By Attorneys Robert Reeves and Jeremiah Johnson
Although immigration law is one of the most complicated areas of law and even minor mistakes can result in severe consequences to the immigrant and his family, many choose to represent themselves or retain an inexperienced lawyer. While it may be tempting to try to save money by filing an application by oneself or by choosing a non-lawyer, the price of losing the case is much higher than the cost of hiring a good attorney. An immigrant whose application is denied may be facing much more than just a disappointment; he or she faces possible deportation.
All too often, an immigrant will file an application for adjustment of status for which the immigrant is either not eligible or the application was not filed correctly. For example, the immigrant may not have entered lawfully, may be out of status, or may be a crewman and not qualify under Section 245(i) of the Immigration and Nationality Act (a provision that allows certain aliens to apply for adjustment of status if they pay a penalty.) Further, the immigrant may have a criminal bar or may have a previous order of removal that he or she does not know about. Despite possible barriers, too often, people will still file the application on their own, or they may have even filed the application with the assistance of an attorney unfamiliar with the complexities of immigration law.
In the past, the United States Citizenship Immigration Services (“USCIS”) would simply deny the application and the alien would leave the United States on their own or continue to remain with family in hopes of future relief or file a new application when qualified. Now, not only will USCIS deny the immigrant’s application, but it will also issue the alien a Notice to Appear (“NTA”), placing him or her in removal proceedings before an Immigration Judge.
Once in Immigration Court a Government attorney will attempt to convince an Immigration Judge to order the alien removed. Fortunately, the alien has the opportunity, and the right, to obtain an attorney and contest whether in fact he is removable and if so whether there is any form of relief that will permit him to remain in the United States. One option an individual would want to consider is the possibility of renewing his adjustment of status application in Immigration Court. Sometimes USCIS wrongly denies an application. Fortunately, federal regulations provide an opportunity for the Immigration Court to review USCIS’s decision. However, this option will require the assistance of an immigration attorney to fully brief the Court and can often involve novel legal issues or challenges to USCIS policy.
Unfortunately, some persons are simply ineligible for adjustment of status and should never have filed an application in the first place. In this case, the alien still has options before the Court and should think twice before accepting voluntary departure. Although accepting voluntary departure avoids the consequences of a removal order (a 10-year bar from returning to the United States), many immigrants still face other grounds of inadmissibility when they seek to reunite with their families. A common ground of inadmissibility that is not solved by voluntary departure is the 10-year bar for unlawful presence. For example, an immigrant who was unlawfully present in the United Sates for over 1 year and voluntarily departs still faces a ten-year bar from returning to the United States. Although the immigrant would not need to waive any bar resulting from a voluntary departure order, he or she will need to file a waiver for the unlawful presence bar. Because the consequences of failing to depart are so severe, and the benefits of returning are so limited, the privilege of voluntary departure is not for everyone.
It is never too late to obtain the advice of an experienced attorney. Naturally, the best preparation you can have is to ensure your application has a high probability of approval before filing with the USCIS. Do not place your life and your family’s future in the hands of an inexperienced attorney. In life it may be good to take risks but in immigration it is not. While life entails many risks, immigration need not be one of them.