Friday, September 4, 2009

Pushing the Immigration Envelope

I have had back to back days involving some very interesting immigration issues. On Wednesday I was fighting tooth and nail to attempt to save the Green Card of a Citizen of Greece, and yesterday I was tied up with the Newark asylum office that was conducting a credible fear interview on behalf of my client, a citizen of Togo who has been brutally tortured by the Togolese government on account of the expression of his political opinion.

In my case on Wednesday I was wrestling with the issue of whether cancellation of removal as a lawful permanent resident under INA §240A(a) may be utilized to overcome a charge of abandonment of lawful permanent residency so long as the other qualifying factors have been satisfied.

I have been researching the issue, and have yet to find any precedent to support my position that it is available to returning lawful permanent residents who have been charged with abandonment.

To complicate matters, my client has two convictions dating back to the 1980s which render him inadmissible, and which preclude him from applying for cancellation of removal under INA §240A(a), but that do not preclude him from applying for suspension of deportation under former INA § 212(c).

I am attempting to argue that my client remains eligible for both INA §§ 240A(a) and 212(c) because of the Board of Immigration Appeals' ruling in In re Stowers, 22 I&N Dec. 605 (BIA 1999), which states that an alien’s lawful permanent resident status does not cease until the entry of a final administrative order of removal.

My theory is that because my client has a Green Card he should be allowed to apply for forms of relief that require as an essential element the possession of lawful permanent residency so long as he is otherwise eligible unless and until there is a final administrative order of removal stripping him of his lawful permanent residency. This issue is being made for preservation on appeal, because the Immigration Judge I am before will never agree with me.

In my case yesterday, my client fled his native country in the 1980s after being kidnapped, and brutally tortured. He eventually made it to the United States and applied for asylum. His application was referred to an Immigration Judge, but unfortunately my client misread the hearing notice and did not appear as required for his immigration court hearing.

As a result, he pursued a refugee claim in Canada which was ultimately denied, and he was returned to the United States by Canadian immigration on the basis that he was unable to obtain proof that he did not receive lawful status in a third country prior to applying for protection in Canada.

In another cruel twist of fate this proof was obtained shortly after he was removed from Canada. I am hopeful that the third time is a charm, and will keep you posted.

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