentioned, the U.S. District Court for the Southern District of Texas held that the DACA policy “is illegal.” The Court granted summary judgment on plaintiffs’ Administrative Procedure Act (APA) claims; vacated June 15, 2012, DACA memorandum issued by former Secretary of Homeland Security Napolitano; remanded the memorandum to DHS for further consideration; and issued a permanent injunction prohibiting the government’s continued administration of DACA and the reimplementation of DACA without compliance with the APA.

What does Judge Andrew Hanen’s DACA judgment mean in plain terms?

Unfortunately, and hopefully only temporarily, the Department of Homeland Security is prohibited from granting initial DACA requests and accompanying requests for employment authorization. Initial request means it is your very first request for protection and resources from the DACA program.

Judge Andrew Hanen may have ruled on this issue, but it is not a permanent ban on DACA. It’s not foolish to get your hopes up on the federal court decision, as there could be (highly likely) an appeal. 

DACA program hopefuls should still work with their immigration attorney to search for and compile the necessary documents to apply for this program’s protection. The Department of Homeland Security will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization.

The caveat is that DHS will not be from granting new DACA requests.

What is going to happen to people who have been protected by DACA up until now?

If you already had DACA and you were in the process of renewing it every two years, you can keep submitting renewal requests for continued future protection.

While we wait for an appeal on the law surrounding this program to change or for the Biden Administration to take action, we encourage immigrants seeking adjustment of status or permanent residency to reach out to one of our trusted and practiced immigration attorneys at Peek & Toland. We understand the processes of applications and are passionate about helping undocumented persons secure their future.

Continue to follow along with us on social media as we continue to break down the latest legal decisions and rulings that affect dreamers and all who come to the United States in search of resources and happiness.

Pathway to Permanent Residency through Investor Visas

By Peek & Toland on July 14, 2021

Can you buy your pathway to permanent residency or legal time in the United States? In a way, the answer is yes, and a few options that fit that mold are the EB-5 and E-2 visas, also known as investor visas.

You can probably guess that there are stipulations involved with obtaining and using these visas, and you can’t just haphazardly throw money at the U.S. government in order to live and work here. So, what are these two visas, what sets them apart, and how can you use them to create a pathway to permanent residency or business presence in the U.S.?

Let’s take a look at the EB-5 and E-2 visas to find out which option is best for you.

 EB-5 Visa

 The EB-5 visa, also known as the EB-5 Immigrant Investor Program, is a 30+-year-old program created to entice foreign investors to invest in U.S. businesses that will generate at least 10 jobs in the U.S. In exchange for this type of investment into a business that proves successful in job creation, foreign nationals and their families are eligible to gain permanent residency in the U.S.

Yes, this is essentially a pay-to-play program, but it’s one that legitimizes immigrants’ intentions to live and work in the U.S. while being contributing members of society. As you can imagine, there is an entire industry in the U.S. devoted solely to securing foreign investments from eligible foreign nationals. Most of these investment firms work in conjunction with the real estate industry for capital investments in every kind of building structure you can imagine.

If real estate isn’t your passion and you have a desire to invest in or create U.S. businesses for a pathway to permanent residency, the EB-5 could be an incredible opportunity for you and your future.

There are investment minimums that apply for eligibility for this program, and the Trump administration attempted to raise those minimums. That increase was overruled, however, and you can learn more about those investment minimums here

But, what if you have no real interest in securing residency, but you’d like to invest in a U.S. business and be able to come and go as you please to check on your investments? There’s an option for that, and it comes in the form of E-2 visas.

E-2 Visa

The E-2 visa, also known as E-2 Treaty Investors, is a program similar to the E-5 visa in that it incentivizes foreign investment into U.S. business. The difference, though, is that this option does not provide a direct pathway to residency.

The E-2 visa is what we call a flexible option—it permits a national of a treaty country to come and go in the U.S. when investing a substantial amount of capital in a U.S. business. Additionally, certain employees of said national or of a qualifying organization may also have the same benefits.

What’s even better about the E-2 visa? There are no investment minimums like those of the EB-5 visa, making this option much more attainable for foreign nationals. The approval for investment and entry into the U.S. for said investment is based on your business plan or idea, but this process requires investment prior to the actual application. Some folks take issue with that, but one of our experienced immigration attorneys can talk you through that process and explain why that leap of faith is beneficial.

 This visa option has no limit on renewals, so you could perpetually renew your visa and maintain travel and working life between your country of origin and the U.S.

 If you have questions about the EB-5 visa, the E-2 visa, or any other means to be in the U.S. lawfully, please reach out to us today. These are very complicated and complex options, and we’d be more than happy to explore all these avenues with you to find the best choice for you and your investment goals.

 Continue to follow us on social media and check back in on the blog as we continue to break down the immigration and criminal defense issues that affect you.

Where has ICE gone?

By Peek & Toland on July 8, 2021

If you’ve paid any attention to the news, or maybe you’ve even been stopped and not detained, you know that immigration detention populations are plummeting.

We’ve not been seeing people be detained as we have in years past. So, where is ICE, and do you need to worry? Let’s take a look at the discretionary prosecution by Immigration and cover what you really need to know.

https://youtu.be/vRHZ0fG8spA

Criminal Charges Without Detainers

Before the Biden administration’s memo regarding prosecutorial discretion for immigration cases, we were seeing immigration detainers for any arrest—anything from a traffic ticket to felony charges. That means ICE, Immigration Customs Enforcement, would quickly slap a detainer on you, even if you’d paid your bond for the criminal charge on which you were arrested.

Remember, though, not every person is eligible for this prosecutorial discretion policy. So, for example, if you arrived in the U.S. after November 1, 2020, if you are a convicted aggravated felon or a terrorist, you’re on the ineligibility list.

Notice how I said convicted? That’s important. Being charged with a felony crime doesn’t mean you’re automatically ineligible for prosecutorial discretion. You have to have been convicted, which is all the more reason for you to have not only a good immigration lawyer but a strong criminal defense attorney.

You’re in luck, though, because that’s exactly what we do and have done at Peek & Toland for the last 16 years.

Are You in the Clear?

So, what we all want to know is if this policy will last forever. That would be great, right? But, unfortunately, we don’t have a crystal ball, so we don’t know if or when this policy will change, as immigration practices are ever-evolving.

Whether or not the prosecutorial discretion policy lasts until the end of time isn’t much comfort if you face a criminal charge. ICE is ignoring most folks getting arrested for the moment. However, that doesn’t mean your criminal charges will be ignored, and it doesn’t mean ICE will continue to ignore undocumented persons who have been arrested.

Don’t risk your future in the U.S. Give our trusted immigration and criminal defense attorneys a call to discuss your options and secure your future in this most opportune time.

Continue to follow us on social media as we dissect the immigration and criminal defense issues that matter to you.

Work Permit Approval for Pending U Visa Applicants

By Peek & Toland on June 30, 2021

We’re very pleased that the Biden administration announced a new policy granting legal protections pending U visa applicants. 

But who does this affect, and how? Victims of certain crimes, including domestic violence, sexual assault, and human trafficking. Congress only allows the government to issue 10,000 U visas a year, leaving many other applicants on a waiting list for future years and vulnerable to deportation. 

Under the new policy, the government will review all U visa applicants and will begin the process of granting four-year work permits. 

This will give applicants the ability to “work and remain safely in the United States while they provide valuable support to law enforcement to detect, investigate or prosecute the serious crimes they have survived or witnessed,” the acting director of the United States Citizen said. 

 Must Be Bona Fide

 Immigration will be reviewing all applicants for U visas to consider their eligibility for a work permit, but only applications deemed bona fide.

 Well, what does bona fide mean? When it comes to U visa applicants, bona fide means that you are a qualifying victim under the laws of the U visa. A very clear list of crimes perpetrated against undocumented persons by a lawful permanent resident or US citizen makes an applicant bona fide. 

 The most common eligible crimes committed against an undocumented person are domestic violence, felonies, any felony-level assault, sexual assault, aggravated robberies, and mostly anything with the word “aggravated” in it.

 If you’ve ever been a victim of one of those crimes, you are eligible for this work permit consideration, but there’s one caveat.

 Cooperation

Having survived any one of these crimes is enough to make you eligible for the consideration, but only if you’ve cooperated with law enforcement and the prosecutor’s office throughout the investigation and in court.

 We all know that undocumented people are often fearful of coming forward to report wrongdoing, even if it’s something that has harmed them. This new policy will incentivize coming forward, which will help pending U visa applicants and help put violent and harmful criminals behind bars. Cooperation is imperative.

Timeframe

Unlike other immigration policies, this new policy applies to applications that have already been submitted and future applications, which is incredible news for our clients.

If you or someone you know has a pending U visa application or is eligible under the guidelines we’ve discussed here, it’s important to speak with an experienced immigration attorney as soon as possible. Give us a call to discuss your options. We’d be happy to assist you with the benefits of this new policy.

 As always, we’ll continue keeping abreast of all the evolving immigration policies that are important to you. Keep following us on social media for updates on that news.

Biden Memo Allows ICE Attorneys Prosecutorial Discretion to Drop Immigration Cases

By Peek & Toland on June 16, 2021

If you follow along with our immigration updates, you’re probably just as invested in the much-anticipated immigration policy change we’ve been expecting from the Biden Administration. Well, it’s here, and it could mean big things for your immigration proceedings. So let’s take a look.

Prosecutorial Discretion – What it Is and How it Can Help You

Prosecutorial discretion is leeway, flexibility, the room to decide how an immigration case is prosecuted, if at all. So, this guidance from chief ICE attorney, John Trasviña, appointed by President Biden, denotes an enormous change in how ICE pursues deportation orders. The prosecutorial discretion outlined in the May 27 memo emphasizes the discretion prosecutors have in court, which could lead to more immigrants having the ability to have their case postponed to a more favorable time or even dismiss their case entirely.

 Who is Eligible?

While the memo’s language allows for interpretation and discretion on handling cases by ICE attorneys, it is quite clear who is NOT able to benefit from this consideration, and there are three classifications of ineligibility.

This might sound disheartening, but it’s not to dash your hopes, and you’re likely not part of the groups who are excluded from this discretion. Let’s take a look.

First, anyone facing immigration proceedings classified as a national risk will not benefit from this new immigration guideline. What’s a national risk, you ask—think terrorists, spies, or anyone at risk of damaging the U.S. If you’ve been here, working hard, and staying out of trouble, you shouldn’t have to worry about this one. Most folks don’t.

Next, if you’ve been convicted of an aggravated felony, you aren’t covered by this new guideline. Notice how I said convicted. That’s important. So what is classified as an aggravated felony? There is quite a list for those but think of violent crimes, crimes involving children, drug trafficking, and burglary convictions with a sentence over a year. If you have some traffic violations or small criminal charges, you can still be eligible for the benefits of this policy change.

Third, and this is the disappointing one, this new guideline does not cover undocumented people who came to the U.S. after November 1, 2020. Only a small percentage of undocumented people arrived after November 1, 2020, so hopefully, that stipulation will not affect your case.

Strong Defense

If you are not excluded from this new guideline for any of the reasons I mentioned above, it is imperative that you speak with your immigration attorney immediately to cover any line of defense against deportation. This guideline offers allowanced for “compelling humanitarian factors,” such as whether or not someone is a caregiver, victim of a crime, or seeking asylum.

If your defense in those circumstances isn’t the strongest, you can certainly carry out your immigration proceedings and cross your fingers that the judge rules in your favor; however, this prosecutorial discretion allows your immigration attorney to make an argument as to why you may be deserving of some extra consideration, which could mean you’re staying in the U.S.

This ruling, which came down from the very top, allows immigration courts to reopen at a limited capacity and start their caseload rotation. We expect that to happen this fall, which will be here before you know it. If you or someone you know is facing immigration proceedings and would like more information about prosecutorial discretion, please reach out to one of our experienced immigration attorneys today.

Continue to follow along with us on social media to keep up with the latest immigration news that affects you.

H-2B Visas Update: Biden Administration Announced More H-2B Visas

By Peek & Toland on June 4, 2021

The worker shortage in the U.S. has been flooding the news cycle for months now. So it comes as no surprise that employers are reaching out to us en masse to find out when, where, and how they can recruit immigrant workers to fill the void.

If you’re scrambling to complete projects and are frustrated with the lack of willing and able workers available, you’ll be happy to know that the Biden Administration has heard your cries and taken action. The Biden Administration recently made 22,000 additional H-2B Temporary Non-Agricultural Workers visas available to employers through the end of the second half of the 2021 fiscal year.

So what are the H-2B visas, and how do employers utilize this additional allotment of them?

H-2B visas allow skilled and unskilled, non-agricultural workers from outside of the U.S. to enter the U.S. with their spouse and children if they have a job offer and employee sponsorship. It’s a common misconception that migrant workers are strictly for agriculture jobs, but these H-2B visas are used for myriad types of employment, including construction, home health, and even professional sports and entertainment.

 So, why is it so difficult to fill the void of workers in the U.S.?

 H-2B visas are great, and they’re incredibly helpful. In fact, they’re so good they are in too high demand. Unfortunately, there is a limit on the amount of H-2B visas available each year. 66,000 to be exact; however, that’s still not adequate to cover the number of applicants in need of these visas.

These 66,000 H-2B visas are released in two parts: 33,000 twice a year. To wrap your head around this supply and demand issue, know that there were over 95,000 applications sent for the 33,000 H-2B visas released in January 2021—that’s nearly three times the amount of H-2B visas available for just one half of the year.

There is a lottery system through which H-2B visas may be obtained, but that’s certainly no guarantee or peace of mind for the countless employers attempting to stock their workforce. The good news is that the Biden administration released 22,000 additional visas to aid in the demand, but 16,000 of those are solely allotted to workers who have previously held the H-2B visa—not very lucky for new employers and workers. Also, the remaining 6,000 extra H-2B visas allotted are strictly for workers from the Northern Triangle of countries: Honduras, El Salvador, and Guatemala.

The issue is that recruiting workers from that area has historically been difficult for employers here unless they personally know someone with friends or family in those countries. 

Facing the Challenge of H-2B Visa

If all of this sounds like less-than-stellar news, it’s not because we want to discourage you; more so, we want to make sure you are aware of the challenges you will face with this process.

H-2B visas are not a lost cause, and we’ve helped many companies acquire H-2B visas for their migrant workers. If you need to bring in workers for the October release of H-2B visas, now is the time to get all of your paperwork and requirements in order.

Please reach out to our trusted immigration attorneys and continue to follow us on social media for the immigration and criminal defense updates that affect you.

Reopening Immigration Courts in Texas

By Peek & Toland on June 2, 2021

The pandemic has changed our way of life in every facet, and the court system is not immune to that change. As you might know, immigration courts here have not been open, but that’s all about to change.

 We’ve just learned that immigration courts in San Antonio are set to reopen right after the 4th of July holiday weekend on July 6th.

 We’re already into June, and July will be here before you know it. So, what do you need to know if you have an upcoming immigration court date? Let’s cover a few items.

 Courts Are Open, Somewhat

Yes, I know I just said that immigration courts in San Antonio are set to reopen, but it’s important to your case and future to understand that the courts will not be operating at full capacity. Only four immigration courts in San Antonio are going to open in July. Why is the decreased capacity of operational courts important to you? The trickle of cases into the court means more time to prepare a defense and look for policy change that can affect the outcome of your case—more on that later.

This small-scale court system means that the few judges who can preside over immigration cases will likely be focused on individual hearings, better known as removal hearings. This is the big one, the one most important to any undocumented person’s case and future.

 If you have an upcoming case in immigration court scheduled for July and the months following, NOW is the time to speak with an experienced immigration attorney to build proper defense and strategy, as these final hearings will be most prevalent.

 Possible Strategies

 If you follow along with us on social media, you know we’ve spoken in-depth about the Niz-Chavez v. Garland decision, which can quite possibly shield thousands of immigrants from deportation. If your attorney has not gone over this possibility with you, please be sure to read up on this decision in our blog and put it on your list of items to cover in your next defense strategy meeting with your attorney. It’s a big one that could be a stepping stone to secure your future.

Another strategy that’s worth mentioning is more or less a “fingers crossed” situation, but it’s a real option. Remember how we mentioned a possible policy change that could significantly affect your case in your favor? This is what I mean. The Biden Administration is facing pressure to reverse many of the Trump-era immigration decisions. The more you can prolong the time before appearing in immigration court, the more likely it will be that immigration policies will change in your favor. Fingers crossed, time is on your side. 

 You want to keep an eye out for and continue following along with us to see change, specifically regarding Administrative Closure. What’s Administrative Closure? Administrative Closure is a process by which the government can agree with the attorney or the immigrant to pause their removal proceedings and place them outside of removal proceedings for all purposes, allowing the immigrant to remain in the U.S.

We’re very hopeful that the Biden Administration will reverse some of those tough, Trump-era immigration policies. We cannot stress to you enough the importance of having experienced immigration counsel when facing possible deportation.

In short, try to stay here as long as you can in hopes of a policy change and create a strong defense strategy with your immigration attorney. If you are unsure of your court date or are in other areas of Texas, you must check the Executive Office of Immigration Review (EOIR) to see the status of the immigration courts near you.

If you or someone you know has an upcoming immigration hearing and has questions or needs a defense strategy, please reach out to one of our trusted immigration attorneys here, and continue to follow along with us on social media as we update everyone on the immigration and criminal defense news that matters to you.

Improper Entry and What it Means for You

By Peek & Toland on May 17, 2021

It probably seems like all we cover lately is endless information on immigration statutes, and that’s with good reason: 1) we’re an immigration law firm, and that’s our area of expertise, and 2) this information is topical, as we’ve seen a 300% increase in immigration-related arrests in the last month, much in thanks to an executive order from our governor.

And, because we all know that ignorance of the law is not an acceptable defense, let’s take another look at immigration statutes to best understand where the issues lie and how to avoid them. We’ve covered alien smuggling for a few weeks, but let’s delve into another statute: Title 8, Section 1325 of the U.S. Code (U.S.C.): improper entry by an alien.

So, what exactly is improper entry by an alien, and how can you avoid violating this statute?

To better understand what improper entry is, you can click the link above that will take you to the legal codes, which are chockfull of not-so-fun terminology, but for the sake of summation and to save you some sanity, improper is just a nice way of saying illegal. So improper entry equates to unlawful entry, which doesn’t just mean stepping foot across an unguarded border.

Let’s look at some examples of this very broad statute. Improper entry can include:

  • Evading inspection by U.S. immigration officials

Evading inspection doesn’t only mean extreme forms of avoidance, such as stowing away on a cargo vessel or digging an entry tunnel beneath the border. Avoiding a check-point is a sure-fire way to violate this statute.

  • Willfully giving false or misleading information to gain entry into the U.S.

We all know that lying to immigration or falsifying government documents is illegal, but what else?

If romantic comedies and perennial immigration tropes have taught us anything, it’s that you can marry a U.S. citizen and gain legal entry into the U.S… but only if it’s an authentic marriage. Anything less than true is marriage fraud and improper entry. Take a look at our Adjustment of Status Through Marriage blog to better understand the legal requirements to validate an immigrant marriage.

Another way you can be found guilty under this statute is by letting your visa lapse without checking in or filing the applicable paperwork to extend your stay. They had legal entry at some point, but they allowed their papers to expire.

This form of violation also pertains to helping someone else falsify their documents. Take, for instance, a business owner who has a friend whose work visa is soon to expire. So, like a good friend, the business owner fibs and says their friend works for them and files to extend the work visa. That may make you a good friend, but it also makes you a criminal in the eyes of the U.S. government.

  • Entering or attempting to enter the U.S. at any location other than one designated by U.S. immigration officers

This is the easy one, the one we all know about. Don’t cross the border unless it’s at a designated inspection location.

Legal Ramifications

We’ll keep this section short and sweet. Being caught committing any of these offenses or violating this statute in any way affects not only your wallet and freedom but your future, as well. These violations likely make a person inadmissible, thus jeopardizing any future legal entry into the U.S., even if you’ve been on your best behavior since the violation. 

These are only a few of the ways that the statute of improper entry can affect you and your loved ones, and we’ve painted those with some fairly broad strokes. If you have questions or want more information on this statute, please reach out to one of our trusted immigration attorneys at Peek & Toland. We’re more than happy to help you avoid legal trouble and secure a pathway to citizenship.

Adjustment of Status through Marriage

By Peek & Toland on May 13, 2021

Ah, wedding bells—congratulations! In addition to the toaster, bath towels, and such you receive as congratulatory gifts, as a newlywed, you can apply for a Permanent Resident Card (most commonly referred to as a Green Card).

You’ve taken your vows, made it through the spousal immigration process, and you’re on your way to citizenship, right? Not so fast.

Marriage + Green Card does not automatically = citizenship. If you’re seeking citizenship for your spouse, there are some important steps and caveats you need to know. Let’s take a look.

It’s a common misconception that citizenship is automatically granted to a foreign national who marries a U.S. citizen, but the truth is that it’s only a stepping stone on that pathway. A pathway with many other steps and requirements. I’m sure you’re aware of the various ways to adjust your status, but we’re looking closely at the route to citizenship through marriage.

So, what comes after getting a Green Card?

First, you must know that the initial Green Card you receive is a Conditional Green Card for two years. There are strings attached, that is why it’s called conditional. At the end of the two years, you’re due for a check-up. Now, this is not to be confused with a Visa renewal. We’re talking about the form I-751, Petition to Remove Conditions on Residence. This is essentially an evaluation of your marriage after two years.

You may have taken vows of a lifetime commitment to your spouse, but Immigration needs a bit more than your word to verify the validity of your marriage and ensure you are abiding by the terms of your residency. 

Let’s first take a look at the timeline for this verification process.

As I mentioned, this verification comes at the end of the two years. It’s incredibly important you do not miss that deadline, as failure to meet the deadline has serious consequences for your likelihood of earning permanent residency and much less citizenship. You can begin the filing process as early as 90 days before the end of those two years.

So, better late than never really is not an acceptable sentiment in this process. It’s more of an “early bird gets the worm” type of deal, and you’re so much better off if you start this process as soon as possible.

I-751: More Than Filing a Form

As we mentioned, Immigration will not just accept your original vows or your word on your marriage status. They want evidence. This process is much like re-applying, as you have to provide significant materials to prove the validity of your marriage.

Honestly, it’s quite a lot, and an experienced immigration attorney can help you collect and prepare the necessary evidence to satiate Immigration’s inquires and check all of their boxes.

The good news is while Immigration is processing this form, you’re able to keep accumulating time here. And if you don’t know, after three years of permanent residency and having met all of the immigration requirements to validate your marriage, you can file for naturalization.

So, while it might seem like an arduous process (and, it is), it has the potential to lead to citizenship.

 I Do, then I Don’t—Now What?

Everything we’ve discussed here so far pertains to marriages that remain happily intact, but we all know that not every story has a fairytale ending. So, what if you’re no longer happily married? What if you’re separated or have started divorce proceedings? You still have options, albeit much more complicated ones. If you’ve not met the marital conditions of your permanent residency, you may still potentially keep your residency, but you need to talk to a lawyer.

As always, our experienced immigration attorneys would love to speak with you about your options and help secure your path to citizenship, so reach out to us if any of this applies to you or someone you know. Continue to follow along with us on social media, where we will continue to dissect the aspects of immigration that are important to you.

Niz-Chavez v. Garland: New Defense Against Deportation

By Peek & Toland on May 12, 2021

Knowing and asserting your rights is something we can’t stress enough in any legal situation. The same is true for immigrants who are facing removal proceedings. We could speak endlessly about immigrants facing removal proceedings and the rights guaranteed to them throughout the process.

These guaranteed rights and whether procedures were properly carried out are a foundation for a great defense against removal. Today, we’re going to take a closer look at one of those defense strategies based on a recent Supreme Court Ruling. This decision is going to affect everybody who is facing removal proceedings.

Removal Proceedings?

Removal proceedings—you probably know them better by the term deportation. This term was changed from deportation to removal proceedings, likely in an attempt to sound more friendly and less severe.

So what are removal proceedings, exactly?

Any instance in which an undocumented person is apprehended by immigration and detained, whether it be due to an arrest for an alleged crime committed or any other violation, removal proceedings is the next step. For removal proceedings to lawfully begin, immigration must provide the apprehended undocumented person with a Notice to Appear document (“NTA” for those familiar with this process).

If you’re not familiar with NTAs, let’s get acquainted now. NTAs have several items of note that contain important details, such as your name, date of birth, country of origin, and the alleged crime for which this person is being held. The note on the NTA that we want to look at today is one of the most important: court information.

The court location and date and time of the proceedings should be listed on your NTA. Now, we say should because the problem is with it not always being there. As a matter of practicality over the past 20 years, immigration has been flexible with that requirement. Many NTAs are issued without that pertinent information, and therein lies the problem.

They’d often say that the relevant court information would later come in the mail. But, that’s an incomplete document, right? Right!

 So, what’s to be done about incomplete NTAs?

Well, in 2018, the Supreme Court heard this exact argument about the unlawful distribution of incomplete NTAs in a case called Pereida. In the Pereida Decision, the Supreme Court concluded that an NTA missing those required court dates is deemed defective notices. Good news, right?

 Wrong.

Remember, this was in 2018 when we were under the Trump Administration, which had a reputation for being unreasonably harsh and playing fast and loose when it came to immigration. The Trump Administration and its Attorney General, Jeff Sessions, did not find the Pereida Decision very pleasing, so they circumvented the Supreme Court’s decision by reinterpreting the decision through the Board of Immigration Appeals, an alternative to Supreme Court immigration. So, this seemingly black-and-white decision became rather gray, but that’s where the Niz-Chavez v. Garland ruling comes into play.

Niz-Chavez v. Garland

Here we are, two and a half years later, and the Supreme Court rules on this issue again, essentially reconfirming what we know to be relatively straightforward: an incomplete NTA, one issued without all information completed, is defective. But what does that mean, and why does that affect so many people?

Remember how we mentioned that immigration has routinely issued incomplete NTAs over the last years? Everyone who received an incomplete NTA is deemed defective. Therefore, you now have a few new defense strategies against their pending removal.

It’s imperative to speak with a well-practiced immigration attorney because they could convince a judge to toss out your case entirely if your NTA was defective.

What’s more? The additional defense of continued accumulating time is an option. Cancellation of removal requires the person to have been in the U.S. for a minimum of 10 years. So, because that NTA document is deemed defective, it didn’t stop the accumulation of time here for the undocumented person to whom it was issued.

 In short: a defective NTA could erase removal. 

At Peek & Toland, we’re pretty excited about this news and the possibilities it makes available for our clients and the immigrant community. If you are in removal proceedings or need to know how this ruling might give you additional defenses and a chance to stay in the U.S., please reach out to one of our trusted immigration attorneys. We’d love to talk to you about your options.

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