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.
Either party may appeal a custody decision to the Board of Immigration Appeals. Where the government had ordered no release or set a bond of ten thousand dollars or more, filing a notice of intent to appeal within one business day automatically stays the judge's release order. The stay lapses if a notice of appeal is not filed within ten business days, and lapses again ninety days after that filing if the Board has not decided the appeal.
The charging document that starts a removal case sets out numbered factual allegations followed by one or more charges of inadmissibility or deportability. The facts must support the charge; the charge decides who carries the burden of proof and what relief remains available. Admitting an allegation removes it from dispute permanently, and the government may lodge additional or substituted charges in writing at any point during the case.
There is no time limit on a motion to reopen where the basis is to apply for asylum or withholding of removal and the motion rests on changed country conditions in the country of nationality or the country to which removal was ordered, provided the evidence is material and was not available and would not have been discovered or presented at the previous proceeding. A change in the applicant's own circumstances does not by itself satisfy the exception.
A conviction vacated because of a procedural or substantive defect in the underlying criminal proceedings no longer exists for immigration purposes. A conviction vacated for rehabilitative reasons, hardship, or to relieve immigration consequences remains fully effective. The person carries the burden of establishing the basis on which the state court acted, which makes the language of the vacatur order decisive, and the same test has been extended to sentence modifications.
Cancellation of removal for a non-permanent resident requires ten years of continuous physical presence immediately preceding the application. Presence is broken by any single departure exceeding ninety days or by departures totaling more than one hundred eighty days. A qualifying period of military service removes the requirement entirely. The applicant carries the burden of proving presence, and the proof is documentary rather than testimonial.
An immigration judge may grant a continuance for good cause shown, subject to a rule that asylum adjudication should not exceed one hundred eighty days absent exceptional circumstances. Where a case is waiting on another agency, the primary considerations are the likelihood the collateral relief will be granted and whether it would materially affect the outcome. Diligence, the government's position, the length sought and the number of prior requests are weighed alongside.
A conviction under any law relating to a controlled substance as federally defined makes a person deportable, with a single exception for one offense involving possession for personal use of thirty grams or less of marijuana. The parallel inadmissibility ground carries no such exception and reaches admitted conduct without a conviction. The most productive argument is usually that the state schedule reaches a substance the federal schedules do not.
Certain categories are referred to an immigration judge on a notice of referral rather than a charging document, and the hearing that follows is limited to protection. In asylum-only proceedings the question is asylum, withholding and torture protection; in withholding-only proceedings, which follow a reinstated or administrative order, asylum is unavailable. The parties are expressly barred from raising admissibility, deportability, waivers or any other relief.
Venue lies at the court where jurisdiction vested when the charging document was filed. A judge may change venue only for good cause, only on a party's motion, only after the other side has had notice and an opportunity to respond, and only where a fixed street address is identified. Custody applications follow the place of detention, so a facility transfer can separate the custody forum from the merits forum, and can change the governing circuit precedent.
Immigration grounds that turn on a conviction are applied by comparing the elements of the offense of conviction against a generic federal definition. The comparison assumes the conviction rested on the least of the acts the statute criminalizes. Where the statute of conviction is broader than the definition, no conviction under it qualifies, whatever the person actually did. The method is mechanical, it is not a fairness inquiry, and it cuts in both directions.
A statute is divisible when its listed alternatives are elements creating separate offenses, and indivisible when they are merely alternative means. Only a divisible statute permits a judge to consult the record of conviction, and only a short list of documents may be opened: the charging paper, a written plea agreement, the plea colloquy transcript and comparable jury materials. Who loses when that record is inconclusive depends on which side carries the burden.
A person detained by the immigration authorities may ask an immigration judge to redetermine custody. The request goes to the court with jurisdiction over the place of detention, may be made orally or in writing, and is decided in a proceeding kept entirely separate from the removal hearing. The judge may rely on any information presented. After one redetermination, a further request must be written and must show that circumstances have changed materially.
