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Deportation defense and appeals

We defend immigrants facing deportation from the United States for unlawful presence, criminal convictions, or other reasons, at the administrative, trial and appellate levels. Our lawyers have a strong reputation for effective and compassionate deportation defense litigation.

Both documented and undocumented immigrants can be charged with deportability from the United States. An immigrant may be asked to voluntarily depart the United States–admitting he or she is present in violation of law. The same form permits the immigrant to request a hearing before an Immigration Judge to determine if he or she can remain in the United States. Immigrants who do not request a hearing may be giving up important legal rights, such as the possibility of gaining legal status. Immigrants who fail to attend their deportation hearing will probably be deported in their absence and later arrested by DHS.

An Immigration Judge is an administrative judge employed by the U.S. Department of Justice to review the actions of the Department of Homeland Security relating to deportation. The law recognizes that deportation is a drastic action that can result in the loss of “all that makes life worth living.” For that reason, immigrant have many rights the government is obligated to respect.
An important right is the requirement that DHS prove through clear and convincing evidence that the immigrant is deportable. Sometimes that is easy–for example where an immigrant is arrested with a foreign passport showing a period of stay has expired. In other cases, such as in a complicated criminal deportation case involving a green card holder, DHS might not be able to prove deportability.

Even if the judge determines that the immigrant is deportable, defenses are available. Once DHS charges an immigrant with deportability, the Immigration Judge has jurisdiction over most applications by him or her for immigration status. The judge may under certain circumstances decline to order deportation and instead confer lawful permanent resident (green card) status on the deportable immigrant. During the course of the court proceedings, many immigrants are eligible to receive work permits (and consequently social security numbers and driver licenses) based on their pending application for lawful status. The Immigration Judge’s decision can be appealed to the Board of Immigration Appeals, another administrative court near Washington, D.C. An appeal is a request that a higher court correct the errors committed by a trial court. In general, appeals are conducted completely in writing. The reviewing judge or judges looks at the documentary evidence submitted in the case, a transcript of testimony, and the judge’s decision. Both sides of the case have the opportunity to submit legal argument in writing to explain why they feel the decision was correctly, or incorrectly, decided. In a very small number of cases, the judges may ask the attorneys to appear before them in person to answer more questions.

If the Board of Immigration Appeals sides with an immigrant, DHS cannot appeal the decision. If the Board sides with DHS, an immigrant can appeal to the U.S. Court of Appeals by filing a petition for review. Deportation cases arising in California are reviewed by the U.S. Court of Appeals for the Ninth Circuit. Judges of the U.S. Court of Appeals are members of the judicial branch who are appointed by the President and serve for life. Consequently, they have more independence than Immigration Judges and Members of the Board of Immigration Appeals. The Court of Appeals conducts an appellate process much like the Board does–considering legal argument in writing from both sides and reviewing the evidentiary record. However, there are important restrictions on the judge’s authority. For example, in some contexts the judges cannot review discretionary judgments but are limited to reviewing legal issues.

If you have been charged with deportability, you should immediately hire an experienced immigration lawyer to defend you. The attorneys of the Law Office of Robert L. Lewis are effective and dedicated defenders of undocumented immigrants. For more information, please call for a consultation.

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Adjustment of Status (Green Cards)

U.S. immigration law is based upon the principle of family reunification and is generally a two-step process. First, a U.S. citizen or permanent resident files a “visa petition” to sponsor his or her relative for immigration. There may be a long wait for the immigrant’s turn to be called after the petition is filed, depending on the status of the petitioner and the type of family relationship. For example, because the law limits the number of siblings of U.S. citizens who may immigrate each year, there is currently a backlog and immigrants can be expected to wait for a decade or more. In other cases, such as for the spouses, parents, and unmarried minor children of U.S. citizens, there are no per-year limits and consequently no waiting in line.

Even once it is an immigrant’s turn to immigrate, the immigrant must satisfy certain other requirements to convert the petition into a green card. If the immigrant is in the United States, the process to apply for a green card is called “adjustment of status.” In general, the immigrant must show that he was allowed to enter the United States by an immigration officer on his last entry in order to file his application within the United States. An exception may apply if the immigrant was sponsored on or before April 30, 2001. If the immigrant is eligible to apply within the United States, it typically takes only four months from date of filing to be interviewed and receive a decision on green card status. Immigrants may be represented by an attorney throughout the process–including during the actual interview.

Where an immigrant is outside of the United States, or does not qualify to apply from within the United States, he or she must apply for an immigrant visa at a U.S. consulate abroad. If the immigrant has previously lived unlawfully in the United States, he or she may be required to request a waiver for prior violations of the law. Immigrants who spend one year unlawfully in the United States are ineligible to receive a visa for 10 years after their departure. This creates a Catch-22 situation for many hopeful family-based immigrants: they must leave to take advantage of their family member’s petition, but the departure itself makes them ineligible to use it. Fortunately, DHS has authority to pardon these prior transgressions if the immigrant’s inability to enter the United States would case an extreme hardship to a parent or spouse who is a U.S. citizen or permanent resident.

Whether you qualify for adjustment of status and need assistance applying within the United States, or will need to apply for an immigrant visa and waiver abroad, the attorneys of the Law Office of Robert L. Lewis have the experience and dedication to ensure your application has the highest chance of success.

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The U Visa

Have you been a victim of a violent crime in the United States? An assault, domestic violence or sexual abuse? Have you ever reported to the police any violent crime committed against yourself or your child? If so, you might be eligible for a the new U Visa Nonimmigrant Status. Congress enacted laws to protect immigrant crime victims who cooperate with law enforcement in order to encourage people to report crimes without fear of deportation. According to the U.S. Department of Justice, “Hispanics” are more likely to be victims of violent crimes. Police efforts to reduce crime are hampered by undocumented immigrant crime victims’ fear of deportation.

What are the benefits of a U Visa?

The U Visa allows certain immigrant victims of crime to live and work in the United States. Immigrants who receive a U Visa can apply for a green card after three years. The government may issue up to 10,000 U Visas each year.

There are several requirements to apply for a U Visa. First, you must be the victim of a violent crime, such as domestic violence, sexual abuse, assault, abduction, false imprisonment, blackmail, rape, torture, or incest.

You also must be the direct victim of the crime-that is, you must personally have suffered physical or mental harm as result of the crime. In some cases, though, certain relatives of a victim who is murdered, disabled, or very young may also be eligible to apply for U Visas as “indirect” victims.

Another requirement for the U Visa is that you must have helped, or be willing to help, law enforcement authorities investigate or prosecute the crime committed against you. This could be by giving a statement to the police, answering questions by law enforcement officials, making a suspect identification, testifying in court, or submitting a complaint. What about my family members? If you are eligible for a U Visa, you can apply for your spouse and children. If you are under 21, you can also apply for your parent(s) and any unmarried brothers and sisters under 18. If your application is approved, your family members will receive the same benefits as you.

What must my application include?

Along with the U Visa application form, you will need to submit proof of the harm you suffered as a crime victim, and proof of your help in investigating the crime. This proof can include photos, statements from witnesses, police reports, court documents, restraining orders, medical records, and other such evidence. Also, an official from a law enforcement agency, police department, court, or prosecutor’s office needs to sign a form stating that you have been helpful in investigating the crime committed against you Finally, you must submit a written statement describing the crime and explaining how you helped in the investigation or prosecution of the crime. 

If applying for family members, you will need to include proof of the relationship (for example, marriage certificate, or birth certificate), along with a work permit application for each family member.
An immigration attorney can assist you with collecting and assembling these documents for your application.

What if I violated any immigration or criminal laws?

If you violated certain immigration laws, such as entering the U.S. without inspection, you will have to file an “inadmissibility waiver” form with your U Visa application. You may also have to file this form if you have any criminal convictions. The government will then decide whether to excuse your criminal conviction or immigration violation.

Get more information

As with any application you file with the immigration authorities, there is a risk that they will deny your application and possibly attempt to have you deported from the United States. That is why it is important for you to talk to an immigration attorney or experienced advocate before applying for a U Visa.

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Immigrants who are at risk of serious harm if they return to their country may be eligible for asylum. Our firm frequently represents applicants for asylum before U.S. Citizenship and Immigration Services and the Immigration Courts. In addition to representing applicants who fear harm due to political opinions, our firm has extensive experience in applications based on sexual orientation, gender identity, and domestic violence.

To qualify for asylum, an immigrant must demonstrate that he or she has a “well founded” fear of very serious harm. A one-in-ten chance of harm is generally viewed as providing a well founded reason to fear harm. If an immigrant has suffered serious harm in the past, the law presumes it will happen again. The harm must be carried out either by agents of a government or by private people from whose actions the government will not protect the immigrant. The immigrant must prove that his or her characteristics–race, religion, nationality, political opinion, or membership in a particular social group–are a central reason he or she is targeted for harm. Generally, the immigrant must prove that there is not a safe place within his or her own country in which to relocate. Finally, an application for asylum must be filed within one year of entry to the United States or by April 1, 1998, whichever is later. Important exceptions apply to this rule, such as where an immigrant has suffered from mental health issues as a result of past harm or there has been a recent change of circumstances.

Applications for asylum must generally be filed with DHS for applicants who are not in removal proceedings. DHS conducts an interview at an Asylum Office before a specially trained officer. Interviews usually take place 30 days after filing. If the application is approved, the immigrant immediately receives a work permit and may apply for a green card one year later. If the application is not approved, and the immigrant lacks lawful status, he will be placed in deportation proceedings. An Immigration Judge may review the asylum application and will render a new decision.

Applications for asylum require extensive documentation and legal argument. The attorneys of the Law Office of Robert L. Lewis have extensive experience with applications for asylum before DHS and the Immigration Courts. Our compassionate attorneys can help you share your experience and request protection from the United States government. For more information, please call for an appointment.

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Cancellation of Removal

The law protects immigrants whose immediate family members have special needs or serious medical issues from deportation. While defending their case, they may be entitled to work authorization. If their case is approved, they are given lawful permanent resident status. Our firm has represented countless immigrants in applications for cancellation of removal before the San Francisco Immigration Court, obtaining immigration protection that promotes the welfare of their families.

Cancellation of removal is a defense against deportation available to long-term undocumented immigrants who can show a family member with lawful status would suffer greatly if he or she is deported. While the application is pending, an applicant is entitled to work authorization, a social security number, and a driver’s license. If the immigrant wins, the deportation is cancelled and the immigrant becomes a lawful permanent resident.

To qualify, an immigrant must have been physically present in the United States for 10 years prior to being placed in a removal (deportation) proceeding. During that time, the immigrant must not have left the United States for more than 90 days on any one trip or for more than 180 days in total. The immigrant must also show he or she has been a person of “good moral character” during a period of ten years and must not have certain types of criminal convictions. He or she must have a parent, spouse, or child (unmarried and less than 21 years of age) who is a U.S. citizen or a lawful permanent resident. Finally, he or she must demonstrate that his or her relative would suffer hardship that is “exceptional and extremely unusual.”

Because the hardship standard is very high, simply living in the United States for ten years and having U.S. born children is not enough to win. The Board of Immigration Appeals, the agency charged with interpreting our immigration laws, has found that Congress intended the law to be applied in a restrictive way. It found that a strong case might involve an immigrant’s child who has a very serious health issue or compelling special needs in school. On the other hand, it later clarified that cases may be approved where the circumstances are less grave but still would create a very high level of hardship. For example, it approved the case of a single woman from Mexico with six children who had absolutely no familial support in Mexico because her siblings and parents resided in the U.S. lawfully. In that case, the Board found that the severe economic and familial hardship on the children met the “exceptional and extremely unusual hardship” standard.

Immigrants whose children have been qualified for special education upon the basis of a specific learning disability, speech and language impairment, or others identified in an individualized education plan are very often strong candidates for cancellation of removal and should speak to an attorney about their rights. Immigrants whose children have serious medical needs that could not be treated in the immigrant’s country of nationality may also be strong candidates. Each case is unique. Sometimes a case is granted based on the totality of circumstances, such as a number of smaller hardships that when viewed cumulatively reaches an exceptional level. A consultation with an attorney can inform immigrants about the likelihood they would prevail in an application.

The Law Office of Robert L. Lewis has represented hundreds of immigrants in applications for cancellation of removal in the immigration courts. Our attorneys develop persuasive trial strategies to clearly document the impact a deportation will have on a family, working with experts and performing independent research regarding the availability of special education resources and medical services. If you think you might qualify, call our office for an evaluation.

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Immigration Consequences of Criminal Offenses

Immigrants charged or convicted of criminal offenses may face the additional penalty of deportation. Our attorneys frequently work with criminal defense counsel as consultants, advising them of the immigration consequences of potential plea agreements, and we defend immigrant from deportation for their crime in the Immigration Court.

Many green card holders make the serious mistake of believing they are immune from deportation. In certain circumstances, even a single shoplifting offense with no jail time can result in the nearly automatic deportation of a green card holder. Crimes involving moral turpitude, such as theft and seriously injuring someone can result in deportation or ineligibility for lawful status. Domestic violence, drugs, firearms offenses, and numerous other offenses can cause similar problems. If you are a permanent resident charged with a crime, you should hire an experienced immigration lawyer to ensure your plea agreement will not result in your deportation. Even if you do not currently have lawful status, the opinion of an immigration lawyer can help ensure you do not unnecessarily give up the opportunity for future legalization.

If you are charged with deportability for a crime, you should immediately hire an experienced deportation defense lawyer. The intersection between criminal and immigration law is one of the most complicated areas of law. You may be able to have your case terminated if DHS has improperly charged you with deportation. Even if the judge finds you are properly charged, you may be eligible for a discretionary waiver of your deportation.

The attorneys of the Law Office of Robert L. Lewis are experienced litigators in the field of deportation for criminal offenses. For more information, please call for an appointment.

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Release from DHS Custody

Immigrants who have been arrested by Immigration and Customs Enforcement may often obtain a release from custody. Our firm has extensive experience representing detainees in custody determinations before ICE and in custody hearings before the Immigration Courts, allowing them to return to their loved ones while they defend against their deportation.

When an immigrant is detained by U.S. Immigration and Customs Enforcement (“ICE”), she may feel that she has come to the end of the road. But, detention by ICE is just the beginning of a long process in which the immigrant may exercise certain rights and privileges, including the right to apply for immigration status before being deported, and the possibility to request release from custody.

When an immigrant is detained by ICE, he will be transported to the local office of Enforcement and Removal Operations for an interview. Officers will investigate his background, including any criminal history or prior problems with immigration authorities. If the immigrant is determined to be in the United States in violation of law, the officer will request that the he voluntarily depart the United States. Alternatively, the immigrant may request a hearing before an Immigration Judge to determine whether she may remain in the United States.

Assuming the immigrant does not have a prior deportation order, if the immigrant requests a hearing the officer will prepare and serve a “Notice to Appear,” which explains why ICE believes the immigrant may be removed (for example, for entry without permission), and informs him of the time of her hearing.

Next, the officer will make a “custody determination.” The officer may decide that the immigrant will remain detained during the deportation proceeding, he may release the immigrant with a promise to go to court (“own recognizance”), or he may set a bond (bail) amount to guarantee the immigrant will go to court. More recently, officers have used electronic monitoring in which the immigrant wears a GPS tracking ankle bracelet and reports regularly, but pays no bond.

Often, the initial custody decision is not favorable to the immigrant. In those cases, the immigrant has a right to request a “custody redetermination hearing” before an immigration judge. During the hearing, a neutral judge will consider the immigrant’s request for release. The judge may hear witnesses and testimony from the immigrant himself in considering the case.

In considering a request for release from custody, ICE and the immigration judge determine whether the immigrant is a flight risk and whether she would be a danger to the community. A history of violence against people and property is a factor suggesting the immigrant is a danger to the community. Eligibility for immigration benefits is often a key factor suggesting the immigrant will not flee from authorities. When any negative factor is present, the immigrant should present other favorable evidence to counterbalance the factor.

Bonds paid to the government are not the same as fines. A bond is money deposited with the government to guarantee a promise. In this case, the immigrant promises to go to all court hearings. When the immigrant is granted legal status, or leaves the United States, the bond money is returned to the person who deposited it (the “obligor”). If money is a problem, many families turn to bond agencies for financing of bonds. Typically, the bond agency charges a fee of from 10% to 15% of the bond to lend the bond money. Some form of collateral is required (i.e., title to a house or in some cases credit cards). When the bond is satisfied, the government returns the money to the bond agency. The bond agency retains the 10% or 15% paid by the family as a fee for its service.

Few things are as stressful as being detained and separated from a loved one. The Law Office of Robert L. Lewis has years of experience representing immigrants in requests for release from custody. Our attorneys respond immediately to our client’s needs to minimize the time they must spend detained and to maximize the chances they are released under favorable terms. In addition to representing detained immigrants in Northern California, we often represent immigrants living in Northern California who are transferred to Arizona detention centers, through our close collaboration with local counsel. If your relative is detained by ICE, the best thing to do is tell him or her to ask for a hearing and to consult with an attorney knowledgeable in immigration law immediately.

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LGBT Immigration

The Law Office of Robert L. Lewis applauds the recent decisions of the Supreme Court that overruled the Defense of Marriage Act and restored marriage equality to California. The Department of Homeland Security and Department of State rapidly announced that they will treat same-sex spouses equally as opposite-sex spouses in deciding applications for immigration benefits. Within days of the Supreme Court’s decisions, DHS approved green card status for the first same-sex couple.

Prior to the decision in United States v. Windsor, U.S. immigration law discriminated against same-sex partners of U.S. citizens and permanent residents. Marriage to a U.S. citizen often provides an avenue to obtain green card status, but because the federal “Defense of Marriage Act,” defined marriage as the union of one man and one woman, same-sex spouses of U.S. citizens could not benefit. The Supreme Court’s decision found the law unconstitutional because its only purpose was a bare desire to harm a group of people whom the states had found deserve the protection marriage offers.

Immigrants will still need to qualify under the complex and sometimes unfair rules that characterize our immigration system. For example, immigrants who are married to U.S. citizens but entered without a visa may need to leave the country to obtain an immigrant visa and then return as a green card holder. However, as noted in our article on Asylum, sexual orientation and gender identity may be the basis of a successful asylum claim depending on an immigrant’s circumstances–a benefit available even if an immigrant arrived unlawfully.

The Law Office of Robert L. Lewis is proud to be an advocate for the LGBT community. To learn more about how the changes in law affect your family, speak to one of our attorneys today.

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Deferred Action for Childhood Arrivals

Deferred Action for Childhood Arrivals (“DACA”) is the new program for young immigrants that provides work authorization, a social security number, and acess to a driver’s license. The program is the Obama’s administration’s temporary solution while we await passage of the DREAM Act in Congress.  Deferred Action is approved in periods of two year increments, and can be renewed.
To qualify, applicants must meet the following requirements:

  • Have been under age 31 on June 15, 2012
  • Have come to the United States before reaching their 16th birthday
  • Have continuously resided in the United States since June 15, 2007
  • Have been present in the United States on June 15, 2012
  • Have a high school diploma, a  GED, be in school, or be an honorably discharged veteran
  • Not have certain criminal convictions

Applicants can have taken short trips outside the United States as long as their residence was still in this country.  Evidence to establish presence and residence can include high school transcripts, pay stubs from employers, immunization records, or other official or business documents.

Applicants must only show they are in school as of the date of application.  An applicant can enroll in an education, literacy, or career-training program that is designed to lead to placement in postsecondary education, job training, or employment, if they show they are working toward such placement.  Alternatively, an applicant can enroll in an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under state law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other equivalent state-authorized exam.

Applicants with criminal histories should generally not apply for DACA without consulting an attorney.  A felony, three misdemeanors, one misdemeanor with a 90 day sentence served, or one misdemeanor conviction for domestic violence, sexual abuse, burglary, a firearms offense, drug dealing, and driving under the influence will almost always disqualify an applicant.

However, applicants whose disqualifying convictions have been expunged have the opportunity to present evidence of countervailing circumstances.  An expungement is a decision by a criminal court to erase a persons criminal history.  An applicant whose DUI conviction was expunged might present evidence of rehabilitation, U.S. family ties, and hardship to his U.S. citizen children and DHS would weigh and balance those circumstances against the seriousness of the past offense.

Our DACA representation includes completion of all forms, support in evidence selection, attorney review of your application packet, attorney consultation to ensure your eligibility for DACA and to explore your and your family’s eligibility for more permanent immigration benefits.  In more complex criminal cases, our representation can include seeking an expungement of a conviction and development of an argument that the offense is outweighed by other favorable factors.

To get started, contact our office for a consultation.  We offer individual consultations at which DACA and other benefits are discussed.  We also offer twice-weekly DACA workshops where you can learn more about this new program and ask questions from an attorney at a reduced price.

Over the past 15 years, our attorneys have helped hundreds of undocumented immigrants to legalize their status in the United States.  Whether your case is relatively straightforward or you have a criminal history.  Our team of experienced, dedicated, and compassionate immigration attorneys can help ensure your DACA application has the highest chance of success.

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Call our main number (510) 834-1288 to request more information/schedule an appointment.