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Thursday, January 8, 2015

Master Calendar Hearings

The first stage in the removal (deportation) of a foreign national is a Notice to Appear (NTA) at a Master Calendar Hearing.  The purpose of the hearing is not to reach a final decision on removal, but to obtain basic information about the case and create a schedule for it to proceed.  It also is an opportunity for the court to outline all of the legal rights available to the foreign national, including the right to answer charges, present evidence, examine witnesses and, if the respondent lacks counsel, make use of any free or low-cost legal service providers who may be available.

The Notice to Appear contains the date, time and location of the hearing, usually at least ten days later.  A foreign national (the "respondent") who receives a notice must attend in person, with or without an attorney.  Failure to attend, or even showing up late, can result in denial of an application and deportation "in absentia."  The respondent should bring the Notice to Appear and any official identification documents.  Family members can attend.

The Notice to Appear also contains allegations about the respondent's illegal status in the United States.  The respondent, with the help of an attorney if possible, should examine these allegations carefully and be prepared to deny them and correct any inaccuracies.

The Master Calendar Hearing itself is brief, though it may take hours for a case to be called.  When the respondent's name and Alien Registration Number are announced, the respondent and counsel, if any, appear before an Immigration Court Judge.  The court will generally provide an interpreter, if needed.

The judge may ask for basic information, such as name, address, and the languages the respondent speaks.  The judge then reviews the charges.  The respondent can deny some or all of the government's allegations and point out any factual errors regarding names, dates, places, or other details.  The respondent can designate—or refuse to designate— a "country of removal," i.e. where to be sent if deported.

The respondent can also state the basis of a claim for relief from removal from the United States.  These may include:

  • Asylum based on persecution in the immigrant's home country. 
  • Marriage to a US citizen.
  • Cancellation of removal for qualifying lawful permanent and non-permanent residents.
  • Adjustment of status from non-immigrant to a lawful permanent resident.
  • Voluntary departure.

At the conclusion of the hearing, the judge gives the respondent a deadline for submitting further applications or documents.  The judge may schedule another Master Calendar hearing for the case, or set a date for an individual hearing on the merits.  The respondent may ask for more time to retain an attorney, submit documents, or prepare for the next hearing.

If you have been notified that you will be subject to a Master Calendar hearing and are at risk of deportation it is imperative to hire an experienced immigration law attorney to protect your rights.  Call us for a consultation.


Sunday, November 16, 2014

Will Marriage to a U.S. Citizen Make an Undocumented Immigrant Legal?

 

 

Under the laws of most states, a United States citizen can marry an undocumented immigrant.  Regardless of whether the marriage is legal, however, the marriage may not confer legality upon the undocumented spouse's immigration status.

Usually, an immigrant who marries a U.S. citizen becomes an "immediate relative" and is eligible to apply to the United States Citizenship and Immigration Service (USCIS) for a green card, i.e. lawful permanent residence.  After the marriage, the U.S. citizen spouse can file Form I-130, Petition for Alien Relative and the immigrant can file Form I-485 seeking Adjustment of Status to permanent resident.

If the spouse is here illegally, however, the couple may encounter some obstacles.  The spouse's illegal presence may mean that using Form I-485 to apply for permanent residence is not an option.  The undocumented spouse must first leave the United States and rely on  processing by a U.S. Department of State Consulate abroad before returning.  Once outside the U.S, however, he or she may be barred from returning to the U.S. for years because of laws designed to punish and deter illegal immigration.

According to Section 212 of the Immigration and Nationality Act, if the spouse was present unlawfully for more than six months but less than a year, he or she would be barred from returning to the U.S. for three years.  If present for more than a year, the spouse would be barred for ten years.

Under a recent change in immigration law, undocumented immigrants can apply for a provisional waiver of the three- or ten-year ban.  If granted, the undocumented spouse would still have to leave the U.S. and apply at a consulate for reentry, but would not barred from returning.

Undocumented spouses must also meet the requirements that any documented spouse would have to meet.  They might have to show that they are not inadmissible for other reasons, such as a criminal past, a dangerous communicable disease, or a need for public assistance.  The marriage to an undocumented immigrant, like a marriage to a legal immigrant, would also have to be genuine and not a ploy to help the immigrant spouse get citizenship.

As the consequences of remaining in the country illegally can be severe, if you or your spouse is undocumented and intends to apply for citizenship based on the marriage, you should contact an immigration attorney as soon as possible.


Sunday, November 16, 2014

Bankruptcy and Your Small Business

 

 

Financial hardship is difficult for any individual but for business owners, it can be particularly stressful as the line between personal and business finances may become blurred.  You may have racked up a lot of personal credit card debt and may be considering filing for personal bankruptcy, but you are concerned about how bankruptcy will affect your small business. Or, your business could be struggling and you may wonder how a business bankruptcy will impact your personal finances.

First, you need to know about the three most common types of bankruptcy: Chapter 7, Chapter 11 and Chapter 13. Under a Chapter 7 bankruptcy, which is a liquidation, assets are used to pay debts, and any remaining debts are “wiped out”.  A Chapter 7 filing can be utilized for both individuals and businesses. A Chapter 11 or 13, which are also available for individuals and businesses, commonly referred to as reorganization, allows debtors with a regular income to set up a new timetable for paying off creditors, while keeping their assets.

The second thing to consider is how your business is set up. If you are a sole proprietorship, and are simply operating the business in your own name, then there is no way to separate your personal assets and liabilities from those of your business. Therefore, any business assets (in excess of the exemption you are allowed) could be surrendered as a part of the bankruptcy. Also, any receivables of the business or other potentially valuable business property could be claimed by creditors in a bankruptcy.

If your business is operated under a separate entity, such as an LLC (limited liability company), an LLP (limited liability partnership), or a corporation, the shares of your business that you own are assets. If partners are involved in the business, the bankruptcy trustee who represents the interest of the creditors could become a de facto substitute partner and force a liquidation of the business.

If your business is struggling, but you are personally doing fine financially, you may consider a business bankruptcy. If you aren’t interested in keeping your business open, you may consider filing a Chapter 7, which will simply liquidate the business. A Chapter 7 is probably best if the business is not going anywhere, does not have significant assets, or if the debts are so completely overwhelming that it’s not possible to restructure them. Keep in mind that vendors and other creditors may have obtained a personal guarantee from you, in which case, you may be personally on the hook for your business’s liabilities, even if you do file bankruptcy for your company.  Personal guarantee clauses are common on many credit applications and commercial leases.

If your business is fundamentally sound, but because of excessive debt, bad contracts, or other unfortunate circumstances faces significant liquidity issues, a Chapter 11 may be appropriate.  A corporate reorganization can be complex and requires a significant time investment from the owners and managers who have to work with creditors and attorneys. It can also be expensive. Unfortunately, most reorganizations ultimately fail.

If you are considering business or personal bankruptcy, it’s important to carefully assess your individual circumstance and consult with a bankruptcy attorney who can advise you of all your options and help you navigate the process.   


Monday, November 3, 2014

I have a Green Card . . . and a Criminal Conviction: Can I Travel Abroad?

Lawful permanent residents (LPRs) also known as “green card holders” who have criminal convictions may encounter problems when attempting to re-enter the United States after traveling abroad and should consult an immigration attorney before planning any trips outside of the country.

In 2003, the Department of Homeland Security implemented an airport screening system to identify green card holders with past criminal convictions. Even if a permanent resident has previously been re-admitted to the United States without encountering any problems, he could find himself subject to “removal proceedings” upon a subsequent return to the U.S. based on old criminal convictions.

Upon returning to a U.S. airport or border transit area, LPRs who have a prior criminal conviction may be identified and diverted to “secondary inspection” for questioning. Typically, they are then given an appointment with the Deferred Inspections Unit which will verify the criminal record and serve the permanent resident with a Notice to Appear for a deportation hearing in U.S. Immigration Court. Travelers with criminal records can also be detained on the spot in certain instances, typically based on the date of their conviction and the type of offense.

The Department of Homeland Security’s criminal conviction database is vast and highly efficient. Criminal convictions, even those that may have taken place many years in the past, are quickly identified by the authorities and can be used to threaten one’s status as a permanent resident and subject the resident to deportation. These same risks are also present when one submits an application for green card renewal or U.S. citizenship.

Though not every criminal conviction may lead to inadmissibility, certain types of convictions can have serious consequences on one’s immigration status.  These include:

  • Conviction of a crime involving moral turpitude
  • Conviction of a controlled substance violation
  • Conviction of multiple crimes

Depending on the type and number of convictions, and when they occurred, the federal authorities may pursue removal proceedings.  During these proceedings, an immigration judge may exercise his authority to cancel a green card and order an immediate deportation of the immigrant.

When you travel abroad and return to the U.S., you force the government to make a decision whether to re-admit you, initiate proceedings to cancel your green card or deport you. It is vital that you understand the potential consequences before you travel beyond American borders to ensure you make an informed decision.
 


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