A
great general uses every weapon in his
military arsenal to fight the enemy—whether he likes the weapon or not.
Similarly an immigration lawyer who expects to become great must use every
weapon in the legal arsenal to fight the government who is deporting the
lawyer’s clients, whether the lawyer likes the weapon or not.
The Obama immigration amnesty
was originally conceived to entice aliens unlawfully in this country to “come
out of the shadows” by allowing them “to stay in this country temporarily
without fear of deportation.” Read Obama’s speech at
http://www.whitehouse.gov/the-press-office/2014/11/20/remarks-president-address-nation-immigration.
But can the amnesty be used
by aliens unlawfully in the country already out of the shadows and have been
caught by immigration authorities for having violated immigration laws and are
in various stages of deportation?
Why not? We have used it in
three instances. First, even before President Obama made his speech on November
20, 2014 that he was going to use his executive powers to defer the deportation
of aliens unlawfully in the country and that he was going to make the
announcement after the elections, we asked an Immigration Judge (IJ) to
continue (postpone) the hearing of a deportation case until a date after the
November elections in anticipation that the President will be announcing an immigration
relief program that could potentially benefit the alien.
The IJ denied the request for
continuance on the ground that it “is speculative at best” and ordered the
alien deported without a hearing on the merits.
We appealed the IJ’s decision
to the Board of Immigration Appeals on the ground that the IJ denied the alien
due process of law and committed grave abuse of discretion as a result of which
the alien suffered prejudice because the IJ ordered the alien removed even
though the alien had a reasonable ground and good cause for continuance. We
contended that a modicum of respect for the President should have made the IJ
treat the alien’s request for a two-month continuance as a “good cause” for
continuance. The period requested was
not unreasonable. The President was not bluffing or speculating when he made a
pre-election announcement that he would grant relief to certain aliens who were
otherwise removable. As it turned out, the President’s pre-election
announcement became a reality on November 20, 2014 when he allowed parents of
U.S. citizens and lawful permanent residents who have been in the country since
before January 1, 2010 to request deferred action. The program is called
Deferred Action for Parental Accountability (DAPA). The alien qualified for
relief because he had three U.S. citizen children and the alien had been in the
U.S. since before January 1, 2010. We are filing an application for DAPA
benefits for the alien. Then we will ask the BIA to terminate the removal
proceedings.
In second instance, the USCIS
wrote to an alien that it would deny the alien’s application for removal of
conditional resident status because the alien did not establish that her
marriage to her U.S. citizen husband/petitioner was bona fide. If denied, the alien
would be placed in removal proceedings. We replied on behalf of the alien
telling USCIS to grant the application because there was sufficient evidence to
establish the bona fides of the marriage. We told USCIS that if it denied the
application, we were filing an application for DAPA benefits for the alien
since the alien had children who were lawful permanent residents and the alien
has been in the U.S. since before January 1, 2010.
In the third instance, an
alien was ordered removed and is scheduled to be physically removed next year.
We filed an application for DAPA benefits since the alien has a U.S.C. child
and the alien has been in the U.S. since before January 1, 2010.
The Department of Homeland
Security has not issued forms and released specific guidelines on how to apply
for DAPA benefits. But why wait? “He who hesitates is lost.” If a client has
been ordered deported or is in imminent danger of deportation, there is no time
for these niceties, otherwise you will lose. File first and let the government
challenge your filings. As they say in war, “shoot first and ask questions
later.”
(Atty. Tipon has a Master of Laws degree from Yale Law
School and a Bachelor of Laws degree from the University of the Philippines. He
specializes in immigration law and criminal defense. Office: 900 Fort Street,
Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail:
filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com.
He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration
Officer. He is co-author of “Immigration Law Service, 1st ed.,” an
8-volume practice guide for immigration officers and lawyers. Listen to “The
Tipon Report”, the most witty, interesting, and useful radio program in Hawaii
on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general
overview of the subject matter discussed and is not intended as legal advice.
No attorney-client relationship is established between the writer and readers
relying upon and/or acting pursuant to this article.)
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