The charging document and pleading to it, custody and bond, cancellation of removal and the hardship it demands, the stop-time rule, adjustment raised as a defense, how a criminal conviction is compared against a federal definition, waivers, continuances and administrative closure, motions to reopen and reconsider, and the evidence an immigration judge will take.
There is no formal admissibility test for expert testimony in immigration court, so the judge decides qualification and weight in the same breath. The written report filed before the hearing does most of the work: it establishes qualifications, states the materials reviewed, sets out the methodology and connects the opinion to the individual applicant. Filing deadlines are enforced, and an expert not listed by the deadline may not be heard.
Cancellation of removal for a non-permanent resident requires exceptional and extremely unusual hardship to a citizen or permanent resident spouse, parent or child. The list of qualifying relatives is closed, hardship to the applicant does not count, and the standard demands hardship substantially beyond what ordinarily follows from removal. The record must address both the relative staying behind and the relative leaving, because the judge considers each possibility.
A motion to reopen based on ineffective assistance is expected to include a detailed affidavit setting out what was agreed with the former representative and what was represented, evidence that the former representative was informed of the allegations and given an opportunity to respond, and a statement whether a disciplinary complaint has been filed and if not why not. Prejudice must also be shown, and the ordinary ninety-day limit still applies.
Hearings other than exclusion hearings are open to the public, subject to the judge's authority to limit attendance or close proceedings to protect witnesses, parties or the public interest. Proceedings concerning an abused spouse or child are closed, in the spouse's case unless that person agrees otherwise. A separate confidentiality rule bars disclosure of information contained in or pertaining to an asylum application without the applicant's written consent.
Cancellation of removal for a permanent resident requires five years of permanent residence, seven years of continuous residence after admission in any status, and no conviction of an aggravated felony. The non-resident version requires ten years of physical presence, good moral character, the absence of listed convictions, and exceptional and extremely unusual hardship to a qualifying relative. Neither version is available to several listed categories, and both are discretionary.
For immigration purposes a conviction exists where a court entered a formal judgment of guilt, or where adjudication was withheld but the person was found guilty, pleaded guilty or no contest, or admitted facts sufficient to warrant a finding of guilt, and a judge ordered some form of punishment, penalty or restraint on liberty. Later expungement or rehabilitative relief generally leaves that conviction intact, and a suspended sentence still counts toward a term of imprisonment.
Dismissal is available only on a government motion resting on the grounds that permit cancellation of the charging document, and it is without prejudice to either side. Termination is ordered by the judge, is mandatory where one of seven listed conditions is met, and is discretionary in a further set of situations. Administrative closure ends nothing: it suspends the case temporarily and the matter can be recalendared on a party's motion at any time.
An immigration judge deciding custody makes two distinct findings: whether release would pose a danger to persons or property, and whether the person is likely to appear at future hearings. A danger finding ends the inquiry, because no sum of money answers it. Where danger is not found, the amount is set to secure appearance, above a statutory minimum, and is driven by ties to a community, immigration history and the strength of the case for relief.
The detention statute requires custody for people charged with certain criminal and security grounds, and the regulation removes those categories, along with arriving noncitizens, from an immigration judge's redetermination authority. The only argument available before the judge is that the person is not properly included in the category. That hearing turns on whether the conviction actually matches the ground charged, not on ties, hardship or rehabilitation.
Continuous residence and continuous physical presence end at the earlier of two events: service of a notice to appear under the statute, or commission of an offense that renders the person inadmissible under the criminal ground or removable under the criminal or security grounds. The Supreme Court has held that a document omitting the time and place of the hearing is not a notice to appear for this purpose, and that a later notice supplying the missing detail does not cure the defect.
The general criminal waiver reaches the moral turpitude ground, the multiple convictions ground, prostitution, certain immunity assertions, and one marijuana possession offense. Eligibility runs through fifteen years and rehabilitation, extreme hardship to a citizen or resident relative, or self-petitioner status. Murder and torture offenses are excluded absolutely, a permanent resident faces two further bars, and a violent or dangerous crime requires an extraordinary showing.
A theft or burglary offense becomes an aggravated felony where the term of imprisonment is at least one year, counted in full even if suspended. An offense involving fraud or deceit becomes one where the loss to the victim exceeds ten thousand dollars. The loss figure is treated as a circumstance-specific fact rather than an element, so it is proved from the record by clear and convincing evidence and must be tied to the counts of conviction.
