Seeking to Terminate Removal Proceedings to Apply for Naturalization

Lawful Permanent Residents who have been placed in removal proceedings (whether it is because they are subject to ground of removability under INA §237 or grounds of inadmissibility under INA §212) may be able to request termination of their removal proceedings under 8 C.F.R. § 1239.2(f) so that he or she can pursue an application for naturalization with U.S. Citizenship & Immigration Services (USCIS).  This defense to removal is available to LPR’s who can establish prima facie eligibility for naturalization as well as exceptionally appealing or humanitarian factors. 

Normally, in order to demonstrate that the LPR is prima facie eligible for naturalization, a draft of the Form N-400, Application for Naturalization, should be included with the Motion to Terminate with the Immigration Court.  Some ICE Chief Counsel’s Office also may want to see evidence that the application has already been filed with USCIS, such as the N-400 Receipt Notice issued by USCIS. However, ultimately, if the Immigration Court declines to terminate removal proceedings, USCIS may not grant naturalization to an LPR in removal proceedings pursuant to INA §318.

While most of the eligibility requirements can presumably be demonstrated, the most debatable one is usually the ‘good moral character’ requirement.  For most LPR’s, pursuant to INA § 316(a), an application for naturalization need only demonstrate that he or she has been a person of good moral character during the five (5) year continuous residence requirement. Thus, any act that establishes a lack of good moral character that has been committed outside of the five (5) year requirement is not a statutory bar to naturalization under INA §101(f).  (Some LPR’s have a reduced continuous residence requirement and thus need to establish their ‘good moral character’ during that period.)

If the LPR has been convicted of an aggravated felony, they are permanently ineligible for naturalization and will not be able to seek to terminate their removal proceedings through this avenue.  However, if such aggravated felony conviction occurred prior to November 29, 1990, the LPR is not statutorily barred from establishing good moral character for purposes of naturalization.  Specifically, pursuant to the USCIS’ Adjudicator’s Field Manual (“AFM”) Ch. 73.6(a)(3)(A): 

“[a]n aggravated felony conviction prior to November 29, 1990, does not preclude a finding of good moral character for purposes of naturalization… Rather, a conviction of an aggravated felony prior to November 29, 1990 should be considered in combination with the applicants present day moral character measured against the standards of the community. Thus, if an applicant's actions during the statutory period do not reflect reform and rehabilitation, then the applicant may not be able to demonstrate good moral character during the statutory period.”

Thus, pursuant to USCIS AFM Ch. 73.6(a)(3)(A), an LPR with an aggravated felony conviction from prior to November 29, 1990 is not permanently precluded from establishing good moral character for the purposes of naturalization. Instead, when adjudicating the LPR’s naturalization application, USCIS must weigh the LPR’s conviction against their reformation since that time and their present day strong moral character.

In addition to establishing their prima facie eligibility for naturalization, the LPR also has to provide evidence that their case involves exceptionally appealing and humanitarian factors.  These factors can include, but are not limited to, the LPR’s length of residence in the U.S., their U.S. citizen or LPR family members, evidence of reformation or rehabilitation since the LPR’s conviction(s). 

In an ideal world, the Immigration Court will terminate removal proceedings, without prejudice.  (Without prejudice means that the government may seek to reinstate removal proceedings in the future – in this example, if the naturalization application is ultimately denied by USCIS, the government can put the LPR back into removal proceedings.)  Once the removal proceedings are terminated, the LPR can conclude their naturalization application process through USCIS.  If approved for naturalization, the LPR will become a U.S. citizen and will no longer be subject to grounds of removability or inadmissibility in the future. 

ICE Implements New Parental Interest Directive

At a time when Prosecutorial Discretion is being utilized in a multitude of fashions by the Dept. of Homeland Security, earlier today, a new Directive - Parental Interest Directive - was issued. This Directive is aimed towards directing ICE Officers (and Enforcement and Removal Officers,a part of ICE) towards utilizing a degree of discretion when it comes to undocumented parents with minor children so as to not 'unnecessarily interrupt the parental rights of both alien parents or legal guardians'. (While the 2011 Morton PD Memo discusses this favorable factor, this Directive is aimed at complementing the PD Memo and providing additional guidance when it comes to undocumented parents with minor children in the U.S.)

As stated in the Directive, the Directive is particularly concerned with the placement, monitoring, accomodation, and removal of certain alien parents or legal guardians who are: 1. primary caretakers of minor children, without regard to the dependent's citizenship; 2. parents and legal guardians who have a direct interest in family court proceedings involving a minor or child welfare proceedings in the United States; and 3. parents and legal guardians whose minor children are U.S. Citizens (USC's) or Lawful Permanent Residents (LPR's).

What does this mean? It means that if you have a family member who is currently being detained by ICE, and who is the parent or legal guardian of a minor child in the U.S., this may be an additional favorable factor to help tip the scale towards requesting that ICE exercise favorable discretion.

Petty Offense Exception to CIMT's

Under INA §212(a)(2)(A)(i)(I), a foreign national who has committed a crime involving moral turpitude (CIMT) is inadmissible. In order to overcome this inadmissibility, the foreign national must obtain either a non-immigrant waiver under INA §212(d)(3) or an immigrant waiver under INA §212(h).

However, if the foreign national’s sole conviction for a CIMT falls under the enumerated ‘Petty Offense Exception’ found under INA §212(a)(2)(A)(ii)(II), the foreign national will not be inadmissible and thus, will not require a waiver to re-enter the United States.

The Petty Offense Exception applies when: 1. the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year; and 2. if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

If the Petty Offense Exception applies, the foreign national needs to establish their eligibility for such exception to the satisfaction of the Consular Officer and/or U.S. Customs & Border Protection Officer. In order to meet this burden, the foreign national should have certified copies of the disposition, as well as copies of the relevant statute and punishment range, available for the Officer’s review. As a reminder, the relevant statute and punishment range should be the version that was applicable when the foreign national was convicted.

If you would like to determine whether your conviction may fall under the Petty Offense Exception, please contact our office to schedule a consultation - we can determine whether your conviction is a 'conviction' for immigration purposes, whether the conviction truly meets the definition of a CIMT, and whether the Petty Offense Exception applies.

Joint Motion to Admin Close Granted by BIA

Our Client, a national of Mexico, was placed in removal proceedings before the Immigration Court in Buffalo, New York in February 2009, charging him solely with inadmissibility under INA §212(a)(6)(A)(i). Our Client has been residing in the U.S. since 1996, having entered without inspection. He is married to a foreign national from El Salvador, who herself has been in the U.S. since 2000 in Temporary Protected Status (TPS). The couple have been married for over seven (7) years and have two U.S. citizen children together – a girl, age 8 and a boy, age 5. Both children have various health issues and have developed psychological issues as a result of our Client’s immigration situation. Our Client is the primary breadwinner for the family and his employment also provides the family’s room and board.

In August 2010, our Client had his Individual Merits hearing wherein he applied for Non-LPR Cancellation of Removal under INA §240A(b). The Immigration Judge (IJ) reserved his decision and ultimately, retired before issuing a decision in the matter. In October 2012, another Immigration Judge reviewed the transcript and issued a written decision denying our Client’s application for relief, citing that our Client had failed to establish that his two minor U.S. Citizen children would suffer exceptional and extremely unusual hardship should he be removed, but finding that he was otherwise statutorily entitled to relief.

Upon receiving the decision, we not only promptly moved forward with filing an appeal with the Board of Immigration Appeals (BIA), but we also contacted ICE Chief Counsel’s office to advocate that they join us in filing a Joint Motion to Administratively Close Respondent’s removal proceedings with the BIA. We advocated that the family’s circumstances had changed significantly since our Client’s trial, including the fact that our Client’s wife had since furthered her educational background and was now employed full-time at a federally qualified health center. We also noted that it was hardly fair to our Client that the IJ who issued the decision was not the same one who presided over the Client’s proceedings, who was able to observe the Client’s and his family’s demeanor during testimony, etc. Lastly, we argued that in the past year, ICE has prioritized its enforcement objectives to focus its resources on the removal of criminal and aggravated violators of our laws. Neither our Client nor his wife would fit in this category. Additionally, given our Client’s wife’s status as a TPS beneficiary, and the lack of criminal record of either party, it is likely that should any comprehensive immigration reform be passed by Congress, they are likely to be able to benefit.

We were ultimately successful in our efforts and filed a Joint Motion to Administratively Close our Client’s removal proceedings with the BIA – a motion the BIA has now* approved*.

This case highlights the importance of not only pursuing all legal relief available to our client, but keeping up with the current legal trends to ensure that we are instituting fail-safe’s for our Client’s when recommending their case strategy. With this strategy, not only have we preserved our Client’s appeal, but we have also ‘paused’ their removal proceedings – this way, should Congress implement Comprehensive Immigration Reform (CIR), they will hopefully be able to benefit from the same, in the event that the BIA concurs with the IJ’s denial.