The U.S. Citizenship and Immigration Services (“USCIS”) recently announced a change in its policy-It is now placing some people with denied adjustment of status applications in removal proceedings before the immigration court in order to deport them from the United States. This can affect anyone with past criminal or immigration violations, including individuals out of status or without a valid visa. While this policy appears harsh, it actually gives individuals an opportunity to seek relief, such as a renewed application for adjustment of status, before the Immigration Judge.
If an individual is placed in immigration court proceedings, the renewal of his adjustment of status application in court gives the applicant a second chance to argue his case. Of course, it goes without saying that one should do everything possible to present the strongest case before the USCIS initially so as to increase chances of success at that level. However, if the USCIS denies the application, all is not lost. With that in mind, this article discusses the differences between the adjustment of status process before the USCIS and before the immigration judge.
During the adjustment of status process before the USCIS, an immigrant can retain the assistance of an attorney including representation at the interview. That attorney can be present while the applicant is interviewed. Generally, however, a USCIS officer has very limited time to dedicate to each individual being interviewed, and many interviews are conducted in less than thirty minutes. This leaves little opportunity for an attorney and the applicant to address evidence on the waiver application. Applicants do not have opportunity to present detailed testimony on their behalf and cannot have friends or family testify. Moreover, while attorneys can ensure that only proper lines of inquiry are pursued and that a strong documentary case is presented, they cannot take an active role in the presentation of testimony at the interview. The USCIS’s time for review of a waiver application is also limited. Often, the officers conducting interviews have had little opportunity to review the waiver application before conducting an interview with the applicant. They also rarely make decisions at the time of the interview, and many months may pass before a decision is made.
On the other hand, during immigration court proceedings, an applicant is given the opportunity to testify and present evidence on his behalf. This evidence includes testimonial evidence of friends and family. In appropriate cases, it can also include experts in various areas, such as psychologists and professors knowledgeable of conditions in specific countries. Attorneys experienced in immigration law prepare witnesses and present testimony so that all relevant information is put before the judge. Hearings can last anywhere from a couple of hours to a couple of days, depending on the complexity of the case.
Also, in immigration court proceedings, detailed waiver applications containing all significant evidence, are submitted well before the final hearing in the case. Immigration judges have the opportunity to review them before the alien presents testimony. In a properly-prepared case, the Immigration Judge is made aware of issues in the case by the documentary evidence and trial briefs submitted before the final hearing. Through effective examination, the attorney can show why the issues should be resolved in the alien’s favor. The Immigration Judge also normally renders a decision at the conclusion of the merit’s hearing, during which the alien and other witnesses provide testimony.
Knowledgeable and experienced immigration attorneys can utilize the immigration court process to present the strongest case possible in the clearest and most effective way. This can make the difference between being granted and being denied relief. This means you should not be discouraged or give up hope if your application is denied and you are placed in court proceedings. It also means that if you are trying to adjust status or obtain a waiver, you should locate competent immigration counsel in order to give yourself the best chance of success with your case.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
Atty. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding INS action and immigrants' rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in test books as a guide to other immigration practitioners.
His offices are located in Pasadena, San Francisco, Beijing and Makati City.