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Using Obama amnesty as weapon to fight deportation

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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