The Immigration Law Offices Of Mitchell J. Cohen, P.A.

Absentia Order of Deportation Victory in 2nd Circuit Court of Appeals

Cohen Eliminates 16-Year-Old Absentia Deportation Order

Immigration Lawyer reopens in absentia order

In Absentia Deportation Order Reopened in NY

What is Being Ordered Deported in Absentia?

The Immigration Courts have the authority to go forward on a deportation hearing when the respondent (the immigration court equivalent of a “defendant”) fails to appear for the hearing. When a respondent “no shows” for his or her deportation hearing, the Immigration Judge will generally make a final decision on case based on the evidence submitted by the counsel representing Immigration and Customs Enforcement (ICE). If the evidence submitted by ICE establishes deportability, then the Immigration Court will order the respondent removed “in absentia.”

The Immigration Court generally presumes that there was effective service of the charging document if it is established to have been mailed to the respondent’s address. The presumption of effective delivery however may in some instances be overcome by evidence that the charging document was not in fact received.

Attorney Cohen Makes a Federal Case Out of Immigration’s Failure to Provide Notice of Hearing

In 2005 a woman sought to reopen a deportation order that had been issued in 1991 in her absence. She had not appeared for the 1991 hearing because she had never received notice of the deportation hearing. The Immigration Court denied her motion to reopen the proceedings. She appealed the decision to the Board of Immigration Appeals (“BIA”). In 2006 the BIA denied her appeal. It also subsequently denied her motions to reconsider. I was retained to represent her in a Federal Court appeal of the BIA’s denial of her motions to reconsider. I appealed her case pro hac vice to the U.S. Court of Appeals for the 2nd Circuit, in New York, the jurisdiction where the in absentia deportation hearing originally occurred.

Success in 2nd Circuit Petition for Review of the In Absentia Order of Deportation

The basis of the federal circuit court appeal (called a “petition for review”) was that the Board of Immigration Appeals unfairly ignored evidence of non-receipt, including multiple affidavits that had been submitted in support of a finding that my client had not in fact received notice of the hearing. The Court of Appeals agreed, ruling that in upholding the order of deportation, the Board of Immigration Appeals had abused its discretion. The in absentia order of deportation was vacated (eliminated), and the case was remanded to the Immigration Court. I subsequently was able to change venue to the Miami Immigration Court and then obtain an order from the Immigration Court terminating the deportation proceedings.

Call Attorney Cohen

If you have any questions, or you need immigration court representation, please feel free to call my law office in Hallandale Beach (954 457-1941) or Fort Myers (239 931-6558) to schedule a consultation with me.

Note: the foregoing article is for general informational purposes only. It is not legal advice.

Krome Detention Center Immigration Court Success

Krome Immigration Court

Background:
A young man from Central America was arrested at Miami International Airport by ICE and placed in removal proceedings at the Krome Service Processing Center, in Miami, Florida. He was a permanent resident (“green card” holder), who was subject to deportation on account of a conviction for cocaine possession. His criminal record also included an arrest for carrying a concealed weapon. Years after his criminal arrests, he was arrested by immigration upon returning from a visit to his native country.
Counsel for the Department of Homeland Security argued that my client was ineligible for Sec. 240A(a) Cancellation of Removal, a defensive application I filed with the Immigration Court in support of my client remaining in the United States. After hearing both sides’ arguments on the issue, the Immigration Judge allowed us to proceed with the application.
What is Section 240A(a) Cancellation of Removal?
Section 240A(a) cancellation of removal is a defensive form of relief available to some permanent residents who have been placed in removal proceedings. In general it is available to cancel removability for individuals who have resided in the United States for over 7 years since admission to the United States, with at least 5 of those years having been spent in permanent resident status. There are additional restrictions on who qualifies for Section 240A(a) cancellation of removal, including a “stop-time” rule, and a bar for certain individuals convicted of offenses designated under the Immigration and Nationality Act as aggravated felonies. If the Immigration Court finds that you qualify to apply for Sec. 240A(a) cancellation of removal, the Immigration Court will accept the application (Form EOIR-42A) and conduct a hearing on the application. The test for cancellation of removal is a “balancing of the equities,” and the Immigration Judge exercises his or her own discretion in granting or denying the application.

Outcome:
After hearing the testimony and written statements of my client, his family, a clinical psychologist and other members of the community, and considering the evidence of hardship to my client and his family (including his parents and child) should he be deported, the Immigration Judge at the Krome Detention Center granted the cancellation of removal application, finding that my client had demonstrated remorse for his crimes, good moral character, a commitment to his child, and generally that the positive factors in his case outweighed the negatives.
The Department of Homeland Security did not appeal the decision, and my client was allowed to remain in the United States with his permanent resident status intact.

Cohen’s Tip #1: Read Before You Plead.
A “withheld adjudication” of a criminal charge may not insulate you from DHS attempting to deport you. A plea of “no contest” or “guilty” is generally deemed to be a conviction under the Immigration and Nationality Act. The immigration definition of “conviction” is broader than the criminal definition. A plea of “nolo contendere” (“no contest”) or “guilty” where the criminal court imposed some form of punishment (for example: fine, costs, school, probation, jail time, etc.) is deemed to be a conviction under immigration law, even though your criminal attorney may tell you that you were not convicted. Many individuals come to me after they take an ill-advised plea, only to be shocked when the immigration authorities initiated removal proceedings against them. It is critical then if you are not a U.S. Citizen that you and/or your criminal attorney consult with an experienced immigration lawyer before the decision is made to plead to a crime. A good immigration attorney may be able to propose a plea agreement that will not subject the client to deportation or at least provide him with a fighting chance at remaining in the United States.
Cohen’s Tip #2: Look Before You Leap.
One very common way immigration identifies people who are subject to being removed from the United States is when they are returning from a trip abroad. If you have been arrested or charged with a crime, it is a very good idea to consult with an immigration attorney before you decide to travel.

The foregoing article is general in nature and not intended as legal advice. If you would like to consult with Attorney Mitchell J. Cohen, please call his immigration law office in Hallandale Beach (954 457-1941) or for Fort Myers residents (239 931-6558) to schedule a consultation about your case. Attorney Cohen is a Member of the American Immigration Lawyers Association.

Attorney Mitchell J. Cohen

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BIA Torture Convention (“CAT”) Victory

Convention Against Torture (CAT) Case Success

“Aggravated Felon” was Detained at Krome Detention Center

An undocumented alien had been categorized as an “aggravated felon” on account of his criminal record. As a result of a criminal conviction, an “immigration hold” was placed on him while he was in jail, and at the conclusion of his criminal sentence, he was taken to Miami’s Krome Detention Center by the immigration authorities.

The Krome Service Processing Center, located at 18201 SW 12th Street, Miami, FL 33194, is an immigration detention facility. The facility also houses an Immigration Court, which conducts bond hearings, removal proceedings, and certain other types of immigration proceedings. There are presently 3 Immigration Judges presiding over deportation cases at the Krome Detention Center.

The Torture Convention Case in Front of the Krome Immigration Court

My client had been tortured in his home country in retaliation for his political expression against the government, and still bore scars inflicted by his tormentors. I enlisted the aid of the Public Health Service at the facility to help me document the scars on my client’s body, and presented the findings to the Immigration Court at Krome. The Immigration Judge – who at the time had one of the lowest asylum grant rates in the country – declined to grant relief, and I appealed the case to the Board of Immigration Appeals (BIA).

The BIA’s Decision on the CAT Case (Win)

Based on the testimony of my client, the medical report, and other documentation corroborating his fear of returning to his country, the Board of Immigration Appeals found that my client had demonstrated an over 50 percent likelihood that he would be tortured by his government if he was deported to his country, and therefore granted him relief under the Convention Against Torture (“CAT” Relief). Client was released from Krome, and allowed to live and work in the United States.

Attorney Mitchell J. Cohen

Contact me at my Hallandale law office at (954) 457 – 1941.

Hallandale Beach Immigration Law Office:

501 Golden Isles Dr, Suite 201B

Hallandale Beach, FL 33009

Tel. (954) 457-1941

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Miami Immigration Court Cancellation of Removal Victory

The Department of Homeland Security sought to deport a woman from a South American country. She had been residing in the United States for over a decade, and was living with her elderly parents. Attorney Mitchell J. Cohen represented her in Immigration Court proceedings in front of an Immigration Judge in Miami, Florida. The Immigration and Nationality Act provides a defense from deportation to certain individuals who (1) have been living in the United States for over 10 years at the time of the service of the DHS’s notice to appear in Immigration Court, (2) have been persons of “good moral character” for at least 10 years, (3) whose deportation would result in exceptional and extremely unusual hardship to a U.S. Citizen or Lawful Permanent Resident (“green card” holder) parent, child under 21, or husband or wife. This form of defensive immigration relief is called Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents. There are additional qualifying / disqualifying criteria as well. A final decision approving the application means that the removal proceedings are cancelled, and that the respondent (the immigration court equivalent of a “defendant”) is granted Lawful Permanent Residence in the United States. The law provides for an annual nationwide cap of 4,000 for cancellation of removal for nonpermanent residents grants. Due to the law’s stringent criteria and limits on the number of these applications that may be approved annually, an individual in removal proceedings faces big hurdles in winning this type of defensive application.

Attorney Cohen presented evidence that his client’s presence in the United States was indispensable for the mental and physical well-being of her parents, both of whom were suffering from serious medical conditions, including heart-bypass surgery. The Immigration Judge took into evidence detailed statements from the parents’ physicians and from a psychologist who evaluated the parents. The doctors detailed the infirmities that the parents suffered from, the care that the daughter was providing, and the poor prognosis for the parents if their daughter were to be removed from the United States. The psychologist, a specialist in the field of health-psychology, detailed the emotional dependence that the parents on their daughter, that coupled with their emotional fragility, predicted that their daughter’s deportation would likely result on in profound psychological and emotional distress for the parents. Additional testimonial and documentary evidence was considered by the Immigration Court in Miami, including but not limited to poor conditions in client’s native country, client’s history of filing and paying federal income taxes and other evidence of her good moral character.

OUTCOME: Cancellation of Removal GRANTED, and client issued a permanent resident card. The government did not appeal the decision.

COHEN’S TIP #1: There are several forms of cancellation of removal for nonpermanent residents. The law provides that certain victims and former victims of domestic violence at the hands of U.S. Citizens or permanent residents may apply for “VAWA Special Rule Cancellation of Removal.” This form of deportation relief has some of the criteria relaxed, such as the physical presence requirement (only 3 years needed), and the hardship requirement (only “extreme hardship” need to be shown, instead of the more onerous “exceptional and extremely unusual hardship”). Furthermore, an applicant under this section may qualify under this section by showing that he himself would suffer extreme hardship if deported (even in the absence of extreme hardship to a qualifying relative, if any).

COHEN’S TIP #2: Get your taxes in order. The Immigration Judge as a rule take a very dim view of individuals who they perceive to be tax cheats, therefore it is important to demonstrate to the Immigration Judge that you have complied with U.S. tax laws. I advise my clients as early as possible in the process to see a competent Certified Public Accountant.

COHEN’S TIP #3: The requisite hardship must be shown under 2 scenarios. (1) What would happen to the qualifying relative if you were deported and the relative remained in the United States, and (2) What would happen if the relative joined you outside of the United States. The Immigration Judge will deny the application if he finds that the relative would be “ok” if he or she joined you back in your country. Many attorneys neglect to address this critical aspect of the case, with tragic results for their clients.

COHEN’S TIP #4: Expert witnesses. I am a big proponent of expert witnesses. Expert witnesses often need to be educated on what issues are important to the Immigration Judge, so that their reports and/or testimony can effectively address the important questions that are in front of the court. Effective expert witness testimony and reports can often mean the difference between winning and losing a case.

This article is general in nature and should not be construed as legal advice. Need an immigration lawyer? Call the Law Offices of Mitchell J. Cohen, P.A. at (954) 457-1941 (Hallandale Beach Immigration Office) or (239) 931-6558 (for Lee County, Fort Myers residents).