The INS now requires that aliens follow Section 265 of the Immigration and Nationality Act, which mandates that all aliens in the United States must notify the INS of a change of address within ten days of moving. The way to notify the INS is using Form AR-11, which can be found in the Links section of this website. In addition to the instructions on the form, I suggest you also follow these instructions:
1. Fill out form – one copy per family member.
2. Mail to the address on the form using a method where you obtain proof of delivery.
3. Make and keep in a secure place a copy for yourself along with the proof of delivery.
4. If you lose your copy or proof of delivery, send a new form.
5. Fill out and send this form within ten days each time you move.
DEPORTATION/REMOVAL DEFENSE AND BOND
Termination of Proceedings
A non-citizen of the United States, including lawful permanent residents (green card holders), can be deported (under current law deportation is called “removal”) for violating the terms of his visa, for committing certain crimes, or for certain types of conduct contrary to the immigration laws, like alien smuggling or using false documents. A person trying to enter the United States can be arrested, denied admission and excluded from the United States as well. However, just because the government claims that a foreigner is excludable or deportable does not mean that he or she is. The foreigner can fight his case in Immigration Court and it can sometimes be terminated because the government’s claim of deportability or excludablity cannot be proved. Being a citizen protects
a person from being deported or excluded. Sometimes a person is a citizen without being aware of it. If an Immigration Judge is presented evidence that shows that the person is a citizen, removal proceedings will be terminated.
Suppression of Evidence
In presenting its case to deport someone, the government often has a burden of producing evidence of deportability. If the evidence the government submits to prove its case is illegally obtained and the illegality amounts to an egregious constitutional violation or, in the case of testimony, is untrue, evidence may be suppressed. If a foreigner arrested by the Bureau of Immigration and Customs Enforcement (BICE) or the Directorate of
Border and Transportation Security (BTS) makes statements as a result of coercion through the use of or threats of use of force, prolonged detention, inducements to lie, threats of prolonged detention, or deprivation of food, sleep, or medical care, that put in serious doubt the truthfulness of the statements, the statements may be suppressed as well. If the government’s case relies on the suppressed evidence, suppression could lead to termination.
Cancellation of Removal for Certain Permanent Residents
Certain foreigners in removal proceedings may be eligible for a pardon that will prevent removal. One such form of relief is Cancellation of Removal for Certain Permanent Residents. This relief is for lawful permanent residents (Green Card Holders) who have had their permanent residence for five years and have acquired seven years of residence in the United States after being admitted in any status. The seven years of residence sometimes stops accruing when a removable offense is committed and always stops when a charging document from the government charging the alien with removability is given to the alien. An Immigration Judge’s decision to grant a pardon is made
based on a weighing the positive and negative equities in a case.
Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents
In the case of foreigners who have been in the United States for more than ten years and have committed no crimes (with some exceptions), relief from removal may be available if the foreigner can show exceptional and extremely unusual hardship to his spouse, parent, or child who is a citizen of the United States or a lawful permanent resident.
Adjustment of Status
In certain situations, a foreigner who has been placed in removal proceedings can receive a visa and permission to reside in the United States from an Immigration Judge. This option is sometimes available to foreigners who have committed some specific types of crimes in the United States. Sometimes a criminal ground that would bar a foreigner from obtaining permanent resident status in the United States can be waived based on the existence of hardship to the foreigner’s spouse, parents, son, or daughter who are permanent residents or citizens.
Certain acts of fraud that make a foreigner ineligible for a visa can also be waived if denying the foreigner the ability to stay in the United States would be a hardship to the foreigner’s spouse or parent.
Voluntary Departure
In the case of a foreigner who must leave the United States, it is sometimes possible to receive a grant of voluntary departure rather than a removal order. Voluntary departure allows for an alien to obtain a visa outside the United States to return to the United States without any of the penalties attached to having been removed, which range from a five year bar to a permanent bar to ever returning to the United States depending on the basis for and circumstances of the removal.
Legal Defenses
For many foreigners there is no defense to being deported under the current interpretations of the law. This does not mean that nothing can be done. There are many challenges to the current harsh removal laws. Some persons in removal proceedings have opted to challenge the legitimacy of the statutes and interpretations of the statutes that threaten them with removal from the United States. Those that stand and fight can have a positive impact on the law and may be able to preserve issues in their own cases so that they will ultimately be victorious and defeat the government’s attempt to remove them. Some of the harshest provisions of changes in the law in 1996 have been overturned because some people fought rather than simply left.
Many foreigners who have committed crimes are taken into custody. In recent years the laws have been toughened regarding detention and the courts have also hardened in their views regarding the legitimacy of detaining foreigners who have completed their criminal sentences and paid their debts to society. Also, aliens who arrive in the United States without what the government considers proper documentation are taken into detention while the government decides whether to return them, allows them into the United States for later examination, or decides whether they have credible fears of returning to their homelands. Those whom the government believes have credible fears are often detained while the government determines if they are eligible and deserving of protections under the asylum/human rights provisions of the law through asylum, withholding of removal, or protection under the Convention Against Torture.
Release is often possible for detained foreigners. Those who have been released from criminal custody for many crimes after October 8, 1998, the government insists are subject to mandatory custody. The courts have decided that mandatory detention does not apply to permanent residents. The government may detain others based on a discretionary determination that they do not merit release because they are dangers to the community or flight risks. Aliens not caught at the border can ask for a bond hearing before an immigration judge to request bond or to have an excessively high bond lowered. The government can sometimes be persuaded to lower the amount of a bond it sets when evidence is brought to its attention.
ASYLUM AND RELATED PROTECTIONS
International Law and United States immigration law provides for the protection of foreigners who fear returning to their homelands. There are several categories of protections that can be applied to different situations.
Asylum
One avenue for being permitted to stay is by applying for asylum, which allows a foreigner to stay in the United States because of a well-founded fear of persecution in their homeland. Persecution must be based on a well-founded fear of persecution on account of the following five bases:
1. Race
2. Religion
3. Nationality
4. Membership in a particular social group
5. Political opinion.
Withholding of Removal
Foreigners in the United States may be able to apply for withholding of removal if it is “more likely than not” that they will be persecuted on account one or more of the five bases listed above. This form of protection may be available in circumstances when asylum may be unavailable, such as if the foreigner had convictions for serious crimes or if the foreigner has been in the United States for more than a year and has not applied for asylum without an extraordinary circumstance explaining the failure to file or when there was no changed circumstances that explain late filing.
Convention Against Torture (CAT)
Foreigners may be eligible for protection in the United States under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, CAT. The foreigner must establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. The government must be the source of the torture. his type of relief is available to foreign nationals who face the likelihood of torture for whom asylum and withholding of removal are unavailable. This would be in the case of persons who face the likelihood of torture for reasons other than on account of one of the five factors. Also this would be the case for foreigners who failed to file asylum applications within one yer of admission or have committed serious crimes that render them ineligible for asylum or withholding of removal.
NATURALIZATION AND CITIZENSHIP
Naturalization
A foreigner who has had permanent residence for five years is often eligible to apply for naturalization and thus become a United States citizen. However, not all permanent residents are eligible to naturalize. Care must be taken to insure that there are no criminal problems, conduct problems, or issues regarding absences that will lead a person to be denied naturalization or worse, to be placed in removal proceedings because of absences, criminal activity, or improper conduct. In such cases, a person would be better off not applying to naturalize. If a permanent resident is married to a United States citizen, the wait from the time of becoming a permanent resident to applying to naturalize may be less than five years, and as little as three years if the permanent resident is married to a United States citizen and was married to the United States citizen when he became a permanent resident. Special procedures exist for naturalizing the children of United States citizens.
Citizenship
A person born in the United States is a citizen from birth. In addition, however, citizenship can be conferred at birth through parentage. If a foreign born person’s parent or parents are citizens, it is possible that the person is a citizen from birth. Much depends on the residence of the parents before the birth of the child, whether it is the mother or father or both who are citizens when the child is born, what year the child was born, whether the parents were married when the child was born, and other factors as well. If a person is born of a citizen parent, it is worthwhile to analyze the relationships to determine whether the person may be a United States citizen. Further, contrary to popular conception, marrying a United States citizen does not confer citizenship, nor does being adopted by a United States citizen confer citizenship. Adoptees and their adoptive parents need to be careful to analyze the immigration status of their adopted children and to take steps to insure that the children are present in the United States in lawful status and become citizens, if that is the parents’ goal. Insuring that your adopted child is a United States citizen is very important because of the harsh consequences to non-citizens of illegal conduct that can lead to being placed in removal proceedings. Children who celebrated or will celebrate their 18th birthdays before February 27, 2001, who are lawful permanent residents, and who have a parent with whom they have lived who is a United States citizen, are automatically United States citizens. Proof of citizenship can be obtained form the INS or by obtaining a passport.
Military Naturalization
A foreign national who has served in the United States military during a period of military hostilities on active duty and was discharged under honorable conditions is often eligible to naturalize. Vietnam War and Gulf War service are considered wartime service. So is service in the war on terrorism. The foreigner need not have served where the war was being fought to qualify. Certain crimes may bar a service member from applying for naturalization if they were committed after November 29, 1990. Further, the applicant for naturalization must demonstrate good moral character for the year period before making application. In addition, the foreigner must have enlisted or reenlisted in the United States or a U.S. territory or ship or have become a lawful permanent resident. Being in removal proceedings does not preclude seeking naturalization under these provisions for soldiers who served in the United States military during a period of military hostilities. The relevant dates are:
1. World War I (specifically, between April 6, 1917, and November 11, 1918).
2. World War II (specifically, between September 1, 1939, and December 31, 1946).
3. the Korean hostilities (specifically, between June 25, 1950, and July 1, 1955).
4. the Vietnam hostilities (specifically, between February 28, 1961, and October 15, 1978).
5. Persian Gulf Conflict (specifically between August 2, 1990, and April 11, 1991).
6. September 11, 2001 to the present (Pursuant to Executive Order 13269 of July 3, 2002).
Foreigners with relatives in the United States may be able to acquire permanent residence through these relationships. The relationships that can lead to permanent residence can be divided into two categories: immediate relative and preference categories.
Immediate Relatives
The immediate relative category refers to the spouse, parents, and children of United States citizens. A child is defined as a person under age 21 who is unmarried and is a natural child or adopted child as long as the adoption took place before the child turned 16. Stepchildren, children of a spouse, are also immediate relatives if the marriage of their parent and stepparent took place before they reached age 18. Visas are immediately available for those in these relationships and as a result application for permanent residence can be made without any waiting. Upon filing the alien can receive employment authorization