Matter of Bain: Discretion & Criminal History in Cancellation of Removal
November 8, 2025
New York Deportation lawyer
Matter of Bain: Discretion & Criminal History in Cancellation of Removal
In Matter of Bain, the Board of Immigration Appeals (BIA)
reviewed a case involving a lawful permanent resident (LPR) from the Bahamas
who sought cancellation of removal under § 240A(a) of the Immigration and
Nationality Act (INA) (8 U.S.C. § 1229b(a)). The applicant had satisfied the
statutory eligibility requirements (including the residency and LPR admission)
and the immigration judge (IJ) granted the relief. The Department of Homeland
Security (DHS) appealed, and on February 6, 2025, the BIA reversed the IJ’s
decision and ordered the respondent removed. The Attorney General later
designated Matter of Bain as a binding precedent (May 23, 2025). Department of Justice
Under INA § 240A(a), cancellation of removal for LPRs
requires three elements: (1) LPR status for at least five years, (2) continuous
residence in the U.S. for at least seven years after admission, and (3) no
conviction for an aggravated felony. Even when those boxes are checked, the
applicant must still convince the decision-maker that they deserve relief in
the exercise of discretion.
What the BIA Held
The BIA in Matter of Bain found that although the respondent
met statutory eligibility, he did not merit cancellation of removal when
exercising discretion. The key reasons were:
The
respondent had recent, serious and repeated criminal convictions,
specifically multiple counts of selling or delivering controlled
substances (including cocaine, fentanyl, heroin) in 2019-2020. Department of Justice
The
respondent had not demonstrated adequate rehabilitation in light of
his criminal history.
Although
the respondent had positive equities (length of residence in the U.S.,
family ties, employment), these were insufficient to offset the
severity and recency of his conduct.
The
BIA reaffirmed that in discretionary relief settings, when negative
factors are particularly weighty, the applicant must present outstanding
or unusual positive factors to tip the balance. (Citing earlier
precedents such as Matter of C-V-T-). Department of Justice
The
BIA reviewed the IJ’s factual findings for clear error, but reviewed the
discretionary decision de novo (fresh review). Department of Justice
Why It Matters
Since the decision was designated as precedent, Matter of
Bain sends a strong message to immigration judges, practitioners, and
non-citizens seeking cancellation of removal:
Criminal
Conduct Timing & Recurrence Matter – Recent and repeat convictions
weigh heavily against discretionary relief.
Rehabilitation
Must Be Demonstrated – Mere expression of regret is not enough;
evidence of change, treatment, community contribution is critical.
Positive
Equities Alone May Not Suffice – Long residence and family ties,
though important, may not overcome serious criminal history without
compelling offsetting factors.
Discretion
Is Key – Even eligible applicants must persuade the adjudicator they should receive relief.
Practical Implications for Applicants
If you are an LPR facing removal and hoping to apply for
cancellation under § 240A(a):
Inventory
all criminal history. Note dates, nature of offenses, any patterns of
recidivism.
Gather
strong evidence of rehabilitation (e.g., completion of treatment
programs, steady employment, letters of support, community service).
Build
a robust presentation of positive equities (family ties, long U.S.
residence, hardship to family, contributions to community).
Be
prepared to argue how your positive factors outweigh the negative record.
If the negative record is strong, you may need “extra-ordinary” positive
factors to succeed.
Recognize
that even if statutory eligibility is proven, discretionary denial
is possible—and precedent like Matter of Bain indicates what kinds of
records will trigger denial.
Takeaway
Matter of Bain clarifies that in LPR cancellation-of-removal
cases, the BIA will scrutinize recent and serious criminal conduct and require
convincing rehabilitation before granting relief. For practitioners and
respondents, this means eligibility is just the first step; the exercise of
discretion is equally critical—and must be approached as such.
If you would like assistance analyzing a cancellation of
removal case in light of Matter of Bain—evaluating your criminal record,
rehabilitation evidence, and how to frame your discretionary argument—please
contact my office at 917-885-2261 or visit shautsova.com. I help
clients map their risks and prepare strongly for removal proceedings.
Attorney Advertising. Past results do not guarantee
future outcomes.
Renewing Your Work Permit: Essential Guide for Immigrants in the USA
November 2, 2025
As an experienced New York immigration lawyer serving
clients from Russia and Ukraine and around the world, I understand the stress
you face when your employment authorization is nearing expiration. For
high-income professionals, families supporting children, or asylum-seeking
individuals, losing your ability to work legally in the United States can mean
financial uncertainty, job-loss risk, and emotional strain. That’s why renewing
your work permit (Employment Authorization Document or EAD) through U.S. Citizenship
and Immigration Services (USCIS) must be taken seriously—and done well.
In this blog I’ll walk you through how to renew your work permit, focusing on the latest policy changes, what has shifted in 2025, the filing process for the form Form I‑765, filing fees, important deadlines, and practical tips to avoid gaps in your work authorization. I’ll also explain how the recent elimination of automatic extensions affects you—and what steps you should take now to stay protected.
1. Why renewing your work permit matters
If your EAD is about to expire, you may not be able to
continue working legally in the U.S. without a timely renewal. For many
immigrants—especially recent arrivals, those in asylum or adjustment of status
processes, or spouses of visa-holders—work authorization is the foundation of
their livelihood, family support, and integration.
When you fail to renew on time or allow a gap in employment
authorization, consequences may include:
Loss
of employment and income.
Employer
may no longer accept your expired document for Form I-9 verification.
A gap
in legal work may affect your immigration case or eligibility for future
benefits.
Stress
and disruption in your career and family life.
I help clients for whom work authorization is critical: those filing asylum, VAWA, waivers, EB2 NIW, EB1 or O1 visas. Renewing your EAD properly is a key step to maintaining stability while your immigration case progresses.
2. What has changed: No more automatic extensions
A major update has occurred: Until now, many renewal applicants were eligible for an automatic extension of up to 540 days while their renewal application was pending. E-Verify+3USCIS+3USCIS+3 But as of October 30, 2025, for most renewal applications filed on or after that date, this automatic extension will no longer apply.
In other words: if you file your renewal after the cutoff,
you cannot assume you will be authorized to keep working simply because you
filed on time. You must hold a valid EAD or face the risk of
unauthorized employment (which in turn could harm your immigration case).
Here are the key take-aways:
If you timely filed your renewal before your current EAD expired and before October 30 2025, you may still be covered by the automatic extension rules.
If you file on or after October 30, 2025, and you are in an eligibility category that previously benefited from automatic extensions, your continued work authorization may end on the expiration date of your current EAD unless your renewal is approved.
Certain limited categories (for example, some TPS beneficiaries) may still be subject to automatic extension rules under regulation or Federal Register notices—but you must check your specific category. USCIS+1
Why this matters particularly for you: If you are a Russian national, Ukrainian national, or immigrant in asylum/adjustment/VAWA/EB2 NIW situations—many of whom rely on EADs—you cannot rely on “just having filed” to keep working. You need positive steps now.
3. The renewal process: How to file Form I-765
Let’s walk through the steps of renewing your EAD using Form
I-765—the core filing you must complete.
Step A: Confirm your eligibility and category Visit the USCIS Form I-765 page. USCIS You need to know your “Eligibility Category” code (such as (c)(9) adjustment of
status, (c)(8) asylum applicant, etc.). Use the Form I-765 instructions for
guidance. USCIS
Step B: Timing – when to file USCIS advises: if you wish to renew, you should file Form I-765 within 6
months of the expiration date of your current EAD. USCIS But given the removal of automatic extensions, I recommend filing as early
as allowed—for many, up to 180 days before expiration, provided you still
meet eligibility. This gives you more time and reduces risk of a gap.
Step C: Gather required documents From USCIS’s checklist: USCIS Typical documents for renewal include:
Copy
of your current EAD (front and back).
Copy
of your Form I-94 or other proof of your status or pending application.
Two
passport-style photos (if required).
Signed
and dated Form I-765 from the correct edition.
Filing
fee (or fee waiver request if applicable).
If
applicable, Form G-1145 for e-notification.
A
mailing address where you can reliably receive mail from USCIS.
Step D: Complete the form carefully On Part 1 of Form I-765, select “Renewal of my permission to accept employment.” Be sure to complete all fields accurately, use correct edition of the form, and sign the form. Mistakes or outdated editions often cause delays or rejections.
Step E: File online or by mail If your category allows, you may file online through your USCIS account.
Otherwise, you must send the paper application to the correct address. Use the
“Direct Filing Addresses for Form I-765” page. USCIS Ensure you are mailing to the correct lockbox for your category and location;
if you send to the wrong address, your case may be delayed or rejected.
Step F: Track your case and respond promptly Once filed, USCIS will issue a receipt notice (Form I-797C). Use your receipt number to track status online via “Check Case Status.” If you receive a Request for Evidence (RFE), respond promptly before deadline. Delays can lead to a denial and increase risk of employment gap.
4. New risks and how to avoid employment gaps
Given the elimination of automatic extensions for many, you
must be more proactive than ever. Here are key risk-points and how to manage
them:
Risk 1: Filing late or too close to expiration If you file very close to your current EAD’s expiration, you risk that the
renewal decision may not arrive in time—and without automatic extension you may
lose work authorization. Tip: File as early as your eligibility allows—ideally 90-180 days before
expiration.
Risk 2: Assuming you have an automatic extension when you
do not If your category was eligible for automatic extension before but now you file
after Oct 30, 2025, you cannot assume it applies. Tip: Double-check your eligibility category and when your renewal is
filed. If unsure, stop working when your EAD expires until you have a valid EAD
in hand (or legal reason you are covered).
Risk 3: Job interruption harming your immigration case Working without valid authorization can jeopardize your underlying immigration
status or future benefits. Tip: Keep proof of filing, maintain documentation of your renewal, and
stay out of unauthorized employment. If there is a gap, speak with your
immigration counsel immediately.
Risk 4: Address changes = missing your card If your address changes after filing, USCIS may send your card to the old
address and your employer will flag you as unauthorized. Tip: Update your address via USCIS and USPS. Use an address where you
reliably receive mail.
Risk 5: Employers not understanding the rule change Some employers may rely on old policies of automatic extensions and continue employment based on old assumptions. Now they must verify that the EAD is valid or that you hold a receipt for a timely-filed renewal and the category is still eligible (if applicable). USCIS Tip: Provide your employer with your receipt notice and, if relevant, confirm eligibility for automatic extension. Discuss the rule change with your HR or immigration compliance officer.
5. Special categories and considerations
Here are some special situations to keep in mind:
Asylum applicants: If you are in the U.S. filing or have filed for asylum, you may be eligible for an EAD under category (c)(8). When renewing, ensure you are in the correct classification and file timely.
Adjustment of Status (Form I-485) applicants: If you have a pending I-485 and hold a renewal EAD (typically (c)(9)), you must renew ahead of expiration.
Spouses of H-1B (H-4 EAD), L2 EAD, etc.: These may also hold EADs and must observe this new policy.
Temporary Protected Status (TPS) beneficiaries: Some TPS renewal applicants may still obtain automatic extension if regulation allows; check the TPS designation and latest USCIS guidance.
Non-immigrant work visa holders: If your work authorization is based on a non-immigrant employment classification (e.g., L-2, E-2, O-3) rather than an EAD, you should consult counsel about renewal or extension differently.
Immigrants in high-income professional roles: If you are relying on your EAD to continue employment in a high-paying position (especially relevant for your audience of $50k+ income, Russian nationals, etc.), losing employment authorization could trigger job-loss, family stress, or visa status changes. Prioritize renewal.
6. Practical checklist: What to do in the next 30-90 days
Here’s a practical action plan you can implement now:
Review
your current EAD card. Note the “Card Expires” date and your Eligibility
Category Code.
Determine
when you become eligible to file—some categories allow up to 180 days
before expiration.
Decide
whether to file online or by mail. If by mail, locate the correct lockbox
for your category (see USCIS address list).
Collect
supporting documents: current EAD copy, I-94, passport ID page, photos,
filing fee or waiver, Form G-1145.
Complete
the correct edition of Form I-765 (check edition date at bottom of form)
and sign it.
File
the application. Keep copies of everything and your postal/tracking
information if mailed.
Within
days after filing, update your employer (HR or immigration compliance) and
provide them with your receipt notice. Explain the changed rule and
confirm your current employment authorization status.
Monitor
the case online. If you receive an RFE, respond quickly.
In
case the filing is very late (close to expiration) and there is a risk of
a gap: consult counsel about contingency planning (e.g., changing to
another visa category, filing expedited request if urgent).
Change
of address? Submit the change via USCIS and USPS promptly to ensure timely
delivery of your EAD.
After
approval, update your Form I-9 at work if required. Provide your employer
a copy of the new EAD.
Keep a
digital and physical copy of your EAD, renewal receipt, and file in a
secure place.
7. Why hiring a New York immigration lawyer makes a
difference
As you navigate this renewal process—and especially in light
of the new no-automatic-extension rule—you’ll want experienced guidance. That’s
where I come in:
My law firm focuses on immigration law in New York, serving Russian nationals, asylum seekers, EB2 NIW and EB1/O1 visa candidates, VAWA/self-petitioners, and individuals seeking waivers or citizenship.
I stay current with the latest updates at USCIS, including policy changes such as the termination of automatic EAD extensions.
I provide practical, step-by-step advice (not just legal theory) to ensure your work authorization remains valid, your job remains secure, and your immigration case remains on track.
You’ll benefit from my track record of successful outcomes, my bilingual service (Russian & English), and my commitment to clear communication.
If you feel uncertain about your eligibility, timing, or how the rule change affects your situation, a consultation may save you time, money, and risk.
8. Final reminders
Don’t
wait until your EAD is days from expiration to think about renewal.
With the automatic extension rule gone for many filings, you risk
unauthorized employment.
Document
everything: Notice of filing, tracking information, receipt number,
correspondence with employer, proof of mailing.
Inform
your employer and ensure they know you’ve filed and your status. If
your authorization lapses, you must stop working until you have valid
documentation.
Stay
updated: USCIS issues alerts and changes may occur. Always refer to
the official site rather than relying on second-hand sources.
Get
counsel if you: have criminal history, disciplinary issues, complex
immigration background, or are unsure about your category.
Maintain
your immigration case momentum: work permit renewal is just one part
of your broader immigration journey (asylum, adjustment, VAWA, EB2 NIW,
citizenship). A lapse undermines that journey.
As a top New York Immigration lawyer dedicated to helping
high-income immigrants, recent arrivals, and families from Russia, Ukraine, and
beyond, I’m here to guide you through this crucial step. If you need help
assessing your eligibility for work permit renewal, preparing Form I-765,
avoiding employment gaps, or aligning your renewal with your larger immigration
strategy—I’m ready to assist.
📞 Call me today at 917-885-2261 for a consultation and let’s make sure your work authorization remains
uninterrupted and your immigration goals stay on track.
What Happens If Your Marriage Falls Apart Before You Remove Conditions on Your Green Card?
October 24, 2025
Conditional Green Card
As an immigration lawyer with experience assisting recent immigrants, I understand how stressful it can be when a marriage ends, and you hold a conditional green card based on that marriage. If you received your green card through marriage to a U.S. citizen or lawful permanent resident and your marriage is less than two years old at the time your status was granted, you hold a conditional green card. Under U.S. immigration law you must take steps to convert it into a “10-year” permanent resident card — that step is filing Form I‑751, Petition to Remove Conditions on Residence, within the proper time-window.
But what happens if your marriage falls apart before you file that petition (or while it’s pending)? Let’s break it down clearly, so you know your rights, your options, and most importantly what you should do now.
1. Why you received a conditional green card
When the marriage to the U.S. citizen or lawful permanent resident was less than two years old at the time your green card was approved, the U.S. Citizenship and Immigration Services (USCIS) grants conditional permanent resident status. This is a 2-year card which requires removal of conditions.
That conditional status exists to prevent fraudulent marriages entered into purely for immigration benefits. Once the two-year anniversary of your conditional residency date approaches, you must file Form I-751 in the 90-day window prior to expiration.
2. What happens if the marriage ends before you file, or while you file
If your marriage ends — because of separation, divorce, or annulment — before you file your I-751 (or while the I-751 is pending), you do not automatically lose your green card. But the process is more complicated. Several things matter: your timing, your proof that the marriage was entered into in good faith, the stage of divorce, whether abuse was involved, and whether your spouse will cooperate. Legal sources confirm: yes, you can file for removal of conditions via a waiver of the joint filing requirement, if you no longer can file jointly because your marriage ended.
Key facts:
If you are still married and able to file jointly with your spouse: you file I-751 together.
If the marriage ended (divorce/annulment), you may file on your own and request a waiver of the joint filing requirement (because of divorce). If the marriage ended because of abuse (domestic violence), you may also file on your own under the “good faith marriage but abuse” waiver.
If your spouse died, there is a separate waiver path.
If you miss the 90-day window and did not file, you face serious risk of denial. But this rule applies for jointly filed petitions only.
3. The burden on you when filing after divorce or separation
When you file alone because your marriage ended, USCIS will look especially carefully at whether your marriage was genuine (entered into in good faith), and whether your petition is timely. Some of the major risks and issues:
You must still show that at the time you obtained conditional status your marriage was real — even though it later ended. The fact of the divorce raises scrutiny. USCIS will expect you to provide the final divorce decree or annulment if the divorce is already final. If divorce is not yet final, a request for evidence (RFE) may ask for that as soon as it is final.
You must still file in the proper window, unless you are filing a waiver early (in some cases you can file before the 90-day window if you qualify for a waiver). Because the spouse is no longer cooperating (or is divorced), you cannot rely on the joint filing; you must file under the appropriate waiver box and supply evidence such as joint financial records, shared residence, affidavits of friends/family, etc, showing the bona fide nature of the marriage.
If your divorce is not yet final, USCIS may issue a Request for Evidence (RFE) asking for the final divorce decree later. It’s important to respond on time and to explain your situation clearly.
4. What You Should Do Immediately If Your Marriage Is Ending
Here are practical steps to protect your green card and avoid losing your status:
Identify your filing window. Check the “Resident Since” date on your green card and calculate the 90-day filing window before the card expires. Missing this deadline can lead to serious problems.
Collect evidence early. Even though the relationship ended, gather as much documentation as possible showing the marriage was genuine. Evidence from the time you lived together is most persuasive.
Get your divorce finalized (if applicable). If your divorce is still pending, consider expediting it. USCIS generally requires a final divorce decree for the waiver filing.
File under the correct waiver basis. Choose the waiver reason that applies best — divorce, abuse, or extreme hardship. This determines the type of documentation and legal arguments you’ll use.
File on time and correctly. Send the current version of Form I-751 with the correct fee, your detailed explanation, and supporting evidence. Keep copies of everything for your records.
Keep your receipt notice safe. Once USCIS receives your petition, it issues a receipt extending your green card status — usually by 48 months — while the case is pending.
Stay proactive. If USCIS asks for more documents, respond quickly. If an interview is scheduled, be prepared to explain your marriage and the reasons it ended.
Consult an immigration lawyer. A qualified attorney can help you prepare a strong waiver filing, organize your evidence, and avoid costly errors.
5. What to Expect After Filing
If approved: You’ll receive a 10-year green card. Your conditions are permanently removed, and you remain a lawful permanent resident.
If denied: USCIS may refer your case to immigration court. You will still have a chance to present your case before an immigration judge, but this process can be lengthy and stressful. A well-prepared initial filing reduces that risk.
If interviewed: Many waiver cases require an in-person interview. Be honest and clear about your relationship history, why it ended, and your life together before separation. Bring original documents and organized copies.
6. Common Questions
Q: Does divorce automatically cancel my conditional green card? A: No. Your green card does not automatically disappear after divorce. You must, however, file a waiver-based I-751 to keep your status valid.
Q: Can I file before my 90-day window if I’m already divorced? A: Yes. Waiver-based petitions can be filed at any time after you become a conditional resident — even before the 90-day window opens.
Q: What if my spouse refuses to sign or help? A: You can still file independently using a waiver. The joint signature is not required once the marriage ends.
Q: Can I travel while my I-751 is pending? A: Generally yes, but carry your expired green card and your receipt notice, which extends your lawful status. If your case is complicated, consult your attorney before traveling.
7. How to Strengthen a Divorce-Based I-751 Waiver Case
Write a detailed personal statement describing how you met, lived together, and why the relationship ended.
Include third-party affidavits from people who personally knew you as a married couple.
Organize documents chronologically to make it easy for USCIS to follow your story.
Submit clear copies and translations of all foreign documents.
Keep USCIS informed of your address changes within 10 days of moving.
8. Why Legal Guidance Matters
Filing I-751 after a marriage ends involves both immigration law and family law issues. A divorce decree must meet USCIS requirements, and your waiver statement must align with immigration definitions of a “good-faith marriage.” Errors or missing evidence can lead to denial and removal proceedings.
An experienced immigration lawyer can:
Analyze your eligibility for each waiver option.
Help you organize evidence to show your marriage was genuine.
Draft a persuasive legal argument and affidavit.
Represent you in case of interview or court referral.
9. Final Thoughts
Divorce can feel like the end of everything, especially when your immigration status depends on your marriage. But U.S. law recognizes that genuine relationships sometimes fail — and you can still keep your green card if you handle the process properly.
The most important steps are:
Act quickly,
File the correct form,
Provide strong evidence, and
Seek professional legal help when needed.
With careful preparation and good legal guidance, you can protect your residency and stay on track toward U.S. citizenship.
Contact Information
If your marriage has ended and you’re unsure how to remove conditions from your green card, I can help.
Alena Shautsova, Esq. New York Immigration Lawyer Phone: 917-885-2261 Website: www.shautsova.com
I’ve helped hundreds of clients successfully navigate I-751 divorce waiver cases and keep their lawful status. Schedule a consultation today to discuss your next steps and secure your future in the United States.
If you are
not a US citizen yet, you most likely have certain anxiety attached to possible
international travel: you may be worried about being allowed to enter the US
upon return, or if you can even qualify for travel documents, or if you will be
able to return to the US after a prolonged stay abroad.
These are
all common questions asked by both green card holders and those for whom the
laws of the US allow to apply for a travel permit while they are in the process
of receiving a status. For example, people granted asylum or a refugee status
in the US can travel abroad only using an asylee/refugee travel document;
persons in TPS status, adjustment of status pending, T status, or DACA may
request advance parole which will allow them to return upon temporary travel
abroad; persons with green cards who may stay abroad for longer than 6 months
would want to file for a re-entry permit to avoid issues at the border.
Almost
all travel documents such as advance parole, re-entry permit, and
refugee/asylee travel documents are filed for using form I 131 found at www.usics.gov.
It is the same form that is used by different applicants for different
purposes. The filing fee for the form will depend on the purpose or the type of
travel authorization one is requesting. For example, today, for an advance
parole one will have to pay $575, for a refugee travel document most applicants
will pay $220, and for a re-entry permit: $660.
Typically,
form I 131 is filed with USCIS by mail, and processing times vary upon the type
of the document requested, and vary from 3.5 months to 6-9 months. But what if
your need to travel is quite urgent and you cannot wait for such a long time?
Then, depending on the type of document you request and the circumstances, you
may request that USCIS expedite the issuance of travel documents.
There are
two ways one can go about it. If your application with USCIS had been
filed already, and the travel needs from less urgent turned into very urgent,
you can submit and expedite the request with USCIS asking to process the
already filed application. Your request will have to comply with the expedited
guidelines that can be found here: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request.
You will
have to demonstrate that failure to process the document fast will result in:
· Severe financial loss to a company or person, provided that the
need for urgent action is not the result of the petitioner’s or applicant’s
failure to:
o Timely file the benefit request, or
o Timely respond to any requests for additional evidence;
Emergencies and urgent humanitarian reasons;
Nonprofit organization (as designated by the
Internal Revenue Service) whose request is in furtherance of the cultural
or social interests of the United States;
U.S. government interests (such cases
identified as urgent by federal agencies such as the U.S. Department of
Defense, U.S. Department of Labor, National Labor Relations Board, Equal
Opportunity Commission, U.S. Department of Justice, U.S. Department of
State, U.S. Department of Homeland Security, or other public safety or
national security interests); or
Clear USCIS error.
If USCIS
agrees with you, your document will be issued pretty quickly, but still, it
will take about 30 days to get processed!
But, there
is a different way as well. What if the need to travel appeared within the past
48 hours due to some sort of emergency? Then (and it is true, especially for
advance paroles), you may request that your travel document be issued to you in
person at a local USCIS field office. For that, you first have to request an
appointment at a local USCIS field office either by calling USCIS customer
service number or using the online scheduling tool: https://my.uscis.gov/en/appointment/v2.
If your request for the appointment is confirmed, you will have to appear at
the local USCIS office with your filing fee, filled out form I 131, proof
of emergency, a copy of your ID, passport, and 2 passport-style photos, as well
as proof of your eligibility to seek advance parole (a copy of receipt for
pending I 485 form, affirmative asylum, or having a DACA or TPS status for
example). A local USCIS officer will decide if your request warrants merit, and
if agrees with you, you will receive advance parole on that very day.
IMMIGRANTS NUMBERING THOUSANDS CAN BE DETAINED INDEFINITELY ACCORDING TO THE SUPREME COURT’S RULINGS
June 22, 2022
IMMIGRANTS NUMBERING THOUSANDS CAN BE DETAINED INDEFINITELY ACCORDING TO THE SUPREME COURT’S RULINGS
As
the issue of immigration in the U.S. seems to be a never-ending rigmarole
subject, new developments are expected at every turn. Most recently, the Supreme
Court ruled that immigrants detained in the United States are not entitled to a
bond hearing in certain situations. This ruling means that the thousands of
immigrants currently held in detention facilities with open immigration cases
can remain in detention indefinitely! It does not apply to all immigrants, but
rather to those who already have orders of removal, but cannot depart or have additional
hearings that must be conducted.
In
addition to the Supreme Court’s ruling, the high court also ruled that federal
courts do not possess the legal authority to grant class-wide relief to
immigrants held in detention. This means that, if detainees want to petition
their right to a bond hearing in the future, they can only present their cases
individually. This is coupled with the fact that immigrants are not allowed to
have legal representation during immigration proceedings.
The
ruling of the Supreme Court seems to maintain the existing state of affairs as
it concerns the issue of immigration. Many immigrants are currently detained in
facilities that are more like prisons. Many immigrants have not been charged
with any crime but do not possess the right to a hearing to justify their
detention. Some of the immigrants are held in facilities belonging to
for-profit corporations such as Geo Group and a host of others. The Court
ruling also maintains that immigrants can’t have a bond hearing unless the U.S.
government says so. This means that the U.S. government has the discretionary
right to decide the fate of detainees. In other words, it will be up to DHS/ICE
if the person is released from the detention or not, and if ICE/DHS does not
want to release the person, they can keep them there technically, forever.
These
rulings dashes the hopes of immigrants
who have been held long enough in detention. The cases which are Johnson v.
Arteaga-Martinez and Garland v. Aleman Gonzalez were brought to
court by undocumented immigrants who contested they are being held in detention
centers for far too long. Their argument was focused on the fact that
immigrants who have been held in detention for up to six months or more should
be entitled to an individualized bond hearing where the U.S. government has to
prove the need for their continued detention.
The
immigrants sued the U.S. government while leveraging on a 1996 immigration
statute which states that an unauthorized immigrant “may” remain in
detention for an extended period if they fail to meet certain criteria. The
immigrants argued that since the statute uses “may be detained”
instead of “shall be detained,” the right of discretion rests with
the judges, hence entitling them to a hearing. The case was further appealed to
the Supreme Court where representatives of the Biden administration argued that
the law permits the Attorney General of the United States to indefinitely
detain illegal immigrants while their cases are undergoing litigation.
Before
the Supreme Court’s ruling, the Ninth Circuit Court of Appeals ruled in 2020
that detainees are entitled to a bond hearing. Since the Garland case was
presented as a class-action lawsuit, the Ninth Circuit Court of Appeals granted
a class-wide relief, thereby extending the right to a bond hearing to every
person named in the suit.
However,
the Supreme Court countered this ruling declaring that detainees are not
entitled to such a bond hearing, hence a class-wide relief can’t be granted on
that basis. Therefore anybody who wishes to exercise their right to a bond
hearing in whatever form has to do it individually.
Certain
observers feel that it is a bit unfair not to grant unauthorized immigrants the
right to legal representation, whereas criminals in the U.S. are allowed legal
representation. “Especially since their only offense is that they are in
search of greener pastures,” according to an observer. Leah Litman, a
professor at the University of Michigan Law School filed a brief in support of
Gonzalez. She holds the opinion that the decision of the Supreme Court is
completely unworkable and unrealistic. Furthermore, she asserted, “It makes it
impossible to ensure that everyone who is potentially entitled to a bond
hearing will get one.”
Aside
from being denied a desired fair hearing, immigrants and advocates have since
raised an alarm concerning the manner of treatment meted out to immigrants at
the detention centers. Several facilities have been accused of abusing
detainees. The Irwin County Detention Centre was shut down alongside another in
May 2021. A gynecologist was accused of carrying out forced sterilization on
the detained women at the Irwin Center.
Matt
Adams, the legal director of the Northwest Immigrant Rights Project who argued
the Garland case opines that the decision of the Court raises ethical
questions. This is a result of the fact that the ruling contradicts the
fundamental principles upon which the U.S system is founded- “that
government officials may not lock up a person without at least providing them
their day in court to contest whether their confinement is justified.” Although
he gives reassurance that the matter will still be pursued as it is not over
yet.
Border security, backlogged courts and the political divide over immigration
May 27, 2022
Border security, backlogged courts and the political divide over
immigration
Since the end of the fiscal year 2021, the number of people who stopped trying to cross the southwest of the United States border has not gone down. People fleeing the consequences of the failed governments in their home countries, climate change and aggressive and uncontrollable gangs. The Trump administration tried to stop the migration by proposing to build a physical barrier and involving Title 42- legal barrier to immigration. The Biden administration rejected the idea of a physical barrier, but continued with the legal barrier, trying to find solutions that would be acceptable for both democrats and republicans. It happened that the “border security” argument became the main point of discussion when both sides are trying to address the much needed immigration reform in the United States.
Undocumented non-citizens
Thousands of undocumented immigrants live in the U.S. Many entered the United States without inspection through the “border”, many overstayed their visas but initially entered “legally”. Some were ordered deported or removed on paper but have never been physically removed from the United States. The issue becomes not only an administrative law issue, but an issue of Human Rights: because of the years- long delays in the processing of the migrants’ cases, undocumented non-citizens often develop deep social and economic ties with the United States, and their physical removal can occur decades after their initial entry becomes more akin to criminal punishment in its consequences rather than administrative citation. When addressing the “security” at the border, one can successfully argue that a physical barrier, can slow down the migration to some extent, but will not and cannot resolve the problem. The problem of global migration can be resolved only through an effective processing system of the non-citizens, and creation of favorable conditions in their home countries, where the need to move and uproot your family would not exist in the first place.
These are hard goals to accomplish, as they require talent, resources,
effective management, and dedication. One would have to carefully balance the
due process rights of non-citizens, human rights laws, and government interests
in establishing procedures that would be effective and fair. We can all remember draconian measures of Trump
administration where children, sometimes, only months-old young, were separated
at the border from their parents, many of those children were never united with
their parents ever again. https://www.nytimes.com/2020/10/21/us/migrant-children-separated.html.
At the same time, Biden’s administration’s
policy to allow non-citizens to entered the United States and then wait for
months for their Notices to appear in court, also is not a good solution: the
persons were placed in a limbo status where the document that has to initiate the
court proceedings against them in a court would not be filed with the court for
months and months, preventing persons to present their cases and obtain relief for
those who qualify. It seems such a
policy was installed to allow the courts to artificially reduce the amount of
pending cases, reporting a smaller backlog… But it is obvious that without hiring more Immigration
judges, border security personnel, and asylum officers, the backlog will not
and cannot be eliminated. Cases of non-citizens require human review, they
cannot be rubber-stamped by a computer, and human review requires humans, it
means MORE personnel. The questions become ones of resources rather than morals.
Why There is No Immigration Reform?
Many can remember promises Biden made during the elections… the US Citizenship Act of 2021 sounded too good to be true… and of course, it never, to date materialized. But why? The obvious answer would be that the parties cannot agree on the terms of the proposals. But if you read the proposals from both sides, at times, they are not so different. So, what is really in the way of passing Immigration reform? Some say it is an issue of border security… However, it is obvious that the “border security” is only one side of the many-sided shape of the Immigrant land shaft we are dealing with. What about people who have been in the United States for decades and paid taxes, and do not have any criminal convictions. Still, even for those people, who are essential workers, TPS holders, seasonal farmers or DACA holders still, there is no relief…. At the time, the Congress can approve in a matter of hours spending bills and surpass any relief necessary to let’s say small businesses in the United States. The logical answer to this question is that neither side wants to pass a bill that would solve an immigration issue in the United States. Perhaps, some believe that administrative violators should not be awarded, some cite economic consequences and labor market collapse in case migrants who are already in the United States, are employed and will receive an official authorization to work and pay taxes… (does not make any sense, but the argument still pops up). Perhaps, the true reason would be that the situation is comfortable for those who have never felt the burden of being a reject, a “half” citizen, who works for people with voting rights and serves them well, but those with the power to change their fellow-non-documented residents fate are reluctant to do so in fear of losing some advantages…
So if this is the true answer, do you believe that a true,
comprehensive reform is ever possible? What has to change for it to happen? The
author believes that it is possible, but only when the need for it will outweigh
the benefits of non-action. Without advocacy, true dedication to reform the
society, implement innovations, and spend money on internal issues, the
Immigration reform will not happen. Underfunded courts cannot be effective. USCIS,
Asylum and border security personnel need salaries and training. Perhaps, the
root of the issues lies in the constant ignoring of needs in the administrative
sector on a Federal and local level.
USCIS Processing Times, Immigration Court Updates and More!
January 18, 2022
NYC Immigration Lawyer Alena Shautsova shares the most recent updates regarding USCIS real processing times for I 765, I 485, N 400 and I 601A; discusses the most recent Immigration news and practices.
Immigration News Updates: Immigration Reform Plan C?
On July 27, 2021 Biden Administration published Immigration Blueprint or a comprehensive plan that includes steps to reform the United States Immigration System. The plan addresses the most troublesome areas of the US Immigration including border security and asylum, Immigration court and access to representation in immigration proceedings, visa backlog, and more. The published Blueprint can be accessed at www.whitehouse.gov.
In this video I share my thoughts on the Blueprint, and provide more explanations on the issue:
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