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MOTION TO CHANGE/TRANSFER VENUE IN IMMIGRAITON COURT

January 30, 2016

Motion to Change/Transfer Venue in Immigration Court

Author: New York Immigration Attorney Alena Shautsova

In my practice, quite often I receive a phone call with the following content: “Hello, my name is so and so, my nephew/husband/family friend is in detention in Texas, Virginia, New Jersey… I want the person to be released and be allowed to see an Immigration Judge in New York, where he/she lives/intends to live…”  I say “O’K, let’s see what we can do..” Then, I meet with the calling party and find out the details. Often, the scenario that I have to deal with is that a person was crossing the border, or recently crossed the border and was apprehended by the ICE enforcement. Often, the detained person is very young. But what unites all these calls, is that the person would be detained in a state other than New York,  but  it is New York where the person’s family and friends reside.

In such a situation, I as a practitioner have to file two motions. First, is a motion for re-determination of the bond consideration so that my client will be released from the ICE custody. (I will address this type of application in a separate blog).

And second, I have to file a motion to change venue of the proceedings, unless my client would like to travel back to TX, VA or MD for his/her future court hearings (which is not the case, of course).

1. When To File For Change of Venue and Why

One should file for change of venue of the proceedings as early as possible. In most cases, a person is being put in removal proceedings within the jurisdiction of the court where the person was detained. For example, J. crossed the border in TX and was apprehend. Even though J intended to reside in NY, and in NY J has all his family members, his court proceedings will be started in TX.  It means that if released from custody, J will have to travel to TX for each and every hearing and J’s witnesses, if any will have to travel to TX as well. Of course, it may not be practical or possible for the witnesses to travel, as well as for J. That is why, as soon as an attorney is retained, and attorney is advised that J can be released to his/her family members in a different state, attorney should file motion to change venue.  It is important to act as quickly as possible: the longer local DHS counsel will be involved in the J’s case, the more reluctant the DHS counsel will be to lose the case from his/her desk. As such, the DHS counsel will have a valid argument that the government will be prejudiced if the motion to change venue is filed late in case.

2. What Needs to be Submitted to Court to Show that there is Good Cause for Change of Venue

In order for the motion to be granted, the moving party has to demonstrate that a good cause exists. Usually, I submit: the motion itself (it is my affirmation describing the facts under which the request should be granted); an affidavit from my client; affidavits from friends and family explaining the ties my client has with the venue where we would like the case to be moved; etc. Under the current regulations, a request to change venue should be accompanied with the written pleadings to the allegations in the Notice to Appear.  Like any other motion, motion to change venue should contain a proposed order and proof of service on DHS.  It is also a good idea  to submit a draft of the application the client will be submitting with the court to demonstrate that client has a potential relief from removal.

3. What to do if the Motion is Denied

Even through that many view motions to change venue as trivial, sometimes they do get denied. In this case, a person has a couple of options. One may appeal the denial, or renew his/her request with the Court. Often, in the denial decision, the Court would “give a hint” as to what additional information it would like to see before granting the request. Often, a denial is a result of poor preparation, and with a little more effort, a request to change venue is granted.

PROBABLE CAUSE FOR IMMIGRATION DETAINER

July 30, 2015

PROBABLE CAUSE FOR IMMIGRATION DETAINER

 

Author: New York Immigration lawyer Alena Shautsova

It is not uncommon or unheard of that a person may be detained or arrested by Immigration authorities when they would like to verify that person’s immigration status.  The question is: can an immigration officer come up to anybody in the streets and detain that person for such a verification? Does an immigration officer need any type of basis before detaining a person?  What basis, if so, he/she has to have before acting? Immigration detainers are documents that are used to arrest a person who is suspected to be in violation of Immigration laws of the United States.   However, what does an issuing officer need to know prior to issuing such a document?

These questions became a subject of lawsuit by Ms. Morales, a US citizen, against the ICE officers who decided to detain her after which they kept her in custody for 24 hours before they realized that Ms. Morales was in fact a US citizen.  See Morales v. Chadbourne, (1st Cir, 2015), NO 14-1425.

Ms. Morales decided to sue the government officers because of the egregious violations of her rights under the Fourth and Fifth Amendments to the U.S. Constitution. Ms. Morales alleged in her Complaint that the ICE officers did not check federal databases before issuing a detainer and did not have probable cause before they issued a detainer, the basis of Ms. Morales’ imprisonment.

The district and Appellate courts agreed with Ms. Morales. The Court held that before issuing a detainer, the responsible immigration officer has to have a probable cause. The Court cited U.S. Supreme Court decision in Brignoni-Ponce that, just as in the criminal context, an immigration officer “must have a reasonable suspicion” to justify briefly stopping individuals to question them “about their citizenship and immigration status . . . but any further detention . . . must be based on . . . probable cause .” (“[T]he Fourth Amendment . . . forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.”

(“An arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States.” The provision specifies that in order to issue a detainer for aliens who have violated controlled substances laws, immigration officers require a “reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States.” 8 U.S.C. § 1357(d)(1).

 

As such, officers’ actions when they failed to conduct simple search of their databases to verify Ms. Morales’ immigration status lacked probable cause necessary for detainer.

 

This case can serve as a precedent for all those incidents when a person is unreasonably detained and his/her rights are violated.

 

 

 

 

 

I 601A Waiver New Procedure

December 29, 2013

I 601A Waiver New Procedure

Author: New York Immigration Waiver Attorney Alena Shautsova

I 601A waiver is an immigration waiver which allows certain immediate relative of the US citizen to avoid prolonged separation with their families while they are applying for green cards. The waiver helps those who cannot adjust their  status in the US due to coming to the country illegally.

Until recently, an I 601A waiver applicant would have to inform the National Visa Center or consulate about his/her intent of applying for the waiver,  and the NVC would hold on on scheduling the visa appointment for the waiver applicant until the waiver is adjudicated.

However, recently the USCIS changed the procedure. The NVC will accept only the notifications of waiver filing from the USCIS. In addition, if the applicant informed the NVC of intent to file the waiver but failed to do so within six months, the NVC will forward the case to the consular post for the interview.

This should be taken into consideration by practitioners and applicants. In case the applicant receives a notification that his/her interview has been scheduled, he/she should contact the consulate immediately and inform about the intent to file for the waiver and ask for the interview to be cancelled.

If you have questions regarding Immigration Waiver procedure or qualifications, call New York Immigration attorney Alena Shautsova at 917-885-2261.

 

 

Temporary Suspension and Modification of Statutory Provisions by COUMO

November 6, 2012

IMPORTANT: Governor COUMO temporarily suspend specific provisions of any statute, local law, ordinance, orders, rules or regulations, or parts thereof, of any agency during a State disaster emergency, if compliance with such provisions would prevent, hinder or delay action necessary to cope with the disaster for the period from the date of the Executive Order  (Ocotber 26, 2012) until further notice.

You may read the full text of the Executive Order here: https://www.nassaubar.org/UserFiles/Suspension_of_Time_Limitations_10-26-12.pdf

Alena Shautsova

Deferred Action Application for Childhood Arrivals

August 31, 2012

Author: Immigration lawyer Alena Shautsova

Deferred Action Application for Childhood Arrivals

With an announcement of the new Obama supported Immigration policy for young undocumented immigrants, millions received hope to stay and work in the country legally.

The deferred action application process calls for submission of certain forms published on the USCIS website, as well as supporting documents. While the guidance published by the USCIS help with the confusing questions in application forms, many should still consult with an attorney while filing for this relief.

The common questions are:

  • Shall I disclose to the authorities that I used false documents to enter the country?
  • How can I prove that I was physically present in the country on June 15, 2012?
  • Shall I disclose that I used someone’s social security number?
    Will other members of my family be affected by my application?
  • May the authorities use the information in the application for future removal proceedings?

Some representatives of the community strongly suggest not to file for the relief at all as it may expose the potential immigrant to the future removal proceedings. However, depending on personal circumstances, including possibility to adjust status through family immigration, be sponsored by an employer, or qualify for other relief, an applicant should simply make a informant decision and choose what is in his/her best interest. If you are looking for answers to the questions concerning DACA application, New York Immigration Lawyer can help you! Call today 917-885-2261.

The Law Office of Alena Shautsova is an Immigration law firm serving clients in Brooklyn, New York City, Long Island, Manhattan, Queens, the Bronx and surrounding communities.

Deferred Action For Childhood Arrivals

August 19, 2012

Deferred Action For Childhood Arrivals

Author: New York Immigration lawyer Alena Shautsova

As the USCIS published instructions to the new deferred action program for young people (Form I-821D), many applicants should be aware of possible pitfalls.
First, the instructions specify that the deferred action will be available for those applicants who do not have a record of felony or serious misdemeanor convictions. It would be wise to consult with an Immigration attorney if you have a criminal record.
Second, many applicants struggle with background questions, such as “point of entry”: for obvious reasons, some of them do not have this information as were brought to the country as babies; and/or false documents were used to enter the country.
A potential applicant for deferred action must remember that the deferred action is a discretionary relief, and must prepare his/her application so that it will “stand out” out of the thousands poorly prepared applications.

If you are dealing with immigration issues, consult New York lawyer. Our law firm keeps its finger on the pulse of ever-changing immigration laws and a knowledgeable lawyer can help protect your rights.

The Law Office of Alena Shautsova is an Immigration law firm serving clients in Brooklyn, New York City, Long Island, Manhattan, Queens, the Bronx and surrounding communities.